Property Study Guide
Property Law examines the rights and obligations that arise from the ownership, possession, and use of land and personal property. The course traces property concepts from foundational theories (first possession, labor theory) through the modern regulatory state. Students study both the historical common-law estates system and contemporary statutory frameworks that govern land use.
The first part of the course typically covers acquisition (first possession, find, gift, adverse possession) and the estates system (fee simple absolute, life estate, fee simple defeasible, remainders, executory interests). Understanding future interests and the rules that govern their validity — including the Rule Against Perpetuities — is among the most technically demanding aspects of the 1L curriculum.
The second half shifts to modern property issues: concurrent ownership (tenancy in common, joint tenancy, tenancy by the entirety), landlord-tenant law (the implied warranty of habitability, constructive eviction, retaliatory eviction), easements, covenants, and servitudes. The course concludes with the Takings Clause of the Fifth Amendment — when government regulation of property constitutes a 'taking' requiring just compensation. Zoning, the police power, and the tension between private property rights and public welfare are recurring themes.
Table of Contents
1Estates & Future Interests
The estates system classifies ownership interests by their duration and conditions. Present estates include the fee simple absolute (potentially infinite duration), the life estate (measured by a life), the fee simple determinable (automatically ends upon a stated event), the fee simple subject to condition subsequent (grantor must exercise right of re-entry), and the fee simple subject to executory limitation. Future interests follow present estates: reversion, possibility of reverter, right of entry, vested remainder, contingent remainder, and executory interest. The Rule Against Perpetuities invalidates certain future interests that might not vest within a life in being plus 21 years.
Key Doctrines
- Fee simple absolute
- Life estate
- Fee simple determinable / possibility of reverter
- Fee simple subject to condition subsequent / right of entry
- Fee simple subject to executory limitation
- Vested and contingent remainders
- Executory interests (springing and shifting)
- Rule Against Perpetuities
- Doctrine of Worthier Title
- Rule in Shelley's Case
- Waste (permissive, voluntary, ameliorative)
Essential Cases
2Concurrent Ownership
Property can be owned simultaneously by multiple persons. A tenancy in common gives each co-tenant an undivided interest with no right of survivorship. A joint tenancy includes the right of survivorship — when one joint tenant dies, the property passes to the survivor(s) — and requires the four unities (time, title, interest, possession). Tenancy by the entirety is a special form of joint tenancy available only to married couples. Partition (voluntary or judicial) and accounting for rents, profits, and expenses are common exam topics.
Key Doctrines
- Tenancy in common
- Joint tenancy (four unities: TTIP)
- Right of survivorship
- Severance of joint tenancy
- Tenancy by the entirety
- Partition (in kind or by sale)
- Ouster
- Accounting for rents and profits
Essential Cases
3Landlord-Tenant Law
Landlord-tenant law governs the rental of property. The four types of tenancies are the term of years, periodic tenancy, tenancy at will, and tenancy at sufferance. Modern landlord-tenant law has been transformed by the implied warranty of habitability, which requires residential landlords to maintain premises in a habitable condition regardless of lease terms. Tenants may also claim constructive eviction when a landlord's acts or omissions substantially interfere with their use and enjoyment. Mitigation of damages, security deposits, and retaliatory-eviction protections are also tested.
Key Doctrines
- Types of tenancies (years, periodic, at will, at sufferance)
- Implied warranty of habitability
- Constructive eviction
- Covenant of quiet enjoyment
- Duty to mitigate damages
- Retaliatory eviction
- Assignment and sublease
- Holdover tenants
4Easements, Covenants & Servitudes
Easements grant the right to use another's land for a specific purpose (affirmative easement) or to prevent the owner from using their land in a certain way (negative easement). Easements can be created by express grant, reservation, implication, necessity, or prescription. Real covenants and equitable servitudes are promises regarding land use that run with the land and bind subsequent owners. Real covenants require horizontal and vertical privity; equitable servitudes require only notice. The Restatement (Third) of Property consolidates these into a single category of servitudes.
Key Doctrines
- Appurtenant vs. in gross easements
- Easement by express grant or reservation
- Easement by implication / necessity
- Prescriptive easement
- Scope and termination of easements
- Real covenants (horizontal and vertical privity, touch and concern)
- Equitable servitudes (notice requirement)
- Common development schemes (implied reciprocal servitudes)
- Restrictive covenants and enforcement
5Takings & Zoning
The Fifth Amendment's Takings Clause provides that private property shall not be taken for public use without just compensation. A physical taking occurs when the government occupies or physically invades property (Loretto). A regulatory taking occurs when government regulation goes 'too far' in restricting the use of property (Pennsylvania Coal v. Mahon). The Penn Central balancing test considers economic impact, investment-backed expectations, and the character of the government action. Per se regulatory takings arise when the regulation eliminates all economically beneficial use (Lucas). Zoning under the police power must bear a rational relationship to a legitimate government purpose (Euclid).
Key Doctrines
- Physical taking / per se taking (Loretto)
- Regulatory taking (Pennsylvania Coal)
- Penn Central balancing test
- Total economic wipeout (Lucas)
- Public use / public purpose (Kelo)
- Just compensation
- Unconstitutional conditions (Nollan/Dolan nexus and proportionality)
- Zoning and police power (Euclid)
- Nonconforming uses and variances
Essential Cases
6Adverse Possession
Adverse possession allows a person to acquire title to land by occupying it for a statutory period under specified conditions. The possession must be: (1) actual and exclusive, (2) open and notorious, (3) adverse and hostile (without the owner's permission), (4) continuous for the statutory period, and (5) under claim of right (in some jurisdictions). Tacking allows successive possessors in privity to aggregate their periods of possession. Color of title (possession under an invalid deed) may expand the area claimed and reduce the statutory period in some states.
Key Doctrines
- Elements of adverse possession (actual, exclusive, open/notorious, adverse/hostile, continuous)
- Claim of right / color of title
- Tacking
- Statutory period
- Disabilities and tolling
- Government land (generally immune)
- Good faith vs. bad faith possessors
Exam Tips for Property
For estates and future interests, label every interest created by the conveyance — both the present estate and all future interests. State the name of each interest precisely (e.g., 'contingent remainder in fee simple absolute in B'). Then check the Rule Against Perpetuities for every contingent remainder and executory interest.
The Rule Against Perpetuities requires finding a validating life — a person alive at the creation of the interest by whom you can prove the interest must vest or fail within 21 years. If no validating life exists, the interest is void. Practice the 'what if' scenarios: what if the named person dies tomorrow?
For landlord-tenant questions, always identify the type of tenancy first, then address modern implied terms. The implied warranty of habitability is non-waivable in most residential jurisdictions. Remedies include repair-and-deduct, rent withholding, and termination.
Easement questions require identifying: (1) how the easement was created (express, implied, necessity, prescription), (2) its scope (appurtenant or in gross), (3) whether it runs to successors, and (4) how it may be terminated (merger, release, abandonment, estoppel, prescription, necessity ending).
For takings questions, first determine if there is a physical taking (per se — Loretto) or a regulatory taking. For regulatory takings, check for a total economic wipeout (per se — Lucas), then apply the Penn Central three-factor balancing test. For exactions, apply the Nollan/Dolan nexus and rough proportionality test.
Covenants that run with the land require separate analysis depending on whether the plaintiff seeks damages (real covenant — requires privity) or an injunction (equitable servitude — requires notice). Always analyze both paths.
On adverse possession, methodically check each element against the facts. The most commonly tested issues are whether possession was sufficiently open and notorious, whether it was continuous (especially with seasonal use), and whether the hostility requirement is satisfied under the jurisdiction's standard.
For first-possession and finders questions, categorize the property (wild animal, lost, mislaid, abandoned, treasure trove) and the finder's status (trespasser, employee, customer). Each combination has different rules.
Frequently Asked Questions
What is the Rule Against Perpetuities?
The Rule Against Perpetuities states that no future interest is valid unless it must vest, if at all, within 21 years after the death of some life in being at the creation of the interest. It applies to contingent remainders, executory interests, and certain class gifts, but not to future interests retained by the grantor (reversion, possibility of reverter, right of entry). Many states have adopted modifications such as the wait-and-see approach, cy pres reformation, or the Uniform Statutory Rule Against Perpetuities (90-year period).
What are the elements of adverse possession?
Adverse possession requires: (1) actual possession — the claimant must physically occupy and use the land; (2) exclusive possession — not shared with the true owner; (3) open and notorious — visible enough to put a reasonable owner on notice; (4) adverse/hostile — without the owner's permission; and (5) continuous for the statutory period (varies by state, typically 5-20 years). Some jurisdictions additionally require claim of right or color of title.
What is the implied warranty of habitability?
The implied warranty of habitability, established in Javins v. First National Realty (1970), requires residential landlords to maintain rental premises in a condition fit for human habitation throughout the tenancy. It cannot be waived in the lease. When breached, tenants may withhold rent, repair and deduct, seek damages, or terminate the lease. The standard is typically tied to local housing codes. It applies only to residential (not commercial) leases in most jurisdictions.
What is the difference between a physical taking and a regulatory taking?
A physical taking occurs when the government permanently occupies or physically invades private property — this is a per se taking requiring just compensation regardless of the economic impact (Loretto v. Teleprompter Manhattan). A regulatory taking occurs when a government regulation restricts property use so severely that it is equivalent to a physical appropriation. Courts apply the Penn Central balancing test (economic impact, investment-backed expectations, character of the action) or, if the regulation eliminates all economically beneficial use, the Lucas per se rule.
What is the difference between a real covenant and an equitable servitude?
Both are promises about land use that bind subsequent owners, but they differ in remedy and requirements. A real covenant is enforceable at law for damages and requires: intent to run, touch and concern, horizontal privity (between the original parties), vertical privity (between a party and their successor), and notice. An equitable servitude is enforceable in equity by injunction and requires only: intent to run, touch and concern, and notice (actual, constructive, or inquiry). Equitable servitudes do not require privity of estate.
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