Property Final Exam Attack Checklist
Final exam attack checklist covering estates in land, future interests, concurrent ownership, landlord-tenant, easements, covenants, and takings.
Pre-Exam Preparation
- Memorize the estates system: fee simple absolute, fee simple determinable (possibility of reverter), fee simple subject to condition subsequent (right of entry), fee simple subject to executory limitation, life estate
- Create a future interests chart: reversion, remainder (vested vs. contingent), executory interest (shifting vs. springing), possibility of reverter, right of entry
- Review the Rule Against Perpetuities: no interest is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest — practice the 'what if' analysis for lives in being
- Outline landlord-tenant law: tenancy types (years, periodic, at will, at sufferance), duties (habitability, repair), remedies (constructive eviction, rent withholding, repair and deduct)
- Map out servitudes: easements (appurtenant vs. in gross, creation methods, scope, termination), real covenants (touch and concern, horizontal and vertical privity, intent, notice, writing), equitable servitudes (intent, touch and concern, notice)
- Review the takings framework: physical taking (per se taking), regulatory taking (Penn Central factors: economic impact, investment-backed expectations, character of regulation), total diminution (Lucas)
Issue-Spotting Checklist
- Classify the estate: identify the precise present possessory estate and all accompanying future interests in each conveyance
- Check for Rule Against Perpetuities violations: does any contingent future interest have a validating life, or could it possibly vest more than 21 years after all relevant lives in being?
- Identify concurrent ownership issues: joint tenancy (right of survivorship, four unities, severance), tenancy in common, tenancy by the entirety
- Look for adverse possession: open and notorious, actual and exclusive, continuous for the statutory period, hostile/under claim of right
- Spot landlord-tenant issues: warranty of habitability, duty to mitigate upon abandonment, constructive eviction, security deposit disputes
- Check for easement creation: express grant, reservation, implication (prior use, necessity), prescription — and determine if the easement is appurtenant or in gross
- Identify restrictive covenant issues: does the covenant run with the land (touch and concern, privity, intent, notice), and are there defenses (changed conditions, acquiescence, laches)?
- Look for recording act issues: race, notice, or race-notice jurisdiction — determine who qualifies as a bona fide purchaser for value without notice
- Check for takings: physical appropriation (per se), regulatory taking (Penn Central), or exaction (Nollan/Dolan essential nexus and rough proportionality)
- Identify water rights, lateral support, or nuisance issues if the facts involve neighboring properties
Common Essay Structure (IRAC)
- Issue: Identify the property question (e.g., 'Whether B has a valid easement by prescription over A's land')
- Rule: State the governing rule with precision — conveyancing issues require exact classification of estates and future interests
- Application: For estate-in-land questions, classify every interest held by every party; for servitudes, walk through each element of creation or running with the land
- Historical chain: Property essays often require tracing title through a chain of conveyances — be methodical and address each transfer in order
- Policy: Property law often involves competing policy interests (certainty of title vs. fairness, development vs. preservation) — briefly note the policy tension when relevant
- Conclusion: State who holds what interest, or whether the restriction/easement is enforceable
Key Rules to Memorize
- Fee simple determinable: 'so long as,' 'while,' 'during,' 'until' — automatically reverts to grantor (possibility of reverter)
- Fee simple subject to condition subsequent: 'but if,' 'on condition that,' 'provided that' — grantor must exercise right of entry to retake
- Rule Against Perpetuities: no interest is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
- Joint tenancy requires four unities: time, title, interest, possession — severance by conveyance, mortgage (title theory), or agreement
- Adverse possession (OCEAN): open and notorious, continuous, exclusive, actual, hostile (non-permissive) — for the statutory period
- Implied warranty of habitability: landlord must maintain premises in habitable condition; tenant remedies include repair and deduct, rent withholding, and constructive eviction
- Easement by prescription: same elements as adverse possession (open, notorious, continuous, hostile) but no requirement of exclusivity
- Real covenant requirements to run with the land: (1) writing (Statute of Frauds), (2) intent to run, (3) touch and concern, (4) privity (horizontal and vertical)
- Equitable servitude requirements: (1) intent to run, (2) touch and concern, (3) notice (actual, constructive, or inquiry) — no privity required
- Recording acts: race (first to record wins), notice (BFP without notice wins), race-notice (BFP without notice who records first wins)
- Penn Central regulatory takings: (1) economic impact on the owner, (2) interference with investment-backed expectations, (3) character of the government action
- Shelter rule: a person who takes from a bona fide purchaser is protected by the recording act even if they themselves had notice
Last-Minute Tips
- For conveyancing problems, classify every interest — present estate, future interest in the grantor, and future interest in third parties — before analyzing validity
- Apply the Rule Against Perpetuities by asking: is there any possible scenario, however unlikely, in which this interest might vest more than 21 years after all lives in being die?
- When the facts describe a neighbor dispute, consider easements, covenants, equitable servitudes, nuisance, and lateral support — multiple theories often apply
- For recording act questions, draw a timeline of when each transaction occurred and when each deed was recorded to determine priority
- Remember that many jurisdictions have adopted the Uniform Statutory Rule Against Perpetuities (USRAP), which provides a 90-year wait-and-see alternative
Time Management
- Property essays often have multi-step conveyance chains — spend the first few minutes diagramming who holds what interest at each stage before writing
- If the exam tests the Rule Against Perpetuities, allocate significant time — RAP analysis requires careful attention to validating lives and remote vesting scenarios
- For landlord-tenant questions, address the specific duty at issue (habitability, repair, quiet enjoyment) and the available remedies systematically
- Servitude questions (easements, covenants) often require separate analyses of creation, scope, and enforceability — budget time for all three