Rights in real property - Nature and type

Learning Outcomes

This article explains rights in real property, including:

• Distinguishing core present possessory estates (fee simple absolute, defeasible fees, life estates, leaseholds, concurrent estates) and identifying the key language that creates each on the MBE.
• Identifying and classifying future interests in grantors and transferees—reversions, possibilities of reverter, rights of entry, vested and contingent remainders, and executory interests—using precise conveyancing language.
• Reading deed and will conveyances, labelling both the present estate and all associated future interests, and matching those labels to common answer‑choice patterns.
• Recognizing the doctrine of waste and summarizing the principal rights and duties of life tenants, landlords, tenants, and future‑interest holders with respect to maintenance, taxes, and permissible uses.
• Distinguishing fee simple determinable, fee simple subject to condition subsequent, and fee simple subject to executory interest, focusing on automatic versus optional termination and the identity of the party holding the future interest.
• Explaining the structure of concurrent ownership—tenancy in common, joint tenancy, and tenancy by the entirety—and analyzing co‑tenant rights to possession, rents, contributions, partition, and protection from creditors.
• Applying these rules in structured steps to typical MBE‑style conveyances and fact patterns, avoiding common misclassifications between remainders and executory interests and basic Rule Against Perpetuities traps.

MBE Syllabus

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

• Present estates: fees simple (absolute and defeasible) and life estates
• Future interests in the grantor: reversion, possibility of reverter, and right of entry (power of termination)
• Future interests in transferees: vested and contingent remainders, and executory interests (shifting and springing)
• Basic rules affecting these interests, including waste and how estates and future interests are created, transferred, and terminated
• Leasehold estates and their relationship to non‑freehold present possessory interests
• Concurrent ownership: tenancy in common, joint tenancy, and tenancy by the entirety, including survivorship and partition
• How these estates interact with rules such as restraints on alienation and, at a basic level, 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 an example of a defeasible fee?
   1. Fee simple absolute
   2. Life estate
   3. Fee simple determinable
   4. Tenancy at will
2. A grant "to B for life, then to C if C survives B" creates which future interest in C?
   1. Vested remainder
   2. Contingent remainder
   3. Executory interest
   4. Reversion
3. Which estate gives the holder the broadest rights in land?
   1. Fee simple absolute
   2. Fee simple subject to condition subsequent
   3. Life estate
   4. Leasehold estate

Introduction

Rights in real property are classified primarily by the type and duration of the interest held. For MBE purposes, the first step in any conveyance problem is to:

1. Identify the present possessory estate, then
2. Identify any future interests, and
3. Name the holder of each interest.

Key Term: Present Possessory Estate
An interest in land that gives the holder a current right to possess and use the property.

Key Term: Future Interest
A non‑possessory interest that gives the holder a right to possess the property in the future, upon the natural end or premature termination of a prior estate.

On exam questions, these labels are not about what the parties intended in some loose sense; they are about how the law classifies the interest given the exact words of the grant. Your job is to translate the language of a deed or will into the correct legal name.

A good working approach in any MBE property question is:

• Read the granting clause carefully: “O conveys Blackacre to A for life, then to B and her heirs, but if B ever sells alcohol, then to C.”
• Underline or mentally mark:
  • Duration language (“for life,” “so long as,” “until”)
  • Condition language (“but if,” “provided that,” “on condition that”)
  • Names of all parties with interests now or later (O, A, B, C)
• Decide:
  • What present estate did the grantee receive?
  • Who holds what future interest, and of what type?

Present estates include fee simple absolute, defeasible fees, life estates, leasehold estates, and concurrent estates (co‑ownership). Future interests include reversions, possibilities of reverter, rights of entry, remainders, and executory interests. Correctly naming these is heavily tested on the MBE.

Present Possessory Estates

A present possessory estate gives the holder the current right to possess and use the land. The main types are:

• Fee simple absolute
• Defeasible fees (three main forms)
• Life estates
• Leasehold estates (non‑freehold)
• Concurrent estates (tenancy in common, joint tenancy, tenancy by the entirety)

Key Term: Fee Simple Absolute
The broadest estate in land, potentially infinite in duration, fully transferable, devisable, and inheritable, with no conditions or limitations attached.

Fee Simple Absolute

Language: Traditionally created by “to A and her heirs,” but modernly any grant “to A” (without words of limitation) is presumed to create a fee simple absolute unless the instrument clearly shows a different intent.

Key points:

• Potentially lasts forever
• Fully alienable (sale/gift), devisable (by will), and descendible (by intestacy)
• No associated future interest because there is no built‑in end point
• The phrase “and her heirs” describes the duration (words of limitation), not a gift to A’s heirs

On the MBE:

• If you see a conveyance with no express duration and no condition (“to A”), assume a fee simple absolute.
• “For residential use only” standing alone is often treated as a covenant (a promise about use) rather than language creating a defeasible fee, unless the grant also uses durational or conditional words.

Defeasible Fees

Key Term: Defeasible Fee
A fee simple estate that may terminate upon the occurrence of a specified event, cutting short the grantee’s estate.

Defeasible fees are still fee simple estates, but they are conditional. There are three main forms you must distinguish:

• Fee simple determinable
• Fee simple subject to condition subsequent
• Fee simple subject to executory interest

The differences turn on automatic versus optional termination and who holds the future interest.

Fee Simple Determinable

Key Term: Fee Simple Determinable
A fee simple that automatically ends upon the happening of a stated event and reverts to the grantor.

Creation: Look for durational language:

• “so long as”
• “while”
• “during”
• “until”
• Often followed by “otherwise to O” or similar

Example: “O conveys Blackacre to A so long as the land is used for agricultural purposes.”

• A has a fee simple determinable.
• When agricultural use stops, A’s estate ends automatically, without the grantor having to do anything.

Future interest:

Key Term: Possibility of Reverter
The future interest retained by the grantor that follows a fee simple determinable and becomes possessory automatically when the stated condition occurs.

In the example, O has a possibility of reverter.

Additional points for the MBE:

• The possibility of reverter is transferable in most modern jurisdictions (alienable, devisable, and descendible), even though at common law it was often only descendible.
• If the condition never occurs, A’s estate continues indefinitely, just like a fee simple absolute.

Fee Simple Subject to Condition Subsequent

Key Term: Fee Simple Subject to Condition Subsequent
A fee simple that does not automatically end upon the happening of a condition; instead, the grantor has a right to terminate the estate.

Creation: Look for conditional language plus a clear reservation of a right to re‑enter in the grantor:

• “but if”
• “provided that”
• “on condition that”
• usually followed by “the grantor may re‑enter and retake” or “O reserves the right to re‑enter”

Example: “O conveys to A, but if alcohol is ever sold on the land, O may re‑enter and reclaim Blackacre.”

• A has a fee simple subject to condition subsequent.
• If alcohol is sold, A’s estate does not end automatically; O must exercise the right to re‑enter.

Future interest:

Key Term: Right of Entry (Power of Termination)
The future interest retained by a grantor that follows a fee simple subject to condition subsequent and gives the grantor the option to terminate the estate upon breach of the condition.

On the MBE:

• If the language is ambiguous between determinable and subject to condition subsequent, courts prefer to construe it as subject to condition subsequent to avoid automatic forfeitures.
• A right of entry is generally alienable, devisable, and descendible in modern law.

Fee Simple Subject to Executory Interest

Key Term: Fee Simple Subject to Executory Interest
A fee simple estate that will pass automatically to a third party upon the happening of a condition, cutting short the prior estate.

Example: “O conveys to A, but if alcohol is ever sold on the land, then to B.”

• A has a fee simple subject to an executory interest.
• If alcohol is sold, A’s estate automatically ends and passes to B.

The future interest in B is a shifting executory interest (discussed below).

Exam tips:

• Ask: “When the condition occurs, who takes?”
  • If grantor: either FSD + possibility of reverter or FSSCS + right of entry.
  • If third party: fee simple subject to executory interest.
• Ask: “Is termination automatic or optional?”
  • Automatic → determinable or subject to executory interest.
  • Optional (grantor must act) → condition subsequent.

Restraints on Alienation

Defeasible fees often look similar to restraints on alienation. A few points:

• Absolute disabling restraints on a fee simple (“to A, but any attempted transfer is void”) are generally void, and A takes a fee simple absolute.
• Reasonable partial restraints (e.g., “A must offer to sell to B first”) may be upheld.
• If the restraint is struck as invalid, the original estate (often a fee simple absolute) remains.

Life Estates

Key Term: Life Estate
A freehold estate measured by the life of a specified person, ending automatically at that person’s death.

Creation: Expressly by words like “to B for life.” The measuring life is usually the grantee but need not be.

Key Term: Life Estate Pur Autre Vie
A life estate measured by the life of someone other than the life tenant.

Example: “O conveys to B for the life of C.” B holds a life estate pur autre vie measured by C’s life. When C dies, B’s estate ends.

A life estate pur autre vie can also arise by transfer:

• O conveys “to A for life.”
• A later conveys “all my interest to D.”
• D holds a life estate pur autre vie, measured by A’s life.

When a life estate ends, the property must go somewhere:

• If the grant says nothing more, it reverts to the grantor (reversion).
• If the grant names a successor, that person holds a remainder.

Rights and Duties of a Life Tenant

The life tenant is not an absolute owner; she is a steward for the next taker. Her key obligations are captured by the doctrine of waste.

Key Term: Waste
Conduct by a present estate holder (such as a life tenant) that unreasonably harms the value of a future interest holder’s estate, including voluntary (affirmative), permissive (neglect), and sometimes ameliorative (improving) acts.

Three types:

• Voluntary (affirmative) waste: deliberate or intentional acts that substantially reduce value (e.g., tearing down a valuable house, opening a new mine where none existed).
• Permissive waste: neglect or omission—failure to make reasonable repairs, pay ordinary taxes, or pay interest on existing mortgages, leading to deterioration.
• Ameliorative waste: changes that increase the property’s value but alter it substantially (e.g., tearing down a single‑family home in a residential neighborhood to build a more valuable apartment block).

Life tenant’s basic duties (common MBE points):

• Must not commit voluntary waste beyond what is allowed by normal use.
  • Exception: Open mines doctrine — if land was already used for mining or exploitation before the life estate, the life tenant may continue that existing use, but may not start new mines.
• Must avoid permissive waste by:
  • Making reasonable repairs to keep the property in essentially the same condition
  • Paying ordinary taxes and interest on any mortgage, to the extent of the property’s income or reasonable rental value
• Ameliorative waste:
  • Traditionally prohibited without consent of future interest holders.
  • Many modern jurisdictions allow changes if:
    • The neighborhood has changed dramatically; and
    • The change increases value and is necessary to make reasonable use of the land.

Future interest holders (reversioners and remaindermen) can sue to enjoin waste or recover damages. They may obtain an injunction against ongoing voluntary or ameliorative waste, or damages for past waste.

Exam tip:

• If the fact pattern describes a obsolete use (e.g., single‑family home in an area now entirely commercial), ask whether the jurisdiction follows the modern approach, which may permit ameliorative changes.

Leasehold Estates

Key Term: Leasehold Estate
A non‑freehold possessory interest in land, created by a lease, for a definite or indefinite period of time.

Leaseholds are present possessory interests but are traditionally treated as contract‑based. The main types tested:

Key Term: Tenancy for Years
A lease for a fixed, ascertainable period (e.g., “from January 1, 2025 to December 31, 2025”).

• Ends automatically at the end of the stated term; no notice is required.
• A writing is required if the term is longer than one year (Statute of Frauds).
• If the term is exactly one year or less, most jurisdictions do not require a writing.

Key Term: Periodic Tenancy
A lease for a repeating period (e.g., month‑to‑month) that continues until properly terminated.

• Created:
  • Expressly (“from month to month”), or
  • By implication (e.g., T moves in, pays rent monthly, no fixed term is stated).
• Termination:
  • Common‑law rule: requires notice at least one full period in advance and timed to end at the close of a period (e.g., one month’s notice for a month‑to‑month tenancy), unless statute modifies.
  • Modern statutes often simplify and fix required notice times.

Key Term: Tenancy at Will
A lease with no fixed duration, terminable at any time by either party.

• Often created expressly (“for so long as both landlord and tenant desire”).
• Many states require some minimum notice by statute.
• If the lease only gives one party the right to terminate at will, courts often imply a reciprocal right in the other party.

Key Term: Tenancy at Sufferance
A holdover tenancy that arises when a tenant remains in possession after the lease term ends.

• Landlord’s options:
  • Treat the tenant as a trespasser and sue for possession and damages; or
  • Hold tenant to a new tenancy (often a periodic tenancy based on the prior rent period).
• Landlord’s acceptance of rent from a holdover tenant usually creates a new periodic tenancy on the same basic terms, unless the parties agree otherwise.

Basic landlord–tenant duties (high‑level overview):

• Tenant must:
  • Pay rent.
  • Avoid waste (same concepts as for a life tenant).
• Landlord must:
  • Deliver legal (and usually actual) possession at commencement.
  • Comply with the implied covenant of quiet enjoyment.
  • In residential leases, comply with the implied warranty of habitability (safe, sanitary, fit for human habitation).

Leasehold classification questions are common entry points in MBE landlord‑tenant problems, often combined with issues of holdover, notice, or breach.

Concurrent Estates (Co‑Ownership)

Real property can be owned by more than one person at the same time.

Key Term: Concurrent Estate
Any form of co‑ownership in which two or more persons have present possessory interests in the same property at the same time.

The three main concurrent estates tested on the MBE are:

• Tenancy in common
• Joint tenancy with right of survivorship
• Tenancy by the entirety

Tenancy in Common

Key Term: Tenancy in Common
A concurrent estate in which each co‑tenant has a separate, undivided interest in the property and a right to possess the whole, with no right of survivorship.

Key features:

• Default form of co‑ownership: if a grant is ambiguous (“to A and B”), most jurisdictions presume a tenancy in common.
• No right of survivorship: when a tenant in common dies, her share passes by will or intestacy, not automatically to the other co‑tenants.
• Each co‑tenant’s interest:
  • Is freely alienable, devisable, and descendible.
  • May be unequal in size (e.g., 1/3 and 2/3), but each has the right to possess the entire parcel.

Joint Tenancy with Right of Survivorship

Key Term: Joint Tenancy with Right of Survivorship
A concurrent estate in which co‑tenants hold equal undivided interests with a right of survivorship: when one joint tenant dies, her interest passes automatically to the surviving joint tenants.

Creation:

• Requires clear language of survivorship in most modern jurisdictions:
  • “to A and B as joint tenants with right of survivorship”
• Historically required four specific conditions:
  • Time (interests acquired at the same time)
  • Title (by the same instrument)
  • Interest (equal shares)
  • Possession (equal right to possess the whole)

Severance:

• A joint tenant can unilaterally sever the joint tenancy as to her own share by an inter vivos conveyance to a third party.
  • The transferee holds as a tenant in common with the remaining joint tenants.
• If there are three or more joint tenants, a conveyance by one does not necessarily destroy the joint tenancy among the others; it severs only that share.
• Mortgages:
  • Majority (“lien theory”) view: a mortgage by one joint tenant does not sever the joint tenancy; it is merely a lien. If that joint tenant dies first, the mortgage may be extinguished.
  • Minority (“title theory”) view: a mortgage is treated as a transfer of title that severs the joint tenancy, creating a tenancy in common with respect to the mortgaged share.

Tenancy by the Entirety

Key Term: Tenancy by the Entirety
A form of concurrent ownership between spouses, with a right of survivorship and strong protection against unilateral actions by either spouse.

Key features:

• Available only to married couples (in jurisdictions that recognize it).
• Requires those four conditions plus the condition of marriage (sometimes called the "condition of person").
• Right of survivorship: upon the death of one spouse, the survivor owns the property outright.
• Neither spouse can unilaterally:
  • Convey or encumber the property, or
  • Force a partition.
• Creditors of one spouse alone usually cannot reach property held as tenants by the entirety.

Termination:

• By divorce (which converts it into a tenancy in common in most states),
• By death of a spouse, or
• By joint conveyance to a third party.

Rights and Duties of Co‑tenants

Key Term: Ouster
A wrongful exclusion of a co‑tenant from possession of the whole or any part of the co‑owned property.

Possession:

• Each co‑tenant has the right to possess all of the property, regardless of their fractional share.
• A co‑tenant in sole possession is not required to pay rent to other co‑tenants, absent ouster.

Key Term: Partition
The equitable remedy that terminates co‑tenancy by dividing the property in kind or by sale and distributing the proceeds among co‑tenants.

• Any co‑tenant (in a tenancy in common or joint tenancy) can sue for partition as of right.
• Two forms:
  • Partition in kind: physical division of the property (preferred where feasible).
  • Partition by sale: court orders sale of the property and division of proceeds, used when physical partition is not practical or would harm value (e.g., a single building or condo).

Rents and profits:

• Third‑party rents: Rent collected from third‑party tenants must be shared among co‑tenants in proportion to ownership shares, after deducting operating expenses.
• Profits from personal use: A co‑tenant in possession generally does not owe rent to others absent ouster.

Expenses:

• Necessary operating expenses (taxes, mortgage interest, necessary repairs) are shared in proportion to ownership shares.
• A co‑tenant who pays more than her share may seek contribution from other co‑tenants.
• Improvements:
  • No right to compel contribution during co‑tenancy.
  • On partition, the improving co‑tenant may receive a credit for the increase in value attributable to improvements (or bear the loss if the improvements decreased value).

Waste and ouster:

• Co‑tenants owe each other a duty not to commit waste.
• If one co‑tenant wrongfully excludes another (changes locks, refuses access), the ousted co‑tenant can:
  • Sue for ejectment (to regain possession), and/or
  • Seek rent (damages) for the time of exclusion.

These co‑tenancy rules are frequently tested in fact patterns involving a family jointly owning land, where one member occupies, rents, or improves the property, and another later sues.

Future Interests

A future interest is a right to possession that will or may arise in the future, upon the termination of a prior estate.

The main types:

• In the grantor: reversion, possibility of reverter, right of entry
• In a transferee: remainder, executory interest

Key Term: Reversion
The future interest left in a grantor who transfers an estate that is less than the grantor’s full interest, which becomes possessory when the lesser estate naturally ends.

Example: O owns a fee simple absolute and conveys “to B for life.” O has a reversion in fee simple.

Reversions can also follow terms of years or other limited estates.

Key Term: Remainder
A future interest in a transferee that becomes possessory, if ever, upon the natural expiration of the prior estate, without cutting it short.

Remainders must:

• Be created in a third party (not the grantor), and
• Follow a life estate or term of years, never a fee simple.

Remainders are classified as vested or contingent.

Key Term: Vested Remainder
A remainder given to an ascertained person and not subject to a condition precedent (other than the natural end of the prior estate).

Key Term: Contingent Remainder
A remainder either (1) given to an unascertained person, or (2) subject to a condition precedent (a condition that must be satisfied before the remainder can become possessory).

Example: “O to B for life, then to C and her heirs.”

• B: life estate
• C: vested remainder in fee simple absolute
• O: no remaining interest

Example: “O to B for life, then to C if C survives B.”

• C’s remainder is contingent (condition precedent: surviving B).
• O has a reversion that will take effect if C does not survive B.

Sub‑types of Vested Remainders

For some questions, you must distinguish among types of vested remainders.

Key Term: Indefeasibly Vested Remainder
A vested remainder that is certain to become possessory in the future and cannot be divested.

Example: “O to A for life, then to B and her heirs.” B has an indefeasibly vested remainder.

Key Term: Vested Remainder Subject to Divestment
A vested remainder that may be cut short by a condition subsequent.

Example: “O to A for life, then to B, but if B does not survive A, then to C.”

• B is ascertained and no condition precedent to taking, so B’s remainder is vested.
• It is subject to divestment if the condition subsequent (“if B does not survive A”) occurs.
• C has a shifting executory interest.

Key Term: Vested Remainder Subject to Open
A vested remainder in a class of persons that is at least one member ascertainable and capable of taking, but the class may still increase.

Example: “O to A for life, then to A’s children.” At the time of the grant, A has one child, C.

• C has a vested remainder subject to open.
• Any later‑born children of A will share the remainder.

Key Term: Class Gift
A gift to a group of persons described as a class (e.g., “children,” “issue,” “siblings”), where the shares may fluctuate as members are added or die.

On the MBE, you may see questions about when a class “closes” (the rule of convenience). A basic point:

• If at the death of the life tenant at least one class member is entitled to possession, the class closes at that time to later‑born members, unless the terms of the grant clearly provide otherwise.

Alternative Contingent Remainders

Key Term: Alternative Contingent Remainders
Two or more contingent remainders created in the same instrument, each contingent on a different outcome of the same condition.

Example: “O to A for life, then to B if B is married at A’s death, but if B is not married at A’s death, then to C.”

• B and C each hold alternative contingent remainders.
• O has no reversion if one of those must take (assuming the conditions cover all possibilities).

Historically, contingent remainders could be destroyed in some situations; most jurisdictions have abolished the old “destructibility of contingent remainders” rule. On the MBE, unless you are explicitly told otherwise, assume modern law: contingent remainders are not destroyed; if they fail to vest, the property reverts to the grantor or passes by a reversionary interest.

Executory Interests

Key Term: Executory Interest
A future interest in a transferee that does not wait for the natural expiration of the prior estate but instead cuts short another estate (or follows a gap).

Two types:

Key Term: Shifting Executory Interest
An executory interest that divests (cuts short) the interest of another transferee.

Key Term: Springing Executory Interest
An executory interest that divests the grantor or follows a gap in possession.

Example (shifting): “O to A, but if alcohol is ever sold on the land, then to B.”

• A: fee simple subject to B’s shifting executory interest.
• B: shifting executory interest that will automatically cut short A’s estate.

Example (springing): “O to A, beginning one year from today.”

• O retains a fee simple for one year, subject to A’s springing executory interest.
• After one year, A’s interest becomes possessory.

Key Term: Fee Simple Subject to Executory Interest
A fee simple estate that will automatically divest in favor of another transferee upon the happening of a condition, giving that transferee an executory interest.

Executory interests, like contingent remainders and vested remainders subject to open, are subject to the Rule Against Perpetuities.

Key Term: Rule Against Perpetuities (RAP)
No interest is valid unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.

For MBE purposes, you do not need to know every detail here, but you must know that RAP applies to:

• Contingent remainders
• Executory interests
• Vested remainders subject to open

RAP does not apply to:

• Present possessory estates
• Future interests in the grantor (reversions, possibilities of reverter, rights of entry)
• Indefeasibly vested remainders
• Vested remainders subject to divestment

Worked Examples

Worked Example 1.1

A conveys land "to B for life, then to C and her heirs." What interests are created?

Answer:
B has a life estate. C has an indefeasibly vested remainder in fee simple absolute because C is ascertained and there is no condition precedent other than B’s death. A retains no interest.

Worked Example 1.2

O conveys "to D, but if alcohol is ever sold on the land, then to E." What interests do D and E hold?

Answer:
D has a fee simple subject to an executory interest. E has a shifting executory interest that will automatically cut short D’s estate if alcohol is sold.

Worked Example 1.3

O conveys "to A so long as the land is used as a park." What interests are created?

Answer:
A has a fee simple determinable because of the durational language “so long as.” O has a possibility of reverter that will become possessory automatically if the land stops being used as a park.

Worked Example 1.4

O conveys "to B for life, then to C if C graduates from law school." At the time of the conveyance, C is in college and has not yet started law school. What interests exist?

Answer:
B has a life estate. C has a contingent remainder because there is a condition precedent (graduating from law school) that must occur before C can take. O has a reversion that will become possessory if B dies before C satisfies the condition.

Worked Example 1.5

O conveys "to A, but if A ever ceases to use the land as a farm, O may re‑enter and reclaim the premises." How should this be classified?

Answer:
A has a fee simple subject to condition subsequent because the grant uses conditional language (“but if”) and reserves to O a right to re‑enter. O holds a right of entry (power of termination). The estate does not end automatically upon breach; O must act.

Worked Example 1.6

O conveys "to B for life, then to D, but if D does not survive B, then to E and her heirs." Classify the interests.

Answer:
B has a life estate. D has a vested remainder subject to divestment (also called subject to a condition subsequent), because D is ascertained and will take at B’s death unless the condition occurs (D fails to survive B). E has a shifting executory interest that will cut off D’s remainder if D fails to survive B. O retains no interest.

Worked Example 1.7

O conveys “to A and B as joint tenants with right of survivorship.” A later conveys her interest to C. What interests result?

Answer:
Initially, A and B hold a joint tenancy with right of survivorship. When A conveys her interest to C, the joint tenancy is severed as to A’s share. C and B now hold as tenants in common: C owns an undivided half as tenant in common; B owns an undivided half as tenant in common (in most jurisdictions, B’s prior joint tenancy interest is now a tenancy in common). There is no right of survivorship between B and C.

Worked Example 1.8

O conveys “to T for ten years, then to T’s children.” At the time of the conveyance, T has one child, C1. Later, T has another child, C2. Classify the interests.

Answer:
T has a term of years (tenancy for years) for ten years. C1 has a vested remainder subject to open (a class gift to T’s children) because C1 is ascertained and there is no condition precedent other than the natural end of T’s term, but additional children of T may join the class. Any later‑born child, such as C2, will share the vested remainder, and the class will close at the end of T’s term (rule of convenience), absent contrary language.

Worked Example 1.9

O conveys “to L for life, then to M if M is then living.” M dies before L. Who owns the property at L’s death?

Answer:
At creation, L had a life estate; M had a contingent remainder (condition precedent: being alive at L’s death); O had a reversion. When M dies before L, M’s contingent remainder fails to vest and is extinguished. At L’s death, the property reverts to O (or O’s successors) in fee simple absolute.

Worked Example 1.10

O conveys “to A for life, then to B, but if B ever sells alcohol on the premises, then to C.” Classify all interests.

Answer:
A has a life estate. B has a vested remainder subject to divestment: B is ascertained and there is no condition precedent to taking possession (B takes at A’s death), but B’s estate may be cut short if B sells alcohol on the premises. C has a shifting executory interest that will cut short B’s estate if the condition occurs. O retains no interest.

Exam Warning

On the MBE, be careful to distinguish:

• Fee simple determinable (automatic termination; possibility of reverter)
• Fee simple subject to condition subsequent (termination only if right of entry is exercised)
• Fee simple subject to executory interest (automatic divestment in favor of a transferee)

Also, distinguish between a remainder and an executory interest:

• A remainder waits for the natural end of the prior estate; it never cuts short that estate.
• An executory interest cuts short a prior interest or follows a gap.

Concurrent estate traps:

• A co‑tenant in sole possession does not owe rent to others unless there is an ouster.
• A joint tenant can unilaterally sever the joint tenancy by conveying her share; the right of survivorship is then lost as to that share.
• Tenancy by the entirety cannot be severed unilaterally; creditors of one spouse alone generally cannot force a sale.

Revision Tip

When analyzing a property conveyance:

• Identify the present possessory estate (fee simple, defeasible fee, life estate, leasehold, or concurrent estate).
• Name all future interests, first in the grantor (reversion, possibility of reverter, right of entry), then in transferees (remainders or executory interests).
• Decide whether any remainder is vested or contingent, and whether any fee is defeasible, using the precise words of the grant.
• If co‑tenants are involved, determine the type of concurrent estate (tenancy in common, joint tenancy, or tenancy by the entirety) and apply the correct rules about survivorship, severance, and partition.

Key Point Checklist

This article has covered the following key knowledge points:

• Rights in real property are divided into present possessory estates and future interests.
• Fee simple absolute is the broadest estate, with potentially infinite duration and no conditions or limitations.
• Defeasible fees are fee simple estates that may terminate upon a specified event and include:
  • Fee simple determinable (with the grantor’s possibility of reverter)
  • Fee simple subject to condition subsequent (with the grantor’s right of entry)
  • Fee simple subject to executory interest (with a transferee’s executory interest)
• Life estates are measured by a life, can be for the life of the holder or another (pur autre vie), and may be followed by remainders or reversions.
• Life tenants and other present estate holders must avoid waste that harms future interest holders and must pay taxes and reasonable maintenance to the extent of income.
• Leasehold estates (tenancies for years, periodic tenancies, tenancies at will, and tenancies at sufferance) are non‑freehold present possessory interests created by lease and interact with contract‑based landlord‑tenant duties.
• Concurrent estates include tenancies in common, joint tenancies with right of survivorship, and tenancies by the entirety, each with distinct rules on survivorship, transfer, and creditor rights.
• Co‑tenants each have a right to possess the whole; they share third‑party rents and necessary expenses in proportion to ownership shares and may seek partition to terminate co‑ownership.
• Future interests in the grantor include reversion, possibility of reverter, and right of entry (power of termination).
• Future interests in transferees include remainders (vested or contingent) and executory interests (shifting or springing).
• Vested remainders can be indefeasibly vested, subject to divestment, or subject to open; contingent remainders involve unascertained takers or conditions precedent.
• Executory interests always cut short a prior estate or follow a gap and, along with contingent remainders and vested remainders subject to open, are subject to the Rule Against Perpetuities.
• Remainders must follow the natural end of a prior estate and cannot cut it short; executory interests do cut short another estate or follow a gap.
• Correctly identifying and naming each estate and future interest from the text of a conveyance is essential for MBE questions in Real Property.

Key Terms and Concepts

• Present Possessory Estate
• Future Interest
• Fee Simple Absolute
• Defeasible Fee
• Fee Simple Determinable
• Possibility of Reverter
• Fee Simple Subject to Condition Subsequent
• Right of Entry (Power of Termination)
• Fee Simple Subject to Executory Interest
• Life Estate
• Life Estate Pur Autre Vie
• Waste
• Reversion
• Remainder
• Vested Remainder
• Indefeasibly Vested Remainder
• Vested Remainder Subject to Divestment
• Vested Remainder Subject to Open
• Contingent Remainder
• Alternative Contingent Remainders
• Class Gift
• Executory Interest
• Shifting Executory Interest
• Springing Executory Interest
• Rule Against Perpetuities (RAP)
• Leasehold Estate
• Tenancy for Years
• Periodic Tenancy
• Tenancy at Will
• Tenancy at Sufferance
• Concurrent Estate
• Tenancy in Common
• Joint Tenancy with Right of Survivorship
• Tenancy by the Entirety
• Ouster
• Partition