Real Property (MBE) Long Outline

REAL PROPERTY MASTER TREATISE OUTLINE (MBE)

Real Property is widely regarded as the most technical subject on the MBE, and it rewards candidates who have memorized precise black-letter rules rather than those relying on intuition. The examiners draw roughly one quarter of Real Property questions from ownership (estates, future interests, and the Rule Against Perpetuities), one quarter from rights in land (easements, covenants, and servitudes), one quarter from contracts and deeds (the land-sale transaction, recording acts), and the remainder from mortgages, landlord-tenant, and miscellaneous doctrines such as adverse possession, water rights, and support. This outline states the common-law rule first, then flags every majority/minority and common-law/modern split, because the MBE routinely tests both versions and tells you in the call of the question (or by the statute quoted) which one governs. Work through this outline slowly, then drill with the companion one-page cheat sheet until classification of any granted interest is automatic.

I. PRESENT POSSESSORY ESTATES

A. Fee Simple Absolute

Rule: The fee simple absolute is the largest estate known to law: it is of potentially infinite duration, freely devisable, descendible, and alienable, and it carries no accompanying future interest. At common law, the words "and his heirs" were required words of limitation to create a fee simple; a grant "to A" alone gave A only a life estate. Modern majority rule: a grant "to A" is presumed to convey the grantor's entire interest — a fee simple — unless a contrary intent clearly appears. The MBE almost always applies the modern presumption unless the question says "at common law."

Remember that a living person has no heirs — only heirs apparent. Thus, in "to A and his heirs," A's prospective heirs take nothing; A alone owns the fee. MBE TIP: When a question asks what interest "B, A's only child," has while A is alive under a grant "to A and his heirs," the answer is nothing — a mere expectancy is not a property interest and is not transferable (though a purported transfer of an expectancy for consideration may be enforced in equity as a contract once the expectancy ripens).

B. Defeasible Fees

A defeasible fee is a fee simple that may terminate upon the happening of a stated event. There are three, and the MBE tests the distinctions between them relentlessly.

1. Fee Simple Determinable. Rule: A fee simple determinable is created by durational language — "so long as," "while," "during," "until" — and terminates automatically upon occurrence of the stated event, with possession reverting at once to the grantor. The grantor's accompanying future interest is the possibility of reverter, which arises automatically in the grantor whether or not expressly retained. EXAMPLE: "To the School Board so long as the land is used for school purposes." The moment school use ceases, title automatically revests in the grantor (or the grantor's successors) — no entry or lawsuit required, and the statute of limitations for adverse possession against the former owner of the fee begins to run immediately if the holder remains in possession.

2. Fee Simple Subject to Condition Subsequent. Rule: A fee simple subject to condition subsequent is created by conditional language — "but if," "provided that," "on condition that," "however, if" — coupled with an express reservation of the grantor's right to reenter and retake the premises. The estate does not end automatically; it continues until the grantor (or successor) affirmatively exercises the right of entry (also called the power of termination). EXAMPLE: "To A, but if liquor is ever sold on the premises, grantor may reenter and retake the land." If liquor is sold, A's fee continues until the grantor elects to terminate. Because termination is optional, the limitations period for ejectment generally does not begin until the right of entry is exercised (though some modern courts start it at breach or apply laches).

3. Fee Simple Subject to Executory Limitation. Rule: When a defeasible fee is followed by a future interest in a third party rather than the grantor, the estate is a fee simple subject to executory limitation, and the third party's interest is an executory interest. Forfeiture is automatic upon breach, as with the determinable fee. EXAMPLE: "To A, but if the land is used for commercial purposes, then to B." B holds a shifting executory interest; A's fee ends automatically on commercial use. Beware: such executory interests are the classic victims of the Rule Against Perpetuities (Section III).

4. Construction rules. Courts disfavor forfeiture. Ambiguous language is construed against finding a defeasible fee: words of mere motive, purpose, or desire ("to A for the purpose of building a school," "to A with the hope that she farm the land") create a fee simple absolute, not a defeasible fee. If language is genuinely ambiguous between determinable and condition subsequent, courts prefer the condition subsequent (no automatic forfeiture). Absolute restraints on alienation of a fee are void: "to A, but if A ever attempts to sell, then to B" — the restraint is struck and A has a fee simple absolute. Partial (reasonable) restraints — e.g., a right of first refusal at market price, or restraints for a limited time — are generally valid. Restraints on a life estate are more readily upheld (forfeiture and promissory restraints valid; disabling restraints void).

MBE TIP: Match the magic words. Durational words = determinable = possibility of reverter = automatic. Conditional words plus reentry clause = condition subsequent = right of entry = optional. Future interest in a transferee = executory limitation = automatic. The wrong-answer choices nearly always pair the correct estate with the wrong future interest, or vice versa.

C. Life Estate

Rule: A life estate is an estate measured by the life of a human being — usually the tenant's own life ("to A for life"), but it may be measured by another's life (a life estate pur autre vie: "to A for the life of B"). A life estate pur autre vie also results when a life tenant conveys her estate to another: the transferee holds for the original measuring life. If the holder of an estate pur autre vie dies before the measuring life ends, the estate passes through the holder's estate (to devisees or heirs) until the measuring life dies.

A life estate is alienable inter vivos but not devisable or descendible (except pur autre vie remnants). Defeasible life estates are possible ("to A for life, but if A remarries, to B"). A life tenant is entitled to all ordinary uses and profits of the land, including rents and ordinary income, but must not commit waste.

D. Fee Tail

Rule: The fee tail, created by "to A and the heirs of his body," limited inheritance to lineal descendants. It is abolished in nearly all American jurisdictions; the modern majority converts attempted fee-tail language into a fee simple absolute in the grantee, destroying any remainder over (a substantial minority gives A a fee simple but preserves the gift over as an executory interest if A dies without surviving issue at death — "definite failure of issue" construction). On the MBE, unless told otherwise, treat "to A and the heirs of his body" as a fee simple in A.

E. Waste

Rule: Any holder of a present estate of limited duration (life tenant, tenant for years, mortgagor in some settings, co-tenant against co-tenants) owes a duty not to commit waste to the prejudice of those holding future or concurrent interests. There are three species:

1. Affirmative (voluntary) waste — overt destructive conduct that decreases the value of the property. The life tenant may not consume or exploit natural resources (timber, minerals, oil) except: (i) PUrior Use — exploitation was ongoing when the tenancy began (the open mines doctrine: the life tenant may continue mining already-open mines but may not open new ones); (ii) reasonable amounts needed for repair and maintenance of the land; (iii) grant — the instrument expressly permits exploitation; (iv) the land is suitable only for exploitation (e.g., a quarry).

2. Permissive waste (neglect). The life tenant must (i) make ordinary repairs (not improvements or extraordinary repairs/replacements) to the extent of income or profits derived from the land — or, if none, to the extent of the land's reasonable rental value; (ii) pay all ordinary taxes to the extent of income/profits (or rental value if owner-occupied); (iii) pay interest (not principal) on any mortgage encumbering the property — the remainderman bears principal; and (iv) pay special assessments for short-lived public improvements (long-lived improvements are apportioned with the future-interest holder). The life tenant has no duty to insure for the remainderman's benefit and is not liable for third-party tortious damage she could not prevent.

3. Ameliorative waste — alterations that increase the property's value. Common-law rule: the life tenant was liable for any material alteration of the premises, even value-enhancing ones; the remainderman was entitled to take the land in substantially the same condition. Modern rule: a life tenant may make substantial alterations or even demolish structures when changed conditions have made the property relatively worthless in its current form, provided the remaindermen do not object or the change is reasonably necessary (compare Melms v. Pabst Brewing). A tenant for years remains liable for ameliorative waste absent landlord consent.

Remedies: holders of vested future interests may sue for damages or enjoin waste; holders of contingent interests generally may obtain an injunction but not damages (damages must await vesting, or are impounded). ESSAY WRITING TIP: Whenever you spot a life estate on an essay, write a waste paragraph — identify the species of waste, allocate repair/tax/mortgage-interest burdens between life tenant and remainderman, and note the open mines doctrine if minerals are involved. Graders award these points mechanically.

II. FUTURE INTERESTS

A. Interests Retained by the Grantor

Three future interests can be retained by (or arise in) the grantor; none is ever subject to the Rule Against Perpetuities because each is treated as vested from creation.

1. Reversion. Rule: A reversion arises by operation of law whenever the grantor conveys a lesser estate than she owns without disposing of the entire remainder of her interest (e.g., O conveys "to A for life" — O has a reversion). Reversions are vested, fully transferable inter vivos, devisable, and descendible.

2. Possibility of reverter — follows a fee simple determinable; arises automatically. 3. Right of entry (power of termination) — follows a fee simple subject to condition subsequent; must be expressly reserved and exercised. Transferability split: both are descendible and (in most states) devisable. The possibility of reverter is transferable inter vivos in most jurisdictions. Common-law rule for the right of entry: it was not transferable inter vivos, and in a few states an attempted transfer even destroyed it; the modern trend permits inter vivos transfer. The MBE typically tests the common-law inalienability of the right of entry.

B. Remainders

Rule: A remainder is a future interest in a transferee that is capable of becoming possessory immediately upon the natural expiration of the preceding estate, and that does not divest (cut short) any prior interest. Remainders always follow life estates, fee tails, or terms of years — never a fee simple. A remainder cannot follow a gap, and it cannot cut a prior estate short; an interest that does either is an executory interest.

1. Indefeasibly vested remainder — held by an ascertained, living person, not subject to any condition precedent, and certain to become possessory with no possibility of divestment or diminution. EXAMPLE: "To A for life, then to B and his heirs." B's remainder is indefeasibly vested; if B predeceases A, the remainder passes through B's estate.

2. Vested remainder subject to open (subject to partial divestment) — a remainder vested in a class, at least one member of which is qualified to take, but whose share may be diminished by additional members joining the class. EXAMPLE: "To A for life, then to A's children"; A has one living child, B. B's remainder is vested subject to open.

3. Vested remainder subject to complete divestment — vested, but a condition subsequent may defeat it. EXAMPLE: "To A for life, then to B, but if B predeceases A, to C." B's remainder is vested subject to divestment by C's shifting executory interest.

4. Contingent remainder — a remainder either (i) given to an unascertained or unborn person, or (ii) subject to a condition precedent. EXAMPLE: "To A for life, then to B if B survives A" — B's remainder is contingent on survival; O retains a reversion. "To A for life, then to A's first child" where A is childless — contingent (unborn taker). "To A for life, then to B's heirs" where B is alive — contingent (heirs unascertained until B dies).

Condition precedent vs. condition subsequent — the comma rule. If conditional language appears before or within the words creating the remainder, the condition is precedent and the remainder is contingent ("then to B if B survives A"). If the remainder is given absolutely and conditional language follows in a separate clause ("then to B, but if B fails to survive A, to C"), the condition is subsequent and B's remainder is vested subject to divestment. The classification matters enormously for RAP, destructibility, and acceleration. MBE TIP: read grants word-by-word and punctuate; the examiners deliberately write paired questions differing only in clause order.

Alternative contingent remainders: "To A for life, then to B if B survives A, and if B does not survive A, to C." Both B and C hold contingent remainders on opposite conditions; O keeps a technical reversion (which matters if, at common law, both remainders are destroyed).

Transferability: Vested remainders are fully alienable, devisable, descendible. Contingent remainders and executory interests are devisable and descendible (unless survival is a condition), and under the modern majority are freely transferable inter vivos; at common law contingent interests were not assignable inter vivos (though they could be released to the holder of the present estate, and equity enforced transfers for consideration). All future interests are reachable by creditors to the extent transferable.

C. Executory Interests

Rule: An executory interest is a future interest in a transferee that takes effect by divesting another interest. A shifting executory interest divests another transferee ("to A, but if A uses the land commercially, to B"). A springing executory interest divests the grantor or fills a gap following the grantor's retained estate ("to A when A marries" — O's fee is divested upon marriage; "to A for life, then one year after A's death, to B" — B's interest springs out of O's one-year reversion). Executory interests are not "vested" until they become possessory, which is why they are the prime target of the Rule Against Perpetuities.

D. Class Gifts and the Rule of Convenience

Rule: A class gift is a gift to a group described generically ("children," "grandchildren," "issue"). A class is open if others can still join (more children can be born) and closed when no new members can join. Under the rule of convenience — a rule of construction yielding to contrary intent — a class closes when any member is entitled to demand possession or distribution. EXAMPLE: "To A for life, then to B's children." The class closes at A's death if any child of B is then alive; B's children born after A's death are excluded (a child of B in gestation at the closing — later born alive — is included, under the common-law rebuttable presumption treating a child in womb as in being). If no child of B exists at A's death, the class stays open until B's death. For an immediate gift ("to B's children" in a will), the class closes at the testator's death if any child is then alive; if none, it stays open for all of B's children.

Survival: Absent contrary language, a future interest holder need not survive to the time of possession (no implied condition of survivorship), except gifts to a class described as "heirs," "issue," "next of kin," or gifts with express survivorship conditions. A deceased class member's vested share passes through his estate. But under most anti-lapse statutes (wills questions), a predeceasing devisee's gift may pass to his issue.

E. The Three Old Destructibility Doctrines

1. Destructibility of contingent remainders. Common-law rule: a contingent remainder was destroyed if it had not vested at or before the termination of the preceding freehold estate. EXAMPLE: "To A for life, then to B if B reaches 21"; A dies when B is 17 — at common law B's remainder is destroyed and O's reversion becomes possessory in fee. Destruction also occurred by merger: if the life estate and the next vested estate (e.g., O's reversion) came into the same hands, intervening contingent remainders were squeezed out (except where the life estate and remainder were created simultaneously in the same person). Modern rule (nearly all states): destructibility is abolished; B's interest survives as a springing executory interest (O holds in fee subject to it), and B takes if and when the contingency occurs (subject to RAP).

2. Rule in Shelley's Case. Common-law rule: if one instrument created a life estate in A and a remainder in A's heirs (or the heirs of A's body), and both estates were of the same quality (both legal or both equitable), the remainder belonged to A; then, by merger, A took a fee simple. The rule was a rule of law, applying despite contrary intent. Modern rule: abolished in the vast majority of states — A gets a life estate, A's heirs (unascertained while A lives) have a contingent remainder, and O has a reversion.

3. Doctrine of Worthier Title. Rule: Where an inter vivos conveyance attempts to create a future interest in the grantor's own heirs ("O to A for life, then to O's heirs"), the gift to O's heirs is void and O retains a reversion. Unlike Shelley, DOWT survives in many states as a rule of construction only — a presumption rebutted by clear contrary intent. It does not apply to devises. MBE TIP: Shelley = grantee's heirs, rule of law, abolished; Worthier Title = grantor's heirs, rule of construction, still kicking in many states.

ESSAY WRITING TIP: Classify every interest in strict left-to-right order, naming each present estate and each future interest with its full label ("vested remainder subject to complete divestment"), then state who holds the reversion if the granted interests fail. Only after classification should you apply RAP. Examiners grade classification line-by-line.

III. THE RULE AGAINST PERPETUITIES

A. Statement and Mechanics of the Rule

Rule: "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." The common-law RAP is a rule of logical proof applied at the moment of creation (delivery of a deed; death of the testator for a will; for interests subject to a power of revocation, when the power lapses). If there exists any conceivable chain of events, however improbable, under which the interest could vest (or fail to vest) more than 21 years after the death of everyone alive at creation, the interest is void ab initio — struck from the instrument, with the remaining language read as if the offending interest were never written.

Interests subject to RAP: contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase and rights of first refusal (in gross), and powers of appointment. Interests exempt: all interests retained by the grantor (reversion, possibility of reverter, right of entry), indefeasibly vested remainders and vested remainders subject to complete divestment, present possessory estates, and charity-to-charity gifts.

Validating (measuring) life analysis: A validating life is a person alive at creation by whose life the vesting question will necessarily be resolved within that life plus 21 years. The candidates are persons connected to vesting: the preceding life tenant, the taker(s), persons who can affect the condition, or parents of potential class members. Technique: (1) identify the contingent interest; (2) ask what must happen for it to vest; (3) search for a person alive at creation such that vesting or failure is certain within 21 years of that person's death; (4) if none exists, the interest is void. Always test by the "what if everyone now alive dies tomorrow after a new relevant person is born" hypothetical.

EXAMPLE: "To A for life, then to A's first child to reach 25," A childless. Void: A could have a child after the conveyance (a person not in being at creation), everyone alive could die, and the afterborn child could reach 25 more than 21 years later. Contrast "first child to reach 21" — valid, with A as the validating life (any child of A must reach 21, if at all, within 21 years — plus gestation — of A's death).

B. The Classic Traps

1. The fertile octogenarian. Rule: At common law, every living person — regardless of age, sex, or medical condition — is conclusively presumed capable of having children. EXAMPLE: "To A for life, then to A's children for their lives, then to A's grandchildren." A is 85 with two adult children. Void as to the grandchildren: A is conclusively presumed able to bear another child (not a life in being), who could in turn have a child (grandchild vesting) beyond all lives in being plus 21 years. Some modern statutes presume women over a stated age (and under a stated age) incapable of bearing children and admit evidence of infertility; adoption can also defeat the statutory fix — but on the MBE apply the conclusive presumption unless told otherwise.

2. The unborn widow. EXAMPLE: "To A for life, then to A's widow for life, then to A's issue then living." The remainder to issue is void: A's "widow" is not ascertained until A dies, and she could be a person born after the conveyance (A could marry someone not yet born at creation) who survives A by more than 21 years; the issue "then living" cannot vest until her death. The gift to the widow herself is fine (she is ascertained at A's death, within A's life).

3. The slothful executor (administrative contingency). EXAMPLE: "To my issue surviving when my estate is finally settled" or "to A when my executor sells Blackacre." Void at common law: probate or sale might conceivably take more than 21 years beyond all lives in being. Courts following the majority strict view strike the gift; some courts imply a "reasonable time" to save it.

4. Class gifts — the all-or-nothing rule. Rule: A class gift is not "vested" for RAP purposes until the class has closed and every condition precedent for every member has been satisfied. If the interest of any potential class member could vest too remotely, the entire class gift fails — "bad as to one, bad as to all." EXAMPLE: "To A for life, then to A's children who reach 25." Even if A has a 26-year-old child at creation (whose interest looks vested), the gift is wholly void at common law because an afterborn child could reach 25 too remotely. The rule of convenience can rescue a class gift by closing the class early: if a class member is entitled to demand possession at the testator's death or the life tenant's death, afterborn members are excluded and the gift may be saved. Two true exceptions to all-or-nothing: gifts of a fixed sum per capita to each class member, and gifts to sub-classes tested separately ("to A's children for life, then on the death of each child, that child's share to that child's issue").

5. Charity-to-charity. Rule: A gift over from one charity to another charity is exempt from RAP ("to City Library, but if the premises cease to be used as a library, to Red Cross" — valid). But a shift from a private holder to a charity, or charity to private person, gets no exemption ("to Church, but if not used for church purposes, to B and his heirs" — B's executory interest is void; strike it, and the Church takes — here a fee simple absolute under the majority approach where the stricken language leaves only words of motive, or the grantor keeps a possibility of reverter if the determinable language stands alone).

6. Options and rights of first refusal. Rule: At common law, an option in gross (held by someone other than a current lessee) to purchase land, and a right of first refusal of unlimited duration in gross, create equitable interests subject to RAP and are void if exercisable beyond lives in being plus 21 years (e.g., an option "exercisable by B, his heirs and assigns, at any time"). Exception: an option to purchase held by a current tenant, exercisable during the lease term, is exempt (it encourages improvement of the land); the exemption is lost if the option extends beyond the leasehold or is assigned separately from the lease. A right of first refusal at fair market value for a reasonable time is generally upheld; the Restatement (Third) and many modern courts test options under the rule against unreasonable restraints on alienation instead of RAP.

7. Consequences of striking. Excise only the offending interest and read what remains. "To A so long as no liquor is sold, then to B" — B's executory interest is void; the determinable language remains, so A has a fee simple determinable and O a possibility of reverter. "To A, but if liquor is ever sold, to B" — strike B's interest and the entire condition ("but if" clause), leaving A a fee simple absolute. MBE TIP: this determinable-versus-condition-subsequent striking distinction is among the most frequently tested RAP points on the exam.

C. Reform: Wait-and-See and USRAP

Rule (reform jurisdictions): Under wait-and-see, validity is judged by actual events: the interest is void only if it in fact fails to vest within the perpetuities period, not because of what might have happened. Under USRAP (Uniform Statutory Rule Against Perpetuities, adopted by roughly half the states), an interest is valid if it satisfies the common-law rule or actually vests or terminates within 90 years of creation. Many states also authorize cy pres reformation — courts may reform the instrument (e.g., reduce age 25 to 21) to approximate the grantor's intent within the period. Several states have abolished RAP for trust interests entirely. MBE TIP: apply the strict common-law rule unless the question expressly invokes wait-and-see, USRAP, or cy pres.

ESSAY WRITING TIP: For each contingent interest, write three sentences: (1) the interest is subject to RAP because it is a [contingent remainder/executory interest/class gift]; (2) the validating-life analysis or the doomsday hypothetical showing remote vesting is/is not possible; (3) the consequence of striking. Never analyze RAP before classifying the interests.

IV. CONCURRENT ESTATES

A. Joint Tenancy

Rule: A joint tenancy is co-ownership with the right of survivorship: on one joint tenant's death, her interest is extinguished and the survivors' shares grow automatically; nothing passes by will or intestacy. Creation at common law required the four unities (T-TIP): Time (interests vest at the same moment), Title (same instrument), Interest (equal, identical shares), and Possession (equal right to possess the whole). The grantor must also clearly express survivorship intent — the modern presumption favors tenancy in common, so "to A and B as joint tenants with right of survivorship" is the safe formula; "to A and B jointly" usually creates a tenancy in common. At common law, an owner could not convey to herself and another as joint tenants (no unity of time/title) and needed a strawman; the modern majority permits direct creation without a strawman.

Severance. A joint tenant may unilaterally sever, converting the severed share into a tenancy in common with the others (who remain joint tenants among themselves if more than two). Rule: (1) Inter vivos conveyance by one joint tenant severs as to that share — even a secret conveyance, even to a strawman or (in most modern states) to oneself. A contract to convey by one joint tenant severs in equity (equitable conversion). EXAMPLE: A, B, and C are joint tenants; A conveys to X. X holds a 1/3 tenancy-in-common share; B and C remain joint tenants as to their 2/3 — if B then dies, C takes B's share by survivorship, leaving C 2/3 and X 1/3. (2) Mortgage: In a lien-theory state (the great majority), a mortgage by one joint tenant is merely a lien and does not sever; if the mortgaging tenant dies first, the survivor takes the whole free of the mortgage (the lien dies with the debtor's interest). In a title-theory (minority) state, the mortgage is a transfer of title and severs the joint tenancy as to that share. Actual foreclosure sale severs in either theory. (3) Lease: jurisdictions split — some hold a lease by one joint tenant severs (transfer of an estate destroys unity of interest/possession); others hold it merely suspends the joint tenancy during the term or does not sever at all, with the lease terminating if the lessor-tenant dies first. (4) Mutual agreement, partition, and execution sale sever; a unilateral will does not (survivorship operates at the instant of death, before the will speaks). Murder of one joint tenant by another severs by statute in most states (killer keeps his own share as tenant in common, loses survivorship in the victim's).

B. Tenancy by the Entirety

Rule: A tenancy by the entirety is a marital joint tenancy (the four unities plus marriage) recognized in about half the states, carrying survivorship that cannot be unilaterally severed. In recognizing states, a conveyance to spouses is presumed entireties property. Neither spouse acting alone can convey or encumber the whole or defeat the other's survivorship right; under the majority rule, creditors of one spouse cannot reach entireties property at all (a unilateral mortgage or judgment lien is ineffective against it). Termination occurs only by death, divorce (converting to tenancy in common in most states, joint tenancy in some), mutual agreement/joint conveyance, or execution by a joint creditor of both spouses.

C. Tenancy in Common

Rule: The tenancy in common is the modern default concurrent estate: each tenant holds a distinct, undivided fractional share — shares may be unequal, acquired at different times by different instruments — with no survivorship. Only the unity of possession is required: each co-tenant has the right to possess the whole. Shares are freely alienable, devisable, and descendible.

D. Rights and Duties of Co-Tenants

1. Possession and ouster. Each co-tenant may possess the entire property. Majority rule: a co-tenant in sole possession owes the others no rent for her own occupancy, unless she has committed ouster — claiming exclusive possession and denying her co-tenants entry or use. Upon ouster, the ousted co-tenant may recover his share of fair rental value and the limitations period for adverse possession begins to run. A minority requires the occupying tenant to account for fair rental value even absent ouster.

2. Third-party rents and profits. A co-tenant who leases the property to third parties or exploits it must account to co-tenants for their proportionate share of net rents actually received (not fair market value) and for net profits from exploitation of natural resources; a co-tenant who farms or runs a business through her own labor generally keeps those profits (absent ouster).

3. Carrying costs. Each co-tenant must pay his fair share of taxes and mortgage payments (interest and principal on a joint obligation); a paying co-tenant has a right of contribution — but a co-tenant in sole possession can recover contribution only to the extent these costs exceed the property's fair rental value. Repairs: no direct action for contribution for repairs at common law in most states (the repairing tenant gets credit in a later accounting or partition for reasonable, necessary repairs after notice). Improvements: no contribution and no immediate credit; in partition, the improver receives the value added by the improvement (and bears any value lost), typically by allocation of the improved portion or its sale proceeds.

4. Fiduciary-type duties. Co-tenants are not general fiduciaries, but a co-tenant who buys the property at a tax or foreclosure sale of the common title holds it subject to the others' right to reacquire their shares by reimbursing their portion of the purchase price within a reasonable time (common when co-tenants are related or acquired together). A co-tenant in possession is liable for waste to the others.

5. Partition. Rule: Any tenant in common or joint tenant (not a tenant by the entirety) has an absolute right to partition — judicial division. Courts prefer partition in kind (physical division); partition by sale with division of proceeds is ordered when physical division is impracticable or would substantially prejudice the owners' interests. Co-tenants may by agreement waive partition for a reasonable time (a valid restraint if reasonable in duration and purpose).

MBE TIP: The two most-tested co-tenancy points are (i) lien-theory mortgage does not sever a joint tenancy and the surviving tenant takes free of it, and (ii) an occupying co-tenant owes no rent absent ouster but must share third-party rents actually collected.

V. LANDLORD AND TENANT

A. The Four Leasehold Estates

1. Tenancy for years. Rule: A tenancy for years is any tenancy for a fixed, computable period (one day, six months, 99 years). It ends automatically at the stated date — no notice required. Under the Statute of Frauds, a lease for more than one year must be in writing. It also terminates upon the tenant's surrender (offer to terminate, accepted by the landlord) or, in residential leases, upon material landlord breach of habitability or quiet-enjoyment duties.

2. Periodic tenancy. Rule: A periodic tenancy continues for successive periods (month-to-month, year-to-year) until properly terminated. Creation may be express, or by implication: (i) a lease with no stated duration but rent paid at set intervals; (ii) an oral lease violating the SOF, where the tenant takes possession and the landlord accepts rent; (iii) a holdover tenant whose continued rent the landlord accepts. Termination requires notice: at common law, one full period in advance (month-to-month: one month), except year-to-year, which required six months; many statutes now reduce year-to-year notice to 30 days. Notice must terminate the tenancy on the final day of a period; defective notice (e.g., mid-period date) is at common law void, though many courts treat it as effective on the next valid end-of-period date.

3. Tenancy at will. Terminable at the will of either party (a lease terminable only at the lessor's will gives the tenant a reciprocal right by implication in many states; one terminable only at the tenant's will may create a life estate or fee determinable by construction). It ends by either party's election (modern statutes typically require notice), death of either party, waste, assignment by the tenant, or transfer or lease by the landlord.

4. Tenancy at sufferance (holdover). Rule: A tenant who wrongfully remains after the lease ends is a tenant at sufferance — barely a tenancy, lasting only until the landlord elects either to (i) evict and recover the reasonable value of use and occupancy, or (ii) hold the tenant to a new periodic tenancy. Under the majority common-law view, a holdover from a year-or-longer commercial lease may be held to a new year-to-year tenancy; residential holdovers are generally month-to-month (measured by the rent-payment interval); the new tenancy is on the old terms, except that a landlord who notified the tenant before expiration of a rent increase may enforce the higher rent. The election doctrine does not apply where the holdover is for a few hours, involuntary (illness), or where seasonal/commercial circumstances make it inequitable.

B. Tenant's Duties

1. Rent. The duty to pay rent is the tenant's central obligation. At common law, lease covenants were independent — the landlord's breach did not excuse rent (the tenant's remedy was a damages action) — except breach of quiet enjoyment. Modern law treats residential lease covenants as mutually dependent (habitability doctrine, below). Rent liability is excused by destruction of the premises without tenant fault (modern statutory rule; at common law the tenant of land remained liable after the building burned), by eviction, by surrender accepted, and by material landlord breach in dependent-covenant jurisdictions.

2. Repair and waste. Absent a covenant, the tenant must maintain the premises and make ordinary repairs sufficient to keep them wind- and water-tight, and must not commit voluntary, permissive, or ameliorative waste. The common-law rule that an express covenant to repair made the tenant liable to rebuild after casualty is rejected by modern courts/statutes, which excuse the tenant where damage occurs without his fault and the lease so implies; residential leases now place structural repair on the landlord.

3. Fixtures. Rule: A fixture is a chattel so attached to realty that it is treated as part of the land and passes with it. Annexation by the tenant: the tenant may remove chattels she installed unless removal would cause substantial damage to the premises — objective intent to make a permanent improvement makes it a fixture (factors: nature of the item, manner of attachment, damage on removal, adaptation to the realty). Trade fixtures exception: chattels installed by a commercial tenant for use in its trade or business (shelving, machinery, bars, barber chairs) are removable before the lease ends (or within a reasonable time for at-will/uncertain tenancies), regardless of attachment, provided the tenant repairs damage caused by removal; fixtures not removed by lease-end are deemed abandoned to the landlord ("accession"). In vendor-purchaser and mortgagor-mortgagee disputes, fixtures pass with the land; a seller may not remove fixtures after contracting to sell.

C. Landlord's Remedies; Abandonment

Rule: If the tenant breaches and remains in possession, the landlord may evict through judicial process (summary/unlawful detainer proceedings) and sue for rent; the landlord must not use self-help (changing locks, removing the tenant or his goods) — the modern majority makes self-help eviction wrongful and tortious even if the lease purports to allow it. If the tenant abandons (unjustified vacating with no intent to return, defaulting on rent), the landlord may: (i) treat abandonment as an offer of surrender and accept it by retaking for his own account, ending the tenant's future rent liability; (ii) relet on the tenant's account and hold the tenant for the deficiency; or, at common law, (iii) do nothing and sue for rent as it comes due. Modern majority rule: the landlord has a duty to mitigate by making reasonable efforts to relet (the premises are treated as one item of inventory; the tenant bears the burden in some states, the landlord in others); failure to mitigate reduces or, in some states, bars recovery. Also note: at common law a landlord could not recover future rent in advance (no anticipatory repudiation for leases); modern leases solve this with rent-acceleration clauses, which are generally enforceable (but the landlord cannot both accelerate and retake for his own account).

D. Landlord's Duties

1. Delivery of possession. Majority ("English") rule: the landlord must deliver actual physical possession at the start of the term; if a holdover remains, the landlord is in breach. Minority ("American") rule: the landlord need only deliver the legal right to possession; the new tenant must oust the holdover himself.

2. Covenant of quiet enjoyment and constructive eviction. Rule: Every lease — residential or commercial — contains an implied covenant of quiet enjoyment: the landlord will not interfere with the tenant's possession by actual eviction (total: rent abates entirely; partial actual eviction by the landlord: rent abates entirely even though the tenant keeps the rest; partial eviction by a paramount-title holder: rent is apportioned) or by constructive eviction. Constructive eviction requires: (i) landlord's wrongful act or failure to perform a duty that (ii) renders the premises substantially uninhabitable for their intended purpose, and (iii) the tenant vacates within a reasonable time after notice and a chance to cure. A tenant who stays cannot claim constructive eviction. The landlord is generally not liable for other tenants' acts, except: (i) nuisances the landlord permits on the premises, and (ii) conduct in common areas under landlord control.

3. Implied warranty of habitability. Rule (modern majority — residential only, non-waivable): the landlord must deliver and maintain premises fit for basic human habitation — measured by housing-code compliance or bare-living standards (heat, water, plumbing, freedom from infestation). On breach, after notice and failure to repair, the tenant may: (M)ove out and terminate; (R)epair and deduct the cost from rent (where authorized); (R)educe or withhold rent (typically paying into escrow) while remaining in possession — the key advantage over constructive eviction; or (R)emain and sue damages (difference between rent agreed and value as warranted, or as-is value formulas). The warranty does not generally apply to commercial leases.

4. Retaliatory eviction. Rule: A landlord may not terminate a lease, refuse renewal, raise rent, or reduce services in retaliation for a tenant's good-faith exercise of legal rights (reporting code violations, joining a tenant union). Many statutes presume retaliation for adverse action within a stated period (90 days to one year) of the protected act, shifting the burden to the landlord.

5. Discrimination. The federal Fair Housing Act bars discrimination in rental on the basis of race, color, religion, national origin, sex, disability, and familial status (with exemptions for certain owner-occupied small buildings and single-family homes rented without a broker — though race discrimination is barred without exemption under §1982).

E. Assignment and Sublease

Rule: An assignment is a transfer of the tenant's entire remaining term; a sublease is a transfer of anything less (even one day retained, or a retained right of reentry under the majority "estate" view; a minority looks to the parties' intent). The consequences flow from privity:

Assignment: the assignee comes into privity of estate with the landlord and is liable for rent and all covenants that run with the land (touch and concern) accruing during his tenure; the original tenant remains liable on privity of contract for the entire term (secondarily — as a surety — with rights of reimbursement against the assignee). A second assignment ends the first assignee's privity of estate, ending his liability for future rent unless he expressly assumed the lease (assumption creates privity of contract that survives further assignment, and the landlord is a third-party beneficiary). Sublease: the sublessee has privity with neither the landlord nor the landlord's covenants — he is not liable to the landlord for rent (though the landlord may terminate the head lease for nonpayment, ending the sublease; and the sublessee can pay to protect his estate) and cannot enforce the landlord's covenants, except habitability protections in many residential jurisdictions and equitable enforcement of restrictions. EXAMPLE: T assigns to T1, who assigns to T2, who assumes nothing. Rent goes unpaid during T2's tenure. L may sue T (privity of contract) and T2 (privity of estate) — but not T1, whose privity of estate ended and who never assumed.

Consent clauses. Absent a lease restriction, leaseholds are freely transferable. A covenant against assignment or sublease is a valid restraint but is strictly construed: a bar on assignment does not bar sublease, and vice versa. A transfer in violation is not void — it is effective, but the landlord may terminate (if the lease so provides) or sue for damages. Rule in Dumpor's Case: once the landlord consents to (or waives by accepting rent from the assignee) one assignment, the covenant is waived as to all future assignments unless the landlord expressly reserves the right; many states have rejected Dumpor, and careful landlords reserve rights in the consent. Where the lease requires landlord consent without a standard, the traditional majority lets the landlord refuse arbitrarily; a growing modern view (especially commercial leases) requires commercially reasonable grounds.

F. Landlord Tort Liability

Common-law rule: caveat lessee — the landlord was not liable for injuries on the premises occurring after transfer of possession, subject to six exceptions: (1) latent defects known (or that should be known) to the landlord and not disclosed — duty to disclose, not repair; (2) common areas under the landlord's control (stairs, halls, elevators) — duty of reasonable care; (3) negligent repairs undertaken by the landlord (liability even without negligence in some courts if the repair gives a deceptive appearance of safety); (4) public-use premises leased with knowledge of a dangerous condition and reason to believe the tenant will not fix it before admitting the public; (5) short-term lease of a furnished dwelling — landlord liable for defects even if unknown; (6) breach of a covenant to repair or statutory repair duty — failure to fix after notice. Modern trend: a general duty of reasonable care on residential landlords (some states), liability for criminal attacks where prior similar incidents made them foreseeable and security was negligently maintained, and statutory smoke-detector/lead-paint duties. MBE TIP: the wrong answers say "the landlord is liable because he owns the property" — ownership alone never suffices; fit the facts into an exception.

VI. EASEMENTS, PROFITS, AND LICENSES

A. Nature and Classification

Rule: An easement is a nonpossessory interest in land entitling the holder to use another's land (affirmative easement) or, rarely, to prevent specified uses of it (negative easement — recognized at common law only for Light, Air, Support, and Stream water from an artificial flow, plus scenic/conservation easements by statute; negative easements can be created only expressly). An easement is appurtenant when it benefits the holder in the use of another tract — there is a dominant tenement (benefited) and a servient tenement (burdened). It is in gross when it benefits the holder personally or commercially with no dominant tenement (utility lines, billboards, the right to swim in another's pond). When in doubt, construe as appurtenant.

Transferability: An appurtenant easement passes automatically with transfers of the dominant estate (even if unmentioned) and burdens successors to the servient estate who have notice (or who are not protected by the recording act). It cannot be detached and transferred separately. Easements in gross: at common law not transferable; the modern rule makes commercial easements in gross freely transferable (and apportionable if exclusive), while personal/recreational ones transfer only if the parties so intended.

B. Creation — PING

1. Prescription. Rule: An easement by prescription arises from use that is (i) open and notorious, (ii) adverse/hostile (without permission), and (iii) continuous and uninterrupted for the statutory period — the adverse-possession elements minus exclusivity (and the user acquires only the use made, not title). Permission defeats prescription; public use can create public prescriptive easements in many states; no prescription against government land. Tacking applies.

2. Implication from prior use (quasi-easement). Rule: When an owner uses one part of her land to benefit another part and then severs the parcels, an easement is implied if: (i) common ownership and severance; (ii) the prior use was existing, apparent, and continuous at severance (apparent includes discoverable on reasonable inspection — e.g., sewer lines findable by a plumber); and (iii) the use is reasonably necessary to the enjoyment of the claimed dominant parcel. Courts require a somewhat higher showing of necessity for an implied reservation (grantor keeping the benefit) than an implied grant.

3. Necessity. Rule: An easement by necessity (usually access/right-of-way) arises when a common owner severs a parcel, leaving one piece landlocked — without legal access to a public road. Requirements: common ownership, severance creating the necessity, and strict necessity at the time of severance (majority; a minority accepts reasonable necessity). No prior use is required. The servient owner selects a reasonable location. The easement endures only as long as the necessity lasts.

4. Grant (express). Rule: An express easement of more than one year must satisfy the Statute of Frauds — a writing signed by the servient owner (the grantor), with deed-like formalities; an oral "easement" is a license. Express easements may be granted or reserved. Common-law rule: an easement could not be reserved in favor of a stranger to the deed (O conveys to A "reserving an easement in B" — void as to B); the modern minority (California view) honors the grantor's intent, but the MBE usually applies the common-law stranger rule.

5. Plat and estoppel. Buyers of lots sold by reference to a recorded plat or map acquire implied easements over the streets, alleys, and parks shown. Easement by estoppel: when a licensor permits use and the licensee reasonably and detrimentally relies (expenditures, improvements) with the licensor's knowledge, equity estops revocation — the license becomes an easement (irrevocable) for as long as needed to recoup the investment, or under the Restatement, as a true servitude.

C. Scope, Use, and Maintenance

Rule: Scope is fixed by the terms of the grant or the conditions of creation, construed to accommodate reasonable, foreseeable development of the dominant estate (a horse-and-buggy easement accommodates automobiles), but not a change in kind imposing an unreasonable burden. The dominant owner may not extend the easement to benefit a non-dominant parcel — using the right-of-way to reach an after-acquired adjacent lot is a misuse/surcharge, remedied by injunction (not forfeiture). The servient owner may use her land in any way not unreasonably interfering with the easement and, under the modern/Restatement view, may relocate the easement at her expense if it does not lessen its utility (traditional rule: no unilateral relocation). Maintenance: the easement holder has the right — and the duty — to repair and maintain the easement and may enter the servient land to do so; absent agreement, the servient owner has no repair duty; shared users contribute proportionately. The holder is liable for damage caused to the servient estate by neglect.

D. Termination — END CRAMP

Rule: Easements terminate by: Estoppel — the servient owner materially and reasonably relies on the easement holder's representation or conduct indicating abandonment; Necessity ends — easements by necessity expire when the necessity ceases (unless reduced to an express grant); Destruction of the servient structure (involuntarily) where the easement is in a building; Condemnation of the servient estate (easement holder compensated in many courts); Release — a written, SOF-compliant release by the easement holder to the servient owner; Abandonment — physical action manifesting intent never to use again (e.g., the holder builds a wall across his own access point, railroad rips out tracks); mere nonuse, however long, never suffices, nor do mere words alone (words = estoppel or release territory); Merger — unity of title: the easement is extinguished when one person acquires both the dominant and servient estates in equal-or-greater duration; it does not automatically revive on reseparation (must be re-created); Prescription — the servient owner blocks the easement openly, adversely, continuously for the statutory period. Also: an easement is cut off by a servient-estate transfer to a bona fide purchaser without notice where the recording act so provides (actual, record, or inquiry notice — visible use is inquiry notice — defeats BFP status).

E. Profits and Licenses

Profit à prendre. Rule: A profit is the right to enter another's land and remove its resources (timber, minerals, fish, game, gravel). Profits are created and terminated like easements (no implication-by-plat) and may be appurtenant or in gross; profits in gross are transferable. Excessive exploitation (surcharge) may extinguish the profit under the misuse doctrine.

License. Rule: A license is mere permission to enter — not an interest in land, no SOF writing required, and revocable at the licensor's will (revocation may breach a contract, giving damages, but still ends the privilege — e.g., a theater ticket). Licenses end automatically at the licensor's death or conveyance of the land. Two become irrevocable: (i) license coupled with an interest (the licensee owns a chattel on the land and may enter to retrieve it; a vendee's license to inspect); and (ii) executed license / estoppel — detrimental reliance, as above. A failed oral easement is a license. MBE TIP: if the facts say "oral" plus "permission," think license; add "spent money in reliance" and the answer becomes easement by estoppel.

VII. REAL COVENANTS AND EQUITABLE SERVITUDES

A. Covenants Running with the Land at Law (Real Covenants)

Rule: A promise respecting land use (restrictive or affirmative — e.g., "no commercial use," "maintain the fence," "pay assessments") binds and benefits successors as a real covenant — remedy: money damages — when these elements are met. For the burden to run: (1) a writing satisfying the SOF; (2) intent that successors be bound ("assigns," "successors," or circumstances); (3) the covenant touches and concerns the land — it affects the parties as landowners, diminishing the burdened parcel's use value or enhancing the benefited parcel's (restrictive covenants and covenants to pay HOA assessments qualify; covenants to pay money unconnected to the land, or personal promises, do not); (4) horizontal privity — the original covenanting parties shared some interest in the land beyond the covenant itself: grantor-grantee (a covenant in the deed of sale), landlord-tenant, or mortgagor-mortgagee. Neighbors who simply sign an agreement lack horizontal privity — the burden cannot run at law (the chief reason plaintiffs sue in equity instead); (5) vertical privity — the successor took the original promisor's entire durational estate (a buyer of the fee qualifies; an adverse possessor or a lessee does not); and (6) the successor had notice (actual, record, or inquiry) — strictly a recording-act requirement protecting BFPs, but always list it. For the benefit to run, only writing, intent, touch-and-concern, and relaxed vertical privity (any succeeding possessory interest) are required — no horizontal privity needed.

B. Equitable Servitudes

Rule: The same promise enforced by injunction is an equitable servitude (Tulk v. Moxhay). Elements: (1) writing (subject to the implication exception below); (2) intent to bind successors; (3) touch and concern; and (4) notice to the burdened successor. No privity — horizontal or vertical — is required. Because most plaintiffs want an injunction, the servitude theory dominates modern litigation. MBE TIP: the question's requested remedy tells you which doctrine to apply — "damages" = real covenant (check privity); "enjoin" = equitable servitude (check notice).

Implied reciprocal negative servitude (common scheme doctrine). Rule: When a subdivider sells lots pursuant to a common scheme of residential development — evidenced by a recorded plat, advertising, oral representations, or a pattern of uniform restrictions in most deeds — a reciprocal negative servitude is implied against lots whose deeds omitted the restriction, enforceable by and against all lots in the scheme, provided the defendant lot owner had notice: actual, record (jurisdictions split on whether deeds to other lots from the common grantor are in a buyer's chain of title), or inquiry (the visible uniform residential character of the neighborhood). The scheme must exist when sales begin — lots sold before the scheme arose are not bound. A minority (notably Massachusetts) refuses to imply servitudes from a scheme, requiring a writing; the scheme there serves only to show who may enforce express restrictions.

Defenses and termination. Equitable enforcement is denied for: changed conditions — so radical and pervasive a change within the subdivision that the restriction no longer benefits anyone substantially (border-lot erosion from outside changes is not enough); unclean hands (plaintiff violates the same restriction); acquiescence in others' violations; estoppel; laches; and the recording act (BFP without notice). Covenants also end like easements: written release, merger, condemnation, abandonment, or expiration by their terms.

C. Common-Interest Communities and HOAs

Rule: In condominiums and planned communities, recorded declarations (CC&Rs) bind every unit owner who takes with record notice; covenants to pay assessments touch and concern the land and run with it, secured by liens. Original declaration restrictions enjoy a strong presumption of validity, enforced unless unreasonable, unconstitutional, or against public policy (Nahrstedt standard — judged by the development as a whole, not the complaining owner); subsequently adopted board rules get ordinary reasonableness review, and board decisions are tested by a good-faith/business-judgment standard in many states.

ESSAY WRITING TIP: Run burden and benefit analyses separately, party by party: "For P to recover damages from D, the benefit must have run to P and the burden to D." Most servitude essays are organized failures of exactly that discipline.

VIII. LAND SALE CONTRACTS

A. Statute of Frauds and Part Performance

Rule: A contract for the sale of an interest in land must be evidenced by a writing signed by the party to be charged, containing the essential terms: identification of the parties, an adequate description of the land, and the price (or a method of fixing it); consideration terms may sometimes be supplied by implication (reasonable price) where the writing shows a sale. Part-performance exception: equity will specifically enforce an oral land contract when the buyer proves the contract by acts unequivocally referable to it — most states require two of three: (i) possession by the buyer, (ii) payment of all or a substantial part of the price, and (iii) substantial improvements made by the buyer. Payment alone never suffices (restitution remedies the buyer). Estoppel may also bar the SOF defense where unconscionable injury would result from detrimental reliance.

B. Equitable Conversion and Risk of Loss

Rule: Under equitable conversion, once a specifically enforceable contract is signed, the buyer is regarded in equity as the owner of the real property and the seller's interest (the right to the price, secured by a vendor's lien) is personal property; the seller holds bare legal title in trust for the buyer. Consequences: (1) Risk of loss — majority rule: if the premises are destroyed without fault between contract and closing, the buyer bears the loss and must still pay the price (though the buyer gets credit for the seller's casualty-insurance proceeds in most courts). Minority/Uniform Vendor and Purchaser Risk Act: risk stays with the seller until the buyer takes possession or legal title. (2) Death: if the seller dies before closing, her interest passes as personalty (the price goes to personal-property takers; her realty takers must convey); if the buyer dies, his interest passes as realty (his realty takers can compel completion, with the price paid from personalty under traditional exoneration, now widely abolished).

C. Marketable Title

Rule: Every land-sale contract contains an implied warranty that the seller will deliver marketable title at closing — title reasonably free from doubt, not exposing the buyer to the hazard of litigation. Unmarketable: (i) defects in the record chain (gaps, improperly executed instruments, variations in names); title resting on adverse possession not yet quieted by judgment (majority view — record title cannot rest on parol proof; some courts accept clearly established AP); (ii) encumbrances — mortgages and liens (but the seller may satisfy them at closing from the proceeds), easements (unless known to the buyer and beneficial, or visible and notorious in some courts), restrictive covenants, options, significant encroachments (either direction); and (iii) existing violations of zoning ordinances (the mere existence of zoning restrictions is not an encumbrance; a present violation is). Procedure: the buyer must notify the seller of defects and allow a reasonable opportunity to cure; the implied warranty is tested at closing — the buyer cannot rescind early because title is presently encumbered (the seller of an installment contract need not have marketable title until the final payment/deed). If the seller cannot cure, the buyer may rescind, recover the deposit and reasonable expenses, sue damages, or take with abatement. Merger: once the buyer accepts the deed, the contract's title promises merge into the deed — the buyer may sue thereafter only on the deed's covenants of title (non-title contract promises, e.g., construction quality, generally survive as "collateral" obligations).

D. Time, Tender, and Remedies

Rule: Time is not of the essence in equity unless the contract so states, circumstances so indicate, or one party gives reasonable notice making it so; a party who closes within a reasonable time (one to two months late) may still specifically enforce, though a late closer is liable at law for incidental damages. The duties to tender the deed and the price are concurrent conditions — neither party is in breach until the other tenders or tender is excused. Remedies: (1) Specific performance for either party (land is unique; sellers get it by mutuality/uniqueness of the remedy), with abatement for small deficiencies. (2) Damages — difference between contract price and market value at breach, plus incidentals; under the English rule (minority remnants), a good-faith seller who cannot deliver marketable title owes only restitution of the deposit and expenses; the American/majority rule awards full benefit-of-the-bargain damages regardless of good faith. (3) Liquidated damages: the seller may retain the deposit if reasonable (customarily up to about 10% of the price). A defaulting buyer may in many states recover the excess of his payments over the seller's actual loss.

E. Disclosure; "As Is"; Quality

Rule: The common-law rule of caveat emptor has given way: a seller of residential property must disclose known latent material defects (defects the buyer could not reasonably discover) — failure supports rescission or damages; all sellers are liable for affirmative misrepresentation and for active concealment (painting over the cracks). General "as is" clauses shield the seller from implied obligations and unknown defects but do not excuse fraud, misrepresentation, or active concealment. There is no implied warranty of quality or fitness in the sale of existing real estate; the major exception is the implied warranty of fitness/workmanlike construction made by a builder-vendor of a new home, which many states extend to subsequent purchasers for latent defects within a reasonable time.

F. Installment Land Contracts

Rule: Under an installment land contract (contract for deed), the buyer takes possession and pays in installments; the seller retains legal title until the final payment. Traditional forfeiture clauses let the seller, on any default, cancel, retake possession, and keep all installments as rent/liquidated damages. Modern courts mitigate forfeiture: (i) treating the contract as a mortgage requiring foreclosure (with the buyer's equity protected and any surplus returned); (ii) granting the buyer equitable redemption — a grace period to pay the balance; (iii) restitution of payments exceeding the seller's damages; and (iv) waiver — a seller who habitually accepts late payments must give notice and a reasonable cure opportunity before enforcing forfeiture. MBE TIP: when an installment buyer with substantial equity defaults near the end, the tested answer is almost always that equity will not enforce strict forfeiture.

IX. DEEDS

A. Formalities — LEAD

Rule: A deed transfers title when it is Lawfully Executed And Delivered (and accepted). Execution requires a writing signed by the grantor (not the grantee), identifying grantor and grantee (a deed to a nonexistent grantee is void as to that share; a deed with the grantee's name left blank is valid if the bearer has authority to fill it in), and containing words of transfer and an adequate description — unambiguous enough to locate the land with extrinsic evidence ("all my land in X County" suffices; an inadequate description makes the deed void, though equity may reform for mutual mistake). Consideration is not required (gift deeds are fine); attestation and acknowledgment are unnecessary for validity between the parties (acknowledgment matters for recording). When descriptions conflict, the hierarchy is: natural monuments > artificial monuments > courses (angles) > distances > name > quantity ("more or less" absorbs small discrepancies).

B. Delivery and Acceptance

Rule: Delivery is the grantor's present intent to pass title immediately — a question of intent, not necessarily of physical transfer. Presumptions: delivery is presumed if the deed is (i) handed to the grantee, (ii) acknowledged before a notary, or (iii) recorded; non-delivery is presumed if the grantor retains the deed. All presumptions are rebuttable by extrinsic evidence — except: parol evidence is not admissible to show that a deed unconditionally handed to the grantee was subject to an oral condition (the deed stands, the condition drops; some courts admit evidence that there was no intent to deliver at all). A written condition in the deed itself is honored (creating a defeasible or springing interest). Delivery cannot be canceled: once delivered, returning or destroying the deed conveys nothing back — the grantee must re-convey by new deed. An undelivered deed found after death, or one to take effect "only at my death" with full retained control, passes nothing (testamentary, fails without will formalities); but a deed presently conveying a future interest ("to A, effective at my death" construed as reserving a life estate) is valid.

Escrow. Rule: A grantor may make conditional delivery only by handing the deed to a third-party escrow agent with instructions to deliver upon conditions (payment, closing). In a true escrow under a written contract, the grantor cannot recall the deed; title passes automatically when the conditions occur. The relation-back doctrine deems title to pass as of the deposit in escrow where justice requires — e.g., the grantor dies or becomes incompetent before the condition occurs, or (to protect the grantee) creditors' liens intervene; relation-back is denied where it would hurt a BFP who relied on the grantor's record title and the buyer was not in possession. If the escrow agent delivers before the condition is met, no title passes — and even a BFP from the grantee gets nothing (void delivery), although some courts protect BFPs where the grantor's negligence enabled the fraud. Acceptance is presumed for beneficial conveyances; rejection defeats the transfer.

C. Types of Deeds and the Covenants of Title

Rule: A quitclaim deed conveys whatever the grantor has, with no covenants whatsoever (it does not even warrant that the grantor has anything) — but it satisfies a contract calling merely for "title," and the implied contract duty of marketable title still applies up to closing. A special (limited) warranty deed warrants only against defects arising during the grantor's own ownership. A general warranty deed contains the six covenants warranting against all defects whensoever arising:

Present covenants — breached, if at all, at delivery; the limitations period runs from delivery; at common law they do not run to remote grantees (a minority/modern view allows assignment of the accrued claim): (1) seisin — grantor owns the estate described; (2) right to convey — grantor has authority to transfer; (3) against encumbrances — no undisclosed mortgages, liens, easements, or covenants (some courts excuse open and visible easements known to the buyer).

Future covenants — breached only when the grantee is actually disturbed in possession (eviction, actual or constructive, by paramount title); they run with the land to remote grantees: (4) quiet enjoyment — no disturbance by lawful claims; (5) warranty — grantor will defend against lawful claims and compensate for losses (defense duty applies to valid claims only, and arises after notice); (6) further assurances — grantor will execute documents needed to perfect title (specifically enforceable).

Damages: capped at the purchase price received by the warrantor plus incidentals (encumbrance breaches: cost of removal or diminished value, up to the cap); a remote grantee suing a prior warrantor is limited to what that warrantor received. Mere existence of a superior claim, without eviction, does not breach future covenants — and notice of the defect is no defense to a covenant claim (covenants exist precisely to cover known risks).

D. Estoppel by Deed (After-Acquired Title)

Rule: If a grantor purports to convey an estate she does not own by warranty deed (or any deed representing ownership), and she later acquires that estate, title passes automatically to the earlier grantee by estoppel by deed. The doctrine does not apply to quitclaim deeds (no representation). The trap: if the grantor, after acquiring title, sells to a BFP, most courts hold the BFP wins — the earlier deed, recorded before the grantor obtained title, is outside the chain of title (a "premature" recording) and gives no record notice; a minority charges later buyers with notice of the early-recorded deed.

E. Void vs. Voidable Deeds; Fraud

Rule: A void deed — forged, never delivered, procured by fraud in the factum (grantor deceived about the nature of the document), or to a nonexistent grantee — conveys nothing and is set aside even against a BFP. A voidable deed — minority, incapacity, duress, undue influence, fraud in the inducement, breach of fiduciary duty — is set aside between the parties but not against a subsequent BFP.

X. RECORDING ACTS

A. The Common-Law Baseline and the Three Statutes

Rule: At common law, first in time, first in right — the earlier conveyance prevails, period. Recording acts change that result to protect later takers who meet the statute's conditions; if the act does not apply, the common-law rule controls (and it still governs disputes the acts do not reach — e.g., grantor vs. grantee). Recording is never required for a deed's validity between grantor and grantee; it matters only against third parties.

1. Race statute (minority — NC, LA, and a few contexts): "No conveyance is good against purchasers for value but from the time of registration." Whoever records first wins, regardless of notice. 2. Notice statute (about half the states): "No conveyance shall be good against a subsequent purchaser for value and without notice, unless recorded." A subsequent BFP wins immediately upon taking without notice, even if she never records — the prior grantee's failure to record before her purchase is fatal. 3. Race-notice statute (about half): "No conveyance is good against a subsequent purchaser for value and without notice whose conveyance is first recorded." The subsequent purchaser wins only if she both took without notice and recorded before the earlier grantee. MBE TIP: the question quotes the statute — diagnose it by keywords: "without notice" alone = notice statute; "without notice" + "first recorded" = race-notice; recording language with no mention of notice = race. Then check whether the subsequent claimant satisfies it; if not, first-in-time wins.

B. Bona Fide Purchaser Requirements

Rule: A BFP is one who (i) takes by purchase (deed, mortgage, lease — not gift, devise, or intestacy: donees, heirs, and devisees are never protected, though they may shelter); (ii) pays value — substantial pecuniary consideration, not nominal recitals; antecedent debt alone is not value in most states (but a mortgage taken as security for a contemporaneous loan is); a buyer who learns of the prior claim after paying part of the price is protected pro tanto (restitution of payments, partial interest, or completed protection, by jurisdiction); and (iii) takes without notice of the prior interest at the time of conveyance/payment. Notice is of three kinds: actual (knowledge from any source); record/constructive (instruments properly recorded in the chain of title); and inquiry (facts that would make a reasonable person investigate — chiefly (a) possession by someone other than the record owner: the buyer is charged with whatever an inquiry of the possessor would reveal, whether or not he inspects; (b) references in recorded instruments to unrecorded ones; and (c) visible use suggesting an easement). Mortgagees for value are "purchasers" under the acts. Judgment/lien creditors: in most states a general judgment creditor is not a protected purchaser (the lien attaches only to property the debtor actually owns, and the creditor parted with no new value), though some statutes expressly protect lien creditors from unrecorded conveyances; a purchaser at the execution sale can qualify as a BFP.

C. The Shelter Rule and Chain-of-Title Problems

Shelter rule. Rule: A person who takes from a BFP prevails against any interest the BFP would have prevailed against — even if the taker has notice or is a donee. The transferee "stands in the shoes" of his BFP transferor. Limit: a prior wrongdoer cannot wash his title by selling to a BFP and repurchasing.

Chain of title. Rule: A recorded instrument gives constructive notice only if a searcher using the grantor-grantee indexes would find it. Outside the chain — hence no notice: (1) Wild deeds — a recorded deed whose grantor never appears in the record chain (O→A unrecorded; A→B recorded: B's deed is wild; a later BFP from O wins, and B's "first" recording does not count as recording for race-notice purposes). (2) Estoppel-by-deed/premature recordings — a deed recorded before the grantor acquired title (majority: outside the chain; searchers need not run each grantor's name before his acquisition date). (3) Late recordings — under the majority, a deed recorded after the grantor's record conveyance to another is outside the chain (searchers need not run a grantor's name after his recorded out-conveyance). (4) Restrictions in deeds to other lots from a common grantor — split: many states charge buyers with notice of restrictions in prior deeds out of their common grantor (must read "collateral" deeds); others (the "deed-out" minority including New York's Buffalo Academy line vs. Guillette-style majority — actually courts divide closely) do not. Defectively executed instruments (e.g., unacknowledged) that are nonetheless recorded give no record notice in many states, though actual knowledge still counts.

EXAMPLE: O conveys to A, who does not record. O then conveys to B, a purchaser for value who knows nothing of A; B records. In a notice state, B won when she paid without notice. In a race-notice state, B wins because she also recorded first. In a race state, B wins by recording first. Now suppose B knew of A's deed: B loses in notice and race-notice states, but still wins in a race state by recording first — and if B (a loser) sells to C, a BFP, C wins and may resell even to someone who knows of A (shelter).

XI. MORTGAGES AND SECURITY DEVICES

A. Nature; Lien vs. Title Theory

Rule: A mortgage is a security interest in land given (by a mortgagor-debtor to a mortgagee-creditor) to secure an obligation, almost always evidenced by a note. The SOF applies. In lien-theory states (large majority), the mortgagee holds only a lien; the mortgagor keeps title and possession until foreclosure, and a mortgage by one joint tenant does not sever. In title-theory states (minority), legal title vests in the mortgagee until satisfaction — theoretically allowing possession on default and severing a joint tenancy. Intermediate-theory states give the mortgagee title rights only upon default. An equitable mortgage arises when a deed absolute on its face is shown by clear and convincing parol evidence to have been intended as security (factors: debt survives, grantor stays in possession, price far below value, prior negotiations for a loan) — the "grantee" must foreclose like any mortgagee; if the grantee sells to a BFP, the BFP takes free and the grantor's remedy is damages against the grantee.

B. Transfers by the Mortgagor

Rule: The mortgagor may transfer the property, but the lien follows the land (unless the transferee is protected by the recording act against an unrecorded mortgage). A grantee who takes "subject to" the mortgage is not personally liable on the debt — on default, the lender forecloses on the land, but no deficiency lies against the grantee (the original mortgagor remains personally liable). A grantee who "assumes" the mortgage is personally liable as principal; the original mortgagor remains secondarily liable as surety (the lender may sue either, as third-party beneficiary of the assumption). After an assumption, a modification or extension agreed between lender and assuming grantee discharges the original mortgagor to the extent of suretyship rules (full discharge under the traditional rule; to the extent of prejudice, modernly). If the deed is silent, the transfer is "subject to." A due-on-sale clause — accelerating the debt upon transfer without lender consent — is enforceable nationwide under the federal Garn–St. Germain Act (with exceptions for certain residential transfers: to a spouse or child, on death to a relative-occupant, into the borrower's living trust, divorce decrees, junior liens not transferring occupancy). Due-on-encumbrance clauses are likewise generally enforceable.

C. Transfers by the Mortgagee

Rule: The mortgagee may transfer the note and mortgage; the mortgage automatically follows the note ("the mortgage follows the debt"), and an attempted transfer of the mortgage without the note is a nullity in most states. A transferee who takes a negotiable note as a holder in due course takes free of personal defenses (failure of consideration, fraud in the inducement, waiver, payment to the original lender without notice) but remains subject to real defenses (forgery, fraud in the factum, material alteration, infancy, duress voiding the obligation, discharge in insolvency). A mortgagor who pays the original mortgagee without demanding the note risks double liability if the note had been transferred.

D. Foreclosure: Priorities, Parties, Proceeds

Rule: On default (after acceleration if invoked), the mortgagee may foreclose — by judicial sale everywhere, or by power of sale (nonjudicial) where authorized. Priority: "first in time, first in right," as modified by (i) the recording act (an unrecorded senior loses to a junior BFP-mortgagee who meets the act), (ii) subordination agreements (valid), (iii) purchase-money mortgages (PMM) — a mortgage given to secure the price of the very parcel (to the seller, or to a third-party lender whose funds buy it) has super-priority over prior judgment liens, after-acquired-property clauses, and other claims arising against the mortgagor before he took title, even without recording first as against those claims (recording still matters against subsequent BFPs); seller PMMs traditionally beat third-party PMMs, and competing third-party PMMs share pro rata or rank by recording; and (iv) modification doctrine — a senior who materially modifies the loan (increasing principal or rate) is subordinated to junior liens to the extent of the modification; optional future advances made with notice of a junior lien likewise lose priority to it (obligatory advances retain priority).

Effect of sale: Foreclosure wipes out the foreclosing mortgage and all junior interests (junior mortgages, judgment liens, leases junior to the mortgage), transferring the title the mortgagor had when the mortgage was given; senior interests are unaffected — the buyer takes subject to seniors (but is not personally liable on them; as a practical matter the buyer pays them off or bids accordingly). Necessary vs. proper parties: juniors and the mortgagor are necessary parties; an omitted junior is not extinguished — he retains his lien (or, the classic remedies: the omitted junior may redeem the senior mortgage, or foreclose his own lien, and the purchaser/senior may re-foreclose against him); seniors cannot be forced to foreclose and are merely proper parties at most. Proceeds waterfall: (1) expenses of sale, attorneys' fees, court costs; (2) the foreclosing mortgage; (3) junior lienors in priority order; (4) any surplus to the mortgagor. Seniors get nothing from the sale (they keep their lien). Deficiency: if proceeds fall short, the lender may obtain a deficiency judgment against anyone personally liable (mortgagor, assuming grantee), subject to statutes barring deficiencies on purchase-money residential loans, after nonjudicial sales, or limiting them to the gap between debt and fair value rather than sale price.

E. Redemption and Clogging

Rule: Equitable redemption — the mortgagor's inalienable equitable right, up to the moment of the foreclosure sale, to free the land by paying the amount due (the accelerated full balance if acceleration was invoked, plus interest and costs). Any provision in the original mortgage waiving or burdening the equity of redemption is void as a clog on the equity of redemption (e.g., an option to purchase taken contemporaneously as part of the loan; a deed placed in escrow to be delivered on default) — though a later, separate, fair transaction (deed in lieu) is fine. Statutory redemption — in about half the states, a statute lets the mortgagor (and sometimes juniors) redeem after the foreclosure sale, for a fixed period (six months to two years), usually by paying the sale price; the mortgagor commonly retains possession meanwhile, and redemption nullifies the sale.

F. Alternative Devices; Rents and Possession

Rule: A deed of trust places title (in trust) in a third-party trustee for the lender-beneficiary, enabling streamlined power-of-sale foreclosure; it is functionally a mortgage and subject to the same protections. An installment land contract is a mortgage substitute increasingly treated as a mortgage (Section VIII.F). An absolute deed intended as security is an equitable mortgage (above). A deed in lieu of foreclosure conveys the property to the lender in satisfaction; it does not wipe out junior liens (the lender takes subject to them — a reason lenders sometimes foreclose anyway) and is scrutinized for unfairness. A sale-leaseback may be recharacterized as a mortgage. Possession before foreclosure: lien-theory lenders cannot take possession before foreclosure; title/intermediate-theory lenders may on default; everywhere, a lender may seek a receiver for waste or insecurity on income property, and a mortgagee in possession must account for rents and is liable for negligent management. An assignment of rents clause is widely enforced upon default.

XII. ADVERSE POSSESSION

A. Elements — ECHO

Rule: Title by adverse possession vests when possession is, for the full statutory period (commonly 10, 15, or 20 years): Exclusive — not shared with the true owner or the public (two possessors acting jointly may acquire as co-tenants); Continuous — uninterrupted use of the kind an ordinary owner would make, so seasonal use of a summer cabin or hunting land can be continuous; Hostile and adverse, under claim of right — possession without the owner's permission; under the overwhelming majority objective test, the possessor's subjective state of mind is irrelevant (a boundary-mistaken neighbor qualifies); minority tests require good faith (believed it was his) or, rarely, aggressive trespass (knew it wasn't); permissive entry is never adverse until the possessor communicates a clear repudiation; and Open and notorious — possession visible enough that a reasonably attentive owner would notice (encroachments invisible without a survey — e.g., a foundation inches over the line — are not "open and notorious" under Mannillo-type holdings). Acts of ownership — fencing, cultivating, improving, residing — supply the proof. The possessor acquires title to the land actually occupied only, and the title acquired is not marketable of record until quieted by judgment.

B. Tacking, Disabilities, Special Rules

Tacking. Rule: Successive adverse possessors may tack their periods if they are in privity — a voluntary transfer of possession by deed (even one misdescribing the strip), will, intestacy, or contract; tacking fails for ouster or abandonment between possessors. The owner's side tacks automatically: once the statute starts against an owner, it runs against all successors (purchasers, heirs).

Disabilities. Rule: The statute does not begin to run if the true owner was under a disability — infancy, insanity, imprisonment (as the statute defines) — at the inception of the adverse possession; the owner then has the full period (or a statutory grace period) from removal of that disability. Only disabilities existing when the AP began count; supervening disabilities and disabilities of successors are ignored, and disabilities cannot be tacked to each other.

Scope rules. Adverse possession does not run against: government land (federal, state, usually municipal); future interests — the statute runs against a remainderman only from the time his interest becomes possessory (AP begun against a life tenant gives title only against the life estate unless it continues for the full period after the life tenant dies); similarly, possession that begins permissively (lessee, co-tenant, licensee, vendee) becomes adverse only upon clear repudiation/ouster brought home to the owner. Liens, easements, and covenants: an adverse possessor takes subject to pre-existing easements he did not interfere with (he can extinguish an easement only by blocking it for the period).

Color of title and constructive adverse possession. Rule: One who enters under color of title — a facially valid but actually defective instrument purporting to convey the land — and actually possesses a significant part of the parcel described is in constructive adverse possession of the whole parcel described, gaining title to portions never physically occupied (provided the unoccupied part is not in another's possession and the tract is reasonably unitary). Several states shorten the limitations period for claimants with color of title and/or payment of taxes; a few require tax payment for any AP claim (notably California). MBE TIP: when an AP question includes a defective deed, the examiners are testing either color-of-title constructive possession or tacking privity — find which.

EXAMPLE: O owns a 100-acre farm. A receives a forged deed to the farm, moves into the farmhouse, and farms 40 acres for the statutory period. A acquires all 100 acres by constructive adverse possession under color of title — but if O had been living on the back 20 acres, A would take only what he possessed.

XIII. SUPPORT, WATER, AIR, AND CROPS

A. Lateral and Subjacent Support

Rule: A landowner has an absolute right to lateral support of his land in its natural state: an excavating neighbor is strictly liable for subsidence of unimproved land. Where the land has been improved: strict liability for damage to buildings only if the plaintiff shows the land would have subsided even without the structures (the buildings' weight did not cause the collapse) — majority American rule includes building damages once that showing is made (the "English"/minority view limits strict liability to land damage); otherwise the excavator is liable only for negligence. Statutes and ordinances commonly add notice-and-depth rules. Subjacent support (underground extraction — mining, water): the surface-rights owner is entitled to support of the land and structures existing when the subsurface estate was severed (strict liability); damage to later improvements requires negligence. Excessive groundwater pumping causing subsidence is tested under negligence/reasonable-use in most modern courts.

B. Watercourses, Groundwater, Diffuse Surface Water

1. Streams and lakes. Riparian doctrine (eastern majority): water belongs to owners abutting the watercourse; each riparian may make reasonable use, liable only if his use unreasonably interferes with others' uses (the older "natural flow" version enjoined any sensible diminution); natural/domestic uses (household, drinking, stock) trump artificial uses (irrigation, industry), and riparian rights attach only to riparian land within the watershed. Prior appropriation (western states): "first in time, first in right" — water rights are acquired by actual beneficial use regardless of land abutment, may be severed and sold, and are lost by abandonment.

2. Groundwater (percolating water). Four regimes: absolute ownership/English rule (minority — pump at will, even maliciously per the oldest cases); American reasonable use (majority — overlying owners may make reasonable use on the overlying land; exporting that harms neighbors is unreasonable); correlative rights (California — proportionate shares in shortage); and prior appropriation (several western states); the Restatement (Second) of Torts §858 imposes liability for unreasonable harm.

3. Diffuse surface water (runoff, rain, melt). Common-enemy rule: each owner may fight off surface water — dike, drain, deflect — without liability, now widely softened to bar unnecessary or negligent harm. Natural-flow (civil-law) rule: the lower estate is servient to natural drainage; an owner who alters natural flow to a neighbor's injury is liable, softened to permit reasonable alterations. Reasonable-use rule (growing modern majority): balancing — liability only for unreasonable interference. Capturing surface water (cisterns, ponds) is generally allowed; channeling collected water onto a neighbor is not.

C. Air Rights and Crops

Rule: A landowner owns the airspace above the parcel to the height of effective possible use — not "to the heavens"; overflight in navigable airspace is lawful, but flights low enough to interfere directly and substantially with use and enjoyment are a trespass/taking (Causby). There is no natural right to light and air: a structure blocking a neighbor's light, air, or view is not actionable absent an express negative easement, covenant, statute, or (rarely) malicious spite-fence doctrine; American law rejects "ancient lights" prescriptive light easements. Crops (emblements): growing crops pass with a conveyance of the land unless reserved; fructus industriales (annual cultivated crops) are personalty for many purposes. The doctrine of emblements: a tenant whose tenancy of uncertain duration terminates without his fault (life tenant's death; termination of an at-will tenancy by the landlord) may re-enter to harvest the annual crops he planted; a tenant who ends the tenancy himself, or whose fixed term simply expires, has no such right.

XIV. ZONING AND TAKINGS BASICS

A. The Zoning Power

Rule: Zoning is an exercise of the state police power (delegated to localities by enabling acts) to regulate land use for health, safety, morals, and general welfare; comprehensive use/height/density zoning is facially constitutional (Euclid) and challenged ordinances are upheld unless clearly arbitrary and unreasonable with no substantial relation to public welfare (as applied, Nectow). Actions ultra vires the enabling act are void.

1. Nonconforming use. Rule: A lawful use existing when the zoning ordinance takes effect may continue — immediate elimination without compensation is an unconstitutional taking in most courts. But the protection is narrow: the use may not be substantially changed or intensified in kind, generally may not be rebuilt after destruction or resumed after abandonment (intent to abandon plus discontinuance; many ordinances make a fixed period of discontinuance conclusive), and may be phased out by a reasonable amortization period (majority upholds reasonable amortization; a minority holds amortization per se invalid). The right runs with the land — a purchaser may continue the use.

2. Variance. Rule: A variance is administrative permission to deviate from the ordinance, granted by the zoning board upon proof of (i) unnecessary hardship unique to the parcel (owing to its physical characteristics, not conditions shared by the neighborhood and not self-created — buying with knowledge can bar relief), and (ii) no substantial detriment to the public good or the zoning plan. Use variances (forbidden use) face the strict hardship test; area/dimensional variances (setback, height, lot size) need only "practical difficulties" in many states.

3. Special exception (conditional/special use permit). Rule: A use the ordinance itself authorizes in the district upon conditions (schools, churches, hospitals, gas stations); the board verifies that the listed criteria are met — unlike a variance, no hardship showing is needed, and denial must rest on the ordinance's standards. Standardless delegations are invalid. Related tools: amendments/rezoning (legislative; "spot zoning" benefiting one parcel contrary to the plan is invalid in many states), floating zones, cluster zoning, and PUDs. Contract zoning (bargained bilateral commitments) is suspect; conditional rezoning is accepted in many states.

B. Takings vs. Regulation (Overview)

Rule: The Fifth Amendment (incorporated against the states) bars taking private property for public use without just compensation (fair market value). "Public use" is read broadly as public purpose, including economic redevelopment (Kelo). A regulatory taking occurs: (i) per se, for any permanent physical occupation authorized by government, however small (Loretto); (ii) per se, when regulation denies all economically beneficial use of the land (Lucas — unless the prohibited use was barred by background principles of nuisance/property law); and otherwise (iii) under the Penn Central balancing test — economic impact, interference with distinct investment-backed expectations, and the character of the government action. Exactions: conditions on development permits must bear an essential nexus to a legitimate state interest (Nollan) and rough proportionality to the development's impact (Dolan), including monetary exactions (Koontz). Temporary regulatory deprivations may require compensation for the period of the taking (First English); moratoria are judged under Penn Central (Tahoe-Sierra). MBE TIP: a mere diminution in value — even severe — is not a taking by itself; reserve the per se labels for physical occupation and total wipeouts.

XV. THE REAL PROPERTY ATTACK PLAN

Use this sequence on every Real Property MBE question and essay:

Step 1 — Identify the relationship. Grantor/grantee? Landlord/tenant? Co-tenants? Buyer/seller pre-closing? Mortgagor/mortgagee? Neighbors? The relationship selects the doctrine: pre-closing disputes sound in contract (marketable title, equitable conversion); post-closing disputes sound in deed covenants and recording acts; neighbor disputes sound in servitudes, support, water, or nuisance.

Step 2 — Classify every interest, left to right. Name each present estate precisely, attach its future interest(s), and note who holds the reversion. Only then apply the destructibility trio (destructibility, Shelley, Worthier Title — common law only) and RAP. For RAP: is the interest contingent in a transferee? Find a validating life or kill the interest, then re-read the grant with the void language struck.

Step 3 — In multi-conveyance chains, build a timeline. Chart every conveyance, recording, payment, and notice event in date order. Diagnose the recording statute from its quoted language, test the last taker for BFP status, then apply the shelter rule forward and the chain-of-title (wild deed, premature, late) rules backward.

Step 4 — For money questions, follow the waterfall. Foreclosure: expenses, foreclosing lender, juniors in order, surplus to mortgagor; juniors wiped, seniors ride through, omitted juniors survive. Co-tenants: account for third-party rents, contribution for taxes/mortgage, credits at partition. Deed covenants: present vs. future, who can sue whom, capped at price received.

Step 5 — Check the default rules the examiners love. No rent absent ouster; lien-theory mortgage does not sever; nonuse never abandons an easement; the tenant who stays cannot claim constructive eviction; a quitclaim grantee can still be a BFP; donees and heirs are never BFPs; time is not of the essence; the grantor's retained interests are RAP-exempt; possession gives inquiry notice.

Step 6 — Answer the precise call. "At common law" vs. "in a modern jurisdiction," "in a notice jurisdiction," "in a title-theory state," "if the court applies wait-and-see" — the modifier is usually the whole question. When two answers state correct law, pick the one matching the call's jurisdictional frame and the remedy actually requested. Master the splits in this outline and the modifiers become free points.

Related

➡ Real Property One-Page Cheat Sheet
➡ California Real Property Distinctions