Property Mnemonics & Memory Aids

The five elements of adverse possession that a claimant must satisfy continuously for the statutory period to acquire title to another's land.

• Open and notorious — possession must be visible and obvious so the true owner would discover it upon reasonable inspection
• Continuous for the statutory period — uninterrupted possession for the period specified by statute (varies by jurisdiction)
• Exclusive — the possessor must not share possession with the true owner or the public
• Actual — the possessor must physically use and occupy the land (not merely claim it)
• Non-permissive (hostile) — possession must be without the owner's consent; if permissive, the clock does not run

The common law Rule Against Perpetuities voids future interests that might vest too remotely. Many jurisdictions have reformed RAP with wait-and-see periods or abolished it entirely.

• No interest is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
• Applies to contingent remainders, executory interests, and options to purchase (not vested remainders, reversions, or possibilities of reverter)
• Look for the validating life — a measuring life who can prove the interest must vest or fail within the period
• Classic traps: fertile octogenarian, unborn widow, slothful executor
• Modern reform: USRAP 90-year wait-and-see period, cy pres reformation

The four types of landlord-tenant estates, distinguished by their duration and manner of termination.

• Life estate — measured by the life of a person (not technically a leasehold but often grouped with estates)
• Estate for years (term of years) — fixed start and end date, no notice required to terminate
• At-will tenancy — no fixed term, terminable by either party at any time (some jurisdictions require notice)
• Holdover tenant (tenancy at sufferance) — tenant remains after lease expires; landlord may evict or hold tenant to a new term

Framework for analyzing whether a government action constitutes a taking under the Fifth Amendment, requiring just compensation.

• Physical invasion — per se taking if permanent physical occupation (Loretto v. Teleprompter Manhattan CATV)
• Acts of regulation — regulatory takings analyzed under Penn Central factors
• Compensation required — just compensation equals fair market value at time of taking
• Interest must be total for per se regulatory taking (Lucas — total economic destruction)
• No public use, no valid taking — the government must demonstrate a public use or purpose (Kelo)
• Government must pay just compensation if a taking is found

The three types of recording statutes that determine priority among competing claimants to the same property.

• Race — first to record wins, regardless of notice (rare; only a few states use pure race)
• Notice — subsequent BFP who takes without notice of prior conveyance prevails, even if they have not yet recorded
• Race-notice — subsequent BFP prevails only if they (1) take without notice AND (2) record first (most common type)

The four main ways an easement can be created. An easement is a non-possessory right to use another's land.

• Prescription — continuous, open, hostile use for the statutory period (similar to adverse possession but no exclusivity required)
• Implication — implied from prior existing use when property is divided (quasi-easement must be apparent, continuous, and reasonably necessary)
• Necessity — implied when a parcel is landlocked and has no access without crossing another's land
• Grant — express easement created by a written instrument satisfying the Statute of Frauds

The three types of concurrent ownership, each with different rights regarding survivorship, transferability, and partition.

• Joint tenancy — equal shares, right of survivorship, requires four unities (TTIP: Time, Title, Interest, Possession), severable by any joint tenant
• Tenancy in common — default concurrent estate, no survivorship right, freely transferable, can have unequal shares
• Community property — marital property system in some states, equal ownership of property acquired during marriage

A joint tenancy requires all four unities. If any unity is severed, the joint tenancy converts to a tenancy in common.

• Time — all joint tenants must acquire their interests at the same time
• Title — all must acquire title by the same instrument
• Interest — all must have equal, undivided interests
• Possession — all must have equal rights to possess the whole property

For a real covenant to run with the land and bind successors, these elements must be met.

• Writing — the covenant must be in a writing satisfying the Statute of Frauds
• Intent — the original parties must have intended the covenant to run with the land
• Touch and concern — the covenant must affect the parties as landowners (not just personally)
• Horizontal privity — the original parties share some interest in land apart from the covenant (e.g., grantor-grantee)
• Implied in this is vertical privity — the successor must hold the entire estate of the original covenantor
• Notice — the successor must have notice of the covenant (actual, constructive, or inquiry)

Key concepts in mortgage law regarding priority disputes, foreclosure, and the borrower's rights.

• First in time, first in right — general priority rule, modified by recording acts
• Lien theory vs. title theory — determines mortgagee's rights before foreclosure
• Equity of redemption — borrower's right to redeem property by paying the full debt before foreclosure sale
• Deficiency judgment — if foreclosure sale proceeds are less than the debt, the lender may pursue the borrower for the difference

Courts consider these factors to determine whether a chattel has become a fixture (part of the real property) and passes with the land.

• Method of attachment — how permanently is the item affixed?
• Adaptability — is the item specially adapted to the property's use?
• Relationship of the parties — tenant's fixtures may be removable; buyer's fixtures generally are not
• Intent — did the annexor intend for the item to become a permanent part of the property?
• Agreement — did the parties agree on whether the item is a fixture?