PastPaperHero | Ownership of real property

Learning Outcomes

This article explains special problems that arise in the ownership of real property on the MBE, including:

Applying the elements of adverse possession—actual, exclusive, open and notorious, hostile, and continuous—to varied fact patterns, and evaluating tacking, color of title, disabilities, and government‑land limitations when determining whether title has shifted.
Evaluating how concurrent estates (tenancy in common, joint tenancy, tenancy by the entirety) are created, severed, and partitioned, and how co‑tenant rights, duties, contribution, accounting, and ouster claims are asserted and remedied in exam questions.
Analyzing when oral land sale contracts are nevertheless enforceable by recognizing Statute of Frauds exceptions, especially classic MBE combinations of part performance acts and detrimental reliance sufficient to justify specific performance or restitution.
Applying the Rule Against Perpetuities (RAP) to contingent remainders, class gifts, and executory interests, using lives in being, the "all or nothing" rule, and the Rule of Convenience to determine whether a future interest is valid or void.
Determining the alienability, descendibility, and devisability of present and future interests, distinguishing valid from invalid restraints on alienation, and predicting who ultimately holds or takes an interest when conditions precedent fail.

MBE Syllabus

For the MBE, you are required to understand special problems in the ownership of real property, with a focus on the following syllabus points:

Elements and policy of adverse possession, including hostility, continuity, tacking, and the impact of disabilities.
Treatment of adverse possession among co‑tenants and against holders of future interests.
Types of concurrent estates (tenancy in common, joint tenancy, tenancy by the entirety), including creation, severance, and rights and duties between co‑tenants.
Partition remedies (partition in kind and partition by sale) and when each is appropriate.
Statute of Frauds requirements for land sale contracts and equitable exceptions (part performance and detrimental reliance/equitable estoppel).
The common‑law Rule Against Perpetuities and its application to contingent remainders, vested remainders subject to open, and executory interests, including special rules for class gifts.
Alienability, descendibility, and devisability of present and future interests, and limits imposed by invalid restraints on alienation.

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.

To acquire title by adverse possession, possession must be:
1. Permissive, open, and continuous.
2. Actual, exclusive, open and notorious, hostile, and continuous.
3. Actual, shared, notorious, and hostile for five years.
4. Exclusive, hostile, and known to the true owner.
Which of the following acts by one joint tenant will typically sever a joint tenancy, converting it into a tenancy in common with respect to the severing tenant's share?
1. Execution of a will devising the tenant's interest.
2. Temporarily leasing the property to a third party (in most jurisdictions).
3. Obtaining a mortgage on their interest in a lien theory state.
4. Inter vivos conveyance of their interest to a third party.
Which of the following actions is LEAST likely to satisfy the part performance exception to the Statute of Frauds for an oral land sale contract?
1. The buyer pays the full purchase price.
2. The buyer takes possession of the property and pays a substantial portion of the purchase price.
3. The buyer takes possession and builds a permanent structure on the land.
4. The buyer pays a small deposit and obtains financing approval.
Which of the following future interests is most clearly subject to the common‑law Rule Against Perpetuities?
1. A possibility of reverter retained by O.
2. A vested remainder in fee simple in B.
3. A contingent remainder in C.
4. A reversion in O.
A and B own Blackacre as tenants in common, each with a 50% interest. A lives on the property; B lives elsewhere and never visits. A pays all property taxes and necessary repairs and collects rent from a third‑party tenant for part of the property. Which statement is most accurate?
1. A can acquire B’s interest by adverse possession after the statutory period, without more.
2. A may seek contribution from B for B’s share of taxes and necessary repairs.
3. A may keep all the rent from the third‑party tenant.
4. B must pay A reasonable rental value for A’s exclusive occupancy.

Introduction

Beyond the basic creation and transfer of fee simple and life estates, several special problems arise in real property ownership that frequently appear on the MBE. These include:

Acquisition of ownership by adverse possession, where wrongful possession for a statutory period ripens into title.
Ownership shared among multiple persons through concurrent estates, raising issues of survivorship, severance, partition, and mutual obligations.
Enforceability of land sale contracts under the Statute of Frauds and its equitable exceptions.
Limits on long‑term control of property imposed by the Rule Against Perpetuities, and questions about whether particular interests can be transferred inter vivos, devised by will, or pass by intestacy.

Each of these doctrines modifies or complicates the ordinary rules of title and transfer. Many exam questions hinge on small facts about timing (when possession began, when a disability arose, when an interest vested), wording of conveyances, or the precise conduct of co‑owners.

Key Term: Adverse Possession
A method of acquiring title to real property by possessing the property for a statutory period under conditions that are actual, exclusive, open and notorious, hostile, and continuous.

Key Term: Concurrent Estate
Any estate in real property held simultaneously by two or more persons, such as a tenancy in common, joint tenancy, or tenancy by the entirety.

Key Term: Statute of Frauds
A legal doctrine requiring certain contracts, including those for the sale of interests in land, to be in a signed writing to be enforceable, subject to limited equitable exceptions.

Key Term: Rule Against Perpetuities (RAP)
The common‑law rule that a contingent future interest is invalid unless it is certain to vest or fail no later than 21 years after the death of some life in being at the time the interest was created.

Key Term: Alienability
The ability to transfer a property interest inter vivos (during life) by sale, gift, or other conveyance.

Key Term: Descendibility
The ability of a property interest to pass to heirs by intestate succession when the owner dies without a will.

Key Term: Devisability
The ability of a property interest to be transferred by will at the owner’s death.

With these basic concepts in place, the rest of the article addresses each special problem in turn.

Adverse Possession

Adverse possession allows a person to acquire title to real property owned by another through wrongful possession for a statutorily defined period. The policy justifications include promoting productive use of land, quieting title after long‑standing occupation, and penalizing owners who ignore their property rights. When title is acquired by adverse possession, it relates back to the date adverse possession began.

Key Term: Doctrine of Relation Back (Adverse Possession)
The principle that, once the statutory period and elements of adverse possession are satisfied, the adverse possessor’s title is treated as having vested at the moment possession first became adverse.

Elements of Adverse Possession

To establish title by adverse possession, possession must be:

Actual: The possessor must physically use the land as a reasonable owner would, given the nature of the property (e.g., living on it, cultivating, fencing, building, or otherwise exercising control). Trivial or sporadic use will not suffice.
Exclusive: The possessor must not share possession with the true owner or the general public. Possession can be shared with others claiming adversely; if they satisfy the elements together, they will take as tenants in common.
Open and Notorious: The use must be visible and obvious so that a reasonably diligent owner would be on notice of the occupation. Possession need not literally be known to the true owner; constructive notice is enough.
Hostile (Adverse): Possession must be without the true owner’s permission. The majority follows an objective standard: the possessor’s state of mind (good‑faith belief in ownership, bad‑faith intent to steal, or uncertainty) is irrelevant.

Key Term: Hostile Possession
Possession that is inconsistent with the true owner’s rights and without the owner’s permission; most jurisdictions use an objective test focusing on conduct rather than the possessor’s subjective intent.

Continuous: Possession must be continuous and unbroken for the entire statutory period (commonly 10, 15, or 20 years, depending on the jurisdiction). Continuity is assessed in light of the type of property and ordinary usage. Seasonal or intermittent use may suffice if typical for that type of land (e.g., summer use of a vacation property).

These elements are often remembered with the mnemonic "AEOHC" (actual, exclusive, open and notorious, hostile, continuous).

Actual and Constructive Possession; Color of Title

The "actual" element raises questions when the possessor occupies only part of the described tract.

Key Term: Color of Title
A written instrument (such as a deed or will), invalid for some reason, that purports to give the possessor title to the property; when coupled with actual possession of part of the land, it may support constructive adverse possession of the whole described parcel.

Key Term: Constructive Adverse Possession
The doctrine under which a possessor who actually occupies part of a parcel described in an instrument under color of title is treated as possessing the entire parcel described, provided the true owner is not in possession of the remainder.

Key points:

Without color of title, the adverse possessor generally acquires only what they actually occupy or control.
With color of title, actual possession of a portion can extend constructively to the entire parcel described in the defective instrument, unless part is already possessed by the true owner or another.

Hostility and Permission

Because hostility simply means "non‑permissive":

If the true owner gave permission (e.g., lease, license, family permission), possession is not hostile until the possessor clearly repudiates that permission and communicates the change (or acts so inconsistently with permission that notice is implied).
Boundary disputes: if A mistakenly builds a fence encroaching onto B’s land and then uses the strip as her own, that use is hostile even though the mistake was innocent in most jurisdictions.

Some minority approaches:

Good‑faith requirement: A few states require the possessor to believe in good faith that they own the land.
Aggressive trespass standard: A small minority requires a conscious intent to take land known to belong to someone else.

Unless a question clearly invokes such a minority rule, assume the objective majority standard.

Continuity, Seasonal Use, and Interruption

Continuity does not require constant physical presence; it requires that the possessor use the property as a typical owner would:

Seasonal use (e.g., grazing cattle each summer) can satisfy continuity if consistent with ordinary use.
Short absences (vacations, temporary moves) do not break continuity.
The clock can be interrupted if:
- The true owner reenters and retakes possession, or
- The true owner files a successful ejectment action before the limitations period runs.

Mere oral protests by the true owner, without retaking possession or filing suit, usually do not break continuity.

Special Issues in Adverse Possession

Tacking

An adverse possessor may "tack" their period of possession to that of a prior adverse possessor to meet the statutory period, but only if there is privity between the successive possessors.

Key Term: Tacking (Adverse Possession)
The joining of consecutive periods of adverse possession by different people to satisfy the statutory period, permitted only when there is privity between the possessors.

Key Term: Privity (Adverse Possession)
A voluntary legal relationship between successive possessors—such as a deed, will, or intestate transfer—that connects their periods of possession for tacking purposes.

Important exam points:

Privity usually exists when the earlier possessor voluntarily transfers possession to the later possessor by deed (even if defective), will, or inheritance.
Tacking is not permitted when the successor ousts the predecessor or otherwise takes possession wrongfully; such ouster breaks privity.
Gaps in possession between successive occupiers generally prevent tacking because continuity is broken.

Disabilities

If the true owner is under a qualifying disability at the time adverse possession begins, the limitations period does not begin to run until the disability is removed (e.g., the owner reaches majority, is restored to sanity, or is released from imprisonment if those are recognized disabilities).

Key Term: Disabilities (Adverse Possession)
Legal conditions of the true owner—typically infancy, insanity, or imprisonment—that, if present when adverse possession begins, postpone the running of the statute of limitations until the disability is removed.

Key rules tested on the MBE:

The disability must exist when the adverse possession starts. A disability arising after that time does not toll the statute.
Disabilities do not tack; if an owner has more than one disability, or one disability follows another, only the disability existing at the start is relevant.
When the disability ends, the statute generally begins to run (or continues) for the ordinary period, or for a limited additional period prescribed by statute (e.g., 5 or 10 years).
Disability of an heir does not extend a limitations period that began to run during the ancestor’s lifetime.

Government Land and Tax Payment Requirements

Two additional points:

Government‑owned land is often immune from adverse possession. Many jurisdictions either prohibit adverse possession of government land entirely or require a much longer period.
Some states require adverse possessors to pay property taxes on the land to claim title; if an MBE question mentions tax payments, treat them as a possible statutory requirement.

Adverse Possession and Co‑Tenants; Future Interests

Adverse possession is especially tricky with concurrent estates and future interests.

Co‑tenants: One co‑tenant’s exclusive possession is presumed to be on behalf of all co‑tenants. To start the statute running against another co‑tenant, there must be an ouster—a clear act denying the other co‑tenant’s right to possess (e.g., physically excluding them or claiming sole ownership and giving clear notice).

Key Term: Ouster
The wrongful exclusion of a co‑tenant from possession of the whole or any part of the concurrently owned property, or a clear repudiation of the co‑tenancy communicated to the other co‑tenant.

Future interests: If a life tenant adversely possesses land, the statute usually runs only against the life tenant’s interest; it does not begin to run against remaindermen until the life estate ends and the remaindermen’s right to possession arises.

Worked Example 1.1

In 2000, Adam began adversely possessing Blackacre, owned by Olivia. The statutory period is 10 years. In 2005, Olivia was declared legally insane. In 2011, does Adam acquire title?

Answer:
Yes. The statute of limitations began running in 2000 when Adam's possession started. Olivia's disability (insanity) arose in 2005, after the adverse possession began, so it does not toll the statute. The 10‑year period ran from 2000 to 2010. Assuming Adam met all other elements, he acquired title in 2010 by relation back to 2000.

Worked Example 1.2

Owner conveys Blackacre by a defective deed "to Paula." Relying on the deed, Paula enters in 2000, builds a house on the north half, and lives there. The deed purports to describe the entire 100‑acre tract. In 2008, Paula transfers her interest by deed "to Chris," who immediately takes possession and continues living in the house. The statute of limitations is 15 years. Owner sues Chris in 2017. Who owns Blackacre?

Answer:
Paula and Chris both possessed under color of title. Paula’s actual possession of the house and surrounding area, coupled with the defective deed, gave her constructive adverse possession of the entire tract, subject to any part actually possessed by Owner. Chris is in privity with Paula by voluntary conveyance, so their periods can be tacked: 2000–2008 (Paula) plus 2008–2017 (Chris) equals 17 years, exceeding the 15‑year period. Assuming the other adverse possession elements are satisfied, Chris now holds title to Blackacre by relation back to 2000.

Concurrent Estates

Concurrent estates exist when two or more persons own property at the same time. The three main types tested are tenancy in common, joint tenancy, and tenancy by the entirety. Understanding each type’s creation, rights, and methods of severance is critical.

Key Term: Tenancy in Common
A form of concurrent ownership where two or more persons hold separate fractional shares in undivided property, each with a right to possess the whole and no right of survivorship; this is the default form of co‑tenancy.

Key Term: Joint Tenancy
A form of concurrent ownership where two or more persons own property with an express right of survivorship; each joint tenant’s interest passes automatically to the survivors at death.

Key Term: Tenancy by the Entirety
A form of concurrent ownership between married spouses, featuring a right of survivorship and strong protection against unilateral transfer or creditors of one spouse.

Tenancy in Common

Characteristics:
- Each co‑tenant owns an individual, undivided share and has a right to possess the whole property.
- Shares may be unequal (e.g., A owns 1/3, B owns 2/3).
- Each share is freely alienable inter vivos, devisable by will, and descendible by intestacy.
- There is no right of survivorship; a tenant’s share passes to their estate at death.
Creation:
- This is the default co‑tenancy. A conveyance to two or more persons (e.g., "to A and B") presumptively creates a tenancy in common unless language clearly indicates a right of survivorship.

Joint Tenancy

Characteristics:
- The distinctive feature is the right of survivorship: when one joint tenant dies, their interest automatically passes to the surviving joint tenant(s), not to their heirs or devisees.
- Each joint tenant has an equal, undivided right to possess the whole and typically holds an equal fractional share.
- A joint tenant’s interest is alienable inter vivos (but such a transfer severs the joint tenancy as to that share), but not devisable or descendible because it passes by survivorship at death.

Key Term: Right of Survivorship
A feature of joint tenancy and tenancy by the entirety under which a deceased co‑tenant’s interest automatically passes to the surviving co‑tenant(s), rather than through the deceased’s estate.

Creation:
- Traditionally required the four unities, often remembered as PITT:
  - Possession: Each joint tenant has an equal right to possess the whole.
  - Interest: Joint tenants hold identical interests (same type and duration).
  - Time: Interests vest at the same moment.
  - Title: Interests are acquired by the same instrument (deed or will).
- Many modern statutes relax strict adherence to the four unities, focusing instead on clear language of survivorship.
- Because the default is a tenancy in common, explicit survivorship language is critical (e.g., "to A and B as joint tenants with right of survivorship").
Severance:
- An inter vivos transfer of a joint tenant's interest severs the joint tenancy as to that share, converting it into a tenancy in common between the transferee and the remaining joint tenant(s). The other joint tenants remain joint tenants among themselves if more than two were originally involved.
- Mortgages:
  - Lien theory (majority): A mortgage is treated as a lien; it does not sever the joint tenancy. If the mortgaging joint tenant dies first, their interest (including the mortgage) disappears, and the surviving joint tenants take free of the mortgage.
  - Title theory (minority): The mortgage is treated as a transfer of title, severing the joint tenancy as to the mortgaged share.
- Leases: Jurisdictions are split on whether a lease executed by one joint tenant severs the joint tenancy. On the MBE, assume a lease does not automatically sever unless facts say otherwise, but it may temporarily affect possession rights.

Key Term: Severance (Joint Tenancy)
The destruction of the right of survivorship, typically by an inter vivos conveyance (or in some jurisdictions by mortgage or certain contracts), converting the severed share into a tenancy in common.

Tenancy by the Entirety

Characteristics:
- Only available to married spouses (or parties in a recognized equivalent legal status).
- Contains a right of survivorship similar to a joint tenancy.
- Neither spouse acting alone can convey, encumber, or defeat the survivorship interest; both must join in any transfer.
- Individual creditors of one spouse cannot reach property held in tenancy by the entirety; only joint creditors of both spouses can.
Creation:
- In many jurisdictions, a conveyance "to A and B, husband and wife" creates a tenancy by the entirety by default, absent contrary language.
- Some states require explicit language referencing tenancy by the entirety.
Termination:
- Can be terminated only by:
  - Death of a spouse (survivor takes the whole).
  - Divorce (converts to a tenancy in common in most states).
  - Mutual agreement.
  - Execution by a joint creditor of both spouses.

Rights and Duties of Co‑Tenants

Co‑tenants share significant rights and duties, often tested in fact‑intensive questions.

Possession:
- Each co‑tenant has the right to possess the entire property, regardless of their fractional share.
- One co‑tenant’s decision not to occupy the property does not give rise to rent from the occupying co‑tenant.
- A co‑tenant who ousts another (wrongfully excluding them) commits a wrong and may owe rent or be subject to ejectment.
Rents and Profits:
- A co‑tenant in possession does not owe rent to non‑possessing co‑tenants absent ouster or an agreement.
- Rents or profits derived from third‑party use (e.g., leasing to a tenant, granting an easement, exploiting natural resources) must be shared proportionally based on ownership shares.

Key Term: Accounting (Co‑Tenancy)
An equitable action in which one co‑tenant seeks a share of income or profits generated from the common property by another co‑tenant.

Operating Expenses:
- Necessary operating expenses, such as property taxes and mortgage interest, are shared in proportion to ownership interests.
- A co‑tenant who pays more than their share can seek contribution from the others.

Key Term: Contribution (Co‑Tenancy)
The right of a co‑tenant who pays more than their share of certain common expenses (such as taxes or mortgage interest) to obtain reimbursement from other co‑tenants for their proportionate share.

Repairs:
- For necessary repairs (e.g., fixing a leaking roof to preserve the property), a co‑tenant may usually seek contribution, provided they gave the others notice and an opportunity to participate.
- For improvements, there is no general right to contribution. However, the improver receives credit (or bears the loss) in a later partition based on how the improvement affects the property’s value.
Waste:
- A co‑tenant may not commit affirmative waste (intentional damage), permissive waste (neglect), or, in some jurisdictions, ameliorative waste (fundamental alterations) that substantially impair other co‑tenants’ interests.
- Co‑tenants can sue for damages or seek an injunction.
Adverse Possession Among Co‑Tenants:
- Exclusive possession by one co‑tenant, even for a long time, is not enough by itself for adverse possession against others.
- There must be a clear ouster—for example, physically excluding the other co‑tenant or recording a deed purporting to convey the entire fee and giving notice of the hostile claim.
Partition:
- Joint tenants and tenants in common have a right to seek partition.

Key Term: Partition in Kind
A form of partition in which the court physically divides the property into separate parcels, awarding each co‑tenant a piece corresponding roughly to their interest.

Key Term: Partition by Sale
A form of partition in which the court orders the property sold and the proceeds divided among co‑tenants according to their interests.

Partition in kind is preferred where feasible and not unfair (e.g., large tract of rural land).
Partition by sale is ordered when physical division is impractical or would significantly prejudice the parties (e.g., a single building or small urban lot).
Tenancy by the entirety cannot be unilaterally partitioned by one spouse.

Key Term: Co‑Tenant
Any person who holds a concurrent ownership interest in the same property with one or more others, such as a tenant in common, joint tenant, or tenant by the entirety.

Worked Example 1.3

Amy and Ben own Greenacre as joint tenants. Amy conveys her interest to Charles by deed without Ben's knowledge or consent. What is the state of title?

Answer:
Amy’s inter vivos conveyance of her interest to Charles severs the joint tenancy as to her share. Ben and Charles now own Greenacre as tenants in common, each holding an undivided one‑half interest without a right of survivorship between them.

Worked Example 1.4

Cal and Dana own Blackacre as tenants in common. Cal pays all property taxes and necessary roof repairs for five years. Dana leases part of Blackacre to a third‑party tenant and collects all the rent. Cal sues. What remedies are most appropriate?

Answer:
Cal can seek contribution from Dana for Dana’s proportionate share of taxes and necessary repairs. Cal can also bring an accounting action to claim his proportional share of the net rent that Dana received from the third‑party tenant. Cal cannot charge Dana rent for Cal’s own occupancy because there was no ouster.

Land Sale Contracts: Statute of Frauds Exceptions

Contracts for the sale of an interest in land must generally be in writing and signed by the party to be charged to satisfy the Statute of Frauds. The writing must identify:

The parties,
The property (with a reasonably certain description),
The price or a price formula, and
The essential terms of the transaction.

A memorandum or combination of writings can suffice, and modern communications (such as emails) may count if they are signed in a legally recognized manner. If the Statute of Frauds is not satisfied, the contract is unenforceable in an action for breach, unless an equitable exception applies.

Key Term: Part Performance
An equitable doctrine allowing enforcement of an oral contract for the sale of land when the buyer’s actions (such as taking possession, paying the price, and/or making substantial improvements) unequivocally indicate that a contract exists.

Key Term: Equitable Estoppel (Detrimental Reliance)
An equitable doctrine under which a party who reasonably and foreseeably relies on an oral contract to their substantial detriment may enforce the contract, despite the Statute of Frauds, to prevent a serious injustice.

Part Performance

Courts may specifically enforce an oral land sale contract if the buyer’s conduct can be explained only by the existence of such a contract—i.e., the acts are "unequivocally referable" to the agreement.

Most jurisdictions require at least two of the following three acts by the buyer:

Payment of all or a substantial part of the purchase price.
Taking possession of the property.
Making substantial and valuable improvements to the property.

Illustrations:

Possession + payment: Buyer pays a substantial portion of the price and moves in. That combination is usually enough for part performance.
Possession + improvements: Buyer takes possession and builds a house or other permanent structure; again, usually sufficient.
Payment alone: Often insufficient unless accompanied by other circumstances; payment might be explained as rent, a loan, or some other arrangement.

Part performance allows the court to grant specific performance of the oral agreement or, in some cases, an equitable remedy approximating the expected interest.

Detrimental Reliance (Equitable Estoppel)

Even if part performance is not satisfied, a court may enforce an oral land contract if:

One party reasonably and foreseeably relied on the oral promise, and
The reliance was substantial (e.g., moving families, giving up employment, making non‑recoverable investments), and
Refusing enforcement would result in serious injustice or unjust enrichment.

Detrimental reliance often overlaps with part performance but focuses more on the expectations and harm to the relying party rather than the specific combination of acts.

Restitution and Other Remedies When the Statute of Frauds Applies

If a land contract is unenforceable under the Statute of Frauds and no exception applies, the buyer may still:

Recover the value of any benefit conferred (e.g., deposit, improvements) in restitution, and
Possibly assert an equitable lien or constructive trust to secure repayment.

Thus, failure to satisfy the Statute of Frauds does not mean the buyer automatically loses everything; it means the buyer usually cannot obtain specific performance of the contract.

Worked Example 1.5

Seller orally agrees to sell his farm to Buyer for $200,000. Buyer pays Seller$ 10,000 as a down payment, moves onto the farm, and builds a new barn worth $50,000. Seller then repudiates the agreement. Can Buyer enforce the oral contract?

Answer:
Probably yes. Buyer took possession, made a partial payment, and built substantial improvements (the barn). These acts are strongly indicative of a contract for sale rather than a mere lease or license and satisfy the typical requirements for the part performance exception. Equity will likely grant specific performance to prevent injustice.

Exam Warning

Remember that acquiring title by adverse possession is an exception to recording acts. A subsequent bona fide purchaser who records will not prevail against someone who has already acquired title through adverse possession, even if the adverse possessor's title is unrecorded.

Also remember that payment alone is usually not sufficient part performance for an oral land sale contract, absent possession or improvements. Many wrong answer choices rely on payment alone.

Revision Tip

Focus on the precise requirements for each element of adverse possession. Pay close attention to how hostility is defined (objective standard in the majority) and when the statutory clock starts and stops (disabilities and interruptions). For concurrent estates, be sure you can distinguish the creation and severance rules—especially for joint tenancies and tenancies by the entirety—and the different remedies available between co‑tenants.

Rule Against Perpetuities and Future Interest Problems

The MBE often embeds the Rule Against Perpetuities (RAP) in questions about future interests. RAP limits how long grantors can control property before interests must vest, become possessory, or fail.

Key Term: Vested Remainder Subject to Open
A vested remainder held by at least one ascertainable person, but where the class of takers can still expand (e.g., "to A for life, then to A’s children" when A has at least one child and may have more).

Key Term: Class Gift
A gift to a group of persons described as a class (e.g., "children," "issue," "grandchildren"), where the number of takers can change as people are born or die.

Interests Subject to RAP

At common law, RAP applies to:

Contingent remainders.
Vested remainders subject to open (class gifts that are not yet closed).
Executory interests.
Certain options and rights of first refusal (especially when not tied to a current lease).

RAP does not apply to:

Present possessory estates (e.g., fee simple absolute, life estate).
Fully vested remainders not subject to open.
Reversions, possibilities of reverter, and rights of entry/powers of termination retained by the grantor.

Key Term: Executory Interest
A future interest in a transferee that divests or cuts short a prior interest (in the grantor or another transferee) or begins after a gap in possession.

Key Term: Springing Executory Interest
An executory interest that divests the grantor (or follows a gap after the grantor’s interest).

Key Term: Shifting Executory Interest
An executory interest that divests another transferee rather than the grantor.

Basic RAP Analysis

To apply RAP:

Identify the future interest and determine if RAP applies.
Determine the relevant lives in being at the time the interest is created (those alive and identified who are connected to vesting of the interest).
Ask: Is it possible that the interest might vest, if at all, more than 21 years after the death of the last relevant life in being?
- If yes, the interest is void from the outset.
- If no, the interest is valid.

The test is about possibility, not probability. The law indulges in "what if" hypotheticals (e.g., "fertile octogenarian"—someone of any age can have a child for RAP purposes).

Class Gifts and the "All or Nothing" Rule

Class gifts raise special issues:

If a class gift is subject to RAP and it is possible that the interest of any potential class member might vest too remotely, the entire class gift is void—"invalid as to one, invalid as to all."

Example pattern:

"To A for life, then to A's children who reach 25." At the time of the grant, A has children Ben (26) and Carol (18).
- Ben’s interest is presently vested; Carol’s is contingent.
- However, A could have another child after the grant. That after‑born child might not reach 25 until more than 21 years after A’s death (or the death of other measuring lives).
- Because there is a possibility of remote vesting, the class gift is void for all children.

Key Term: Rule of Convenience
A rule of construction under which a class gift without an express closing date closes when any class member is entitled to demand possession, cutting off later‑born class members and often avoiding RAP problems.

The Rule of Convenience may save a class gift from violating RAP by closing the class as soon as one member is entitled to immediate possession, though the grant’s language can override this default rule.

Example:

"To A for life, then to B’s children." B has one child, C, at the time of conveyance.
- When A dies, the class closes under the Rule of Convenience. B’s children then in existence (including C and any other children born before A’s death) take; children born later are excluded.
- Because vesting occurs no later than A’s death, the interest is likely to satisfy RAP.

Special Patterns: Executory Interests

Executory interests often trigger RAP problems because their vesting may depend on remote events.

Example pattern similar to commonly tested scenarios:

"To A so long as the property is used as a farm, then to B."
- A has a fee simple subject to an executory interest.
- B has a shifting executory interest that would divest A if the property ever stops being used as a farm.
- It is possible that the property could cease being used as a farm long after all relevant lives in being have died plus 21 years; thus, B’s interest may vest too remotely and is void under RAP.
- Striking B’s interest, A holds a fee simple determinable or fee simple subject to a right of entry (depending on the wording), and the grantor retains the corresponding future interest.

Historical Doctrines Occasionally Tested

Two older doctrines sometimes appear as interpretive rules rather than rigid common‑law mandates:

Key Term: Doctrine of Worthier Title
A (mostly abolished) rule of construction under which a conveyance that creates a remainder in the grantor’s own heirs is presumed instead to leave a reversion in the grantor, absent contrary intent.

Key Term: Rule in Shelley's Case
A (largely abolished) doctrine that, when a single instrument grants a life estate to a person and a remainder to that person’s heirs, treats both interests as merging into a fee simple in the life tenant.

On the MBE, these doctrines may be described as presumptions about grantor intent unless a statute in the problem expressly abolishes them.

Worked Example 1.6

O conveys "to A for life, then to A’s grandchildren who reach age 30." At the time of the conveyance, A has one child B and no grandchildren. Does the remainder to A’s grandchildren violate RAP?

Answer:
Yes. At the time of the grant, A has no grandchildren, so the class is open. After the grant, B could have a child (a grandchild of A) many years later, possibly after A has died. That grandchild’s interest would not vest until the grandchild reaches 30, which might occur more than 21 years after the death of all lives in being at the time of the grant (e.g., A and B). Because it is possible that some grandchild’s interest will vest too remotely, the entire class gift to "A’s grandchildren who reach 30" is void under the common‑law RAP.

Alienability, Descendibility, and Devisability

The MBE also tests whether particular interests can be transferred during life, by will, or by intestate succession, and whether restrictions on transfer are valid.

Key Term: Restraint on Alienation
A provision that limits a grantee’s ability to sell or transfer a property interest. Absolute restraints on the alienation of a fee simple are generally void, while partial, reasonable restraints may be valid.

General Modern Rule

Under modern law, nearly all present and future interests are (at least in principle):

Alienable inter vivos,
Devisable by will, and
Descendible by intestacy,

unless limited by their own terms (e.g., a life estate measured by a person’s life naturally ends at that person’s death) or by a valid restraint on alienation.

Present Estates

Fee Simple Absolute:
- Freely alienable, devisable, and descendible.
Defeasible Fees (e.g., fee simple determinable; fee simple subject to condition subsequent):
- Generally freely alienable, devisable, and descendible, but transfers remain subject to the stated condition.
- The associated grantor future interests (possibility of reverter, right of entry) are also generally transferable under modern law.
Life Estate:
- Alienable inter vivos: the transferee takes a life estate measured by the original measuring life (an estate pur autre vie).
- Not devisable or descendible beyond the life of the measuring life. Once the measuring life ends, the estate ends, regardless of who holds it.

Future Interests in Transferees

Indefeasibly Vested Remainders:
- Freely alienable, devisable, and descendible.
Vested Remainders Subject to Divestment or Subject to Open:
- Generally alienable, devisable, and descendible, but subject to the condition or class expansion.
Contingent Remainders and Executory Interests:
- Modern trend: treated as freely transferable inter vivos and at death, but their actual enjoyment depends on satisfaction of the condition.
- On the MBE, watch for this detail: even if such an interest is theoretically devisable or descendible, if the contingency never occurs, the interest never becomes possessory and the would‑be takers receive nothing.