Skip to main contentAdverse Possession and Future Interests
Adverse Possession Against Life Estates
Rule: An adverse possessor cannot adversely possess against a future interest holder.
Hypothetical: O to A for life, then to B
- O: Fee simple absolute (FSA)
- A: Present possessory interest in a life estate (A is the measuring life)
- B: Indefeasible vested remainder
If C adversely possesses during A’s lifetime:
- C gains adverse possession only for the duration of A’s life
- C would have a life estate pur autre vie (for A’s life)
- When A dies, adverse possession starts over against B
- B is a future interest holder and cannot be adversely possessed against
Rationale: C can only possess against the present possessory interest holder. Since B is a future interest holder, the adverse possession clock restarts when B’s interest becomes possessory.
Tacking in Adverse Possession
When tacking does NOT apply:
- No tacking discussion needed when the statute of limitations restarts due to a future interest vesting
- Different owners with intervening acts (like death terminating a life estate) are not successive adverse possessors
- Tacking is specific to adverse possessors (trespassers), not new owners
When the clock does NOT restart:
- If A has FSA and sells to B while T (trespasser) is adversely possessing
- B is not a future interest holder, just a new owner by sale
- The adverse possession clock continues running
Life Estate Pur Autre Vie
Creating a Life Estate Pur Autre Vie:
Example: O to A for life, then to B. A sells “in fee simple absolute” to C.
- C takes only what A has
- A cannot convey more than A possesses
- C receives: Present possessory interest in a life estate with A being the measuring life
- This is a life estate pur autre vie (for the life of another)
- When A dies, the property goes to B (not C or C’s heirs)
Example: O to A and B for life as joint tenants with right of survivorship
- Maximum duration is the life of one of them
- If B dies, A succeeds to 100% ownership in a life estate
- A has a present possessory interest in a life estate with A being the measuring life
- O retains a reversion
If B sells her interest to C:
- C receives a life estate pur autre vie (for B’s life)
- When B dies, C’s interest terminates
Future Interests
Analyzing Future Interests
Step-by-step approach:
- Identify if it’s a remainder
- Determine if it’s vested or contingent
- If contingent: identify the condition precedent or unascertainable person
- If vested: determine which type
- Indefeasible
- Subject to open
- Subject to complete divestment
Remainders: Vested vs. Contingent
Vested Remainder:
- In an ascertainable (living) person
- No condition precedent
Contingent Remainder:
- Either: condition precedent exists
- Or: unascertainable person
Example: O to A for life, then to B if B gets an A+ in evidence
- O: FSA (presumed)
- A: Present possessory interest in a life estate (A is measuring life)
- B: Contingent remainder (condition precedent: getting an A+)
- O: Reversion (if B doesn’t satisfy the condition)
Alternative Contingent Remainders
Definition: When two contingent remainders are created where one serves as an alternative to the other.
Example: O to A for life, then to B if B gets an A+ in evidence, otherwise to C
- A: Present possessory interest in a life estate (A is measuring life)
- B: Contingent remainder
- C: Alternative contingent remainder
- No reversion to O (one or the other must take)
Note: This concept appears in the 9th edition but was removed from the 10th edition of the textbook.
Rule Against Perpetuities: Alternative contingent remainders are subject to RAP because they are contingent remainders.
Rule Against Perpetuities
Two-step analysis:
Step 1: Apply common law RAP
- If valid under common law, the interest is valid
- If void under common law, proceed to Step 2
Step 2: Wait and see for 90 years
- If the interest vests within 90 years, it is valid
- If the interest does not vest within 90 years, it is void
Common Law RAP: Children Reaching Age 22+
Rule: Any contingent interest requiring children to reach age 22 or more is always void under common law RAP.
Example: O to A for life, then to B’s children who reach 22
- Facts: B has two children, C (age 21) and D (age 20)
- Under common law RAP: VOID (age requirement is 22)
- Under USRAP: Wait 90 years to see if it vests
- If A dies 20 years later when C and D are 31 and 30: VALID (vested within 90 years)
The Rule in Shelley’s Case
Context: Common law concept and modern minority rule
The Rule: When one instrument purports to convey:
- A life estate to a grantee, AND
- A fee simple interest to that same grantee’s heirs
Then the doctrine of merger applies, transposing the conveyance into a fee simple to the grantee.
Example: O to A for life, then to A’s heirs
Under Shelley’s Case:
- Treated as equivalent to: O to A and her heirs (FSA to A)
- OR in modern law: O to A (FSA to A)
Rationale: A will die and the property will go to A’s heirs anyway. The life estate and remainder merge into a present fee simple absolute in A.
Exam Approach:
- Create a subheader for “Shelley’s Case” or “Merger”
- Apply the doctrine if the pattern appears
- Do not need extensive discussion of merger itself
Essay Writing Strategy
General Rules:
- Use IRAC format: Issue, Rule, Analysis/Application, Conclusion
- Break down each element systematically
- Conclusion should be a very short sentence (separate from analysis)
- Don’t put your conclusion in your discussion
Breaking Down Estates:
Use at least two sentences:
- Is the estate a present interest or future interest?
- What type of estate is it exactly?
Example:
“This is a present possessory interest because it is conveyed ‘to A.’ This present possessory interest will last for the duration of A’s life, as evidenced by ‘for life.’ Therefore, A has a present possessory interest in a life estate.”
Avoid: “A has a life estate because ‘to A for life.’” (Too conclusory)
Adverse Possession Organization
Option 1 - Separate headers (preferred if no page limit):
- Use subheaders for each element:
- Actual
- Open and Notorious
- Exclusive
- Hostile
- Continuous
- Give rule, analysis, and conclusion for each
Option 2 - Single paragraph (acceptable with page restrictions):
- One header: “Adverse Possession”
- Give the overall rule
- Discuss each element within one paragraph
- “Open and notorious requires… Here, [facts]…”
- “Hostile requires… Here, [facts]…”
- One conclusion at the end
Important: Even in a single paragraph, ensure each element gets adequate discussion. Don’t shortchange important elements just because you’ve written a lot overall.
Page Limits and Restrictions
Exam specifications:
- Total: 30 pages (approximately 10 pages per essay)
- Double-spaced (5 pages single-spaced equivalent)
With page restrictions:
- Organization will not be graded
- Can combine issues into larger paragraphs
- Focus on complete substantive analysis over formatting
- Ensure every required element is discussed thoroughly
Adverse Possession Special Issues
Future Interest Holders:
- Only discuss if the fact pattern raises the issue
- If applicable: conclude that adverse possessor “succeeds to adverse possession against A’s interest, and A’s interest only”
- Would typically be mentioned in the conclusion rather than as a separate section
Multiple Adverse Possessors:
- Generally combine into one discussion (preferred)
- Only write separate discussions if:
- Different adverse possessor on separate piece of land
- Different time periods that don’t involve tacking
Evidence Law Topics
[Note: The review session transitioned to Evidence law midway through. Evidence topics covered included hearsay exceptions, business records, Crawford confrontation clause, and authentication. These are not included in this Property-focused outline.] 
