Real Property for the bar exam

1. Durational language
2. Automatic termination
3. Possibility of reverter

Language of purpose alone may create a covenant rather than a defeasible estate.

‘To the city so long as used as a park’ ordinarily creates a fee simple determinable.

1. Identify interest
2. Ask whether contingent
3. Find validating life
4. Test every possible chain
5. Apply jurisdiction reforms if supplied

The possibility that an interest probably vests soon is not enough; traditional RAP asks whether remote vesting is possible.

A gift to a living person’s grandchildren may fail if another child could be born and later have children outside the period.

1. Valid creation
2. Survivorship
3. Severance event
4. Accounting and possession rights

A will cannot transfer a joint tenant’s interest because survivorship operates at death.

A’s sale of A’s half severs that half while the remaining relationship depends on the number of cotenants.

1. Residential lease
2. Substantial habitability defect
3. Notice
4. Reasonable opportunity to repair
5. Proper remedy

The warranty generally cannot be waived and differs from the covenant of quiet enjoyment.

Persistent lack of heat in winter may justify damages or other statutory remedies after notice.

1. Enforceable contract
2. No controlling risk clause or statute
3. Timing of casualty
4. Title and remedy consequences

Always apply a supplied jurisdiction statute over the traditional default.

If a statute places risk on the party in possession, it can displace the traditional buyer-risk rule.

1. Valid deed
2. Present transfer intent
3. Delivery
4. Acceptance, usually presumed if beneficial

An instruction that the deed take effect only at the grantor’s death may be testamentary unless placed in an irrevocable escrow.

Handing over a deed while expressly retaining the right to reclaim it may defeat delivery.

1. Valid mortgage
2. Priority
3. Necessary parties
4. Foreclosure sale
5. Distribution and deficiency

A buyer at a junior-mortgage foreclosure takes subject to senior liens.

Foreclosing the second mortgage does not eliminate the first mortgage.

1. Subsequent purchaser
2. Value
3. No notice at conveyance
4. Protected interest

Visible possession by another person can create inquiry notice.

A buyer who sees a tenant in unexplained possession may need to investigate the tenant’s rights.

1. Open and notorious
2. Adverse or without permission
3. Continuous for period
4. Definite use

Permissive use generally cannot become prescriptive until the permission is clearly repudiated.

Long, visible use of a driveway under claim of right may mature into an easement.

1. Writing
2. Intent
3. Notice
4. Touch and concern
5. Horizontal privity
6. Vertical privity

Equitable servitude enforcement generally does not require horizontal privity.

A recorded neighborhood use restriction may be enforceable in equity even if damages requirements are unmet.