I. Rule Against Perpetuities - Bar Exam Review
Basic Rule Application
- Executory interests are subject to RAP
- Measured at time of creation, not time of vesting
- Must vest within lives in being plus 21 years
Example Problem
Conveyance: “To Barry, but if at any time Barry, his heirs, successors, or assigns shall use the premises for any purpose other than a personal residence, then to Zach or his surviving descendants” Analysis:- Barry: Fee simple subject to executory limitation
- Zach: Shifting executory interest
- RAP applies: Zach’s interest is VOID (cannot guarantee vesting within perpetuities period)
- Result: Strike Zach’s interest → Barry has fee simple absolute
Modern Approach - USRAP/Wait-and-See
- 90-year waiting period to determine if interest vests
- If fact pattern indicates time elapsed (e.g., “60 years ago”), discuss both:
- Common law RAP (void)
- USRAP (wait and see if vests within 90 years)
Exam Note
- Recently tested on California Bar (first time for RAP)
- Unlikely to appear again soon
II. Joint Tenancy
Definition
- Two or more persons with ownership interest in land
- Last remaining survivor succeeds to 100% ownership
- Undivided interest (not physical division)
- Equal shares required
Creation
Common Law - Four Unities Required
- Time: Interests must vest at same time
- Title: Interests must derive from same instrument
- Interest: Equal shares
- Possession: Equal right to possess entire property
Common Law - Straw Man Requirement
- Cannot execute deed naming yourself and another as joint tenants
- Required process:
- Transfer property to third party (straw person)
- Third party re-transfers to you and partner
- This establishes all four unities
Modern Approach
- No straw man required
- Can execute deed naming yourself and another
- Specific language required: “To A and B as joint tenants with right of survivorship”
- Grantor must clearly evidence intent to create joint tenancy
Default Rules
- Modern: Ambiguous conveyance defaults to tenancy in common
- Common law: Ambiguous conveyance defaults to joint tenancy
Severance of Joint Tenancy
1. Sale/Conveyance to Third Party
- No notice required to other joint tenant
- Effect: Severs joint tenancy
- Result: Buyer becomes tenant in common with remaining original tenant (50-50)
- Fact patterns often emphasize “without telling” other tenant → has no legal significance
2. Transfer/Conveyance to Oneself
- Re-execute deed naming yourself as tenant in common with other tenant
- No notice required
- Severs joint tenancy
3. Mortgage - Two Theories
Majority View - Lien Theory
- Mortgage does NOT sever joint tenancy
- Condition: As long as payments made and no foreclosure
- Rationale: Bank only attaches lien, does not take title
- Death scenario: If mortgaging tenant dies before foreclosure:
- Surviving tenant takes property free and clear
- Bank loses (lien attached to interest that vanished)
- Very risky for banks
Minority View - Title Theory
- Mortgage DOES sever joint tenancy
- Rationale: Bank takes actual title to property
- Bank becomes tenant in common with other tenant
- If loan paid back, bank reconveys title
- Death scenario: Bank retains 50% as tenant in common
Exam Approach
- If jurisdiction not specified, discuss both theories
- Default to majority view (lien theory)
Wills and Inheritance
- Cannot devise joint tenancy interest by will
- If you die first, you have zero interest to pass
- Survivorship trumps testamentary disposition
- Heirs get nothing if you die before co-tenant
Rights and Restrictions
- Equal right of enjoyment: Cannot restrict one tenant more than another
- Can sell interest without permission (creates tenancy in common)
- Each tenant entitled to 50-50 split of profits derived from land
The “Motive for Murder” Rule
- If you kill co-tenant to gain 100% ownership:
- If caught: You forfeit your interest
- Other joint tenant’s heirs receive the property
III. Tenancy by the Entirety
Definition
- Joint tenancy + marriage
- Can only exist between married spouses
- Carries survivorship right
Termination Methods
- Death of one spouse
- Divorce
- Mutual agreement (must be voluntary)
Restrictions
- Cannot unilaterally transfer or give away property
- Spousal agreement required for any conveyance
- Creditors may potentially terminate (community property issue)
IV. Tenancy in Common
Core Characteristics
- No survivorship right (key distinction from joint tenancy)
- Undivided interest (like joint tenancy)
- Unequal shares permitted
- Interest passes to heirs upon death
Ownership Examples
- A and B each have 50%
- If A dies: A’s 50% goes to A’s heirs
- B and A’s heirs become tenants in common (50-50)
- A can sell 25% to C, retain 25%
- Result when A dies: B (50%), C (25%), A’s heirs (25%)
Creation
- Modern default: “O to A and B” presumed tenancy in common
- Explicit: “O to A and B as tenants in common”
- No survivorship language = tenancy in common
Comparison to Joint Tenancy
- Joint tenancy: “Motive for murder” (get 100% if co-tenant dies)
- Tenancy in common: “No motive for murder” (only get what you already have)
V. Partition
Overview
- Judicial remedy when co-tenants disagree about property disposition
- Court applies best interests test (balancing test)
Types of Partition
Partition in Kind
- Physically dividing the property
- Example: “North half to you, south half to me”
- Consider: geographic features, improvements, practicality
Partition for Sale
- Judicial sale of entire property
- Proceeds split according to ownership percentages
- Example: $100,000 sale price
- 75% owner receives $75,000
- 25% owner receives $25,000
Best Interests Test - Balancing Factors
Consider:- Occupancy: Does one party live on property?
- Business use: Does property support someone’s livelihood?
- Financial interests: Pure investment vs. personal use
- Relative hardship: Burden on each party
- Property characteristics: Can it reasonably be divided?
- Market conditions
- Development potential
- Physical features (mountains, creeks, dwellings)
- Party 1: Lives on property, runs marijuana business providing medicine to patients, livelihood depends on it
- Party 2: Lives in Hamptons, purely financial interest, wants money for Paris trip
- Analysis: Balance Party 1’s livelihood needs vs. Party 2’s financial gain
Exam Approach
- Discuss both types unless call of question specifies one
- No right answer - equity analysis balancing competing interests
- Avoid: “The judge will decide” or “the court will decide”
- Focus on: YOUR arguments and analysis using best interests standard
VI. Ouster
Definition
Ouster occurs when one co-tenant refuses to honor another co-tenant’s rights by:- Claiming exclusive ownership
- Denying access to property
- Installing “No Trespassing” signs
- Changing locks
- Erecting fence to exclude co-tenant
- Threatening violence
Elements
- Assertion of exclusive rights (“This is MY property!”)
- Refusal to honor co-tenant rights (denying access, claiming sole ownership)
Legal Consequences of Ouster
1. Rent Obligation ⚠️ HEAVILY TESTED
- Ousting tenant owes RENT to ousted tenant
- Rationale: Taking co-tenant’s interest/preventing enjoyment
- Calculation: Proportion of reasonable rental value
- Example: 5,000/month for 50% interest
- Exam tip: Sufficient to state “owes rent” without exact calculations
- Can recover back rent when property eventually sold
2. Adverse Possession Clock Starts
- General rule: CANNOT adversely possess co-tenant UNLESS ouster occurs
- Reason: Co-tenants have equal right to possession
- Ouster as trigger: Moment of ouster = AP clock begins
- Concurrent obligations: AP clock runs even if rent being paid
- Payment satisfies legal obligation but doesn’t negate hostile possession
- Ousted tenant still entitled to access even if receiving rent
Common Fact Pattern
- Two joint tenants exist
- One sells interest to third party (no notice)
- Selling tenant dies
- Remaining original tenant unaware of sale
- Buyer approaches: “I’m the new owner”
- Original tenant: “I don’t know you, get off MY property!”
- Installs signs, erects fence
- Result: OUSTER → Rent owed + AP clock starts
Exam Frequency
- Tested multiple times over 12 years
- Appears in essays and multiple choice
- Almost every other year
- Also tested on California Bar
VII. Rents, Profits, and Expenses
Profits Derived from Land Use
Must Share
Rule: If profit derived from use of land → must share proportionally Examples:- Growing marijuana for sale → split 50-50
- Renting to third party → split rent 50-50
- Oil, gold, minerals → split proceeds 50-50
Need Not Share
Rule: If income not derived from land use → no sharing required Example: Virtual business using address only (no physical activity on land)Property Taxes and Mortgage Payments
General Rule
- Each tenant responsible for proportional share
- Default: 50-50 for equal ownership
Reimbursement
- If one tenant pays all expenses while other doesn’t contribute
- Can recover reimbursement when property sells
- Example: Property sells for $100,000
- Paying tenant: $60,000
- Non-paying tenant: $40,000
- Differential = reimbursement
Repairs and Improvements
No Automatic Obligation
- Co-tenants NOT obligated to pay for repairs/improvements
- Exception: If agreement exists between co-tenants
Reimbursement Available
- One tenant pays for improvements/repairs
- Can get reimbursed when property sells
Subjective Nature Problem
- What constitutes “necessary” is subjective
- Necessary repairs (e.g., mold removal): More likely reimbursed
- Unnecessary improvements (e.g., adding elevator): Questionable reimbursement
- Aesthetic disagreements between co-tenants
VIII. Restraint on Marriage
General Rule
- Restraints on marriage in conveyances are disfavored
- Court examines grantor’s intent
Key Distinction - Duration vs. Penalty
”So Long As” = Support Until Marriage (VALID)
- Durational language
- Purpose: Provide support UNTIL remarriage
- Intent: Support (not penalty)
- Example: “To Betty so long as she lives on Madacre and does not remarry”
- Analysis: Intended to support Betty until new spouse can support her
”On Condition That” = Penalty for Marriage (INVALID)
- Conditional language
- Purpose: Penalize marriage
- Intent: Punitive
- Treatment: More likely struck down
Application
Analyze whether restraint is:- Support-oriented (valid)
- Penalty-oriented (invalid)
IX. Adverse Possession - Co-Tenant Context
General Rule
- CANNOT adversely possess co-tenant WITHOUT ouster
- Reason: Both have equal right to possession
- Exception: Ouster changes this
When Ouster Occurs
- Adverse possession clock begins
- All elements still required: Continuous, hostile, open/notorious, actual, exclusive
- Rent obligation continues even while adversely possessing
Case Reference - Lutz v. Van Volkenberg
- Random items in woodshed held insufficient for actual occupancy
- No evidence of real improvement
- Lacked sufficient enclosure
- Distinguishing factor: Presence/absence of fence matters
Actual Occupancy Issues
- Question: Is occasional use of storage shed sufficient for 10 acres?
- Standard: “Used as reasonable owner would use”
- Large parcels may not require constant physical presence
- But must show actual improvement/use
Selling Interest After Ouster
- If ousted tenant sells their interest
- Buyer steps into ousted tenant’s shoes
- AP clock does NOT reset
- Clock continues from original ouster
X. Exam Tips and Strategy
Writing Style
- Never use “I” or “We”
- Avoid: “The judge will decide” or “the court will decide”
- Focus on: YOUR arguments and analysis
- In rules: Can reference what “court will balance”
- In analysis: Show YOUR reasoning
Reading Fact Patterns
- Read interrogatories (questions) FIRST
- Read slowly and analytically
- Look for significance in every detail
- “Properly executed deed” = don’t question validity
- “Valid will” = don’t question validity
- Timing references (e.g., “11 years ago”) = may trigger time-based rules
- Specific language: “so long as” vs. “on condition that”
Common Law vs. Modern
- Usually explicitly stated in fact pattern
- If unstated, may need to discuss both
- Key differences:
- Joint tenancy creation (straw man)
- Default presumptions (JT vs. TIC)
- Life estate language (“and heirs”)
Current Study Status
After Session 10, can complete 50% of essay questions:- Adverse possession
- Estates and future interests
- Concurrent ownership
- Partition and ouster
XI. Practice Problems - Professor’s Insights
Difficulty Assessment
- “Not really that hard”
- “Once you get the hang of it, not gonna be tough”
- Will “look back and say it’s actually quite simple”
Professor’s Writing Style
- “I like to be very vague”
- “Nothing’s ever clear”
- If something clear = red flag
- Vagueness “causes you to think”
- “Never points in the obvious”
Student Performance Notes
- Few students “hit it out of the park” on adverse possession essay
- Many missed Lutz issue
- Insufficient analysis of actual occupancy
- This is how professor differentiates students on take-home finals
Answer Keys Provided
- Student answers (not model answers)
- May not match all questions
- Some questions may lack answers
- Questions recycled with name changes (Blackacre → Greenacre)
- Used even on remote 24-hour finals