Ownership of real property - Rules affecting these interests...

Learning Outcomes

This article explains the rules that affect ownership interests in real property for MBE purposes, including:

• identifying and distinguishing concurrent estates—joint tenancies, tenancies by the entirety, and tenancies in common—and predicting who takes on death, including the consequences for heirs, devisees, and individual or joint creditors
• analyzing the creation and severance of joint tenancies, including the effect of inter vivos conveyances, contracts to sell, mortgages in lien and title theory jurisdictions, and judicial or voluntary partition actions
• determining who belongs in a class gift, when the class closes under the rule of convenience, how those gifts create vested remainders subject to open, and when age contingencies or remote vesting trigger RAP invalidity for the entire class
• applying the doctrine of waste to life tenants, tenants for years, and co-tenants, distinguishing voluntary, permissive, and ameliorative waste, and evaluating duties regarding taxes, insurance, repairs, natural resource exploitation, and available remedies such as damages, injunctions, or forfeiture
• evaluating when cy pres is available to modify charitable trusts or charitable-type dispositions, focusing on general charitable intent, resulting trusts, the charity-to-charity exception to RAP, and the difference between charitable cy pres and statutory RAP reformation doctrines
• integrating survivorship, class gifts, waste, cy pres, and RAP analysis to resolve complex exam-style conveyances involving future interests, defeasible fees, and executory interests, and articulating precise reasoning to select the best multiple-choice answer

MBE Syllabus

For the MBE, you are required to understand rules affecting present and future interests in land, with a focus on the following syllabus points:

• Creation and severance of joint tenancies; characteristics of tenancies in common and tenancies by the entirety
• Survivorship consequences for heirs, devisees, and creditors
• Class gifts, including “children,” “issue,” and “grandchildren,” and the rule of convenience
• Types of waste (voluntary, permissive, ameliorative) and duties of life tenants and other limited owners
• Cy pres in charitable trusts and charitable-type dispositions of property
• Interaction of these rules with remainders, executory interests, and the Rule Against Perpetuities

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.

1. Which of the following is a key feature of a joint tenancy?
   1. Right of survivorship
   2. Right to partition only by agreement
   3. Automatic transfer to heirs on death
   4. Requirement of a written will
2. Under the rule of convenience, when does a class gift to "children" typically close?
   1. When the last child is born
   2. When the first child reaches age 21
   3. When any class member is entitled to possession
   4. When the grantor dies
3. Which of the following best describes ameliorative waste?
   1. Destruction of property by a tenant
   2. Failure to pay taxes on the property
   3. Improvements that increase property value
   4. Leasing property without permission
4. The cy pres doctrine allows a court to:
   1. Terminate a trust for impossibility
   2. Reform a charitable trust to a similar purpose
   3. Convert a joint tenancy to a tenancy in common
   4. Accelerate a future interest

Introduction

Ownership of real property is not just about who holds title; it is also shaped by background rules that determine:

• Who takes on death (survivorship)
• Who shares in a group gift (class gifts and the rule of convenience)
• What current possessors can and cannot do to the land (waste)
• How charitable purposes are preserved when circumstances change (cy pres)

These doctrines show up repeatedly in MBE questions involving present estates, future interests, and charitable trusts. Many questions are really testing whether you see how these doctrines modify otherwise basic estates and future interests.

Co-Ownership and Survivorship

Co-ownership of real property can take several forms. For MBE purposes, focus on three:

Key Term: Joint Tenancy
A concurrent estate where two or more co-owners hold equal undivided shares with a right of survivorship. When one joint tenant dies, that tenant’s share passes automatically to the surviving joint tenant(s), not to the decedent’s estate.

Key Term: Tenancy by the Entirety
A concurrent estate available only to spouses (in many jurisdictions). It carries a right of survivorship and—crucially—neither spouse can unilaterally convey or encumber their interest to defeat the other’s survivorship.

Key Term: Tenancy in Common
The default concurrent estate. Each co-tenant holds an undivided share (which need not be equal) with no right of survivorship. Each share is freely devisable, descendible, and alienable.

Key Term: Right of Survivorship
A feature of some concurrent estates under which a deceased co-owner’s interest automatically passes to the surviving co-owner(s), bypassing the decedent’s estate.

Basic Characteristics of the Three Concurrent Estates

• Tenancy in common (TIC):

  • Default form if conveyance is ambiguous: “to A and B” creates a TIC in most jurisdictions.
  • No survivorship: each share passes by will or intestacy.
  • Shares can be unequal (e.g., A 1/3, B 2/3), but each has a right to possess the whole.

• Joint tenancy (JT):

  • Requires (traditionally) specific survivorship language and four conditions (time, title, interest, possession).
  • Includes right of survivorship; each joint tenant has an equal, undivided interest.
  • Unilateral inter vivos transfer by a joint tenant severs the JT as to that share.

• Tenancy by the entirety (TBE):

  • Only between married spouses; many states presume TBE when a conveyance is “to H and W” (or similar) and they are married.
  • Includes right of survivorship.
  • Neither spouse acting alone can destroy the TBE; it can be ended only by both spouses, divorce, or death.

Possession and Use by Co-Tenants

Regardless of the type of concurrent estate:

• Each co-tenant has the right to possess and enjoy the entire property, not merely their fractional share.
• A co-tenant in sole possession is not required to pay rent to co-tenants absent ouster.
• Ouster occurs when one co-tenant wrongfully excludes another from possession (e.g., changing the locks, refusing access); the ousted co-tenant can seek possession and/or rental value for the period of exclusion.
• Co-tenants share necessary expenses (taxes, mortgage interest) in proportion to their ownership shares; voluntary improvements are generally not reimbursable until partition.

These background principles apply whether the co-tenants are joint tenants or tenants in common; survivorship and severance are what distinguish the forms for exam purposes.

Key Term: Partition
The judicial (or sometimes agreed) division of co-owned property, either by physically dividing the land (partition in kind) or by sale and division of proceeds (partition by sale).

On the MBE, partition is mainly important as a way to terminate a concurrent estate and, in many fact patterns, as the context in which courts sort out contributions for improvements, taxes, and repairs.

Creating a Joint Tenancy: Common-Law Requirements

At common law, a joint tenancy required four concurrent ownership conditions—time, title, interest, and possession:

• Time: interests acquired at the same time
• Title: interests acquired by the same instrument (deed, will, etc.)
• Interest: identical shares (equal fractional interests with the same duration)
• Possession: equal right to possess the whole

If any required condition is missing at creation, the grantees take as tenants in common instead.

Modern courts are more flexible, but on the MBE, assume two things:

• A clear expression of intent is needed to create a joint tenancy.
  • “To A and B as joint tenants with right of survivorship” → JT.
  • “To A and B as joint tenants” is usually enough if the jurisdiction recognizes survivorship language.
• “To A and B” without more presumptively creates a tenancy in common.

In some jurisdictions, a sole owner who wants to create a joint tenancy with another must first convey to a “straw” (an intermediary) and then from the straw “to A and B as joint tenants.” Other jurisdictions allow a direct conveyance “to A and B as joint tenants” by A without the straw; unless the facts tell you otherwise, you will not be tested on the straw requirement.

Severance of Joint Tenancy

Any act that destroys one of these conditions as to a joint tenant will sever that tenant’s interest and convert it into a tenancy in common as to that share. Common severance events:

• Inter vivos conveyance by a joint tenant:
  • A sells or gives her interest to C; as to that share, the conditions of time and title are destroyed.
• In minority “title theory” jurisdictions, granting a mortgage:
  • The mortgage is treated as a transfer of legal title, breaking these conditions and severing the JT as to that share.
• In majority “lien theory” jurisdictions, granting a mortgage:
  • The mortgage is treated as a lien; it does not sever the JT by itself.
• Some jurisdictions: granting a long-term lease may sever; others treat the lease as a temporary arrangement that ends at the lessor’s death, leaving survivorship intact.
• Judicial partition:
  • Either physical division or partition sale terminates the JT and converts interests to separate ownership in severalty.

Exam Tip: On the MBE, the most frequently tested severance is a sale (or contract to sell) by one joint tenant. Death never severs; it triggers survivorship.

This means that timing is often dispositive. Always ask: Did the severing event occur before or after the joint tenant’s death?

Worked Example 1.1

A and B own Blackacre as joint tenants. A sells her interest to C. What is the result?

Answer:
A’s conveyance destroys the unities of time and title as to A’s share, so the joint tenancy is severed as to that share only. C and B now hold as tenants in common: C has A’s former one-half undivided interest as a tenant in common; B holds a one-half interest. There is no right of survivorship between B and C. If B dies first, B’s half passes through B’s estate; if C dies first, C’s half passes through C’s estate.

Worked Example 1.2

A, B, and C own Whiteacre as joint tenants. A sells to D. Shortly afterward, B dies intestate, leaving X as sole heir. Who owns what?

Answer:
A’s sale to D severs the joint tenancy only as to A’s one-third. The result is:

• D holds a one-third undivided interest as a tenant in common.
• B and C remain joint tenants in the remaining two-thirds.
  When B dies, survivorship operates between B and C as to that two-thirds. C takes B’s one-third (of the original), so:
• C now owns a two-thirds undivided interest (in severalty, as to that portion).
• D owns a one-third undivided interest as tenant in common with C.
  X takes nothing in Whiteacre; B’s share never entered B’s estate.

Mortgages and Joint Tenancies

Many questions combine mortgages with joint tenancies. Distinguish:

• Lien theory (majority): A mortgage is a mere lien; it does not sever the joint tenancy. If the mortgagor joint tenant dies first, the lien is wiped out because survivorship operates on the legal title.
• Title theory (minority): A mortgage transfers title to the mortgagee; this severs the joint tenancy as to that share and converts it into a tenancy in common.

You will usually be told which theory the jurisdiction follows if it matters to the outcome.

Worked Example 1.3

A and B own Greenacre as joint tenants in a lien theory state. A mortgages her interest to Bank. A then dies; B survives. Bank seeks to foreclose. Who wins?

Answer:
In a lien theory jurisdiction, A’s mortgage did not sever the joint tenancy. When A died, survivorship operated: B became sole owner of Greenacre in fee simple, free of A’s mortgage. Bank’s lien attached only to A’s interest, and that interest disappeared at death. Bank is out of luck as to Greenacre (though it may still have a claim against A’s estate).

Tenancy by the Entirety and Creditor Issues

A tenancy by the entirety (TBE) looks like a joint tenancy between spouses, but carries extra protection:

• Neither spouse can unilaterally convey or encumber; any such deed or mortgage by one spouse alone is void as to the other spouse’s interest.
• Individual creditors of one spouse generally cannot reach TBE property; only joint creditors (creditors of both spouses) can.
• Divorce typically converts a TBE into either:
  • a tenancy in common (most common), or
  • a joint tenancy (if the jurisdiction so provides or the divorce decree specifies), thereby ending the marital requirement.

On the MBE, if the facts say “H and W hold as tenants by the entirety” and a creditor of H alone forecloses, assume:

• The creditor cannot force a sale of the property while the marriage and TBE continue.
• If H dies first, W takes the entire property free of H’s individual creditor claims against the property.
• If the couple divorces, the creditor can then reach H’s separate share (now a TIC or JT share).

Exam Warning

Watch for language like: “to H and W as tenants by the entirety, with right of survivorship.” If a creditor of H alone forecloses, in most jurisdictions the creditor gets no interest as long as the marriage and TBE exist.

Survivorship vs. Heirs and Devisees

In both joint tenancy and TBE:

• On death of a co-owner, that person’s share never passes by will or intestacy; it disappears, and the survivors’ shares expand.
• Because the interest never enters the decedent’s estate, a devise in the will like “my one-half interest in Blackacre to X” fails if the property was held in a JT or TBE and the testator dies before severance. X takes nothing.

Contrast with tenancy in common:

• Each co-tenant’s share is freely devisable and descendible; there is no survivorship.
• “My one-half interest in Blackacre to X” is effective if testator holds a TIC share.

Mechanically, you should always identify:

1. What type of concurrent estate exists.
2. Whether any severance occurred before death.
3. Whether survivorship or descent/devise rules apply.

Worked Example 1.4

T and S own Blueacre as joint tenants with right of survivorship. T’s will leaves “my interest in Blueacre to N.” T dies, leaving S and N surviving. Who owns Blueacre?

Answer:
T’s will cannot pass the joint tenancy interest to N, because T’s share does not enter T’s estate on death. Survivorship operates automatically. S becomes sole owner of Blueacre in fee simple. N takes nothing in Blueacre.

Class Gifts and the Rule of Convenience

Gifts to a group defined by relationship—“children,” “issue,” “nieces and nephews”—raise questions about who belongs to the class and when the class closes.

Key Term: Class Gift
A gift to a group of persons described by a common characteristic (usually relationship) rather than by individual names, such as “to A’s children” or “to my grandchildren.”

Key Term: Rule of Convenience
A closing rule for class gifts: absent a contrary intent, a class closes when at least one member of the class is entitled to immediate possession or enjoyment of the gift.

A class gift often creates a vested remainder subject to open:

Key Term: Vested Remainder Subject to Open
A vested remainder held by one or more ascertained persons, but where the class is still open so additional persons may share the remainder.

Identifying the Class

Be careful with the terms used in the instrument:

• “Children” usually means first-generation, legitimate or adopted children, not stepchildren or grandchildren, unless facts indicate a broader use.
• “Issue” or “descendants” usually includes all lineal descendants (children, grandchildren, etc.).
• “Heirs” is a term of art for intestacy and usually indicates a reversion to the grantor’s intestate takers at death, not a class gift in the technical sense.

Unless the instrument provides otherwise:

• Adopted children are treated as the natural children of the adoptive parents.
• Nonmarital children are included in their mother’s line and in the father’s line if paternity is established, in modern law.

On the MBE, assume modern inclusive rules unless the facts clearly indicate an older or more restrictive approach.

When Does the Class Close

Under the rule of convenience (default rule):

• If the gift follows a life estate:
  • The class typically closes at the life tenant’s death, when the first class member becomes entitled to possession.
• If the gift is immediate (no prior life estate or term of years):
  • The class closes when any class member can demand distribution—often at the testator’s death in a will, or at the date of the deed in an inter vivos conveyance.

Children in gestation at the closing time are usually included; this is sometimes called the “gestation principle.”

Worked Example 1.5

T’s will devises: “to A for life, then to A’s children.” At T’s death, A is alive and has two children, B and C. After T’s death, but before A’s death, A has another child, D. When does the class of “A’s children” close, and who takes?

Answer:
The remainder is a class gift to “A’s children” following A’s life estate. Under the rule of convenience, the class closes at A’s death, when the first child is entitled to possession. At A’s death, all of A’s then-living children—B, C, and D—share the property.

• Any children born after A’s death are excluded, because the class closed at A’s death.
• B, C, and D take as tenants in common in equal shares.

Worked Example 1.6

O conveys “to A for life, then to A’s children who reach age 25.” At the time of the conveyance, A has one child, B, age 27, and one child, C, age 22. Who can take the remainder when A dies?

Answer:
The remainder is a class gift to “A’s children who reach 25.”

• B is already 27, so B has a vested remainder subject to open.
• C has a contingent interest, conditional on reaching 25.
  Under the rule of convenience, the class closes when the first class member is entitled to possession—i.e., at A’s death. At that moment:
• If C has reached 25, C is in the class; B and C (and any other child of A who has reached 25 by then) share.
• If C has not reached 25 by A’s death, C is excluded; C’s interest never vests. B takes all.
  Children born after A’s death are excluded because the class closed at A’s death.

Class Gifts and RAP

Class gifts that remain “open” can violate the Rule Against Perpetuities (RAP) if any member might vest more than 21 years after a life in being. The bar exam heavily tests a few patterns:

• Gifts conditioned on surviving to an age beyond 21, such as “to A’s children who reach 30.”
• Gifts to grandchildren or more remote descendants, especially where the measuring life (e.g., the grandparent) is capable of having more children.

Key rule for class gifts and RAP:

• If a gift to any member of the class is void under RAP, it is “bad as to one, bad as to all,” and the entire class gift fails, even as to members who would certainly vest in time.

The rule of convenience can sometimes “save” a class gift by closing the class earlier, thereby ensuring that all members who could possibly qualify will vest (or fail) within the perpetuities period.

Worked Example 1.7

O conveys “to A for life, then to A’s children who reach age 30.” At the time of the conveyance, A has one child, B, age 32. Does the remainder to A’s children violate RAP?

Answer:
The gift is to a class (“A’s children”) subject to an age condition (30). Although B is already 32 and thus clearly satisfies the condition, A is alive and could have more children in the future. A child born to A after the conveyance could reach 30 more than 21 years after A’s death (e.g., a posthumous child who lives more than 21 years). Because at least one potential member of the class might vest outside the perpetuities period, RAP invalidates the entire class gift—“bad as to one, bad as to all.” The remainder to A’s children is void, and O (or O’s estate) holds a reversion following A’s life estate.

Notice that the rule of convenience does not rescue this conveyance for RAP purposes, because RAP is applied at the moment the interest is created, not based on what actually happens later. The possibility of too-remote vesting is enough.

Waste: Duties of Life Tenants and Other Limited Owners

The doctrine of waste protects future interest holders from acts (or omissions) by the current possessor that unreasonably damage the property.

Key Term: Waste
Any substantial change in the condition of real property by a person with a limited estate (such as a life tenant or term-of-years tenant) that harms the value of the future interest.

There are three classic categories:

Key Term: Voluntary Waste
Affirmative acts by the possessor that decrease the property’s value, such as tearing down a structure, removing fixtures, or exploiting natural resources in excess of prior permissible use.

Key Term: Permissive Waste
Waste by omission—failure to exercise reasonable care to maintain and preserve the property, including failure to pay ordinary taxes, maintain insurance if required, or perform necessary repairs.

Key Term: Ameliorative Waste
Changes made by the possessor that increase market value but substantially alter the property’s character or use, contrary to the expectations of the future interest holders.

Duties of a Life Tenant

A life tenant is the classic limited owner whose actions are policed by the doctrine of waste. A life tenant must:

• Make ordinary repairs to keep the property in a reasonable state of repair, to the extent of the property’s income (or reasonable rental value if not actually rented).
• Pay ordinary taxes and interest on any existing mortgage (but not the principal), again limited to the property’s income.
• Prevent permissive waste by taking reasonable steps to protect the property from the elements (e.g., fixing a leaking roof) and from avoidable deterioration.
• Avoid voluntary waste, such as demolishing buildings, removing timber beyond what is allowed, or drilling new wells or mines.

Special rules:

• Open mines doctrine: If, before the life estate, the land was already used to extract minerals or timber, the life tenant may continue existing operations (the “open mines”), but may not open new mines or quarries.
• Insurance and extraordinary expenses: Traditionally, the life tenant has no duty to insure the premises for the benefit of remaindermen and is not required to pay extraordinary repairs or mortgage principal, absent an agreement.
• Condemnation or casualty awards: If property is condemned or destroyed, the life tenant may be entitled to a share of any award or insurance proceeds, often measured by actuarial value; the remainder goes to future interest holders.

Key Term: Voluntary Waste
Includes exploitation of natural resources (timber, oil, minerals) beyond what prior use or grant terms permit, substantial alteration of structures, or sale/removal of fixtures essential to the property’s value.

Key Term: Permissive Waste
Includes letting the roof leak until the structure rots, failing to clear gutters, ignoring termite infestation, or not paying taxes so that the property is sold at a tax sale.

Key Term: Ameliorative Waste
Includes tearing down an old single-family home to build a profitable apartment building or converting farmland into a shopping center, even if market value increases.

Remedies for waste:

• Damages (often measured by diminution in value or cost of restoration)
• Injunctive relief to prevent further waste
• In extreme cases, forfeiture of the life estate (particularly for repeated or egregious voluntary waste)

Who can sue?

• Remaindermen, reversioners, and holders of executory interests affected by the life tenant’s acts all have standing to bring a waste action.

Worked Example 1.8

O conveys “to L for life, then to R and her heirs.” L fails to pay property taxes for several years. The county sells the property at a tax sale. R sues L for waste. What result?

Answer:
L has committed permissive waste by failing to pay ordinary property taxes, leading to loss of the property. A life tenant is obligated to pay ordinary taxes to the extent of income or reasonable rental value. R can recover damages equal to the loss R suffers (often the value of the remainder interest) and may be entitled to have the tax deed set aside if equity and local law permit. At a minimum, L is liable for the harm to R’s future interest.

Worked Example 1.9

O conveys “to L for life, then to R and her heirs.” The property is a farmhouse in a rural area that has since become a dense urban neighborhood of apartments. L tears down the farmhouse and builds a modern apartment building worth substantially more than the original farmhouse. R sues L for waste. Result?

Answer:
L’s actions constitute ameliorative waste: L made a substantial alteration that increased market value but changed the character of the property. Under traditional rules, R can obtain relief because future interest holders are entitled to have the land in substantially the same condition. In many modern jurisdictions, however, ameliorative waste is not actionable if: (i) the change increases value; (ii) reflects an established change in the surrounding neighborhood; and (iii) the future interest holders do not object or cannot be located. On the MBE, unless the facts clearly indicate a modern approach and changed neighborhood conditions, treat significant alterations as actionable ameliorative waste.

Waste and Other Limited Owners

The same basic principles apply, with adjustments, to:

• Tenants for years: Lessees under a term-of-years lease may not commit waste; leases often expressly define prohibited conduct and required maintenance.
• Co-tenants: One co-tenant can commit waste to the detriment of others (e.g., stripping timber, destroying structures), and the injured co-tenants may sue. However, mere exclusive possession without ouster is not waste.
• Owners of defeasible fees: The holder of a fee simple subject to a condition subsequent or an executory limitation is generally treated as an owner in fee; waste rules are less significant because the estate is not “limited” in the same way as a life estate.

Cy Pres Doctrine for Charitable Trusts and Dispositions

Charitable gifts of property often take the form of charitable trusts but can also be outright devises “for” a charitable purpose.

Key Term: Charitable Trust
A trust created for a charitable purpose—such as relief of poverty, education, religion, health, or other community-benefiting purpose—enforced by the state attorney general or similar official, not by individual beneficiaries.

Over time, a charitable purpose may become impossible, impracticable, or illegal (for example, the named institution ceases to exist, the specified disease is eradicated, or the intended activity becomes unlawful).

Key Term: Cy Pres Doctrine
An equitable doctrine allowing a court to modify a charitable disposition—usually a charitable trust—to carry out the donor’s general charitable intent as nearly as possible when the original specific purpose becomes impossible, impracticable, or illegal.

Key Term: General Charitable Intent
A donor’s broad intent to benefit charity generally, rather than to benefit one narrow charitable scheme or institution exclusively.

If the donor had general charitable intent:

• The court will not allow the gift to fail.
• Instead, it will redirect the property to a similar charitable purpose (“as near as possible”).
• Examples: Redirect a trust for a hospital in a town that no longer exists to fund medical care in a nearby town; modify a scholarship limited to “white students” to a race-neutral scholarship consistent with anti-discrimination law.

If there is no general charitable intent:

• The specific charitable gift fails when it becomes impossible or illegal.
• The property typically reverts via a resulting trust to the settlor or the settlor’s estate.

Factors suggesting general charitable intent:

• The donor describes a broad purpose (“for medical research,” “for education of poor children”) rather than a single institution.
• The donor names several possible charitable takers or purposes.
• The instrument contains a “backup” charitable purpose beyond the primary one.

Factors suggesting specific intent:

• The donor focuses on a single institution or project (“to build a hospital in Town X and no other use”).
• The donor’s language suggests that if the specific plan fails, the donor prefers the property to revert.

Worked Example 1.10

T creates a trust “to build and operate a children’s hospital in Town X.” At the time of T’s death, Town X is a thriving city. Twenty years later, Town X is abandoned due to environmental contamination, and building a hospital there is impossible. T’s heirs argue that the trust should terminate and the property revert to them. The Attorney General argues for cy pres to use the funds to support children’s health care in nearby Town Y. What should the court do?

Answer:
The key question is whether T had general charitable intent to benefit children’s health, or a narrow intent focused solely on Town X. If the instrument and surrounding facts suggest that T’s primary aim was children’s health care (with Town X as the initially envisioned location), the court should apply cy pres and redirect the trust to a similar purpose—e.g., supporting a children’s hospital or pediatric clinic in Town Y. If, however, the evidence shows T was concerned exclusively with Town X itself (e.g., repeated statements that no other location is acceptable), the court may find no general charitable intent; the trust would fail, and the property would pass to T’s successors via a resulting trust. On the MBE, unless the facts strongly indicate an obsession with the specific site, courts lean toward finding general charitable intent and applying cy pres.

Cy Pres and RAP

In the context of future interests, you may also see “cy pres” mentioned as a statutory or equitable tool to “reform” an otherwise invalid interest to comply with RAP—e.g., by reducing an age contingency from 30 to 21 years or by imposing a 90-year cap. This “RAP cy pres” is distinct from charitable cy pres but serves a similar “as near as possible” function to save gifts rather than void them.

Note also the charity-to-charity RAP exception:

• A gift from one charity to another charity (e.g., “to A Charity so long as used as a school, then to B Charity”) is exempt from RAP.
• Even if the future interest might vest beyond the perpetuities period, it is valid.

Worked Example 1.11

O devises “Blackacre to City Library so long as it is used as a public library, then to State University.” Many decades later, the library closes. State University claims Blackacre. Is the limitation valid?

Answer:
City Library holds a fee simple determinable; State University holds a shifting executory interest that would normally be subject to RAP because it may vest at an indefinitely remote time. However, both takers are charities. Under the charity-to-charity exception, State University’s executory interest is valid despite its potential remoteness. When the library ceases to be used as a public library, City Library’s estate ends automatically, and State University takes in fee simple.

Putting It Together with Future Interests

These doctrines often intersect in exam problems:

• A gift “to A for life, then to A’s children who reach 30” raises issues of:
  • Life estates and remainders
  • Class gifts and the rule of convenience
  • RAP and the “all or nothing” rule for class gifts
• A life tenant “for life” is bound by the doctrine of waste, protecting both remaindermen and holders of executory interests.
• A fee simple subject to an executory interest “to Church, but if it ceases to be used for religious purposes, to Charity” combines:
  • Defeasible fees
  • Executory interests
  • Charitable purposes (possibly invoking cy pres if Church or Charity ceases to exist)
  • The charity-to-charity RAP exception (if both are charities)

Key Term: Executory Interest
A future interest in a transferee (not the grantor) that either cuts short a prior estate (shifting executory interest) or springs out of the grantor at a later date (springing executory interest).

Worked Example 1.12

O conveys “to Church, but if the land is ever used for commercial purposes, then to Charity.” Years later, Church builds a grocery store on the land. What happens?

Answer:
Church holds a fee simple subject to an executory interest. Charity holds a shifting executory interest that divests Church if the stated condition occurs. When Church begins using the land for commercial purposes, Charity’s executory interest becomes possessory, and Charity takes the property in fee simple. If both Church and Charity are charities, RAP does not invalidate Charity’s interest because of the charity-to-charity exception.

Exam Warning – General

On the MBE, be careful to:

• Distinguish a joint tenancy (with survivorship) from a tenancy in common (no survivorship).
• Watch for facts indicating severance—especially an inter vivos sale, contract of sale, mortgage in a title theory state, or a partition action.
• In class gift problems, always ask: Has any member become entitled to possession? If so, consider whether the rule of convenience closes the class and how that affects who takes.
• In RAP questions involving class gifts, remember the “bad as to one, bad as to all” rule and note any age contingencies over 21.
• In waste problems, identify the type of waste and the position of the complaining party (remainderman, reversioner, co-tenant, or landlord).
• In charitable trust questions, separate administrative problems (often solved by deviation) from failure of purpose (where cy pres is relevant).

Revision Tip

When dealing with life estates and future interests involving these doctrines, work systematically:

1. Identify the present possessory estate (e.g., life estate, term of years, fee simple subject to an executory interest).
2. Identify all future interests (remainder, executory interest, reversion, possibility of reverter, right of entry).
3. Ask whether any class gift is involved; determine when the class closes and whether RAP is implicated.
4. Ask whether the current possessor owes duties under the doctrine of waste.
5. If charitable purposes are involved and circumstances have changed, consider whether cy pres can be used to reform the disposition.

Key Point Checklist

This article has covered the following key knowledge points:

• Joint tenancies and tenancies by the entirety include a right of survivorship; tenancies in common do not.
• A joint tenancy traditionally requires four concurrent ownership conditions and clear survivorship language; severance by sale (and in some jurisdictions by mortgage or lease) converts the severed share to a tenancy in common.
• In lien theory states, a mortgage by one joint tenant does not sever the joint tenancy; in title theory states, it does.
• Tenancy by the entirety protects spouses from unilateral conveyances and many individual creditors; divorce typically destroys the TBE and converts it to a tenancy in common (or joint tenancy).
• Survivorship means a joint tenant’s or TBE co-tenant’s interest never passes by will or intestacy; any attempted devise of that interest fails if no severance occurs before death.
• Class gifts vest and close under the rule of convenience when a member is entitled to immediate possession, unless the instrument clearly provides otherwise.
• Class gifts can create vested remainders subject to open; if any class member’s interest is void under RAP, the entire class gift generally fails (“bad as to one, bad as to all”).
• The doctrine of waste limits what life tenants and other limited owners may do with the property, distinguishing voluntary, permissive, and ameliorative waste.
• Life tenants must pay ordinary taxes and interest and make reasonable repairs, but need not pay the principal on preexisting mortgages or extraordinary expenses absent agreement.
• Ameliorative waste can be actionable even when value increases, unless modern exceptions for changed neighborhoods and increased value apply.
• Charitable trusts and charitable-type dispositions that become impossible or impracticable may be modified under the cy pres doctrine if the settlor had general charitable intent; otherwise a resulting trust returns property to the settlor or estate.
• The charity-to-charity exception to RAP preserves executory interests between charities even if they might otherwise vest too remotely.
• Cy pres can also appear as a statutory RAP reform tool, allowing courts to modify dispositions to conform to the perpetuities period.
• These doctrines regularly intersect with future interests and defeasible fees, so always analyze estates and future interests before applying survivorship, class gift, waste, or cy pres rules.

Key Terms and Concepts

• Joint Tenancy
• Tenancy by the Entirety
• Tenancy in Common
• Right of Survivorship
• Partition
• Class Gift
• Rule of Convenience
• Vested Remainder Subject to Open
• Waste
• Voluntary Waste
• Permissive Waste
• Ameliorative Waste
• Charitable Trust
• Cy Pres Doctrine
• General Charitable Intent
• Executory Interest