Property Exam Prep

Pierson rule (capture)

Wild animal possession requires capture or mortal wounding with intent (Pierson)

Pierson trigger (pursuit)

Mere pursuit or chasing of an animal is insufficient to establish possession (Pierson)

Ghen rule (custom)

Industry custom can establish possession when capture is impractical (Ghen)

Ghen trigger (whaling)

Use of specialized trade practices signals custom-based possession (Ghen)

Popov rule (pre-possessory interest)

Significant but incomplete control can create a qualified interest (Popov)

Popov trigger (interrupted capture)

Interrupted control of a resource raises equitable division arguments (Popov)

Keeble rule (malicious interference)

Intentional interference with lawful capture is actionable (Keeble)

Keeble trigger (competition vs interference)

Distinguish legitimate competition from malicious disruption (Keeble)

INS rule (quasi-property)

Competitors cannot appropriate time-sensitive information unfairly (INS)

Feist rule (originality)

Facts are not protected unless arranged with minimal creativity (Feist)

Armory rule (finder)

Finder has superior rights against all but the true owner (Armory)

Hannah rule (locus)

Finder prevails if owner never possessed the premises (Hannah)

McAvoy rule (mislaid)

Mislaid property belongs to the premises owner

Lost vs mislaid trigger

Intentionally placed property suggests mislaid classification (McAvoy)

Adverse possession elements

Possession must be actual

Adverse possession trigger

Long-term occupation with visible use signals AP claim

Adverse possession hostility (objective)

Majority view requires possession without permission regardless of intent

Adverse possession hostility (good faith)

Minority view requires belief that land is owned

Adverse possession hostility (bad faith)

Some jurisdictions require intent to dispossess true owner

Van Valkenburgh rule (strict AP)

Courts may strictly require all statutory elements (Van Valkenburgh)

Mannillo rule (minor encroachment)

Minor encroachments may fail open and notorious without actual notice (Mannillo)

Howard rule (tacking)

Successive possessors may tack if in privity (Howard)

Tacking trigger

Voluntary transfer between possessors establishes privity (Howard)

O’Keeffe rule (discovery)

Statute of limitations begins when owner knew or should have known (O’Keeffe)

Fee simple absolute (FSA)

Absolute ownership with no conditions or future interests

Fee simple determinable (FSD)

Estate ends automatically upon stated condition

FSD trigger

Language like “so long as” or “until” signals automatic termination

Fee simple subject to condition subsequent (FSSCS)

Estate continues until grantor exercises right of entry

FSSCS trigger

Language like “but if” with reentry indicates elective termination

Fee simple subject to executory limitation (FSSEL)

Estate shifts automatically to third party upon condition

FSSEL trigger

Language “then to B” signals shifting interest

Life estate

Estate lasts for life of measuring person and then passes to future interest holder

Reversion

Interest retained by grantor after conveying lesser estate

Possibility of reverter

Future interest following FSD that returns automatically to grantor

Right of entry

Grantor’s power to reclaim estate after condition breach in FSSCS

Remainder

Future interest in third party that waits for natural expiration of prior estate

Executory interest

Future interest that cuts short a prior estate

Vested remainder

Remainder with known taker and no condition precedent

Contingent remainder

Remainder with unascertained taker or condition precedent

Alternative contingent remainders

Two contingent remainders where one takes if the other fails

Vested subject to divestment

Vested remainder that may be cut short by later condition

Rule Against Perpetuities (RAP)

Interests must vest within 21 years after a life in being

RAP trigger

Future interest dependent on uncertain future events signals RAP issue

RAP applies

RAP applies to contingent remainders

RAP does not apply

RAP does not apply to vested remainders or grantor interests

Joint tenancy (JT)

Co-ownership with right of survivorship and four unities

Four unities

Time

JT severance

Any act destroying a unity converts JT to tenancy in common

Riddle rule (severance)

A joint tenant may sever by conveying to herself (Riddle)

Harms rule (mortgage)

Mortgage does not sever JT in lien theory jurisdictions (Harms)

Tenancy in common (TIC)

Default co-ownership with no survivorship rights

Tenancy by entirety (TBE)

Marital estate with survivorship and limited severability

Spiller rule (ouster)

Co-tenant not liable for rent absent ouster (Spiller)

Ouster trigger

Denial of access or exclusion signals ouster

Term of years

Lease with fixed duration that ends automatically without notice

Periodic tenancy

Lease that renews automatically until terminated by notice

Tenancy at will

Lease terminable at any time by either party

Tenancy at sufferance

Holdover tenant without landlord consent

English rule (delivery)

Landlord must deliver actual possession at start of lease

American rule (delivery)

Landlord must deliver only legal right to possession

Implied warranty of habitability

Landlord must maintain premises fit for living

Hilder rule (habitability)

Tenant may withhold rent for serious defects (Hilder)

Easement

Nonpossessory right to use another’s land

Easement appurtenant

Easement tied to land that benefits dominant estate

Easement in gross

Easement benefiting a person rather than land

Easement by necessity

Arises when land is landlocked and access is required

Easement by prior use

Arises from preexisting use that was apparent and continuous

Van Sandt rule (implied easement)

Prior use and necessity create implied easement (Van Sandt)

Othen rule (necessity)

Easement by necessity requires strict necessity (Othen)

Brown rule (overburdening)

Easement cannot be used to benefit non-dominant land (Brown)

Easement termination

Easements terminate by abandonment

Covenant

Promise regarding land use enforceable at law

Equitable servitude

Land use restriction enforceable in equity

Tulk rule (equity)

Covenants enforceable against successors with notice (Tulk)

Sanborn rule (scheme)

Uniform development creates implied restrictions (Sanborn)

Neponsit rule (HOA)

Covenants enforceable if they benefit landowners collectively (Neponsit)

Zoning (Euclid)

Zoning valid if rationally related to public welfare (Euclid)

Zoning (Nectow)

Zoning invalid if arbitrary and unreasonable (Nectow)

Nuisance (private)

Substantial and unreasonable interference with land use

Nuisance trigger

Noise

Boomer rule (remedy)

Courts may award damages instead of injunction (Boomer)

Spur rule (coming to nuisance)

Court may enjoin but require plaintiff to compensate defendant (Spur)

Takings (5th Amendment)

Government must pay just compensation for taking private property

Per se taking

Physical occupation or total deprivation is automatically a taking

Regulatory taking (Penn Central)

Balances economic impact

Lucas rule (total taking)

Regulation depriving all economic value is a taking

Exactions (Nollan/Dolan)

Conditions on land use must have nexus and proportionality to impact

Takings trigger

Government restriction eliminating property value signals takings issue

Right to exclude

Fundamental property right protected against intentional invasion

Jacque rule (punitive damages)

Intentional trespass justifies punitive damages (Jacque)

Shack rule (limits)

Right to exclude limited by necessity and public policy (Shack)

Exam trap (easement vs covenant)

Easement allows use while covenant restricts use

Exam trap (FSD vs FSSCS)

Automatic vs elective termination distinguishes estates

Exam trap (remainder vs executory)

Waiting vs cutting short distinguishes interests

Exam trap (AP permission)

Permission defeats hostility requirement

Exam trap (JT severance)

Transfer severs only that share

Exam trap (mislaid property)

Mislaid goes to landowner

Exam trap (RAP timing)

Focus on possibility of remote vesting