PastPaperHero | Ownership of real property - Conflicts of law related to disputes involving real property

Learning Outcomes

This article explains conflicts of law rules for real property disputes, including:

Identifying which state’s law governs disputes involving land located in one state but litigated in another
Applying the general law-of-the-situs rule to questions of title, conveyance, and use
Distinguishing substantive property rules (governed by the situs) from procedural rules (governed by the forum)
Recognizing key exceptions to the situs rule (e.g., contractual choice of law, divorce, wills and trusts, federal preemption)
Analyzing when courts have in rem, quasi in rem, or in personam jurisdiction in real property cases
Determining when and how judgments affecting real property must be recognized under the Full Faith and Credit Clause
Integrating conflicts principles with core property topics (recording, marketable title, adverse possession, mortgages, and specific performance) in exam-style scenarios
Evaluating how federal courts sitting in diversity apply state conflicts rules to real property disputes
Spotting common MBE traps involving local vs. transitory actions and attempts by one state’s courts to adjudicate title to land in another state

MBE Syllabus

For the MBE, you are required to understand how conflicts of law principles apply to disputes over real property, with a focus on the following syllabus points:

The general rule that the law of the situs (lex situs) governs ownership and interests in land
The distinction between local and transitory actions involving land, and how that affects choice of law
Exceptions to the situs rule, including contractual choice-of-law clauses, marital property division, and succession to land
In personam, in rem, and quasi in rem jurisdiction in actions involving land, and their constitutional limits
The effect of the Full Faith and Credit Clause on judgments concerning real property
Interaction between conflicts of law and other property doctrines (marketable title, recording, adverse possession, mortgages, and specific performance)
The role of federal courts sitting in diversity, including the Erie doctrine and application of forum-state choice-of-law rules in land cases

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

In a dispute over title to land located in State X, which state's law will a court in State Y generally apply?
1. State Y
2. State X
3. The state where the parties reside
4. The state where the contract was signed
Which of the following is an exception to the general rule that the law of the situs governs real property disputes?
1. Divorce proceedings dividing marital property
2. Disputes over tangible personal property
3. Adverse possession claims
4. Boundary disputes between states
A court in State A issues a judgment purporting to quiet title to land in State B. What is the likely effect of this judgment on title to the land in State B?
1. It is automatically enforceable in State B
2. It has no effect on title in State B
3. It is enforceable only if State B gives full faith and credit
4. It is enforceable only if the parties agree

Introduction

Disputes involving ownership or rights in real property often involve more than one state. The land might be in one state, the parties may live elsewhere, and litigation might be filed in a third state or in federal court. The MBE expects you to know which state’s law governs the substantive property issues and which court has power to adjudicate those issues.

At the core of this topic is the law of the situs—the law of the state where the land is located. That law almost always governs questions of title and interests in real property, even when the case is litigated elsewhere.

Key Term: Law of the Situs (Lex Situs)
The conflicts of law rule that substantive issues concerning real property—title, interests, conveyances, and land use—are governed by the law of the state where the land is located.

You must also keep straight which state is which:

Key Term: Situs State
The state in which the land at issue is physically located. Its property law generally governs substantive rights in that land.

Key Term: Forum State
The state in which the lawsuit is filed and whose courts are hearing the case. Its law governs procedural issues and its own jurisdiction, but not necessarily the substantive property rules.

A separate but related question is jurisdiction: what kind of power does a court have over the land or over the parties?

Key Term: In Personam Jurisdiction
A court’s power to enter a judgment imposing personal obligations on a party (e.g., damages, an order to sign a deed), based on that party’s contacts with the forum state.

Key Term: In Rem Jurisdiction
A court’s power to adjudicate rights in property located within its territorial boundaries, binding as to the world with respect to that property.

Key Term: Quasi In Rem Jurisdiction
A court’s power to determine the rights of particular parties in property located within its boundaries. The judgment affects only the parties’ interests in the property, and recovery is limited to that property.

Modern law further distinguishes two flavors of quasi in rem jurisdiction:

Key Term: Type I Quasi In Rem Jurisdiction
Jurisdiction based on property in the forum when the dispute itself is about rights in that property (e.g., who owns a parcel of land in the forum state).

Key Term: Type II Quasi In Rem Jurisdiction
Jurisdiction based on property in the forum when the dispute is unrelated to that property (e.g., attaching the defendant’s vacation home to secure a tort judgment on an out-of-state accident).

These jurisdictional concepts interact with the Full Faith and Credit Clause, which governs how one state must treat the judgments of another state.

Key Term: Full Faith and Credit Clause
The constitutional requirement that each state give full faith and credit to final judgments on the merits rendered by courts of other states that had proper jurisdiction.

Finally, federal courts sitting in diversity must respect state conflicts rules:

Key Term: Erie Doctrine
The principle that a federal court exercising diversity jurisdiction must apply the substantive law and choice-of-law rules of the forum state, while using federal procedural rules.

Understanding how these pieces fit together will let you answer questions such as:

Which law determines whether a deed is valid?
Can a divorce court in State X award a house in State Y?
Must State B honor a quiet-title judgment entered by a court in State A?
When can a federal court, sitting in diversity, decide a dispute over land located in a state different from the forum?

The General Rule: Law of the Situs

The foundational rule for real property is that the law of the situs governs all substantive issues concerning land. This includes:

Title and ownership
The nature and validity of estates and future interests
The validity and effect of deeds, mortgages, and leases
Easements, covenants, and servitudes
Adverse possession and prescription
Co-ownership and partition
Recording acts and priorities
Rights and obligations under mortgages and foreclosure remedies
Many torts directly concerning land (e.g., waste, nuisance) to the extent they affect interests in land

This is true regardless of:

Where the parties reside
Where the contract concerning the property was signed
Where the lawsuit is filed (state or federal court)

A federal court sitting in diversity applies the substantive property law of the state where the land lies, because the forum state’s conflict rule directs it to the situs law. Under Erie, federal courts use the forum state’s choice-of-law rules, and for real property the forum’s conflicts rules will almost always point to the law of the situs.

Exam Tip: When the fact pattern involves ownership, conveyance, or use of land, start by asking: “Where is the land?” Then apply that state’s property law to the substantive issue—even if the suit is elsewhere or in federal court.

Rationale for the Situs Rule

The situs rule reflects several policies that the bar examiners expect you to understand implicitly:

Land is immovable; only one state can sensibly regulate title to a parcel
The situs state has the greatest interest in how land within its borders is owned, used, and transferred
Third parties (lenders, buyers, neighbors) rely on the law of the state where the land actually sits
Recording systems, property taxes, zoning, and land-use regulation are all state-specific and tied to geography

So, even if both parties and their contract have their center of gravity in State A, if the land is in State B, State B’s law governs the existence and nature of the real property interests.

On the MBE, you will sometimes see a problem in which the narrative is set almost entirely in one state (say, State A), but the last sentence reveals that the land is actually in State B. That last fact nearly always controls the substantive property outcome.

Scope of the Situs Rule

The law of the situs applies to most issues that define or affect interests in land:

Title and ownership:
Which party owns the land; whether a deed successfully transferred title; whether a lien attaches to real property; whether an adverse possessor has acquired title.
Validity and effect of conveyances:
Whether a deed is sufficient to transfer title; the effect of conditions and covenants in a deed; whether a grant creates a fee simple, life estate, or defeasible fee; whether delivery and acceptance were effective.
Mortgages and other security interests:
Creation, validity, foreclosure, and priorities between mortgages and other liens on land; whether the jurisdiction follows title theory, lien theory, or intermediate theory for mortgages.
Leases and landlord–tenant interests in land:
The nature of the tenant’s estate in the land; whether a lease is a tenancy for years, periodic tenancy, tenancy at will, or tenancy at sufferance; rent covenants that run with the land; options to renew tied to the land.
Adverse possession and prescription:
Requirements (hostile, actual, open and notorious, exclusive, continuous) and statutory period for adverse possession or prescriptive easements, including whether the jurisdiction allows tacking, what disabilities toll the statute, and whether government land can be adversely possessed.
Easements, covenants, and servitudes:
Whether an easement, real covenant, or equitable servitude was validly created; whether it runs with the land; how it can be terminated; and its scope and relocation are all questions for the law of the situs.
Recording acts and priorities:
Who prevails among competing purchasers or mortgagees; the effect of recording or failing to record; whether the jurisdiction is race, notice, or race–notice; what counts as “valuable consideration” or “notice”—all governed by the situs.
Torts and physical use of land:
Many tort claims implicating land, such as nuisance, waste, or trespass that affects the value or use of land, will apply the law of the situs to determine what counts as unreasonable interference or waste.

Key Term: Local Action
An action that is directly concerned with title to or possession of real property (e.g., quiet title, ejectment, foreclosure, partition, boundary disputes), which traditionally must be brought where the land is located and is governed by the law of the situs.

By contrast, issues that are procedural—such as the forum’s rules of evidence, pleadings, and most statutes of limitations—are governed by the law of the forum court, not by the situs. But even in an action filed elsewhere, when the issue is substantive property law, the judge should apply the law of the situs.

Many states have borrowing statutes telling their courts, in some situations, to apply another state’s limitations period.

Key Term: Borrowing Statute
A forum-state statute directing its courts, in specified circumstances, to apply another state’s statute of limitations—often the state where the cause of action arose—to prevent forum shopping.

These are still forum rules about procedure. The substantive property right (e.g., when adverse possession begins, when it is complete) is determined by the law of the situs.

In addition, some actions are local, and some are transitory:

Key Term: Transitory Action
An action that seeks a personal remedy (e.g., money damages) rather than directly determining title or possession of land, and which can be brought wherever the court has in personam jurisdiction over the defendant.

Local actions (quiet title, foreclosure, ejectment, partition, suits to establish or terminate easements) generally must be brought where the land is, and situs law controls.
Transitory actions (e.g., a contract claim for damages relating to a failed land sale; a tort claim for trespass seeking only money damages) can be brought wherever the court has in personam jurisdiction, but the court still applies situs law to the substantive property issues.

So, a buyer can sue in her home state for damages for breach of a land sale contract concerning out-of-state land, but questions like “Was title marketable?” or “Did the seller actually own a fee simple?” are still answered under the law of the situs.

Worked Example 1.1

A resident of State A executes a deed in State A, transferring land located in State B to a buyer who also lives in State A. Later, a dispute arises over whether the deed was validly delivered. Which state's law determines the validity of the transfer?

Answer:
State B's law applies, because the land is located in State B. The law of the situs governs all substantive issues regarding real property, including validity of conveyances and delivery of deeds. The fact that both parties reside in State A and acted there does not change the governing law for title to land in State B.

Substantive vs. Procedural Issues; Local vs. Transitory Actions

A common MBE trap is confusing substantive property issues (governed by the situs) with procedural issues (governed by the forum).

Substantive (apply situs law):
- What estate was created by a deed
- Whether a mortgage was properly foreclosed
- Whether a right of way is an easement appurtenant or in gross
- Whether adverse possession has ripened into title
- Whether a restrictive covenant renders title unmarketable
Procedural (apply forum law):
- Pleading standards
- Rules of evidence
- Most statutes of limitations (unless the forum has a borrowing statute instructing otherwise)
- Availability and scope of certain remedies (e.g., prejudgment attachment), so long as they do not alter substantive property rights

A subtle but testable point is the treatment of adverse possession. The length of the statutory period and the elements (e.g., whether “hostile” requires good faith or bad faith) are substantive and governed by the situs. But whether an action to eject the adverse possessor is time-barred is governed by the forum’s limitations rules, possibly modified by a borrowing statute.

In many questions, the examiners will quietly tell you that “the statute of limitations for recovery of land in State X is 20 years.” That is a strong signal that State X is the situs and that its adverse possession rules govern the substantive property right.

Worked Example 1.2

A developer in State X contracts with a builder in State Y to construct a shopping center on land in State Z. The contract says nothing about choice of law. The builder sues in State Y for damages when the developer fails to pay. The developer defends on the ground that the building violates a restrictive covenant on the land. Which law governs whether the covenant exists and is enforceable?

Answer:
State Z’s law determines the existence and enforceability of the restrictive covenant, because it is a substantive property issue about land in State Z. The action for damages is transitory and may be heard in State Y, but situs law governs the property aspects.

Federal Courts, Erie, and Real Property

Federal courts sitting in diversity do not have their own general property law. Under Erie, they must:

Apply the substantive law of the state in which they sit, including that state’s conflicts rules.
Treat those conflicts rules as directing them to the situs state’s property law.

So if a diversity case over land in State B is filed in federal court in State A, the federal judge in State A must ask:

“What law would a State A court apply to these property issues?”

Because State A’s conflicts rules will almost always point to the situs (State B), the federal court will reach the same property result as a State A court would, which in turn should match what a State B court would do.

This is important for MBE questions that combine Civil Procedure and Property. If you see a federal diversity land dispute, remember:

Federal procedural rules (e.g., summary judgment, venue) apply.
State substantive property law, chosen according to forum-state conflicts principles, governs the property result.

Exceptions to the Situs Rule

Although the law of the situs is the default rule, there are important exceptions and refinements on the MBE. The exam often tests your ability to spot when an issue is really property (situs) and when it is contract, family law, or succession (possibly another law).

1. Contractual Choice of Law

Parties to a contract related to real property—such as a purchase contract, mortgage note, construction contract, or brokerage agreement—may include a choice-of-law clause selecting which state’s law governs their contract.

Key Term: Choice-of-Law Clause
A contractual provision specifying which jurisdiction’s law will govern the parties’ contract rights and obligations.

Courts generally honor such clauses for contract issues, including:

Interpretation of contract terms
Contract formation and defenses (fraud, mistake, duress)
Remedies for breach (e.g., damages for failure to close, measure of expectation damages)
Duties between the contracting parties (e.g., warranties, disclosures, duty of good faith)

However, a choice-of-law clause cannot change:

What estate in land was created (e.g., fee simple vs. life estate)
Who holds title to the land
Whether an easement or covenant runs with the land
The effect of recording or priority among competing claimants
Whether a restrictive covenant violates the situs state’s public policy (e.g., restraints on alienation)

Those issues remain governed by the law of the situs.

There is also a limit on party autonomy: most courts will not apply the chosen law if:

The chosen state has no substantial relationship to the parties or transaction; or
Applying the chosen law would violate a strong public policy of a state that has a materially greater interest and whose law would otherwise apply (often the domicile or situs state).

On the MBE, you normally do not have to run the full modern conflicts analysis; you just need to know that party choice controls contract issues but not core property issues.

Common exam patterns include:

A mortgage note selecting State A law, secured by land in State B. Contract defenses to the note (e.g., usury, fraud) may be decided under State A law, but mortgage validity, foreclosure procedures, and lien priority are determined under State B law.
A construction contract for a building on land in State C, with a clause selecting State D law. Contractor-owner disputes about price or workmanship may follow State D law, but questions about whether the owner acquired an easement over neighboring land or whether zoning permits the project remain governed by State C law.

Worked Example 1.3

A seller in State X and a buyer in State Y sign a contract in State Y for the sale of land in State X. The contract states that it “shall be governed by the law of State Y.” Later, a dispute arises over (1) whether the seller breached a contractual warranty, and (2) whether the deed actually conveyed marketable title to the land.

Answer:
For the contractual warranty issue, State Y’s law may apply because the parties chose it to govern the contract. For the question of whether the deed conveyed marketable title to the land, State X’s law applies because that is a substantive property issue governed by the law of the situs.

2. Marital Property and Divorce

Divorce courts frequently divide marital property, some of which may be land located in another state. The divorce court’s power is in personam over the spouses, not in rem over foreign land.

A divorce court in State X can:
- Adjudicate the spouses’ respective rights between themselves in land located in State Y (e.g., “Husband must convey his interest in the State Y house to Wife”).
- Enforce that order against the parties through contempt or similar sanctions.
But the court in State X cannot directly change title to land in State Y, because the land is not within its in rem jurisdiction. For title and recording, the law and courts of State Y control.

The MBE also expects you to remember that marital property regimes (community property vs. separate property) are generally governed by the law of the spouses’ domicile when the property is acquired, but succession to real property upon death returns to the law of the situs.

Worked Example 1.4

A couple divorces in State X. Their only real property is a house in State Y, titled solely in the husband’s name. In the divorce decree, the State X court orders the husband to convey the house to the wife. What law governs whether the wife becomes record owner of the house?

Answer:
State Y’s law governs title to the house because it is located in State Y. The State X divorce court can enter an in personam order requiring the husband to sign a deed, but title and recording are controlled by the law of the situs. If husband refuses, wife will need to obtain relief in State Y (for example, by having a State Y court enforce the State X order or by seeking an order that a commissioner execute the deed on husband’s behalf).

3. Trusts and Wills Involving Real Property

Succession to real property—by will, trust, or intestacy—is primarily governed by the law of the situs.

Real property in State X:
Validity of a will or devise as to land in State X, the capacity of the testator to create interests in that land, rules of ademption and lapse as applied to that land, and construction of language creating interests in land are determined by State X’s law.
Personal property:
Usually governed by the law of the decedent’s domicile at death, not by the situs.

Courts sometimes apply the law of the decedent’s domicile to interpret a will’s language, but if applying domicile law would contradict the situs state’s strong policies about land ownership (e.g., restrictions on certain future interests, rules on the Rule Against Perpetuities), the situs law controls as to the land.

This can matter on the MBE when:

A domiciliary of State A dies owning land in State B; the will’s validity as to the State B land and the type of interest created are governed by State B’s law.
A trust instrument purports to govern land in multiple states; each state’s law may control the real property within its borders, even if the trust has a governing-law clause.

Typical issues include:

Whether a devise of “my farm” is adeemed if the testator sold the farm before death and bought a house instead. Ademption rules as to the farm follow the law of the farm’s situs.
Whether a contingent remainder in land violates the situs state’s Rule Against Perpetuities, even if it would be valid under the law of the decedent’s domicile.

Worked Example 1.5

A testator domiciled in State A devises “all my land to my niece for life, then to her children who reach age 30” in a will valid under State A law. The land is located in State B, which has a strict Rule Against Perpetuities that invalidates such gifts. Which law governs whether the niece’s children receive a valid remainder?

Answer:
State B’s law governs the validity of the future interest in the State B land, because succession to real property is governed by the law of the situs. Even if the devise is valid under State A’s law, State B may treat the remainder as void, typically resulting in a reversion or different disposition under its law.

4. Federal Law Preemption

In some areas, federal law displaces state property law, even regarding land within a state. Examples include:

Federal public lands and federal facilities (military bases, national parks)
Certain aspects of bankruptcy (e.g., treatment of liens, avoiding powers)
Federal tax liens, forfeiture statutes, and environmental regulations

When Congress validly legislates in a way that conflicts with state property law, federal law preempts state law under the Supremacy Clause.

Preemption may be:

Express: Congress explicitly states that state laws on the subject are displaced.
Field: Federal regulation is so pervasive that Congress is inferred to have occupied the field.
Conflict: It is impossible to comply with both state and federal law, or the state law stands as an obstacle to the accomplishment of federal objectives (e.g., a state rule undermining federal bankruptcy discharge or federal tax collection).

Exam Tip: If the fact pattern involves federal land, federal condemnation, federal tax liens, or bankruptcy, be alert for preemption. Otherwise, expect the state situs law to apply. When in doubt, there is a presumption against preemption in areas traditionally governed by states, like property and family law, unless Congress’s intent to preempt is clear.

5. Public Policy Limits

A forum court may refuse to apply another state’s law—even situs law—if it is deeply offensive to the forum’s strong public policy. For example:

A forum might decline to enforce a racially restrictive covenant created under another state’s law, even if that law would recognize it, because such covenants violate fundamental equal protection principles.
A forum might refuse to enforce another state’s law that allows certain extreme restraints on alienation that are contrary to the forum’s policy favoring free transfer of land.

On the MBE, this arises rarely in property questions but remains a theoretical limit. If you see an out-of-state law that is clearly unconstitutional or grossly discriminatory, the forum might decline to apply it even though it is the situs law.

Enforceability of Judgments Affecting Real Property

Knowing which state’s law applies is only half the battle; you also need to know which court can enter a valid judgment about land and what effect that judgment has in other states.

1. In Rem and Quasi In Rem Jurisdiction

A court has in rem or quasi in rem jurisdiction over property located within its state. It has no such power over land located in another state.

A court in State A:
- Has in rem/quasi in rem power over land in State A.
- Has no in rem power over land in State B.

In an in rem action, the judgment determines rights in the property as to all persons (e.g., quiet title, condemnation, forfeiture). In a quasi in rem Type I action, the judgment determines rights in the property as between specific parties (e.g., co-owners disputing their shares).

Because of constitutional due process limits, a court may not assert quasi in rem Type II jurisdiction based solely on the presence of unrelated property in the state unless the defendant has minimum contacts with the forum. After Shaffer v. Heitner, all assertions of jurisdiction—including in rem and quasi in rem—must satisfy due process; mere presence of property is not enough when the dispute is unrelated to that property.

Notice requirements also apply.

From Mullane v. Central Hanover Bank & Trust Co., due process requires the “best practical” notice under the circumstances:

Persons whose names and addresses are known or reasonably ascertainable must receive mailed or personal notice.
Publication alone is permissible only for unknown or unlocatable parties.

Failure to give constitutionally adequate notice can render an in rem or quasi in rem judgment vulnerable to collateral attack, including in other states.

Additional limits include:

A state court has no in rem power over property located entirely outside its borders.
A state cannot manufacture jurisdiction by enticing property into the state by fraud or force just to support an in rem proceeding.

2. In Personam Judgments and Out-of-State Land

Even though a court cannot directly affect title to out-of-state land, it can still adjudicate personal obligations related to that land if it has in personam jurisdiction.

A court in State A can:
- Award damages for breach of a contract to convey land in State B.
- Order a party, over whom it has personal jurisdiction, to execute a deed to land in State B (specific performance).
- Enforce that order through contempt sanctions.

But that judgment does not itself transfer title to the land in State B. To update the record, a proper deed must be executed and recorded in State B, and disputes over title in State B must be resolved in a State B court.

Some states allow a court to appoint a commissioner or special officer to sign a deed on behalf of a recalcitrant party. Even then, the deed must comply with the law of the situs state to be effective.

Worked Example 1.6

A court in State A has personal jurisdiction over a seller who breached a contract to convey land in State B to a buyer. The State A court orders specific performance, directing the seller to sign and deliver a deed to the buyer. The seller refuses. The buyer then sues in State B to quiet title to the land, relying on the State A judgment.

Answer:
The State B court must recognize the State A in personam judgment (assuming State A had jurisdiction and the judgment is final), but that judgment did not itself transfer title to the land. State B can:

Enforce the State A judgment by compelling the seller (if within its reach) to sign a deed, or by recognizing a deed signed by a commissioner pursuant to the State A decree; and

Treat the seller’s refusal as contempt of the State A judgment.

However, only a State B court—or a deed executed and recorded consistent with State B law—can directly determine and update record title to land in State B.

3. Full Faith and Credit Clause

The Full Faith and Credit Clause requires each state to recognize final judgments on the merits rendered by courts of sister states if:

The rendering court had proper jurisdiction (subject matter and personal or in rem); and
The judgment is final and on the merits.

For real property:

If a State B court with proper in rem jurisdiction quiets title to land in State B, other states must give that judgment full faith and credit. A State A court, for example, must treat the State B decree as conclusive on who owns the land in State B.
If a State A court, without jurisdiction over land in State B, purports to quiet title to land in State B, that part of the judgment is void and not entitled to full faith and credit; State B may simply ignore it regarding title.

Full faith and credit does not require a state to enforce the penal laws or criminal judgments of another state, but that rarely arises in property questions.

Worked Example 1.7

A court in State A quiets title to land located in State B, determining that Owner holds full title. The losing party refuses to relinquish possession in State B. Owner seeks to use the State A judgment to force transfer of title in State B.

Answer:
The State B court is not required to recognize the State A judgment as determinative of title to land in State B, because State A lacked in rem jurisdiction over that land. Only a State B court can issue a judgment directly affecting title to land in State B. The State A judgment is not entitled to full faith and credit insofar as it purports to determine title to foreign land.

However, if the State A judgment also contained personal obligations (e.g., an order that the losing party pay damages or sign a deed), a State B court would normally have to respect that in personam aspect, assuming jurisdiction and due process were satisfied.

4. Quasi In Rem Type I vs. Type II (Jurisdictional Limits)

When the dispute itself concerns rights in the property located in the forum state (e.g., competing claims to land in State B), jurisdiction based on the presence of the property is valid (quasi in rem Type I).

When the dispute is unrelated to the property (quasi in rem Type II), the mere presence of the defendant’s property in the forum is not enough; the defendant must have minimum contacts with the forum, and, in practice, the same contacts would often justify full in personam jurisdiction. Because of this, pure Type II quasi in rem jurisdiction is relatively rare today.

Worked Example 1.8

A brother, who lives in State A, and a sister, who lives in State B, both claim ownership of a parcel of land in State B. The sister sues in State B to determine rightful title. Does the State B court have jurisdiction over the brother?

Answer:
Yes. Because the land is located in State B, the State B court has at least quasi in rem Type I jurisdiction based on the property’s presence in the state. That is sufficient to adjudicate the parties’ rights in the land, even if the brother has no other contacts with State B, as long as he receives constitutionally adequate notice (e.g., mailed notice to his known address).

5. Local vs. Transitory Actions Revisited

The old common law classified actions as “local” or “transitory.” While modern procedural rules are more flexible, the classifications still matter for conflicts and exam questions:

Local actions must be brought where the land is located and usually involve:
- Quiet title
- Ejectment
- Foreclosure or enforcement of real estate liens
- Partition
- Actions to establish or terminate easements or boundary lines
Transitory actions may be brought wherever there is in personam jurisdiction and include:
- Contract suits for damages arising from a land sale contract
- Tort suits for personal injuries occurring on land, when the primary issue is personal injury rather than title
- Fraud actions arising from misrepresentation about land, where the remedy sought is money damages

Exam Tip: Even in a transitory action, if a question arises about who owns the land or what property interest exists, apply the law of the situs to that issue. The forum applies its own procedural rules (e.g., jury instructions, burdens of proof) but imports the situs state’s substantive property law.

Worked Example 1.9

A factory in State X emits pollutants that drift into State Y and damage Blackacre, located in State Y and owned by a State Y resident. The owner sues the factory in State X for damages to Blackacre. Which state’s law governs the measure of property damage?

Answer:
State Y’s law, as the situs of Blackacre, governs the substantive property issues, including the measure of damage to land. The action itself is transitory and may be heard in State X because the defendant is there, but situs law still controls the property aspects.

Exam Warning

On the MBE, if a court in one state issues a judgment affecting land in another state, distinguish between:

Personal obligations (e.g., damages, orders to convey)—which may be valid if the court had in personam jurisdiction; and

Direct determinations of title to out-of-state land—which are invalid for lack of in rem jurisdiction and not entitled to full faith and credit.

Revision Tip

For conflicts questions involving real property, proceed in three steps:

Identify the situs of the land.

Determine whether the issue is substantive property law (apply situs law) or procedural/forum law.

Check whether the forum court has appropriate jurisdiction (in rem, quasi in rem, or in personam), and analyze the effect of any judgments under full faith and credit.

Interaction with Core Property Doctrines

Property questions on the MBE rarely test conflicts principles in isolation. Instead, the conflicts issue is embedded in a more familiar topic—recording, marketable title, adverse possession, or mortgages. Being able to combine the doctrines is critical.

1. Marketable Title and Law of the Situs

Marketable title is an implied covenant in land sale contracts that the seller will deliver title free from reasonable doubt at closing. Whether title is “marketable” is determined by the situs law:

What defects count as rendering title unmarketable (e.g., existing easements, restrictive covenants, adverse possession claims)
Whether violations of zoning or building codes affect marketability
How encroachments and boundary disputes are treated

If a buyer in State A sues for rescission of a contract for land in State B on the ground that title was unmarketable, the court must apply State B’s rules on what counts as an encumbrance or defect.

Common tested defects include:

Existing covenants that run with the land
Undisclosed easements
Mortgages or other liens
Significant encroachments
Breaks in the chain of title in the land records

But whether those defects exist and whether they matter is a situs question.

2. Recording Acts and Multistate Facts

Recording acts are classic substantive property rules. If a fact pattern involves:

Competing deeds from the same grantor
Timing of recording, notice, and value

the law of the state where the land is recorded (the situs) will govern:

The text of the recording statute (race, notice, race–notice)
Who qualifies as a bona fide purchaser
Whether certain interests (e.g., short-term leases) need to be recorded
The effect of improper indexing or recording in the wrong office

Even if the litigation is filed in a different state, the law of the situs state’s recording act must be applied to resolve priority.

3. Adverse Possession Across State Lines

Adverse possession is also governed by the law of the situs. Complications arise when:

The record owner is domiciled in another state with different disability rules or limitation periods.
The adverse possessor moves in and out of the state.

The situs state’s law determines:

The length of the statutory period
The elements of adverse possession and whether state of mind matters
The effect of disabilities (e.g., minority, insanity, incarceration)
Whether government land can be adversely possessed

The forum state’s borrowing statute may direct its courts to adopt the situs state’s limitations period, but the substantive property result—whether title has shifted—is still a situs-law question.

4. Mortgages, Foreclosure, and Deficiency Judgments

Mortgages involve both contract and property components:

The note (promise to repay) is a contract governed by the law chosen by the parties or by general conflicts rules.
The mortgage (or deed of trust) and foreclosure process are property matters governed by the law of the situs.

Thus:

Priority among competing mortgages
Whether a state follows lien theory or title theory
The availability of nonjudicial foreclosure
Rights of redemption

are determined by the situs state’s mortgage law.

Deficiency judgments—personal judgments against the borrower for any unpaid balance after foreclosure—are in personam matters. If a lender gets a deficiency judgment in State X, it may seek to enforce that judgment in State Y under full faith and credit, even if the land is in State Z. But the effect of the foreclosure on title to the land in State Z, and whether junior liens are wiped out, is determined by State Z law.

Key Point Checklist

This article has covered the following key knowledge points:

The law of the situs governs substantive issues concerning title, estates, conveyances, mortgages, servitudes, adverse possession, and recording.
Procedural issues (evidence, pleadings, most limitations periods) are governed by the forum’s law, even in land cases, subject to any borrowing statutes.
Local actions (quiet title, foreclosure, ejectment, partition) are tied to the situs; transitory actions (contract or tort claims involving land) may be heard elsewhere, but situs law still governs substantive property questions.
Contractual choice-of-law clauses can govern contract rights related to land but cannot override the situs rule for title and property interests, and are limited by public policy and relation to the transaction.
Divorce courts can adjudicate parties’ personal rights in out-of-state land via in personam orders but cannot directly change title to foreign land.
Succession to real property (by will or intestacy) is governed by the law of the situs, whereas succession to personal property is generally governed by the law of the decedent’s domicile.
Federal law can preempt state property rules in limited areas (federal lands, bankruptcy, certain federal liens and regulations), subject to Supremacy Clause principles and a presumption against preemption in traditional state fields.
Courts have in rem and quasi in rem jurisdiction only over property within their territory; they cannot exercise in rem power over land in another state, and quasi in rem jurisdiction must satisfy modern minimum-contacts standards.
Full faith and credit applies only to judgments rendered by courts with proper jurisdiction; a judgment purporting to determine title to out-of-state land is void as to that aspect and not entitled to full faith and credit.
Courts with in personam jurisdiction can award damages or order specific performance regarding out-of-state land, but title ultimately depends on the law and courts of the situs state and on deeds executed and recorded there.
Federal courts in diversity must apply the forum state’s conflicts rules under the Erie doctrine, which in land disputes almost always point to the law of the situs.
Conflicts principles must be integrated with core property doctrines—marketable title, recording, adverse possession, and mortgages—by always asking which state’s substantive property rules apply to those doctrines.

Key Terms and Concepts

Law of the Situs (Lex Situs)
Situs State
Forum State
In Personam Jurisdiction
In Rem Jurisdiction
Quasi In Rem Jurisdiction
Type I Quasi In Rem Jurisdiction
Type II Quasi In Rem Jurisdiction
Full Faith and Credit Clause
Local Action
Transitory Action
Choice-of-Law Clause
Borrowing Statute
Erie Doctrine

Ownership of real property - Conflicts of law related to dis...