What makes a property brief different from a torts or contracts brief?
Torts and contracts cases are usually about two parties and one transaction. Property cases are frequently about three or more parties, several transactions spread across decades, and a dispute in which nobody committed a wrong—they just both think they own the same thing. Your brief has to capture that structure or the reasoning will not make sense a month later.
Three habits carry most of the load. First, classify: property answers depend on putting a label on an interest. "O conveys to A so long as the land is used for school purposes" is a fee simple determinable with a possibility of reverter in O, and that classification decides whether title reverted automatically or required an affirmative reentry. Mahrenholz v. County Board of School Trustees turns entirely on that distinction. Second, sequence: who took what, when, and who knew what at each moment. Third, ask which stick in the bundle is in play—possession, exclusion, use, or transfer. Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), is about exclusion and nothing else, which is why nominal damages supported a $100,000 punitive award.
How do you draw the state of the title?
Before you write a word of prose, draw the transactions on a timeline. Put dates on the left, grantor-to-grantee arrows in the middle, and the resulting state of title on the right. For a recording act case, add two more columns: date recorded and notice (actual, record, or inquiry). Nearly every recording problem resolves once you can see that the second purchaser recorded first but had inquiry notice from someone in open possession.
For estates and future interests, restate the state of title after each conveyance in full technical language: "A has a life estate; B has a contingent remainder in fee simple absolute; O has a reversion." Then run the Rule Against Perpetuities if any executory interest or contingent remainder appears, and note whether the jurisdiction has adopted a wait-and-see or USRAP-style reform. Writing out the state of title is tedious the first ten times and automatic after that.
For servitudes, draw the parcels. Label the dominant and servient estates, mark where the burden and the benefit sit, and note whether the original parties were in horizontal privity and whether the current parties are in vertical privity. A one-inch sketch of two lots and a driveway will do more for you than a paragraph of description.
What goes in each part of the brief?
Keep the standard architecture and load it with property-specific content. One page, maximum.
- Citation and court: full Bluebook form, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Note the court level, because a state intermediate appellate case is persuasive authority only and your professor may be teaching it as a minority position.
- Facts: only the facts that changed the outcome, plus the timeline diagram. In Howard v. Kunto, 477 P.2d 210 (Wash. Ct. App. 1970), the operative facts are that the occupants used the beach house only in summer and that successive owners passed possession by deed—those two facts produce continuity and tacking.
- Procedural posture: who sued for what relief. Property remedies are the whole ballgame—ejectment, quiet title, partition, injunction, damages, specific performance. Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970), is a nuisance case decided on remedy, not liability.
- Issue: frame it with the doctrinal category named. Not "who owns the fox" but "what constitutes occupancy sufficient to establish first possession of a wild animal."
- Holding and rule: state the rule as a testable standard with its elements, and mark whether it is majority, minority, or a restatement position your professor is using to critique the majority.
- Reasoning: identify the reasoning mode. Property opinions run on custom, labor theory, economic efficiency, administrability of bright-line rules, and reliance—often explicitly. Note which one the majority uses and which the dissent prefers.
- Disposition and notes: affirmed, reversed, remanded; plus one line on what the casebook notes add, because in property the notes routinely supply the modern statutory rule that displaced the case.
How does the brief change across the property units?
Acquisition cases (first possession, find, adverse possession, gifts): capture the test's elements verbatim and note what counts as satisfying each. For adverse possession, list actual, open and notorious, exclusive, continuous, and hostile, then record how the court defined the contested element and whether the jurisdiction requires good faith, bad faith, or is objective as to state of mind. Note any color-of-title or tax-payment statute.
Estates and future interests: state of title after each conveyance, RAP analysis, and any rule of construction the court applied—preference for fee simple over life estate, preference against forfeiture, or the constructional preference for vested interests.
Concurrent ownership and marital property: identify the tenancy (joint tenancy, tenancy in common, tenancy by the entirety), whether the four unities were satisfied, and whether some act severed it. Track accounting, contribution, ouster, and partition in kind versus partition by sale.
Landlord-tenant: name the tenancy type and how it terminates, and separate assignment from sublease by asking whether the transferor retained a reversion. Flag which duties are non-waivable—the implied warranty of habitability recognized in Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970), generally cannot be contracted away, while the duty to mitigate and the covenant of quiet enjoyment behave differently across states.
Servitudes: for easements, note creation method (express, implication from prior use, implication by necessity, prescription, estoppel), scope, and termination. For covenants, run the running elements separately for burden and benefit, at law and in equity, and note that equitable servitudes require notice rather than horizontal privity.
Transfer and recording: quote the recording statute and label it race, notice, or race-notice. That label decides the case. Also note the difference between the marketable title standard in the contract and the deed covenants that survive closing, and remember the doctrine of merger.
Takings, zoning, nuisance: identify which takings framework applies—physical occupation under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), total economic wipeout under Lucas, or the ad hoc balancing of Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978)—and then note the public use and just compensation questions separately, as in Kelo v. City of New London, 545 U.S. 469 (2005).
How do you handle jurisdictional splits and default rules?
Property is state law, and the splits are real, not academic. Recording acts vary by state. Adverse possession periods range from roughly five to twenty years. Some states require the landlord to mitigate on tenant abandonment and some do not. Whether a landlord may unreasonably withhold consent to assignment splits along the same line. Your brief should carry a one-line "split" note whenever the casebook signals one, because exam questions are usually written to sit exactly on the fault line.
Separately, mark whether the rule is a default the parties can contract around or a mandatory rule they cannot. Most landlord-tenant and future-interest rules are defaults; the implied warranty of habitability, the rule against unreasonable restraints on alienation, and the constitutional limits on racially restrictive covenants under Shelley v. Kraemer, 334 U.S. 1 (1948), are not. This distinction determines whether a well-drafted clause in the fact pattern wins or is void.
What should the brief look like when you are done?
One page or less: caption line, a timeline sketch, four to six facts, a one-sentence issue, a rule stated in elements, three to five sentences of reasoning, disposition, and a two-line note on policy and jurisdictional variation. If the brief is longer than that, you are transcribing rather than distilling.
Then do the step most students skip. After each unit, collapse your briefs into a rule outline organized by legal question—"how is an easement by implication created," not "Van Sandt." Case names are shorthand for rules, and on a closed-book exam the grader rewards the rule statement and the application; the case name earns you a sentence of credit at most. Briefs are the input. The outline is the product you actually take into the exam.
What are the most common mistakes?
Copying facts. Property fact patterns are long and full of dates; the temptation is to reproduce them. Reproduce only the facts that appear in the court's reasoning.
Using loose language for interests. "He had a future interest" is worthless. Write "possibility of reverter" or "executory interest" or "contingent remainder subject to open." Precision here is the entire skill.
Ignoring remedy. A property case that grants an injunction rather than damages is teaching entitlement protection, not liability. Spur Industries v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972), makes no sense unless you note that the court enjoined the feedlot and required the developer to indemnify it.
Skipping the dissent and the notes. In property, the dissent frequently states the modern rule or the position of the Restatement, and the casebook notes frequently state the statute that replaced the case's common law rule.