Rights in real property - Scope

Learning Outcomes

This article outlines the classification and scope of rights in real property for MBE-style analysis, including:

• distinguishing the main present possessory estates (fee simple, defeasible fees, life estates, and leaseholds) and their relative duration and transferability;
• classifying future interests in grantors and transferees (reversions, possibilities of reverter, rights of entry, remainders, and executory interests);
• differentiating vested from contingent remainders and identifying shifting versus springing executory interests;
• applying the Rule Against Perpetuities and class-closing rules (such as the rule of convenience) to contingent remainders, executory interests, and class gifts;
• recognizing waste in life estates, articulating the duties of life tenants, and determining which parties may sue;
• evaluating direct restraints on alienation and distinguishing valid use restrictions from invalid restraints on fee simple estates;
• analyzing the scope of nonpossessory interests—especially easements—and how changes in use, subdivision, or overburdening affect their enforceability on the MBE;
• distinguishing easements from licenses and profits, including their creation, transfer, termination, and vulnerability under recording acts;
• identifying how historical doctrines (such as the rule in Shelley's Case and the doctrine of worthier title) can reclassify future interests and alter RAP consequences.

MBE Syllabus

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

• Classification of estates in land: fee simple, defeasible fees, life estates, and leasehold estates.
• Identification of future interests retained by grantors and created in transferees.
• Distinguishing remainders from executory interests and classifying remainders as vested or contingent.
• Application of the Rule Against Perpetuities to future interests and certain contract rights.
• Evaluation of restraints on alienation and their effect on the estate.
• Basic understanding of the scope of easements and other nonpossessory rights and how they terminate.
• Recognition of class gifts, rules governing when a class closes, and the effect of after-born class members.
• Duties and liabilities associated with life estates, including voluntary, permissive, and ameliorative waste.
• Distinguishing easements, licenses, and profits and understanding how recording and notice affect their enforcement.
• Recognition of how certain historical common-law rules can alter the form of future interests.

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 present possessory estate of potentially infinite duration?
   1. Life estate
   2. Fee simple absolute
   3. Fee tail
   4. Reversion
2. A grant "to A for life, then to B if B survives A" creates which future interests?
   1. Vested remainder in B and reversion in grantor
   2. Contingent remainder in B and reversion in grantor
   3. Executory interest in B and reversion in grantor
   4. Vested remainder subject to open in B
3. The Rule Against Perpetuities applies to which of the following?
   1. Fee simple absolute
   2. Reversion
   3. Contingent remainder
   4. Life estate
4. Which of the following is a valid restraint on alienation?
   1. Total disabling restraint on a fee simple
   2. Forfeiture restraint on a life estate
   3. Disabling restraint on a fee simple
   4. Disabling restraint on a vested remainder in fee simple
5. O conveys “to A so long as the land is used for residential purposes, and if it is ever used otherwise, to B and her heirs.” Assuming the jurisdiction follows the common-law RAP, which is most accurate?
   1. A has a fee simple determinable and B has a valid shifting executory interest
   2. A has a fee simple subject to executory limitation and B’s interest may be void under RAP
   3. A has a fee simple subject to condition subsequent and O has a right of entry
   4. A has a fee simple absolute and the limitation is an invalid restraint on alienation
6. O owns two adjacent parcels. O has long used a gravel road across Parcel 1 to reach a barn on Parcel 2. O sells Parcel 1 to A; the deed is silent about any easement. O continues to use the road. Which of the following is most likely?
   1. O has a prescriptive easement
   2. O has an easement by necessity
   3. O has an easement by implication based on prior use
   4. O has no right; O is a trespasser

Introduction

Rights in real property define the legal interests a person may hold in land. These interests differ in:

• Duration (how long they can last).
• Present versus future enjoyment (who may possess now and who may possess later).
• Conditions or limitations attached (events that can shorten or extend their duration).
• Transferability (how freely the interest can be sold, devised, or inherited).

For MBE purposes, you must be able to:

• Read a conveyance (often in a will or deed).
• Translate the language into precise present and future interests.
• Understand how events (death, breach of condition, expiration of a prior estate) change who holds the right to possess.
• Determine whether attempts to control the land are valid, void, or limited by doctrines like RAP and restraints on alienation.

At the broadest level, estates are divided into:

• Present possessory estates – interests that give the holder the current right to possess the land.
• Future interests – nonpossessory rights that may become possessory later.

Key Term: Present Possessory Estate
A property interest that gives its holder an immediate, current right to exclusive possession of the land, for a period defined by the estate (e.g., for life, for years, or potentially forever).

Key Term: Future Interest
A nonpossessory property interest that gives its holder a legally protected expectation of possession in the future, upon the occurrence of a specified event or the natural termination of a prior estate.

The “scope” of rights in real property is about:

• What the current holder may do with the land (use, transfer, encumber).
• What future interest holders are entitled to receive and when.
• How far nonpossessory rights (like easements) extend and when particular uses go beyond their scope.
• How doctrines like the Rule Against Perpetuities and restraints on alienation limit attempts to control property far into the future.

For exam purposes, classification and scope analysis are tightly linked. A small misclassification (for example, calling a shifting executory interest a remainder) can:

• Change whether RAP applies.
• Change who can sue whom (e.g., for waste, trespass, or interference with an easement).
• Change whether a condition is valid or void as an unreasonable restraint on alienation.
• Change what happens if a piece of the conveyance (for example, a remote class gift) is struck as void.

Big-Picture Map: Present and Future Interests

When you see a conveyance on the MBE, a reliable approach is:

• Identify who has the present possessory estate.
• Identify every future interest, and whether it is held by the grantor or a transferee.
• Decide whether each future interest is a remainder or an executory interest (if in a transferee) or a reversion/possibility of reverter/right of entry (if in the grantor).
• Ask whether any of the future interests are contingent or subject to open, requiring a RAP analysis.
• For nonpossessory rights like easements, identify the dominant and servient estates and the intended type and scope of use.

Key Term: Dominant Estate
The parcel of land benefited by an easement; the easement right is attached to this parcel.

Key Term: Servient Estate
The parcel of land burdened by an easement; the easement holder has limited use rights over this parcel.

Careful classification is essential because:

• It determines who can sue for waste, trespass, or interference.
• It determines whether RAP applies.
• It determines whether a restraint on alienation is valid.
• It determines how far an easement or other nonpossessory right extends.
• It affects how recording statutes apply (e.g., whether a later bona fide purchaser takes subject to an easement, covenant, or option).

Key Term: Bona Fide Purchaser (BFP)
A person who acquires an interest in property for value and without notice (actual, record, or inquiry) of a prior conflicting interest.

A practical way to approach conveyances on the exam:

• Underline all words of time (“for life,” “for 10 years,” “so long as”) and condition (“but if,” “on condition that,” “if”).
• Circle the names of all people mentioned (including the grantor).
• Draw a simple diagram or timeline showing who has possession now and who is supposed to have it later.
• Only after you have labelled every interest should you start thinking about RAP, restraints, or scope problems.

Why “Scope” Matters on MBE Property Questions

Many property questions are not just “name the estate,” but “who can do what, and what happens if…?” Scope analysis includes:

• Can the current holder open a mine, demolish a house, or significantly alter use?
• Does a condition in the grant cause automatic forfeiture, or must someone act?
• Does an easement permit heavier traffic, additional users, or use for adjacent parcels?
• Does a class gift include after-born children or grandchildren?
• Does a later purchaser take subject to an unrecorded easement or option?

Being precise about scope lets you:

• Predict the legal consequence when facts change.
• Match the pattern to tested doctrines (waste, RAP, restraints, easement surcharge).
• Eliminate answer choices that assume the wrong estate or interest.

Types of Estates in Land

Estates in land are divided into present possessory estates and future interests. The main present estates are:

• Fee simple absolute
• Defeasible fees
• Life estates
• Leasehold estates

Each has a characteristic duration, transferability, and implication for what future interests may follow.

Key Term: Fee Simple Absolute
An estate in land of potentially infinite duration, freely transferable during life, devisable by will, and descendible at death, with no conditions or limitations attached to its continuation.

In modern law, conveyances are presumed to create a fee simple absolute unless language clearly indicates a smaller estate. Phrases like "to A" or "to A and her heirs" both usually create a fee simple absolute on the MBE. The words “and her heirs” are words of limitation that describe the estate; they do not give any present interest to A’s heirs and are not required to create a fee simple.

A fee simple absolute:

• Has no natural end.
• Is not subject to any condition that can cut it short.
• Leaves no future interest in anyone else (unless the grantor expressly creates one).

Because the holder of a fee simple absolute has the broadest possible interest:

• She can sell, mortgage, or give the property away without restriction (subject only to valid restraints and recording statutes).
• Creditors can reach the property.
• She may create any combination of present and future interests in others (e.g., a life estate to A, a remainder to B, and an easement to C).

On the exam, if you see a conveyance without any durational or conditional language and with no explicit limitation to a smaller estate, default to a fee simple absolute even if the fact pattern includes statements of purpose or motive.

Key Term: Fee Tail
A historical estate limited to the lineal descendants of the grantee, typically created by language such as “to A and the heirs of his body.”

Older forms such as the fee tail occasionally appear in fact patterns. In most U.S. jurisdictions, a fee tail is either abolished or automatically converted into a fee simple absolute in A (sometimes subject to a life estate and a remainder). If the question does not specify otherwise, assume modern law and treat fee tail language as creating a fee simple absolute.

Life Estates

Key Term: Life Estate
An estate measured by the life of a specified person (the life tenant or a third person), ending automatically at that person's death.

A life estate may be:

• For the life of the grantee: "to A for life."
• Measured by another’s life (pur autre vie): "to A for the life of B."

Key Term: Life Estate Pur Autre Vie
A life estate measured by the life of someone other than the grantee, such as “to A for the life of B.”

Key Term: Life Tenant
The holder of a life estate, with a present right to possess and use the property until the measuring life ends, subject to the duty not to commit waste.

Important points about the scope of a life tenant’s rights:

• The life tenant may possess, use, and enjoy the property, including collecting rents and profits, for the duration of the measuring life.
• The life tenant may transfer (sell, lease, or mortgage) her interest, but she cannot convey a greater estate than she has.
  • If A has “to A for life” and leases to T for 10 years, the lease ends at A’s death even if the 10-year term is not complete.
• Any transferee of the life tenant takes the same limited estate; the measuring life does not change.
• The life tenant is not required to insure the property for the benefit of future interest holders unless the instrument or local statute so requires, but failing to insure may be relevant to permissive waste if it reflects broader neglect.

Life estates are followed by future interests, either:

• In the grantor (a reversion), or
• In a transferee (a remainder).

Key Term: Reversion
A future interest retained by a grantor who conveys less than the estate she owns and does not fully dispose of the remaining interest to a transferee.

Because the life tenant’s estate is limited in duration and does not reach indefinitely into the future, the law imposes duties (via the doctrine of waste) to protect those who come after.

Leasehold Estates

Key Term: Leasehold Estate
A present possessory interest in land of limited duration, typically created by a lease, giving the tenant the right to exclusive possession for the term.

Leasehold estates are present possessory interests for a limited duration. The main types you should recognize are:

Key Term: Term of Years Tenancy
A tenancy that lasts for a fixed, ascertainable period (e.g., “for six months,” “for 10 years”), ending automatically at the end of the term.

Key Term: Periodic Tenancy
A tenancy that continues from period to period (e.g., month-to-month) until proper notice is given.

Key Term: Tenancy at Will
A tenancy with no fixed duration that continues only so long as both landlord and tenant desire; terminable at will in accordance with statute.

Key Term: Tenancy at Sufferance
A “holdover” tenancy that arises when a tenant wrongfully remains in possession after the lawful tenancy ends, lasting until the landlord evicts or elects to hold the tenant to a new tenancy.

For present/future interest questions, leaseholds matter mainly because:

• A landlord’s reversion follows a term of years or periodic tenancy.
• A tenant’s present estate is limited, so landlord and tenant waste issues can arise.
• The scope of a lessee’s ability to grant easements or subleases is limited by the lease and the size of the estate.

Leaseholds are covered in detail in landlord–tenant law, but they form part of the overall map of present estates. Their scope is defined largely by the lease terms and default landlord–tenant rules, rather than by the doctrines governing freehold estates.

Present Estates and the Doctrine of Waste

On the MBE, life estates often raise waste issues. Because a life estate is limited in duration, the life tenant must use the property in a way that respects the interests of future interest holders (remaindermen or reversioners).

Key Term: Waste
Unreasonable interference by a present possessor (such as a life tenant or tenant for years) with the value or future enjoyment of the property by the holder of a future interest.

Waste is divided into three main types.

Key Term: Voluntary Waste
An affirmative act by the life tenant that substantially reduces the value of the property, such as tearing down a valuable building, removing structures, or exploiting minerals beyond what is reasonable.

Key Term: Permissive Waste
Waste resulting from the life tenant’s failure to maintain the property in reasonable repair, pay ordinary taxes, or pay interest on existing mortgages, causing deterioration or encumbrances.

Key Term: Ameliorative Waste
A change by the life tenant that increases the property’s market value but alters its character, potentially conflicting with the expectations of future interest holders.

Core life tenant duties commonly tested:

• Pay all ordinary taxes and assessments that are attributable to the property’s income or, if there is no income, to the reasonable rental value.
• Pay interest (but not principal) on any mortgage that encumbers the entire fee, again to the extent of income or rental value.
• Keep the property in reasonable repair to prevent substantial deterioration, but the life tenant is not required to:
  • Make extraordinary repairs, or
  • Replace entire structures at personal expense.
• Avoid removing natural resources (timber, oil, minerals) unless one of the following applies:
  • The land was previously used for that exploitation (open mines doctrine).
  • It is necessary for reasonable repairs or maintenance.
  • It is expressly permitted by the grant.

Key Term: Open Mines Doctrine
A doctrine under which a life tenant may continue to exploit existing mines or quarries (or other ongoing extraction operations) but may not open new ones.

Exam patterns on waste:

• Voluntary waste:
  • Cutting timber for sale when the land has never been used for logging.
  • Bulldozing a farmhouse that has significant value.
• Permissive waste:
  • Failing to pay property taxes so that a tax foreclosure occurs.
  • Allowing a roof to leak for years so that the structure rots.
• Ameliorative waste:
  • Tearing down a residential building to replace it with a profitable commercial structure in a stable residential neighborhood.
  • Converting a single-family home to a multi-unit property where that significantly changes the character of the property.

Modern courts are more tolerant of ameliorative changes when:

• The neighborhood has changed significantly (e.g., from residential to industrial), and
• The change in use reflects the new reasonable use of the property, and
• The change does not substantially harm the economic interests of the future interest holder.

Future interest holders (remaindermen, reversioners) can seek injunctions to prevent waste or damages to compensate for it. If the holder of the future interest consents to an otherwise wasteful act, that consent usually bars later complaints.

Scope-related points:

• Life tenants may collect rents and ordinary profits but generally may not deplete principal.
• Insurance proceeds and condemnation awards may be allocated between life tenant and remainderman; focus on whether the award substitutes for destroyed principal (usually for future interests) or for lost income (usually for the life tenant).
• A life tenant’s duty is measured against the condition of the property at the start of the life tenancy, not perfection.

Exam-focus tips:

• Ask whether the act increases or decreases market value, and whether it changes the character of the property.
• Ask whether the life tenant is spending her own funds or only using the property’s income.
• Remember that the life tenant’s liability for taxes, repairs, and mortgage interest is limited to the income or reasonable rental value of the land.

Defeasible Fees and Their Scope

Key Term: Defeasible Fee
A fee simple estate that may be terminated upon the occurrence (or nonoccurrence) of a specified event, so that its duration is potentially infinite but subject to a condition.

A defeasible fee is a fee simple that may end upon the happening of a stated event. Correctly identifying the type of defeasible fee and the accompanying future interest is a frequent property question.

Defeasible fees matter for scope because they control:

• How long the grantee’s estate will last.
• Who gets the property if the condition is broken.
• Whether RAP applies to the future interest.
• Whether an attempted condition is better viewed as a use restriction, a covenant, or an invalid restraint on alienation.

Fee Simple Determinable

• Language: Durational words such as "so long as," "while," "during," "until."
• Termination: Ends automatically when the specified event occurs.
• Future interest: The grantor retains a possibility of reverter.

Key Term: Fee Simple Determinable
A fee simple that automatically ends and reverts to the grantor upon the happening of a specified condition, created by durational language such as “so long as” or “while.”

Key Term: Possibility of Reverter
A future interest retained by a grantor following a fee simple determinable, giving the grantor (or successors) automatic possession if the stated condition ceases to be satisfied.

Example:

• "To City so long as the land is used as a park."
  City has a fee simple determinable. Grantor retains a possibility of reverter.

Scope:

• City’s estate lasts only while the land is used as a park.
• The moment use as a park ceases, title automatically shifts back to the grantor or her successors, without any need for action.
• The grantor’s interest (possibility of reverter) is fully vested and not subject to RAP.

Common exam twist:

• The grant might tack on an attempt to give the possibility of reverter to someone other than the grantor: “to City so long as used as a park, then to B.” That cannot be a remainder (remainders cannot follow fee simple), so B must hold an executory interest, which is subject to RAP.

Fee Simple Subject to Condition Subsequent

• Language: Conditional words such as "but if," "provided that," "on condition that," often coupled with an express right to reenter.
• Termination: Does not end automatically; the grantor must take affirmative steps to reclaim the property.
• Future interest: The grantor retains a right of entry (also called a power of termination).

Key Term: Fee Simple Subject to Condition Subsequent
A fee simple that does not end automatically upon breach of a condition but may be cut short at the grantor’s election, if the grant reserves a right of entry.

Key Term: Right of Entry
A future interest retained by a grantor following a fee simple subject to condition subsequent, allowing (but not requiring) the grantor to terminate the estate upon breach of the condition.

Example:

• "To University, but if it ever ceases to use the land for educational purposes, grantor may reenter and reclaim the land."

University holds a fee simple subject to condition subsequent; grantor has a right of entry.

Scope:

• University keeps its estate until the grantor affirmatively exercises the right of entry after breach.
• If the grantor does nothing for a long time, a court may apply laches or a statute of limitations to bar enforcement, but the estate does not end automatically.

When language is ambiguous between a determinable and a condition subsequent, courts often construe it as a fee simple subject to condition subsequent, to avoid automatic forfeiture. Look carefully for a reserved right of entry.

Exam tip:

• If you see both durational and conditional language, and a right of entry is mentioned, treat the estate as subject to condition subsequent.

Fee Simple Subject to Executory Limitation

• Language: Looks like either of the above, but the future interest is in a third party.
• Termination: Ends automatically upon the event, with title passing to someone other than the grantor.
• Future interest: The third party holds an executory interest.

Key Term: Fee Simple Subject to Executory Limitation
A defeasible fee that automatically divests in favor of a third party upon the happening of a specified condition, instead of reverting to the grantor.

Key Term: Executory Interest
A future interest in a transferee that either divests (cuts short) a prior estate or follows a gap in possession, rather than becoming possessory upon the natural expiration of the prior estate.

Example:

• "To A so long as the land is used as a farm, then to B."
  A has a fee simple subject to executory limitation. B has a shifting executory interest (more on that below).

Defeasible fees are always followed by a future interest:

• In the grantor: possibility of reverter or right of entry.
• In a transferee: an executory interest.

On the MBE, beware of language of “purpose” or “motive” (“for use as a park,” “to be used as a residence”) without clear durational or conditional words. Such statements of purpose, standing alone, usually do not create a defeasible fee; they are treated as expressing the grantor’s hope or motive, not a condition on the estate.

Life estates can also be defeasible ("to A for life, but if A marries, then to B"). This affects the scope of A’s possessory rights; upon the condition, A’s life estate ends early and the property shifts to B (if B has an executory interest) or back to the grantor (if the grantor retains a right of entry or possibility of reverter).

When analyzing scope, ask:

• What activities on the land would violate the condition?
• Is the condition tied to use (e.g., residential) or to events unrelated to use (e.g., A’s marriage)?
• Is the condition possibly void as contrary to public policy (e.g., encouraging divorce) or as an unreasonable restraint on marriage?

Exam Warning: Use Restriction vs Defeasible Fee vs Covenant

• “To A so that the property will always be used as a park” often expresses a purpose, not a forfeiture condition; treat as a fee simple absolute plus a nonbinding statement.
• “To A so long as the property is used as a park” usually creates a fee simple determinable.
• “A covenants for herself and her successors to use the land only as a park” usually creates a covenant/equitable servitude, enforced by damages or injunction, not forfeiture.

Look for words of duration or condition tied to the grant of the estate itself to find a defeasible fee.

Future Interests: Grantor vs. Transferee

Future interests are nonpossessory rights to property that may become possessory in the future. They are divided into interests retained by the grantor and interests created in a transferee.

Future interests retained by the grantor

• Reversion – when the grantor has conveyed less than the estate she owns (e.g., a life estate) and there is no remainder that fully disposes of the future.
• Possibility of reverter – following a fee simple determinable.
• Right of entry – following a fee simple subject to condition subsequent.

All grantor future interests are considered vested and are not subject to the Rule Against Perpetuities.

For scope analysis, grantor future interests:

• Limit what the present owner can do if the condition is narrowly drawn.
• Allow the grantor (or successors) to regain possession upon breach, subject to limitations like laches or statutory time limits for right of entry.

Future interests in transferees: remainders

Key Term: Remainder
A future interest in a transferee that becomes possessory, if at all, upon the natural termination of the preceding estate created in the same instrument, without cutting it short.

Remainders:

• Never follow a fee simple (because fee simple has no natural end).
• Always follow an estate of known, fixed maximum duration (typically a life estate or term of years).
• “Wait patiently” for the prior estate to naturally expire; they do not divest it.

Key Term: Condition Precedent
A condition that must be satisfied before a particular future interest can vest or become possessory.

Key Term: Condition Subsequent
A condition that, if it occurs after an interest has vested, can cut off or divest that interest.

Key Term: Vested Remainder
A remainder given to an ascertainable person that is not subject to a condition precedent other than the natural termination of the prior estate.

Key Term: Contingent Remainder
A remainder that is either given to an unascertainable person, or made subject to a condition precedent (other than the ending of the prior estate), or both.

Common types of vested remainders:

Key Term: Indefeasibly Vested Remainder
A vested remainder that is certain to become possessory and cannot be taken away by any condition or by the addition of new takers.

Example:

• "To A for life, then to B and her heirs."
  A has a life estate. B has an indefeasibly vested remainder in fee simple.

Key Term: Vested Remainder Subject to Open
A vested remainder in a class of persons at least one of whom is ascertained and can take, but the class is still open to admit additional members.

Example:

• "To A for life, then to A’s children." A has one child, C, at the time of the grant.
  A has a life estate. C has a vested remainder subject to open; later-born children of A will share in the remainder.

Key Term: Vested Remainder Subject to Complete Divestment
A vested remainder that is presently vested in an ascertainable person, but may be cut off entirely if a condition subsequent occurs.

Example:

• "To A for life, then to B, but if B does not survive A, then to C."
  B has a vested remainder subject to complete divestment; C has a shifting executory interest.

Contingent remainders often appear in two standard forms:

• Condition precedent: "To A for life, then to B if B graduates from law school." B’s graduation is a condition precedent to B’s taking.
• Unascertainable taker: "To A for life, then to A’s first child to become a doctor" (when A is currently childless).

Historically, contingent remainders could be destroyed if they did not vest before or at the termination of the preceding life estate (the doctrine of destructibility of contingent remainders). Most modern jurisdictions have abolished this doctrine, typically treating such interests as executory interests or implying a reversion in the grantor at the end of the life estate.

Key Term: Doctrine of Destructibility of Contingent Remainders
A historical rule under which any contingent remainder not vested by the time the prior life estate ended was destroyed, leaving a reversion in the grantor. It is abolished in most modern jurisdictions.

Remainders can be “alternative contingent remainders” when the instrument gives two incompatible contingent gifts conditioned on opposite events:

Key Term: Alternative Contingent Remainders
Two or more contingent remainders created in the same instrument, each contingent on a different (often mutually exclusive) condition, so that the vesting of one necessarily prevents the vesting of the other.

Example:

• "To A for life, then to B if B survives A, but if B does not survive A, then to C."
  B and C have alternative contingent remainders; which one takes depends on what happens at A’s death.

Scope implications:

• The holder of a vested remainder has an existing, transferable interest that may be sold or devised (subject to any condition subsequent).
• Contingent remaindermen may have fewer practical rights until the condition occurs; they usually cannot demand partition or sue for waste unless statutes expand their rights.

Future interests in transferees: executory interests

Executory interests either:

• Divest a prior estate in a transferee (shifting executory interests), or
• Divest the grantor or follow a gap after the grantor’s interest (springing executory interests).

Key Term: Shifting Executory Interest
An executory interest that divests a transferee’s estate, cutting short another grantee’s interest.

Key Term: Springing Executory Interest
An executory interest that divests the grantor’s estate (or follows a gap after the grantor’s interest), cutting short the grantor or her successors.

Examples:

• Shifting: "To A, but if A ever smokes, to B."
  A has a fee simple subject to executory limitation. B has a shifting executory interest.

• Springing: "To A when A marries."
  A has a springing executory interest; the grantor retains a fee simple subject to an executory limitation until A marries.

Executory interests always cut short someone else’s interest or follow a gap; they never wait for the natural termination of a prior estate.

Because all executory interests are future interests in transferees that depend on some contingency, they are always subject to RAP analysis.

Remainders vs. Executory Interests

On the MBE, the key distinction is:

• A remainder waits patiently for the natural end of the prior estate.
• An executory interest takes effect by cutting short a prior estate or following a gap in possession.

If the prior estate could, in theory, continue beyond the event that gives possession to the future interest holder, you are likely dealing with an executory interest.

This distinction matters because:

• Only remainders can follow life estates and terms of years; executory interests often follow fee simples or gaps.
• Executory interests (unlike indefeasibly vested remainders) always trigger RAP analysis.
• Contingent remainders are sometimes transformed into executory interests when old common-law rules (like destructibility or worthier title) are applied.

Key Term: Class Gift
A gift to a group of persons described by a characteristic rather than named individually, such as “children of A” or “issue of B.”

Class gifts frequently involve vested remainders subject to open or contingent remainders, and therefore they interact heavily with RAP and with class-closing rules like the rule of convenience.

Historical Rules That Alter Future Interests

Two older common-law rules can recharacterize future interests. They are still occasionally tested.

Key Term: Rule in Shelley's Case
A historical doctrine that, when applicable, converts a remainder in the grantee’s heirs into a remainder in the grantee, usually giving the grantee a larger estate (often a fee simple) instead of merely a life estate. It is abolished or limited in most modern jurisdictions.

Classic form:

• "To A for life, then to A’s heirs."
  At common law, the rule in Shelley's Case would give A a fee simple. The words “and A’s heirs” describe the estate, not a remainder.

Modern approach:

• Most jurisdictions treat this literally: A has a life estate, and A’s heirs have a contingent remainder. Many questions will tell you which approach to apply.

Key Term: Doctrine of Worthier Title
A common-law doctrine under which a conveyance "to O’s heirs" was presumed to retain a reversion in O rather than create a remainder in O’s heirs. It is also abolished or treated as a mere rule of construction in most jurisdictions.

Example:

• "O conveys Blackacre to A for life, then to O’s heirs."
  Under the doctrine, O has a reversion; O’s heirs take nothing directly under the instrument.

On the MBE, if the question mentions one of these doctrines, apply it as directed; otherwise, use the straightforward, literal classification.

Scope implications:

• When Shelley's Case or worthier title applies, it may enlarge the present estate (e.g., giving A a fee simple instead of a life estate), which changes:
  • Who can sue for waste.
  • Whether RAP applies (grantor interests are not subject to RAP).
  • Whether certain restraints on alienation are valid.

Class Gifts and the Rule of Convenience

Many future interest problems involve class gifts. The “scope” of a class gift includes:

• Who is included in the class.
• When the class closes (no new members admitted).
• Whether late-born members are cut out by class-closing rules or by RAP.

At common law, under the “all-or-nothing” rule, a class gift subject to RAP is entirely invalid if the interest of any potential class member might vest outside the perpetuities period. This makes timing important.

To soften harsh results, many jurisdictions apply the rule of convenience.

Key Term: Rule of Convenience
A rule of construction under which a class closes (no new members may join) when at least one class member is entitled to immediate possession, unless the grantor has clearly indicated a contrary intent.

Example:

• "To A for life, then to A’s children who reach 21."
  Suppose at A’s death, A has three living children: C1 is 25, C2 is 22, and C3 is 15.
  Under the rule of convenience, the class closes at A’s death when at least one child (C1) is entitled to possession. C1 and C2 take whenever their interests are vested; C3 is excluded from the class, even if C3 later reaches 21.

On the exam:

• The rule of convenience is usually applied when you are asked to construe the grantor’s intent or to determine who takes at a particular time.
• For strict common-law RAP analysis, assume the possibility that the class remains open until it must close (e.g., at the death of the measuring life) unless the problem tells you to apply the rule of convenience as a RAP-saving device.

Class gift scope issues often interact with:

• Age contingencies (“children who reach 30,” which often violate RAP).
• After-born members (children or grandchildren born after the grant).
• Partial failures (some class members meet the condition, some do not).

The key is to identify:

• The measuring lives (people alive at creation whose lives are relevant).
• The latest possible time a class member could satisfy the condition.

Limitations on Rights: Rule Against Perpetuities and Restraints

The law limits the creation of certain future interests to prevent property from being tied up indefinitely.

Key Term: Rule Against Perpetuities
A doctrine that invalidates certain future interests unless they must vest, if at all, no later than 21 years after the death of some life in being at the time the interest is created.

Key Term: Measuring Life (Validating Life)
A life in being at the creation of an interest whose life and death are used to test whether the interest must vest or fail within the perpetuities period.

The classic RAP formula is:

• No interest is valid unless it must vest, if at all, within 21 years after some life in being at the creation of the interest.

“Vest,” in this context, means that the interest is certain to become possessory (or to fail) without further contingencies; it does not mean “take possession” immediately.

Interests subject to RAP

Typically subject to RAP:

• Contingent remainders.
• Executory interests (shifting and springing).
• Vested remainders subject to open (class gifts).
• Certain options to purchase and some rights of first refusal, especially if not expressly limited in time.

Key Term: Option to Purchase
A contractual right, often coupled with an interest in land, that allows the holder to buy property at a specified price within a specified time.

Key Term: Right of First Refusal
A contractual right giving its holder the opportunity to match any bona fide offer the owner receives to purchase the property, usually if and when the owner decides to sell.

Not subject to RAP:

• Future interests in the grantor (reversion, possibility of reverter, right of entry).
• Indefeasibly vested remainders.
• Vested remainders subject to complete divestment (assuming the divesting condition does not itself create a remote contingent interest).
• Fully charitable transfers from one charity to another (charity-to-charity exception).

Key Term: Charity-to-Charity Exception
An exception to RAP under which a gift from one charity to another charity is exempt from the rule, even if it might vest outside the perpetuities period.

RAP does not apply to present possessory estates (like fee simple absolute or life estate) themselves; it applies to certain future interests.

Mechanical Approach to RAP

On the exam, apply a mechanical approach:

• Identify all future interests.
• Ask which are of a type subject to RAP.
• For each such interest, ask whether there is any possibility, however remote, that it might vest more than 21 years after the death of all lives in being at creation.
• If yes, that particular interest is void from the outset; the rest of the conveyance stands if it can.

Traps to remember:

• Fertile octogenarian: Any living person is presumed able to have children, regardless of age or health.
• Unborn widow(er): A gift “to A for life, then to A’s widow for life, then to A’s issue then living” may be invalid because A’s widow might not be a life in being at the creation of the interest.
• Age contingency beyond 21 in a class gift: A gift “to A for life, then to A’s children who reach 30” is generally void as to all children under strict common-law RAP.

Handling options and rights of first refusal:

• Options to purchase land exercisable more than 21 years after some life in being are usually void under RAP, unless tied to a lease (where some courts treat them differently).
• A right of first refusal that could be exercised at any time in the indefinite future can also violate RAP unless limited to a fixed period or to the lifetime of named individuals.

Many states have adopted “wait-and-see” or statutory reforms (such as a 90-year alternative vesting period) that alter traditional RAP. On the MBE, unless the question specifies otherwise, assume strict common-law RAP.

Key Term: Wait-and-See Approach
A modern RAP reform that delays the determination of validity until the end of the perpetuities period to see what actually happens, instead of invalidating interests based on what might happen. It is embodied in statutes such as the Uniform Statutory Rule Against Perpetuities.

If a question tells you that a jurisdiction follows a wait-and-see statute or USRAP, follow that statute’s instructions; otherwise, use strict common-law RAP.

If a particular future interest is void under RAP:

• Strike the offending interest.
• Reconstruct the estate with what is left (typically leaving a fee simple absolute or a defeasible fee with a reversion or possibility of reverter in the grantor).

Exam Warning: Common RAP Patterns

• Gifts to grandchildren conditioned on attaining an age over 21 are often invalid because the children of the measuring life might have children (grandchildren) after the measuring life dies.
• Open-ended “so long as used as a museum, then to B” executory interests are classic RAP traps.
• Options “at any time in the future” with no time limit are vulnerable.

Always ask: could someone not yet born at creation satisfy the condition or hold the option more than 21 years after all lives in being are dead?

Restraints on Alienation

Key Term: Restraint on Alienation
A provision that attempts to restrict the current owner’s ability to sell, transfer, or otherwise convey an interest in land.

The law is suspicious of restraints on alienation because free transferability promotes productive use of land and supports creditors and markets.

There are three classic forms of direct restraints:

Key Term: Disabling Restraint
A restraint that purports to make any attempted transfer by the grantee void, so that the grantee lacks power to convey.

Key Term: Forfeiture Restraint
A restraint under which any attempted transfer by the grantee causes the interest to be forfeited, typically reverting to the grantor or going to a third party.

Key Term: Promissory Restraint
A restraint created by an agreement in which the grantee promises not to transfer; breach gives rise to contract remedies such as damages or injunction.

Key rules:

• Total disabling restraints on a fee simple are void. The owner of a fee simple cannot be completely barred from transferring it.
• Forfeiture and promissory restraints on a fee simple may be valid if they are reasonable in scope, duration, and purpose, especially in commercial settings (e.g., a commercial right of first refusal, a short-term buyback option).
• Forfeiture or promissory restraints are more likely to be upheld when attached to lesser estates, such as life estates or leaseholds, particularly when the restraint is reasonable.
• Reasonable restrictions in common-interest communities (condominiums, co-ops), such as requiring board consent to transfer, are often upheld if they are not arbitrary and do not effectively prohibit transfer.

Indirect restraints:

• Use restrictions tied to defeasible fees (“so long as used for residential purposes”) are not direct restraints on alienation; they restrict use, not the power to transfer, and are generally valid.
• Mortgage due-on-sale clauses (requiring the loan to be paid off if the property is sold) are typically enforceable and are treated as valid contractual provisions, not invalid restraints.

On the MBE, if a restraint is invalid, the restraint is simply struck from the grant; the estate itself remains.

Examples:

• "To A and her heirs, but any attempt by A to transfer Blackacre shall be void."
  This is a total disabling restraint on a fee simple and is void. A holds a fee simple absolute free of the restraint.

• "To A for life, but if A attempts to transfer her life estate, it shall terminate and revert to O."
  This is a forfeiture restraint on a life estate, which is more likely to be valid. A’s scope of rights is limited accordingly.

Some conditions in grants are void as against public policy (e.g., conditions encouraging divorce or creating unreasonable restraints on marriage). Those are not technically restraints on alienation but are often analyzed alongside them because they also limit the grantee’s freedom.

Nonpossessory Rights: Scope of Easements, Licenses, and Profits

While estates and future interests define who holds possession and when, easements and related servitudes define rights to use land owned by another. Many exam questions test whether a particular use falls within the scope of an easement, especially as circumstances change over time.

Key Term: Easement
A nonpossessory right to use (or restrict the use of) another’s land for a particular purpose.

Two basic types:

Key Term: Easement Appurtenant
An easement created to benefit a particular parcel of land (the dominant estate); it generally runs with that land to successors.

Key Term: Easement in Gross
An easement benefiting a person or entity rather than a parcel of land; it has no dominant estate.

Within these, easements can be:

• Affirmative (the right to do something on another’s land, such as cross it).
• Negative (the right to prevent the landowner from doing something on their land, such as blocking light). Negative easements are historically limited (e.g., light, air, support, stream water) and today are often replaced by covenants or equitable servitudes instead of expressed as “negative easements.”

On the MBE, scope questions about easements focus on:

• What types of uses are permitted.
• Whether increases or changes in use overburden the servient estate beyond what was contemplated.
• Whether the easement can be used for new parcels or subdivided lots.

Creation of Easements and Scope Implications

Easements can be created expressly or by operation of law.

Express Easements

These are created in a deed or will and must satisfy the Statute of Frauds.

They can arise by:

• Grant: The grantor conveys an easement directly to a grantee.
• Reservation: The grantor conveys land but reserves an easement over it for herself.

Recording:

• An easement should be recorded to give notice to future purchasers of the servient estate. Once properly recorded in the chain of title, it need not be repeated in every subsequent deed to remain effective against later purchasers with record notice.

Scope:

• The starting point is always the language of the grant.
  • If the grant is specific about location or use ("a footpath across the north 10 feet"), that controls.
  • If the language is general ("a right-of-way across Blackacre"), courts interpret it in light of the parties’ reasonable intent.

When language is ambiguous, courts:

• Construe ambiguities in favor of the grantee (unless the conveyance is purely gratuitous).
• Consider the circumstances at creation, including the prior pattern of use and the reasonable needs of the dominant estate.
• Assume the parties contemplated both present and future reasonable uses of the dominant parcel.

Key Term: Surcharge (of an Easement)
Use of an easement that exceeds its lawful scope or unreasonably increases the burden on the servient estate.

Excessive use (surcharge) does not terminate the easement. The remedy is typically an injunction limiting use to the appropriate scope and possibly damages.

Implied Easements

Key Term: Implied Easement
An easement created by operation of law based on prior use, necessity, or a recorded plat, rather than an express grant.

Implied easements include:

• Easement implied from prior use (often called a quasi-easement before severance).
• Easement by necessity.
• Easement implied from a recorded subdivision plat.
• Easement implied with a profit à prendre (profit).

Implied from prior use (easement by implication):

• Requirements:
  • Common ownership of a large tract.
  • Before severance, the owner uses one part of the land for the benefit of another in a continuous and apparent way (quasi-easement).
  • At severance, that use is reasonably necessary to the enjoyment of the dominant parcel.

The scope of such an easement is defined by the nature and intensity of the prior use, adjusted for reasonably foreseeable changes. For instance, if the prior owner regularly drove over a path to reach a well, an easement for vehicular access to the well will likely be implied.

Key Term: Easement by Necessity
An implied easement that arises when a tract is severed and one parcel is landlocked or lacks access to a public road or utility line, creating a strictly necessary right-of-way over the remaining parcel to reach the public resource.

Key points on easement by necessity:

• Requires:
  • Common ownership immediately before severance.
  • Severance that leaves one parcel with no legal access to a road or utility.
  • Strict necessity (no other legal way to access the land, not merely inconvenience).
• No prior use is required.
• The easement terminates automatically when the necessity ends (e.g., when a public road is built giving direct access).

Key Term: Prescriptive Easement
An easement acquired by open, notorious, adverse, and continuous use of another’s land for the statutory period, analogous to adverse possession but concerning use rather than possession.

Prescriptive easements:

• Do not require exclusivity (unlike adverse possession).
• Cannot be created with the owner’s permission (permission defeats adversity).
• Cannot generally be negative easements or easements over public land.

Key Term: Easement by Estoppel
An easement that arises when a landowner allows another to use her land, the user reasonably and foreseeably relies by making substantial changes, and it would be inequitable to allow the owner to revoke the permission.

Easement by estoppel often arises where:

• There is permission to use a road or path.
• The user invests money or significantly changes his position in reliance (e.g., building a house that accesses the road).
• The owner then tries to revoke permission. The owner is estopped and a use right comparable to an easement is recognized.

Profits and Licenses

Key Term: Profit à Prendre (Profit)
A nonpossessory right to enter another’s land and remove some product of the land (such as timber, minerals, or game).

A profit carries an implied easement to enter the land to exercise the profit. Profits are subject to many of the same scope and termination rules as easements.

Key Term: License
A revocable privilege to use another’s land for some purpose, not an interest in land and generally not subject to the Statute of Frauds.

Examples of licenses:

• Theater tickets.
• Permission to use a neighbor’s property once (e.g., to cross a field).
• Permission to park in someone’s driveway.

Licenses:

• Are generally revocable at will by the licensor.
• Do not run with the land.
• Become irrevocable when coupled with an interest (e.g., a vendee’s right to enter to remove purchased goods) or when reliance justifies an easement by estoppel.

Distinguishing easements and licenses:

• An express written grant that satisfies the Statute of Frauds usually creates an easement.
• Oral permission usually creates a license unless reliance converts it into an easement by estoppel.

Scope Principles for Express Easements

Courts generally presume that an easement is intended to accommodate both present and future normal development of the dominant estate.

Reasonable changes in use:

• Switching from horse-and-buggy to cars.
• Modestly widening a driveway to fit modern vehicles.
• Increased intensity of use consistent with foreseeable development (e.g., a single-family house being replaced with another single-family house).

Unreasonable changes:

• Using a narrow residential path for heavy commercial truck traffic serving a large industrial facility.
• Using an easement originally serving a single residence to serve a large apartment complex if this imposes a drastically greater burden.

If the location of the easement is not specified:

• The servient owner usually has the initial right to select a reasonable location.
• Once established by agreement or long use, the servient owner may not unilaterally relocate the easement under traditional rules, even if another route would be more convenient.

Some modern statutes allow unilateral relocation by the servient owner under narrow conditions (e.g., if it does not significantly lessen the utility of the easement, increase the burden on the easement holder, or impair safety), but do not assume that on the MBE unless the question mentions it.

Use for After-Acquired Parcels and Subdivision

A key limitation:

• The holder of an appurtenant easement generally cannot use it to benefit land that is not part of the original dominant estate.

Example:

• A has an easement over B’s land to reach Parcel X. A later buys adjacent Parcel Y and begins using the same easement to access Y.
  Using the easement to benefit Y exceeds the scope and is a surcharge; B can enjoin that additional use, though A may continue to use the easement for X.

Subdivision of the dominant estate:

• When the dominant estate is subdivided, each parcel owner is generally entitled to use the easement, provided:
  • The total use does not unreasonably increase the burden on the servient estate beyond what the parties originally contemplated.
• If subdivision would dramatically increase the burden (e.g., one small house becomes 50 lots), courts may limit or deny extension of the easement to some or all lots.

Duty to Maintain

Who must maintain the easement?

• Generally, the easement holder (the owner of the dominant estate or easement in gross) has the duty to maintain and repair the easement. There is an implied right to enter the servient land for this purpose.
• If both the dominant and servient owners use the easement (e.g., a shared driveway), the cost of maintenance is apportioned between them in proportion to their use, absent an agreement.
• The servient owner has no duty to improve or repair the easement unless she has expressly assumed that obligation.

Termination of Easements

Easements can end in several ways. Two are especially relevant to scope:

Key Term: Merger (of Easements)
Termination of an easement when the same person acquires title to both the dominant and servient estates in a way that unites the full interests; the easement is extinguished and is not automatically revived by later separation.

If the same person acquires the dominant and servient estates:

• The easement is extinguished by merger if both estates are of equal or greater duration than the easement.
• Later separation of title does not automatically re-create the easement.

Other key termination methods:

• Release: The easement holder executes a written release (satisfying the Statute of Frauds) to the servient owner.
• Abandonment: Mere nonuse is not enough. There must be clear conduct showing intent to relinquish (e.g., building a structure that blocks the easement and using a different route).
• Prescription: If the servient owner interferes with or blocks the easement in a manner that is adverse, open, and continuous for the statutory period, the easement can be lost by prescription.
• Expiration of necessity: An easement by necessity ends when the necessity ceases (e.g., when a public road is built or another legal access route is obtained).
• Estoppel: If the servient owner reasonably relies on statements or conduct of the easement holder indicating that the easement will no longer be used, and changes position, the holder may be estopped from asserting it.
• Condemnation or destruction: Government condemnation or destruction of the servient estate can terminate the easement in whole or in part.

Recording Acts and Nonpossessory Rights

Easements, profits, real covenants, options, and rights of first refusal are all interests in land that can be protected or defeated by recording statutes.

Key Term: Recording Statute
A state law that alters the common-law “first in time” rule by protecting certain later purchasers who record first and lack notice of prior unrecorded interests.

Key Term: Race Statute
A recording statute under which the first grantee to record wins, even if that grantee had notice of a prior unrecorded conveyance.

Key Term: Notice Statute
A recording statute under which a subsequent purchaser for value prevails if she takes without notice of a prior unrecorded interest, regardless of who records first.

Key Term: Race-Notice Statute
A recording statute under which a subsequent purchaser for value prevails only if she takes without notice of a prior unrecorded interest and records first.

Notice can be:

• Actual: The purchaser actually knows of the prior interest.
• Record (constructive): The prior instrument is properly recorded in the chain of title.
• Inquiry: Visible use or reference in another recorded instrument would lead a reasonable purchaser to investigate.

Scope implications:

• An unrecorded easement may be cut off by a later BFP of the servient estate who lacks notice.
• A visible roadway or utility line often puts a purchaser on inquiry notice of an implied or recorded easement.
• Once a recorded easement is in the chain of title, it burdens all later purchasers even if not mentioned in their deeds.

Do not confuse:

• Title by adverse possession (not covered by recording statutes) with record-based interests. Recording does not defeat or validate adverse possession; it is governed by possession and statutory periods.

Covenants and Equitable Servitudes: Brief Scope Overview

Although this article focuses mainly on easements, the MBE also tests restrictive covenants and equitable servitudes, which are promises about land use that may bind successors.

Basic ideas:

• Real covenants are promises about land use enforceable at law (damages) if they “run with the land.”
• Equitable servitudes are promises enforceable in equity (injunction) if certain requirements are met.

Scope questions with covenants and servitudes often ask:

• Whether a particular use violates a recorded restriction (“residential use only,” “no commercial activity”).
• Whether a restriction still applies after neighborhood changes.
• Whether a subsequent buyer is bound (notice, intent, and “touch and concern” requirements).

Do not confuse:

• A defeasible fee with a use restriction: “to A so long as used as a residence” creates a defeasible fee, usually enforced by forfeiture.
• A covenant or servitude: “A covenants for herself and her successors that the land will be used only for residential purposes” creates a promise enforceable by injunction or damages, but without an automatic forfeiture unless separately provided.

Understanding which tool the grantor used (defeasible fee vs covenant) changes both the scope of the present owner’s rights and the available remedies.

Worked Example 1.1

O conveys Blackacre "to A for life, then to B and her heirs, but if B does not survive A, then to C and his heirs." What interests are created?

Answer:
A has a life estate. B has a vested remainder in fee simple subject to complete divestment, because B is an ascertainable person and there is no condition precedent to B’s remainder beyond the natural end of A’s life; however, B’s interest can be cut off if the condition subsequent (B’s failure to survive A) occurs. C has a shifting executory interest that will divest B’s remainder if B predeceases A. O has no reversion, as the entire future interest has been carved out in favor of B and C.

To classify on an exam, proceed step by step: identify A’s present estate (“for life” signals a life estate), then look at what follows. The first future interest after a life estate created in the same instrument and not cutting the life estate short is a remainder. Because B is named and alive and nothing must happen before A dies, B’s remainder is vested. The “but if” clause introduces a condition subsequent that can divest B in favor of C. That future interest in C must be an executory interest because it cuts off B’s remainder rather than waiting for a natural termination. C’s interest is subject to RAP, but it is valid because it must vest or fail at A’s death, a life in being at creation.

Scope points:

• Because B’s remainder is vested, B can transfer it inter vivos or by will, subject to the divesting condition.
• If B dies before A, B’s interest is cut off and C’s interest becomes possessory at A’s death.

Worked Example 1.2

O conveys "to D for so long as the land is used for farming, then to E." Is E's interest valid?

Answer:
D has a fee simple subject to executory limitation, not a fee simple determinable followed by a remainder, because remainders cannot follow a fee simple. E has a shifting executory interest that will cut short D’s estate if the land ever ceases to be used for farming. Because E’s interest is an executory interest, it is subject to the Rule Against Perpetuities. There is a theoretical possibility that the cessation of farming use could occur more than 21 years after all lives in being are dead—for example, if D conveys the land to a corporation that uses it for farming for centuries and then stops. Because the interest might vest too remotely, E’s executory interest is void at the moment of creation under strict common-law RAP.

When E’s interest is struck, the remaining language “to D for so long as the land is used for farming” is interpreted as creating a fee simple determinable in D, with a possibility of reverter in O. The scope of D’s estate therefore changes: D can hold the land indefinitely, but if farming ceases, the property will automatically revert to O (or O’s successors) rather than shifting to E.

Notice how the RAP analysis turns on what type of future interest E holds and the open-ended nature of the farming condition.

Worked Example 1.3

O conveys "to A for life, then to B's children." At the time of the conveyance, B has one child, C.

Answer:
A has a life estate. The gift “to B’s children” is a class gift. At the time of the conveyance, B has one child, C, so at least one class member is ascertainable and there is no condition precedent beyond A’s death. C therefore has a vested remainder subject to open—vested because C is known and can take if A’s life estate ends immediately, subject to open because B could have more children who would share the gift. The class of B’s children will normally close at B’s death under ordinary class-closing rules, but it may also close earlier if the rule of convenience applies at A’s death.

RAP does not invalidate this gift because the class is certain to close no later than B’s death, and B is a life in being at the time of creation. Every child of B who will ever exist must be born, if at all, during B’s lifetime, so each child’s interest will vest, if at all, by B’s death. This is comfortably within lives in being plus 21 years. On exam questions, be careful to distinguish this from a gift “to B’s children who reach 25,” which often fails RAP because some child of B might be born late in B’s life and not reach 25 within 21 years of B’s (and other lives in being’s) deaths.

Scope implications:

• C and any later-born children can transfer their remainder interests before A dies, but the size of each share will remain uncertain until the class closes.

Worked Example 1.4

O conveys "to A, but if alcohol is ever sold on the premises, O shall have the right to reenter and retake the property."

Answer:
A has a fee simple subject to condition subsequent. The words “but if” introduce a condition subsequent, and the clause “O shall have the right to reenter and retake the property” expressly reserves a right of entry (power of termination) in O. The estate does not end automatically upon the sale of alcohol; instead, A retains title unless and until O chooses to exercise the right of entry. O’s future interest is a right of entry, which is a future interest in the grantor and therefore not subject to RAP.

Distinguish this from language that would create a fee simple determinable: “to A so long as no alcohol is sold on the premises” with no right of entry reserved would typically create a fee simple determinable with a possibility of reverter, causing automatic forfeiture on breach. Courts, however, tend to favor construing ambiguous grants as creating a condition subsequent, to avoid surprise forfeiture. On an exam, a clear, express right of entry almost always signals a fee simple subject to condition subsequent.

Because the condition restricts use (sale of alcohol) rather than transfer, it is analyzed as a valid use restriction rather than a direct restraint on alienation.

Worked Example 1.5

O conveys "to X for life, then to Y if Y graduates from law school."

Answer:
X has a life estate. Y has a contingent remainder, because Y’s taking is subject to a condition precedent—graduation from law school—that must occur before Y’s interest can become possessory. Y is ascertainable by name, but the condition precedent prevents the remainder from being vested. O has a reversion that will become possessory if the contingent remainder fails to vest by the time X’s life estate ends (for example, if X dies before Y graduates). Once Y graduates from law school during X’s lifetime, Y’s remainder becomes vested (indefeasibly vested if no further conditions), and O’s reversion is cut off.

For RAP, assume Y is alive at the time of the conveyance. Y’s graduation must occur, if at all, during Y’s lifetime, which is a life in being. Thus Y’s interest must vest or fail within Y’s life and is valid. The key is to focus on the latest time at which graduation could occur and whether that time is tied to a life in being. In exam questions, similar patterns arise with professional licensure, marriage, or other life events; the analysis is the same.

Scope-wise, until Y graduates, Y has only an expectancy, not a vested interest to transfer; after graduation, Y can sell, devise, or encumber the remainder.

Worked Example 1.6

O conveys “to A for life, then to A’s grandchildren who reach 25.” At the time of the conveyance, A has one child, B, and no grandchildren.

Answer:
A has a life estate. The gift “to A’s grandchildren who reach 25” is a contingent remainder (and a class gift) because no grandchildren exist yet and because reaching age 25 is a condition precedent to taking. This interest is subject to RAP. At the time of the grant, A and B are lives in being, but any of B’s future children (A’s grandchildren) might be born after the conveyance, and under the fertile octogenarian rule, A and B are presumed capable of having children for RAP purposes regardless of age. A grandchild born late in B’s life could reach 25 more than 21 years after the deaths of A, B, and all other lives in being at creation, making remote vesting possible. Under strict common-law RAP, that possibility renders the entire class gift void from the outset.

Once the contingent remainder is void, O retains a reversion in fee simple following A’s life estate. On a question like this, answers that suggest “wait and see” are wrong unless the jurisdiction is expressly said to have adopted a statutory wait-and-see or USRAP approach.

The key difference between this and a gift to grandchildren who reach 21 is that 21 tracks the perpetuities period, while higher ages do not.

Worked Example 1.7

O conveys “to A for life, then to B’s children.” At the time of the conveyance, B is alive and has no children. Ten years later, while A is still alive, B has one child, C.

Answer:
At the time of the grant, A has a life estate. The gift “to B’s children” is a class gift, but because B has no children yet, the takers are unascertainable. The remainder in B’s unborn children is therefore a contingent remainder, and O holds a reversion to cover the possibility that B dies childless. Because the remainder is contingent and in a class, it is subject to RAP. However, B is a life in being at creation, and the class of B’s children must close at B’s death. Any child of B will necessarily be born, if at all, within B’s lifetime. Thus the interests of B’s children must vest or fail no later than B’s death, satisfying RAP.

When C is later born during A’s life, the character of the remainder changes: C now has a vested remainder subject to open (since B might have more children). O’s reversion is now only a reversion in a small “gap” contingency (if all of B’s children predecease A without leaving issue and no more are born). This example illustrates that you classify and test RAP as of creation, but the character of future interests can change over time as conditions are satisfied or takers come into existence.

On the exam, do not re-run RAP each time facts change; RAP validity is locked in at creation.

Worked Example 1.8

O conveys “to A so long as the property is used for residential purposes, and if it is ever used otherwise, to B and her heirs.”

Answer:
A has a fee simple subject to executory limitation. The phrase “so long as” suggests a determinable estate, and the phrase “and if it is ever used otherwise, to B and her heirs” gives a shifting executory interest to B that will cut off A’s estate if the use ever becomes nonresidential. Because B’s interest is an executory interest, RAP applies. The problem is that the triggering event (change from residential to nonresidential use) might occur at any time in the indefinite future—long after all lives in being at creation are dead. That mere possibility of remote vesting is enough to make B’s executory interest void at the outset under strict RAP.

Once B’s interest is void, the remaining language is construed as “to A so long as the property is used for residential purposes,” creating a fee simple determinable in A with a possibility of reverter in O. The scope of A’s rights therefore depends heavily on whether B’s executory interest survives RAP. In some modern jurisdictions with a wait-and-see statute, B’s interest might be treated differently, but on the MBE assume common-law RAP unless told otherwise.

This pattern closely mirrors the scenario in Question 5 of the “Test Your Knowledge” section.

Worked Example 1.9

O conveys Whiteacre “to A and her heirs, but any attempt by A to sell or transfer Whiteacre shall be void.”

Answer:
A has a fee simple. The phrase “and her heirs” is classic fee simple language, and the added clause that “any attempt by A to sell or transfer Whiteacre shall be void” purports to bar A from ever transferring the property. This is a total disabling restraint on a fee simple and is invalid as against public policy. The law does not allow the owner of a fee simple to be stripped of the power to transfer that estate altogether. When a restraint is invalid, courts strike only the restraint language, leaving the remaining estate intact.

Thus, the disabling clause is simply ignored, and A holds a fee simple absolute, free of the restraint. On the exam, be careful not to convert this into a forfeiture restraint or a defeasible fee. There is no language creating a future interest in anyone else upon attempted transfer—no “but if A ever attempts to transfer, then to O,” and no reserved right of entry. The problem is the disabling clause itself, not a condition followed by a new estate. If the grant instead said “but if A ever attempts to transfer, then O may reenter,” that would be a fee simple subject to condition subsequent with a forfeiture restraint that might be scrutinized for reasonableness.

Worked Example 1.10

In 1980, O grants an express easement to R Utility Company: “a 10-foot-wide easement across the northern edge of Blackacre for laying and maintaining one underground water pipe.” In 2020, R wants to add a second, larger pipe in the same strip to serve a new industrial park, greatly increasing traffic and maintenance work. The owner of Blackacre objects.

Answer:
The easement language is specific: a 10-foot strip for “laying and maintaining one underground water pipe.” The scope clearly includes placing a single pipe, accessing the strip for inspections, repairs, and replacement of that pipe, and making reasonable upgrades to serve similar types of customers as technology changes. Replacing the original pipe with a more modern pipe of similar capacity would likely be within the contemplated scope. However, adding a second, larger pipe to serve a new industrial park, with significantly increased maintenance traffic and potentially heavier equipment, goes beyond what the parties likely contemplated in 1980. That expansion is a surcharge—an excessive use that unreasonably increases the burden on the servient estate.

The appropriate remedy is not termination of the easement, but an injunction limiting R’s use to what the original grant allows: one pipe and reasonable related activities. R remains free to negotiate an additional easement or expansion with Blackacre’s owner. On the exam, look for specific language (“one pipe,” “footpath,” “for residential access only”) that narrows scope; more general language (“right-of-way”) permits broader, but still reasonable, development in use.

Exam Warning

On the MBE, pay close attention to:

• Whether a future interest is a remainder (waiting for natural termination) or an executory interest (cutting short another estate or following a gap).
• Whether language is durational (“so long as”) or conditional (“but if”), and whether a right of entry is reserved.
• Whether a class gift could vest too remotely (e.g., age conditions beyond 21) when RAP analysis is required.
• Whether a restraint is a direct restraint on alienation (possibly invalid) or merely a use restriction creating a defeasible fee (generally valid).
• Whether an easement is being used to benefit additional parcels or to impose dramatically greater burdens than originally contemplated.
• Whether an implied easement is based on prior use (reasonable necessity) or necessity (strict necessity), and what that implies for scope and termination.
• Whether a later purchaser is a BFP who can take free of an unrecorded easement or covenant.

Mislabeling any of these often leads to the wrong RAP analysis and the wrong answer.

Revision Tip

When analyzing a conveyance:

• Translate the words into present and future interests and diagram who has what.
• Determine whether any future interests are of a type subject to RAP.
• Ask who has what rights now, what conditions could change those rights, and what happens when those conditions occur.
• For easements and other nonpossessory interests, start with the method of creation and the grant language, then ask whether the challenged use is a reasonable development of the original use or a surcharge.
• For covenants and servitudes, distinguish between a forfeiture-based condition and a promise enforceable by injunction, and consider whether changed circumstances or hardship might limit enforcement.
• Remember that recording acts can protect or defeat nonpossessory rights depending on notice and proper recording.

Remember:

• Future interests in the grantor (reversion, possibility of reverter, right of entry) are not subject to RAP.
• Indefeasibly vested remainders and vested remainders subject to complete divestment (without new contingencies) are generally safe from RAP.
• Contingent remainders, executory interests, and class gifts vested subject to open raise RAP issues.
• Total disabling restraints on fee simple estates are void; reasonable forfeiture or promissory restraints may be valid on lesser estates or in commercial contexts.
• Easements grant use, not possession; scope is governed by the grant and by reasonable, foreseeable development of the dominant estate.
• Licenses are revocable privileges; only when coupled with an interest or when reliance justifies estoppel do they become functionally similar to easements.

Key Point Checklist

This article has covered the following key knowledge points:

• Estates in land are classified as present possessory estates (fee simple, defeasible fees, life estates, leaseholds) and future interests.
• Fee simple absolute is the broadest estate; defeasible fees and life estates are limited in duration or subject to conditions that narrow their scope.
• Present possessory estates are held “now,” while future interests define who may possess later and under what conditions; together they determine the entire timeline of ownership.
• Life tenants owe duties to future interest holders and may commit voluntary, permissive, or ameliorative waste; the open mines doctrine allows continued exploitation of ongoing operations but not the opening of new ones.
• Leasehold tenants also can commit waste vis-à-vis landlords, though their duties arise from both common law and the lease contract.
• Defeasible fees may terminate automatically (fee simple determinable, fee simple subject to executory limitation) or only upon action by the grantor (fee simple subject to condition subsequent).
• Words of duration (“so long as,” “while”) tend to create determinable fees; words of condition plus a right of entry (“but if…, O may reenter”) indicate a condition subsequent.
• Future interests retained by the grantor include reversion, possibility of reverter, and right of entry; all are vested and exempt from RAP.
• Future interests in transferees include remainders (vested or contingent) and executory interests (shifting or springing), and these determine how and when possession shifts.
• Remainders wait for natural expiration of the prior estate; executory interests cut short another estate or follow a gap, and are always subject to RAP.
• Vested remainders are further classified as indefeasibly vested, subject to open (class gifts), or subject to complete divestment; these categories affect transferability, scope of rights, and RAP analysis.
• Contingent remainders are created either by conditions precedent or by gifts to unascertained persons; alternative contingent remainders and historical destructibility rules may change outcomes but modern law generally protects such interests.
• Class gifts create additional issues: who counts as a class member, when the class closes, and whether a class gift is void under RAP if any possible member might vest outside the perpetuities period.
• The Rule Against Perpetuities applies primarily to contingent remainders, executory interests, class gifts (vested subject to open), and certain options and rights of first refusal; grantor interests and fully vested remainders are excluded.
• RAP is tested using hypothetical possibilities, not what actually happens; age contingencies over 21 and open-ended conditions tied to remote events are frequent traps.
• The charity-to-charity exception exempts certain charitable transfers from RAP; modern wait-and-see statutes and USRAP may alter the timing of analysis when specified by the problem.
• The rule of convenience governs when certain class gifts close and can interact with RAP to salvage gifts or limit class membership.
• Total disabling restraints on alienation of a fee simple are void; reasonable forfeiture or promissory restraints may be valid when attached to lesser estates or used in commercial and common-interest community contexts.
• Use restrictions tied to defeasible fees are generally valid and are distinct from direct restraints on alienation; these typically restrict land use rather than transfer.
• Easements grant nonpossessory usage rights; their scope is interpreted in light of the grant language, prior use, and reasonable, foreseeable development of the dominant estate.
• Implied easements can arise from prior use (reasonable necessity), necessity (strict necessity), subdivision plats, or profits; prescriptive easements arise from adverse use meeting statutory requirements; easements by estoppel arise from reasonable reliance on permission.
• Easements appurtenant run with both the dominant and servient estates; easements in gross usually run with the holder and may or may not be assignable depending on their nature.
• Using an easement to benefit after-acquired parcels or to impose dramatically greater burdens may constitute a surcharge and can be enjoined; surcharge does not terminate the easement.
• Easements can terminate by release, merger, abandonment (clear intent plus act), prescription (adverse blocking by the servient owner), expiration of necessity, estoppel, condemnation, or destruction of the servient estate; merger requires common ownership of both dominant and servient estates in an estate of equal or greater duration than the easement.
• Licenses are revocable privileges that do not create interests in land, but reliance can transform them into easements by estoppel; profits carry implied easements to enter and remove resources.
• Recording statutes protect certain later purchasers (BFPs) and can cut off unrecorded easements, covenants, or future interests; notice can be actual, record, or inquiry.
• Notice statutes, race statutes, and race-notice statutes differ in how they allocate priority among competing grantees; exam questions often require recognizing the statute type from its wording.
• Correctly identifying and labeling estates, future interests, limitations, and nonpossessory rights is essential for MBE success because classification controls transferability, RAP application, scope of use, and available remedies.
• Historical doctrines like the rule in Shelley's Case and the doctrine of worthier title may still appear on the exam and can alter who holds which estate or future interest.
• Covenants and equitable servitudes, while distinct from easements and defeasible fees, also regulate land use and raise scope issues about enforcement, changed circumstances, and who is bound.
• Across all of these topics, careful attention to words of time, condition, and purpose, as well as to recording and notice, is essential for spotting and resolving scope issues on MBE property questions.

Key Terms and Concepts

• Present Possessory Estate
• Future Interest
• Fee Simple Absolute
• Fee Tail
• Life Estate
• Life Estate Pur Autre Vie
• Life Tenant
• Leasehold Estate
• Term of Years Tenancy
• Periodic Tenancy
• Tenancy at Will
• Tenancy at Sufferance
• Waste
• Voluntary Waste
• Permissive Waste
• Ameliorative Waste
• Open Mines Doctrine
• Defeasible Fee
• Fee Simple Determinable
• Fee Simple Subject to Condition Subsequent
• Fee Simple Subject to Executory Limitation
• Possibility of Reverter
• Right of Entry
• Reversion
• Remainder
• Condition Precedent
• Condition Subsequent
• Vested Remainder
• Indefeasibly Vested Remainder
• Vested Remainder Subject to Open
• Vested Remainder Subject to Complete Divestment
• Contingent Remainder
• Alternative Contingent Remainders
• Doctrine of Destructibility of Contingent Remainders
• Executory Interest
• Shifting Executory Interest
• Springing Executory Interest
• Class Gift
• Rule Against Perpetuities
• Measuring Life (Validating Life)
• Wait-and-See Approach
• Rule of Convenience
• Charity-to-Charity Exception
• Rule in Shelley's Case
• Doctrine of Worthier Title
• Restraint on Alienation
• Disabling Restraint
• Forfeiture Restraint
• Promissory Restraint
• Easement
• Easement Appurtenant
• Easement in Gross
• Dominant Estate
• Servient Estate
• Implied Easement
• Easement by Necessity
• Prescriptive Easement
• Easement by Estoppel
• Profit à Prendre (Profit)
• License
• Surcharge (of an Easement)
• Merger (of Easements)
• Bona Fide Purchaser (BFP)
• Recording Statute
• Race Statute
• Notice Statute
• Race-Notice Statute
• Option to Purchase
• Right of First Refusal