NextGen Bar Exam Real Property Syllabus

How is a joint tenancy severed?

By breaking a unity—most commonly an inter vivos conveyance by one joint tenant of her interest, which converts that share to a tenancy in common. A mortgage (in lien-theory states) or lease generally does not sever; a partition action also ends it.

What is a tenancy by the entirety and how can it be terminated?

A marital joint tenancy with right of survivorship, available only to spouses; neither spouse can unilaterally convey or encumber it, and individual creditors generally cannot reach it. Terminated only by death, divorce, mutual agreement, or joint conveyance.

In a tenancy in common, can one co-tenant exclude another, and is there survivorship?

No—each co-tenant has an undivided right to possess the WHOLE; none may exclude another. There is NO right of survivorship; each interest is freely devisable and descendible. It is the default/presumed concurrent estate.

When must one co-tenant account to others for rents and profits?

A co-tenant must share net rents received from THIRD parties (in proportion to ownership) and account for profits from exploiting the land. A co-tenant in sole possession owes nothing for the reasonable value of her own use UNLESS there is an ouster.

What is the difference between an assignment and a sublease of a leasehold?

An assignment transfers the tenant's ENTIRE remaining interest; the assignee is in privity of estate with the landlord and liable for rent. A sublease transfers LESS than the entire remaining term; the sublessee is liable only to the original tenant, not the landlord.

List the four leasehold (nonfreehold) estates.

(1) Tenancy for years (fixed term); (2) periodic tenancy (recurring period until terminated by notice); (3) tenancy at will (no fixed period, terminable by either party); (4) tenancy at sufferance (holdover tenant).

How is a periodic tenancy terminated, and how much notice is required at common law?

By notice equal to the length of the period (e.g., one month's notice for a month-to-month tenancy), with termination effective at the end of a period. For a year-to-year tenancy, common law required six months' notice.

What is a tenancy at sufferance?

Arises when a tenant wrongfully holds over after the lease ends. The tenant is liable for rent; the landlord may evict OR bind the tenant to a new periodic tenancy (holdover doctrine).

What is the implied warranty of habitability?

In RESIDENTIAL leases, the landlord must maintain the premises fit for human habitation (meeting housing-code standards for health and safety). It is non-waivable. Tenant remedies: move out and terminate, repair and deduct, reduce/withhold rent, or sue for damages—while remaining in possession.

What is the implied covenant of quiet enjoyment and constructive eviction?

Every lease (residential and commercial) includes a covenant that the tenant will not be wrongfully disturbed in possession. Constructive eviction occurs when (1) the landlord's act/failure substantially interferes with use, (2) the tenant notifies and the landlord fails to fix it, and (3) the tenant vacates within a reasonable time.

What duties does a tenant owe regarding the leased premises?

To pay rent, avoid waste, and (absent a lease provision) make ordinary repairs to keep the premises in the condition received, ordinary wear and tear excepted. A tenant generally may not unilaterally alter the structure (ameliorative waste).

What is a landlord's duty to mitigate damages when a tenant abandons?

Under the majority/modern rule, a landlord must make reasonable efforts to re-rent the premises (treating it as part of the available stock) rather than letting it sit and suing for the full rent.

What is an easement, and how do easements appurtenant and in gross differ?

A nonpossessory right to use another's land. An easement appurtenant benefits the holder in use of a particular parcel (dominant tenement) and burdens another parcel (servient tenement); it runs with the land. An easement in gross benefits a person/entity, not land (e.g., utility lines).

What are the methods of creating an easement? (PING)

Prescription (adverse use), Implication (prior use or necessity), Necessity, and Grant (express, written, satisfying the Statute of Frauds). Also by estoppel and reservation.

What are the elements of an easement by implication from prior use (quasi-easement)?

(1) Land originally one parcel under common ownership; (2) prior, apparent, and continuous use before severance; and (3) the use is reasonably necessary for the enjoyment of the dominant parcel.

What are the requirements for an easement by necessity?

(1) The dominant and servient parcels were once under common ownership, and (2) the severance created the necessity (e.g., a parcel becomes landlocked with no access). It ends when the necessity ends.

What are the elements of an easement by prescription?

Use that is Open and notorious, Continuous, Hostile (without permission), and for the statutory period. (Exclusivity is generally NOT required.) Essentially adverse-possession elements minus exclusive possession; permission defeats the claim.

How are easements terminated? (END CRAMP)

Estoppel, Necessity ends, Destruction of servient land, Condemnation, Release (writing), Abandonment (act showing intent), Merger (unity of title), and Prescription (adverse interference). Mere non-use is not abandonment.

What is a license, and how does it differ from an easement?

A license is a revocable, personal privilege to use another's land; it need not be in writing and is NOT an interest in land. Unlike an easement, it is freely revocable—except when coupled with an interest or made irreparable by estoppel (detrimental reliance).

What is a real covenant, and what is required for the BURDEN to run with the land at law?

A written promise concerning land enforceable at law for damages. For the burden to run: (1) Writing, (2) Intent to bind successors, (3) Touch and concern the land, (4) Horizontal AND vertical privity, and (5) Notice (to the successor).

What is required for the BENEFIT of a real covenant to run with the land?

(1) Writing, (2) Intent, (3) Touch and concern, and (4) Vertical privity. Horizontal privity is NOT required for the benefit to run, and notice is not required for the benefit side.

What is an equitable servitude, and what are its requirements? (WITN)

A promise concerning land enforced in equity by INJUNCTION against successors. Requirements: Writing, Intent that it run, Touch and concern, and Notice (actual, inquiry, or record). Privity is NOT required for an equitable servitude.

What is the doctrine of reciprocal negative servitudes (implied from a common scheme)?

Where a developer has a common scheme of residential restrictions and a buyer has notice, courts imply a negative equitable servitude on lots even though the deed lacks the writing—provided (1) a common scheme existed when sales began and (2) the buyer had notice.

What defenses can defeat enforcement of an equitable servitude?

Changed conditions in the neighborhood (so drastic the restriction is pointless), unclean hands, acquiescence, laches, and estoppel. Note: changed conditions must affect the whole area, not just the plaintiff's lot.

What is the difference between a variance and a special exception in zoning?

A variance permits a use deviating from zoning rules; the owner must show undue hardship and no harm to the neighborhood, granted by the zoning board. A special (conditional) use permit is a use allowed by the ordinance subject to conditions (e.g., a church in a residential zone).

What is a nonconforming use in zoning law?

A use that lawfully existed before a new zoning ordinance and is allowed to continue (it cannot be eliminated immediately without amortization or compensation, or it would be an unconstitutional taking). It generally cannot be expanded or, once abandoned, resumed.

When does land-use regulation become a regulatory taking requiring just compensation?

A taking occurs when regulation denies the owner ALL economically viable use of the land (per se taking under Lucas), or, under Penn Central, when balancing the regulation's economic impact, interference with investment-backed expectations, and the character of the government action weighs against the owner.

What two implied covenants arise in a land sale contract before closing?

(1) An implied covenant of marketable title—title reasonably free from doubt/litigation, free of encumbrances—as of closing; and (2) in many jurisdictions, an implied warranty of fitness/quality for new homes (builder-vendor).

What is equitable conversion, and who bears the risk of loss between contract and closing?

Once a land sale contract is signed, equity treats the buyer as the owner (holding equitable title; seller holds legal title as security). Under the majority rule, the BUYER bears the risk of loss if the property is damaged before closing, absent a contrary contract term.

What is the difference between a general warranty deed, special warranty deed, and quitclaim deed?

A general warranty deed warrants against ALL defects in title, including those arising before the grantor owned it. A special warranty deed warrants only against defects arising during the grantor's ownership. A quitclaim deed contains NO warranties—it conveys whatever interest the grantor has.

What are the six covenants of title in a general warranty deed?

Present covenants (breached, if at all, at delivery): seisin, right to convey, and against encumbrances. Future covenants (breached upon later disturbance): quiet enjoyment, warranty, and further assurances.

What are the requirements for a valid deed and its delivery?

A deed must be in writing, signed by the grantor, identify the parties, and contain words of conveyance and an adequate description (Statute of Frauds). To pass title it must be DELIVERED—shown by the grantor's present intent to make it operative—and ACCEPTED by the grantee.

What is the doctrine of estoppel by deed (after-acquired title)?

If a grantor conveys land she does not yet own (by warranty deed) and later acquires title, that title automatically passes to the earlier grantee. It generally does not apply to quitclaim deeds.

Compare race, notice, and race-notice recording statutes.

Race: first to record wins, regardless of notice. Notice: a subsequent bona fide purchaser without notice prevails over a prior unrecorded interest (need not record first). Race-notice: a subsequent BFP prevails only if she takes WITHOUT notice AND records FIRST.

What are the three types of notice under recording acts?

Actual notice (real knowledge); Constructive/record notice (a properly recorded instrument in the chain of title); and Inquiry notice (facts—such as someone in possession—that would prompt a reasonable buyer to investigate).

Who qualifies as a bona fide purchaser (BFP) protected by recording acts?

One who (1) takes for valuable consideration (not a donee, heir, or devisee) and (2) without notice (actual, constructive, or inquiry) of the prior interest at the time of purchase.

What is the shelter rule under recording acts?

A person who takes from a bona fide purchaser 'shelters' under the BFP's protected status and prevails against earlier interests—even if that person otherwise had notice and would not independently qualify as a BFP.

What is the difference between a lien-theory and a title-theory state for mortgages?

In a lien-theory state (majority), the mortgagee holds only a lien and the mortgagor keeps title and the right to possession until foreclosure. In a title-theory state, the mortgagee holds legal title and (theoretically) the right to possession until the debt is paid.

What is the equity of redemption, and what is statutory redemption?

Equity of redemption: the mortgagor's right, before foreclosure sale, to redeem the land by paying the full debt (plus interest/costs); it cannot be waived in the mortgage ('clogging' is prohibited). Statutory redemption: a right in many states to redeem AFTER the foreclosure sale within a set period.

How does priority among mortgages work at a foreclosure sale, and what happens to junior and senior interests?

Interests are paid in order of priority (generally first to record/'first in time'). Foreclosure of a mortgage eliminates all JUNIOR interests (they get surplus proceeds, if any) but does NOT affect SENIOR interests, which remain on the land. Necessary parties = junior interest holders.

What is a purchase money mortgage (PMM) and its special priority?

A mortgage given to secure a loan used to BUY the very property (or given to the seller). A PMM takes priority over prior claims (including judgment liens and after-acquired property clauses) against the buyer, even mortgages recorded earlier against that buyer.

When a buyer takes mortgaged property 'subject to' versus 'assuming' the mortgage, who is liable?

'Subject to': the buyer is NOT personally liable on the debt (though the land can still be foreclosed); the original mortgagor remains liable. 'Assuming': the buyer becomes personally liable, and the original mortgagor remains secondarily liable as a surety.

What is a deficiency judgment in mortgage law?

If a foreclosure sale yields less than the outstanding debt, the lender may obtain a deficiency judgment against the borrower (and any assuming grantee) for the shortfall, subject to anti-deficiency statutes in some states (often for PMMs/residential).

What are the elements of adverse possession?

Possession that is Continuous, Open and notorious, Actual (and exclusive), and Hostile (without permission), for the statutory period. Mnemonic: actual, open, hostile, exclusive, continuous (COAH). The use must be hostile to the true owner.

What is 'tacking' in adverse possession, and what is required?

Successive adverse possessors may add their possession periods together to meet the statutory term, provided there is privity (a voluntary transfer—deed, will, descent) between them. There is no tacking when one possessor ousts another.

How do disabilities affect the adverse possession statutory period?

If the true owner is under a disability (minority, insanity, imprisonment) at the time the cause of action accrues, the statutory period is tolled until the disability is removed. The disability must exist at the START of the adverse possession; later disabilities do not count.

How can adverse possession affect future interests and recorded restrictions?

Adverse possession runs against the present possessory estate holder, not future interest holders (whose claims accrue only when they become possessory). Generally one acquires title only to the area actually possessed; under color of title, possession of part can give constructive possession of the whole described tract.

What are the rules governing surface water (the 'common enemy' vs. other doctrines)?

For diffuse surface water: Common enemy rule—a landowner may take any measures to fight off surface water. Natural flow (civil law) rule—an owner may not alter natural drainage to a neighbor's harm. Reasonable use rule (modern)—liability turns on the reasonableness of the interference.

Distinguish the riparian and prior appropriation doctrines for watercourses.

Riparian (eastern states): owners of land bordering a watercourse share the right to reasonable use. Prior appropriation (western states): water rights are determined by priority of beneficial use—'first in time, first in right'—regardless of whether the user owns riparian land.

What is the right to lateral and subjacent support?

Lateral support: a landowner has an absolute right to support of land in its natural state from neighboring land; a neighbor who excavates is strictly liable if the land would have collapsed in its natural state, and liable in negligence for damage to buildings. Subjacent support: owed by an underground occupant (e.g., a mineral rights holder) to the surface owner.

What is a fixture, and what is the general test for whether an item is a fixture?

A fixture is a chattel so annexed to land that it is treated as part of the realty and passes with the land. The test focuses on the annexor's objective intent, judged by the degree of attachment, adaptation to the property's use, and whether removal causes damage.

What are trade fixtures, and may a tenant remove them?

Trade fixtures are chattels a commercial tenant attaches for use in a trade or business. A tenant may remove them before the lease ends, provided removal does not cause substantial damage to the premises; the tenant must repair any damage caused.

What is title insurance, and how does it differ from deed covenants?

Title insurance is a policy (issued to an owner and/or lender) indemnifying against losses from defects in title existing when the policy issues, plus a duty to defend. Unlike deed covenants, it does not warrant future acts and protects only the named insured (it generally does not run to later purchasers).

What remedies are available to a buyer for a seller's breach of a land sale contract?

Because land is unique, the buyer may seek specific performance, or damages (typically the difference between contract price and market value plus incidental costs), and restitution of the deposit. The seller may likewise obtain specific performance or damages, and may retain a reasonable deposit as liquidated damages.

What is the merger doctrine in conveyancing?

Obligations in the land sale CONTRACT generally merge into the DEED at closing—so after closing the buyer must sue on the deed's covenants (or for fraud), not on the contract. Exceptions exist for collateral promises and (in many courts) for the duty regarding marketable title.