What to Expect
Property cold calls are notorious for their technical precision. Your professor will expect you to use the exact names for estates and future interests—fee simple absolute, fee simple determinable, fee simple subject to condition subsequent, life estate, remainder, executory interest, possibility of reverter, right of entry. Misidentifying an interest or using imprecise language will trigger immediate correction and follow-up questions.
The first major hurdle is the estates system and future interests. Professors will give you conveyance language—'O conveys to A for life, then to B if B reaches 25'—and expect you to classify every interest created, identify any problems (like the Rule Against Perpetuities), and explain the consequences. This requires mechanical skill that comes only from practice. There is no way to reason your way through the Rule Against Perpetuities on the spot if you have not drilled it extensively.
Beyond the estates system, Property covers adverse possession, landlord-tenant law, easements, covenants, and zoning. These topics involve balancing competing rights—the owner's right to exclude versus the adverse possessor's reliance interest, the landlord's property rights versus the tenant's right to habitability. Expect policy questions about why we allow someone to gain title to land they do not own, or why we impose the implied warranty of habitability over freedom of contract.
Common Question Types
Estate Classification
“O conveys Blackacre 'to A so long as the land is used for educational purposes.' What estate does A have?”
A has a fee simple determinable. The key language is 'so long as,' which creates a durational limitation. If the condition is violated, the estate automatically reverts to the grantor. O retains a possibility of reverter, which is a future interest that becomes possessory automatically upon the occurrence of the terminating event. Distinguish from a fee simple subject to condition subsequent, which uses 'but if' or 'on condition that' language and requires the grantor to exercise a right of entry.
Rule Against Perpetuities
“O conveys 'to A for life, then to A's first child to graduate from law school.' A has no children. Is the future interest valid?”
Apply the Rule Against Perpetuities: an interest is void if there is any possibility it will not vest or fail within 21 years after the death of a measuring life in being at the creation of the interest. Here, A is the measuring life. A's first child to graduate law school must do so, if at all, within A's lifetime plus the time for the child to complete law school. But under the 'what if' scenarios: A could have a child after the conveyance, A could die, and that child might not graduate law school until more than 21 years after A's death. The interest in A's first child to graduate law school violates the RAP and is void.
Adverse Possession Elements
“A neighbor builds a fence two feet onto your property and maintains it for 15 years. Has she acquired title by adverse possession?”
Apply the five elements: (1) actual possession—the fence and use of the enclosed area satisfy this; (2) open and notorious—a fence is visible and would put a reasonable owner on notice; (3) exclusive—the neighbor possesses it to the exclusion of others; (4) continuous for the statutory period—15 years may satisfy the statute depending on the jurisdiction; and (5) hostile/adverse—under the majority objective test, the neighbor's intent is irrelevant; under the minority subjective tests, it matters whether she knew the fence was over the line. If all elements are met for the statutory period, she has acquired title.
Landlord-Tenant Classification
“A tenant remains in possession after the lease expires. What type of tenancy exists?”
A tenant who remains after lease expiration is a holdover tenant. The landlord has two options: (1) treat the tenant as a trespasser and bring an eviction action, or (2) hold the tenant to a new periodic tenancy. If the landlord elects a periodic tenancy, the terms of the expired lease generally carry over. The period is typically month-to-month for residential leases or year-to-year if the original lease was for a year or more. The distinction matters because it determines notice requirements for termination.
Easement Creation
“A property owner has used a path across her neighbor's land to reach the road for 20 years. The neighbor now blocks the path. Does the owner have an easement?”
Analyze under easement by prescription, which mirrors adverse possession: the use must be (1) actual, (2) open and notorious, (3) continuous for the statutory period, (4) adverse/hostile (without permission). If the owner used the path with the neighbor's permission, it is a license, not a prescriptive easement. Also consider easement by necessity (if the property is landlocked) or easement by implication (if the properties were once commonly owned and the use existed at the time of severance).
Covenant vs. Equitable Servitude
“A subdivision deed restricts all lots to residential use. A buyer wants to open a home business. Can the other homeowners enforce the restriction?”
Analyze as both a real covenant and an equitable servitude. For a real covenant running with the land (damages remedy), the elements are: (1) writing, (2) intent to bind successors, (3) touch and concern the land, (4) horizontal privity (between original parties), and (5) vertical privity (between original party and successor). For an equitable servitude (injunction remedy), the requirements are: (1) writing (unless implied from a common scheme), (2) intent to bind successors, (3) touch and concern, and (4) notice to the subsequent purchaser. The practical distinction is that equitable servitudes do not require privity.
Takings Analysis
“A city rezones a residential neighborhood to prohibit any development. Is this a taking requiring compensation?”
Under the Fifth Amendment's Takings Clause, a government regulation that goes 'too far' is a regulatory taking requiring just compensation. Apply the Penn Central balancing test: (1) the economic impact on the owner, (2) the extent of interference with reasonable investment-backed expectations, and (3) the character of the government action. If the regulation eliminates all economically beneficial use, it is a per se taking under Lucas v. South Carolina Coastal Council. A total development prohibition likely eliminates all economically beneficial use, triggering per se taking analysis unless justified by background principles of nuisance or property law.
Preparation Strategy
Property law requires rote memorization to a degree that other first-year courses do not. There is no substitute for drilling the estates in land and future interests until you can classify conveyances on sight. Make flashcards for every estate type and future interest, including the distinguishing language ('so long as' = fee simple determinable; 'but if' = fee simple subject to condition subsequent; 'to A for life, then to B' = life estate in A, vested remainder in B). Practice with at least 20 conveyance problems before your first cold call on this topic.
The Rule Against Perpetuities requires its own dedicated study sessions. Learn the rule's statement precisely, then work through the 'parade of horribles'—the classic scenarios where the RAP invalidates interests (the fertile octogenarian, the unborn widow, the slothful executor). Understanding why these scenarios violate the RAP builds the intuition you need to analyze novel conveyances.
For the policy-oriented topics (adverse possession, landlord-tenant, takings), prepare both doctrinal elements and policy justifications. Adverse possession rewards preparation because the elements are mechanical—professors can test each one independently. Landlord-tenant law has evolved significantly from the common law, so know both the traditional rules and modern reforms like the implied warranty of habitability.
Do's & Don'ts
Do's
- Use precise terminology for estates and future interests—no paraphrasing
- Classify every interest created by a conveyance, including retained interests
- State the Rule Against Perpetuities precisely before applying it
- Know the difference between possibilities of reverter, rights of entry, and reversions
- Identify the measuring life explicitly when working through RAP problems
- Distinguish between easements appurtenant and easements in gross
Don'ts
- Don't call a fee simple determinable a fee simple subject to condition subsequent—the consequences are different
- Don't forget to check the Rule Against Perpetuities for every contingent future interest
- Don't assume adverse possession requires the possessor to know they are trespassing—the majority rule is objective
- Don't confuse a license (revocable permission) with an easement (irrevocable property interest)
- Don't neglect the recording acts when analyzing who has superior title in a multiple-conveyance problem
Panic Protocol
When you get caught off guard, follow these steps to recover gracefully.
For conveyance problems, start by listing every party and then classify each interest: 'O has... A has... B has...'
If the RAP confuses you, state the rule first and then identify the measuring life: 'The measuring life is A because A is alive at the time of the conveyance and the interest is contingent on...'
For adverse possession, recite the elements as a checklist: 'The five elements are actual, open and notorious, exclusive, continuous, and hostile. Let me apply each one.'
If you cannot classify an estate, describe what you do know: 'The language creates a defeasible fee because there is a condition, but I need to determine whether it is determinable or subject to condition subsequent based on...'
Distinguish between the parties' interests: 'I want to first identify the present possessory estate and then determine what future interests exist.'
Sample Exchange
A realistic professor-student dialogue to help you see how cold calls unfold in Property.
Professor
O conveys Blackacre 'to A for life, then to B and her heirs, but if B ever uses the land for commercial purposes, then to C and his heirs.' Classify every interest.
Student
A has a life estate. B has a vested remainder in fee simple subject to an executory limitation. C has a shifting executory interest in fee simple absolute. O has no retained interest because the entire fee is disposed of.
Professor
Is C's interest valid under the Rule Against Perpetuities?
Student
We need to determine whether C's shifting executory interest will necessarily vest or fail within a life in being plus 21 years. The condition is 'if B ever uses the land for commercial purposes.' B is the measuring life—B is alive at the creation of the interest. If B uses the land commercially, the interest vests during B's lifetime. But if B never uses it commercially, the interest could theoretically vest when B's heirs or successors use it commercially—potentially long after B's death, beyond 21 years. Under the traditional RAP, C's interest is void.
Professor
What happens to the other interests now that C's executory interest is struck down?
Student
When the executory interest is voided, we remove the 'but if... then to C' language. What remains is: 'to A for life, then to B and her heirs.' A still has a life estate. B now has a vested remainder in fee simple absolute—the defeasibility condition is gone because the executory interest that would have divested B has been voided. O still retains nothing.
Professor
Could O have drafted this conveyance to avoid the RAP problem?
Student
Yes. O could have limited the condition to B's lifetime: 'to A for life, then to B and her heirs, but if B ever uses the land for commercial purposes during B's lifetime, then to C.' By tying the condition to B's lifetime, we guarantee the interest vests or fails within the life of B, who is a life in being. Alternatively, O could have used a savings clause: 'this interest shall vest, if at all, within 21 years of the death of the last to die of A and B.'
Professor
Good. Now, many states have abolished the RAP or adopted a wait-and-see approach. What is the wait-and-see reform?
Student
Under the wait-and-see approach, instead of voiding an interest at creation based on what might happen, the court waits to see whether the interest actually vests within the perpetuities period. The Uniform Statutory Rule Against Perpetuities adopts a 90-year wait-and-see period as an alternative to the common law lives-in-being-plus-21-years framework. Under this approach, C's executory interest would not be voided at creation—the court would wait up to 90 years to see if the condition occurs. If it does within 90 years, the interest is valid; if not, it fails.