Review Session 1

Property Law Review Session 1

Adverse Possession and Future Interests

Adverse Possession Against Life Estates

Rule: An adverse possessor cannot adversely possess against a future interest holder.

Hypothetical: O to A for life, then to B

• O: Fee simple absolute (FSA)
• A: Present possessory interest in a life estate (A is the measuring life)
• B: Indefeasible vested remainder

If C adversely possesses during A’s lifetime:

• C gains adverse possession only for the duration of A’s life
• C would have a life estate pur autre vie (for A’s life)
• When A dies, adverse possession starts over against B
• B is a future interest holder and cannot be adversely possessed against

Rationale: C can only possess against the present possessory interest holder. Since B is a future interest holder, the adverse possession clock restarts when B’s interest becomes possessory.

Tacking in Adverse Possession

When tacking does NOT apply:

• No tacking discussion needed when the statute of limitations restarts due to a future interest vesting
• Different owners with intervening acts (like death terminating a life estate) are not successive adverse possessors
• Tacking is specific to adverse possessors (trespassers), not new owners

When the clock does NOT restart:

• If A has FSA and sells to B while T (trespasser) is adversely possessing
• B is not a future interest holder, just a new owner by sale
• The adverse possession clock continues running

Life Estate Pur Autre Vie

Creating a Life Estate Pur Autre Vie:

Example: O to A for life, then to B. A sells “in fee simple absolute” to C.

• C takes only what A has
• A cannot convey more than A possesses
• C receives: Present possessory interest in a life estate with A being the measuring life
• This is a life estate pur autre vie (for the life of another)
• When A dies, the property goes to B (not C or C’s heirs)

Example: O to A and B for life as joint tenants with right of survivorship

• Maximum duration is the life of one of them
• If B dies, A succeeds to 100% ownership in a life estate
• A has a present possessory interest in a life estate with A being the measuring life
• O retains a reversion

If B sells her interest to C:

• C receives a life estate pur autre vie (for B’s life)
• When B dies, C’s interest terminates

Future Interests

Analyzing Future Interests

Step-by-step approach:

1. Identify if it’s a remainder
2. Determine if it’s vested or contingent
3. If contingent: identify the condition precedent or unascertainable person
4. If vested: determine which type
   • Indefeasible
   • Subject to open
   • Subject to complete divestment

Remainders: Vested vs. Contingent

Vested Remainder:

• In an ascertainable (living) person
• No condition precedent

Contingent Remainder:

• Either: condition precedent exists
• Or: unascertainable person

Example: O to A for life, then to B if B gets an A+ in evidence

• O: FSA (presumed)
• A: Present possessory interest in a life estate (A is measuring life)
• B: Contingent remainder (condition precedent: getting an A+)
• O: Reversion (if B doesn’t satisfy the condition)

Alternative Contingent Remainders

Definition: When two contingent remainders are created where one serves as an alternative to the other.

Example: O to A for life, then to B if B gets an A+ in evidence, otherwise to C

• A: Present possessory interest in a life estate (A is measuring life)
• B: Contingent remainder
• C: Alternative contingent remainder
• No reversion to O (one or the other must take)

Note: This concept appears in the 9th edition but was removed from the 10th edition of the textbook.

Rule Against Perpetuities: Alternative contingent remainders are subject to RAP because they are contingent remainders.

Rule Against Perpetuities

USRAP (Uniform Statutory Rule Against Perpetuities)

Two-step analysis:

Step 1: Apply common law RAP

• If valid under common law, the interest is valid
• If void under common law, proceed to Step 2

Step 2: Wait and see for 90 years

• If the interest vests within 90 years, it is valid
• If the interest does not vest within 90 years, it is void

Common Law RAP: Children Reaching Age 22+

Rule: Any contingent interest requiring children to reach age 22 or more is always void under common law RAP.

Example: O to A for life, then to B’s children who reach 22

• Facts: B has two children, C (age 21) and D (age 20)
• Under common law RAP: VOID (age requirement is 22)
• Under USRAP: Wait 90 years to see if it vests
  • If A dies 20 years later when C and D are 31 and 30: VALID (vested within 90 years)

The Rule in Shelley’s Case

Context: Common law concept and modern minority rule

The Rule: When one instrument purports to convey:

1. A life estate to a grantee, AND
2. A fee simple interest to that same grantee’s heirs

Then the doctrine of merger applies, transposing the conveyance into a fee simple to the grantee.

Example: O to A for life, then to A’s heirs

Under Shelley’s Case:

• Treated as equivalent to: O to A and her heirs (FSA to A)
• OR in modern law: O to A (FSA to A)

Rationale: A will die and the property will go to A’s heirs anyway. The life estate and remainder merge into a present fee simple absolute in A.

Exam Approach:

• Create a subheader for “Shelley’s Case” or “Merger”
• Apply the doctrine if the pattern appears
• Do not need extensive discussion of merger itself

Essay Writing Strategy

Organization and Format

General Rules:

• Use IRAC format: Issue, Rule, Analysis/Application, Conclusion
• Break down each element systematically
• Conclusion should be a very short sentence (separate from analysis)
• Don’t put your conclusion in your discussion

Breaking Down Estates: Use at least two sentences:

1. Is the estate a present interest or future interest?
2. What type of estate is it exactly?

Example:

“This is a present possessory interest because it is conveyed ‘to A.’ This present possessory interest will last for the duration of A’s life, as evidenced by ‘for life.’ Therefore, A has a present possessory interest in a life estate.”

Avoid: “A has a life estate because ‘to A for life.’” (Too conclusory)

Adverse Possession Organization

Option 1 - Separate headers (preferred if no page limit):

• Use subheaders for each element:
  • Actual
  • Open and Notorious
  • Exclusive
  • Hostile
  • Continuous
• Give rule, analysis, and conclusion for each

Option 2 - Single paragraph (acceptable with page restrictions):

• One header: “Adverse Possession”
• Give the overall rule
• Discuss each element within one paragraph
  • “Open and notorious requires… Here, [facts]…”
  • “Hostile requires… Here, [facts]…”
• One conclusion at the end

Important: Even in a single paragraph, ensure each element gets adequate discussion. Don’t shortchange important elements just because you’ve written a lot overall.

Page Limits and Restrictions

Exam specifications:

• Total: 30 pages (approximately 10 pages per essay)
• Double-spaced (5 pages single-spaced equivalent)

With page restrictions:

• Organization will not be graded
• Can combine issues into larger paragraphs
• Focus on complete substantive analysis over formatting
• Ensure every required element is discussed thoroughly

Adverse Possession Special Issues

Future Interest Holders:

• Only discuss if the fact pattern raises the issue
• If applicable: conclude that adverse possessor “succeeds to adverse possession against A’s interest, and A’s interest only”
• Would typically be mentioned in the conclusion rather than as a separate section

Multiple Adverse Possessors:

• Generally combine into one discussion (preferred)
• Only write separate discussions if:
  • Different adverse possessor on separate piece of land
  • Different time periods that don’t involve tacking

Evidence Law Topics

[Note: The review session transitioned to Evidence law midway through. Evidence topics covered included hearsay exceptions, business records, Crawford confrontation clause, and authentication. These are not included in this Property-focused outline.]