Property Exam Checklist

Read the call of the question first. Property fact patterns often ask a narrow question — "Advise Betty as to her interest in Blackacre" — and a full sweep of every doctrine you know will cost you time without earning points. Whose interests are you being asked about, and as of what date?

Then build a timeline. Property problems are almost always chronological: O conveys, then dies, then the grantee mortgages, then someone records, then someone possesses adversely. Write the conveyances vertically down the margin with dates, and next to each one note what estate or interest it created and in whom. Half the analytical work on an estates or recording problem is done once the chain of title is drawn correctly.

Finally, tag each transaction with a category from your checklist. A deed problem is a recording problem and possibly a covenants-of-title problem. A lease is a landlord-tenant problem and possibly an assignment/sublease problem. Categorizing before writing keeps you from producing three brilliant paragraphs on adverse possession in a question about equitable servitudes.

Classify every interest in every conveyance, in order, using the standard vocabulary. Do not skip the classification step to get to the "interesting" issue; graders usually award points for correct labels.

For defeasible fees, the distinction matters: a fee simple determinable ends automatically and leaves a possibility of reverter, while a fee simple subject to condition subsequent requires re-entry and leaves a right of entry. Courts prefer the latter when language is ambiguous, and the difference drives when the adverse possession or statute-of-limitations clock starts — the point litigated in Mahrenholz v. County Board of School Trustees.

Then run the rules that destroy or reform interests. The Rule Against Perpetuities voids a contingent future interest unless it must vest or fail within 21 years of a life in being at creation; identify the measuring life, find the validating life, and if none exists, strike the interest and restate what is left. Note whether your jurisdiction has adopted wait-and-see or the Uniform Statutory Rule Against Perpetuities' 90-year period — many have, and that changes the answer.

For concurrent ownership, identify the form first. Joint tenancy requires the four unities and carries a right of survivorship; tenancy in common does not; tenancy by the entirety exists only between spouses and only in some states, with creditor consequences (Sawada v. Endo). Then ask whether the joint tenancy was severed — by conveyance, including a conveyance to oneself (Riddle v. Harmon), and possibly by mortgage, which severs in title-theory states but not in lien-theory states (Harms v. Sprague).

Between cotenants, the recurring issues are possession, accounting, and partition. A cotenant in sole possession owes nothing absent ouster (Spiller v. Mackereth), owes contribution for taxes, mortgage interest, and necessary repairs but usually not improvements, and can compel partition — in kind if practicable, by sale if not (Delfino v. Vealencis).

For leases, work through: what kind of tenancy (term of years, periodic, at will, at sufferance); delivery of possession (American vs. English rule); the implied warranty of habitability in residential leases (Javins v. First National Realty; Hilder v. St. Peter) and the covenant of quiet enjoyment/constructive eviction; assignment versus sublease and who is in privity of estate or contract; whether a consent-to-assign clause requires commercial reasonableness (Kendall v. Ernest Pestana, a minority-but-growing rule); self-help eviction, generally barred (Berg v. Wiley); and the landlord's duty to mitigate after abandonment (Sommer v. Kridel).

Servitudes questions have a predictable two-part structure: was the interest validly created, and does it bind or benefit the current parties? Do both parts every time.

For easements, ask about creation by express grant or reservation (including reservation in a third party, allowed in Willard v. First Church of Christ, Scientist), by implication from prior use (Van Sandt v. Royster), by necessity (Othen v. Rosier), by prescription, or by estoppel from an irrevocable license (Holbrook v. Taylor). Then ask about scope, whether it is appurtenant or in gross, and termination by merger, abandonment, release, or prescription.

For running covenants, keep the two tracks separate. A real covenant enforceable at law for damages requires intent, touch and concern, notice, and both horizontal and vertical privity. An equitable servitude enforceable by injunction requires intent, touch and concern, and notice, but no privity (Tulk v. Moxhay). Touch and concern is where affirmative obligations like assessments get argued (Neponsit). Also check for implied reciprocal negative servitudes from a common scheme (Sanborn v. McLean), and for termination by changed conditions (Western Land Co. v. Truskolaski; contrast Rick v. West). Racially restrictive covenants are unenforceable under Shelley v. Kraemer.

Split the transaction into the executory period and the post-closing period. During the executory period: is the contract within the Statute of Frauds and satisfied or excepted by part performance; is title marketable (encumbrances, encroachments, zoning violations as in Lohmeyer v. Bower); who bears risk of loss under equitable conversion or the state's version of the Uniform Vendor and Purchaser Risk Act; and is there a duty to disclose latent defects (Johnson v. Davis; Stambovsky v. Ackley on the seller's own representations).

At and after closing, the deed merges the contract. Check delivery and acceptance, adequate description, and which covenants of title the deed contains — present covenants (seisin, right to convey, against encumbrances) breach at delivery and generally do not run, while future covenants (quiet enjoyment, warranty, further assurances) breach on eviction and do run.

For recording, always state the jurisdiction's act type, because the outcome turns on it: under a race statute the first to record wins; under a notice statute a subsequent bona fide purchaser without notice wins even if she never records; under a race-notice statute she must be without notice and record first. Then work through notice — actual, record (including wild deeds and the Guillette problem), and inquiry from possession or from references in recorded instruments. Add shelter rule, estoppel by deed, and the effect of an improperly acknowledged instrument if your course covered it.

Nuisance: substantial and unreasonable interference with use and enjoyment; then remedy, which is the real issue. Courts sometimes award damages instead of an injunction (Boomer v. Atlantic Cement) or enjoin the plaintiff-favored use with compensation to the defendant (Spur Industries v. Del E. Webb). Note that some interferences are not actionable at all, like blocked light and air under Fontainebleau, though Prah v. Maretti went the other way on solar access.

Zoning: comprehensive zoning is facially valid (Village of Euclid v. Ambler Realty) but can be invalid as applied (Nectow v. Cambridge). Check nonconforming uses, variances, special exceptions, spot zoning, and exclusionary zoning if your course assigned Mount Laurel.

Takings: start with permanent physical occupation, which is per se compensable (Loretto; Cedar Point Nursery v. Hassid on access rights). Then total deprivation of economically beneficial use (Lucas), subject to background principles of state property law. Otherwise apply the Penn Central factors: economic impact, interference with distinct investment-backed expectations, and the character of the government action. For exactions, apply the Nollan essential-nexus and Dolan rough-proportionality tests, extended to monetary exactions in Koontz. For public use, Kelo v. New London holds economic development qualifies, but note that many states have since restricted eminent domain by statute or constitutional amendment.

Adverse possession appears constantly, often buried inside a chain-of-title problem. Run the elements — actual, open and notorious, exclusive, continuous, hostile, for the statutory period — and then the modifiers: tacking between privies (Howard v. Kunto), tolling for disabilities, whether your jurisdiction requires good faith or treats state of mind as irrelevant, whether color of title expands the area possessed, and the minor-encroachment problem (Mannillo v. Gorski). Adverse possession generally does not run against the government.

Personal property doctrines are lower-frequency but high-value when they appear. Finders: relative title, and the prior possessor prevails against all but the true owner (Armory v. Delamirie); lost versus mislaid versus abandoned; found on another's land (Hannah v. Peel). Gifts: intent, delivery — actual, constructive, or symbolic — and acceptance, plus gifts causa mortis (Newman v. Bost) and delivery of a remainder interest by deed of gift (Gruen v. Gruen). Capture and first possession (Pierson v. Post) usually show up as a framing device rather than a standalone issue.

Allocate time by point value, not by how interesting the issue is. If the exam says a question is worth 30 of 100 points in a three-hour exam, that question gets roughly 54 minutes including outlining. Overwriting the first question is the single most common way strong students lose points.

Write in IRAC or a compressed version of it, with a separate mini-analysis for each issue and an explicit heading or topic sentence naming the issue. State the rule accurately, then use the facts — the specific dates, words of conveyance, and conduct in the problem — as the evidence for each element. Argue both sides where the facts are genuinely ambiguous, and then commit to a conclusion; conclusions are cheap and graders often give a point for them.

Two practical points. You do not need full Bluebook citations on an exam; case name plus rule is enough, and even the rule alone is fine if you cannot recall the name. And where the jurisdiction matters — recording act type, lien versus title theory, whether RAP has been reformed, whether the state follows the majority or minority rule on mitigation or on hostility — say so explicitly and analyze under each rule your professor taught. Identifying a split is often the point the question was written to test.

Finally, check your own professor's syllabus against this checklist and delete what was not assigned. Property coverage varies more than almost any other 1L course: some courses spend weeks on future interests and skip mortgages entirely, others run heavily toward takings and land use. The checklist you take into the exam should be the one that matches the semester you sat through.