A. Present Possessory Interests (Freeholds);The interest in land is separate from the land itself: many people can simultaneously hold estates in the same piece of property. For the bar exam, three questions arise as to each freehold: what language creates it, what its characteristics are (devisable, descendible, alienable), and what future interests accompany or do not accompany it.Four:1. Fee Simple Absolute2. Fee Tail3. Defeasible Fees4. Life EstateFreely Devisable: The owner can pass her interest by will.Freely Descendible: Passes via intestate succession if the owner dies without a will.Freely Alienable: Transferable inter vivos (during the owner's lifetime).

1. Fee Simple Absolute:Absolute ownership of land of potentially infinite duration, fully transferable inter vivos and at death, with no accompanying future interest.It is created with the classic language "To A and her heirs" or simply "To A."It is freely devisable, descendible and alienable, and carries no accompanying future interest: the owner's heirs have nothing while the owner is alive, since a living person has no heirs (they are merely prospective).

2. Fee Tail:Was historically designed to ensure succession by lineal blood descendants. It has been abolished in virtually every U.S. jurisdiction. Any modern attempt to create a fee tail is read as creating a fee simple absolute.Created by the language "To A and the heirs of her body".

3. Defeasible Fees:Defeasible fees are interests in land that may be cut short on the occurrence (or non-occurrence) of some stated event. Courts disfavor them because they discourage free alienation, so there is a strong presumption against forfeitures — clear durational language is required, and mere words of hope, intention, expectation or desire are not enough ("to A for the purpose of," "with the hope that," "with the expectation that" do not create a defeasible fee). Absolute restraints on alienation are void; the grantee instead takes a fee simple absolute. A restraint for a reasonable time may be valid.There are three defeasible-fee variants:a) Fee Simple Determinableb) Fee Simple Subject to Condition Subsequentc) Fee Simple Subject to Executory Limitation

When BOTH durational language AND a power of termination appear in the conveyance, courts (which abhor forfeitures) lean toward construing the grant as a FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT rather than a FEE SIMPLE DETERMINABLE — the former gives the grantor only a right of entry, which must be affirmatively exercised.

a) Fee Simple DeterminableA fee simple determinable automatically ends when a stated event occurs. It is created with clear durational language such as "to A so long as," "to A until," "to A during," or "to A provided that." Violation triggers automatic reversion to the grantor; the grantee's interest is devisable, descendible and alienable but always subject to the condition (nemo dat: one cannot transfer a greater interest than one has). The accompanying future interest in the grantor is a possibility of reverter.

Possibility of Reverter: The grantor's future interest that automatically becomes possessory when a fee simple determinable ends. It is devisable, descendible and alienable.

b) Fee Simple Subject to Condition SubsequentThis variant does not end automatically. The grantor must affirmatively exercise a right of re-entry. The language is durational PLUS an express reservation of the right to re-enter — for example, "to A but if X occurs, grantor shall have a right of entry," or "to A upon the condition that." The accompanying future interest is the right of entry (also called the power of termination); some courts hold it is not transferable inter vivos.

c) Fee Simple Subject to Executory LimitationThe estate passes automatically to a third person upon the stated event. The mechanics resemble the fee simple determinable (automatic termination) but the property leaves the grantor's chain entirely and goes to a third party. The accompanying future interest in that third party is a shifting executory interest. The classic language is "to A but if X occurs, then to B."

4. Life EstateA life estate is lifetime ownership of land — measured in lifetime terms, never in years. The simple life estate uses "To A for life." A life estate pur autre vie is measured by another's life: "To A for B's life." Life estates are generally indefeasible, but defeasible life estates are possible (terminable, subject to condition subsequent, or subject to executory interest).There are three variants:a) Affirmative (Voluntary) Wasteb) Permissive Wastec) Ameliorative Waste

The life tenant enjoys all ordinary uses and profits of the property but owes a duty not to commit waste — that is, not to harm the future-interest holders. Waste comes in three flavors: affirmative (voluntary), permissive, and ameliorative.

a) Affirmative (Voluntary) WasteAffirmative waste is an intentional structural change that harms or depletes resources. With natural resources the life tenant generally may not consume or exploit, unless one of the recognized exceptions applies. A useful mnemonic is PURGE: Prior use, Use for repairs, Reasonable maintenance, Granted/authorized, Exception of normal use.• Prior use — including the Open Mines Doctrine: continued excavation from a mine already open is OK; opening new mines is not.• Use for repairs and reasonable maintenance.• Expressly authorized by the grantor.• Normal use of the land (e.g., a quarry whose only use is exploitation).

b) Permissive WastePermissive waste is neglect — the failure to make ordinary repairs, pay taxes, or pay interest on the mortgage. The life tenant must maintain the property, but only to the extent of the income or profits the land produces; if the life tenant occupies herself without paying rent, the cap is the reasonable rental value (FMV). The remaindermen are responsible for extraordinary repairs and for principal on mortgages. The life tenant has no obligation to insure the premises.

c) Ameliorative WasteAmeliorative waste is an unauthorized improvement that changes the land's physical character. Counterintuitively, even improvements that increase value are prohibited at common law unless all future-interest holders consent. Modern law permits ameliorative waste under changed conditions.

The future interest behind a life estate is a REVERSION (if retained by the grantor) or a REMAINDER (if expressly granted to a third party). The classification of waste matters because each category has a different remedy and a different scope of recovery.

B. Future InterestsFuture interests are non-possessory present rights to become possessory at a later time. The first cut is who holds them — the grantor or a grantee — because each side carries its own catalogue of interests with its own rules of transferability.

1. Interests Retained by the GrantorThree interests can remain in the grantor. The possibility of reverter pairs with a fee simple determinable and becomes possessory automatically; it is fully transferable. The right of entry (power of termination) pairs with a fee simple subject to condition subsequent and must be affirmatively exercised; it is devisable and descendible, and in some jurisdictions not transferable inter vivos. The reversion is what remains after a vested estate of lesser quantum is granted (e.g., the grantor's interest behind a life estate or a term of years); it arises by operation of law and is fully transferable.

2. Interests Retained by the GranteeThree interests can sit in a grantee: remainders (vested or contingent), executory interests, and reversions taken back when a defeasible interest fails.

a) RemainderA remainder is a future interest created in a grantee, in the same instrument, that becomes possessory on the natural expiration of a preceding estate of known fixed duration. It must follow a preceding life estate or term of years, cannot divest the prior estate (otherwise it is an executory interest), and can never follow a fee simple or defeasible fee.Remainders are either vested or contingent.

Vested RemainderA vested remainder is held by an ascertained person and is not subject to any condition precedent. There are three sub-categories:• Indefeasibly vested — "To A for life, remainder to B." B will take, period.• Vested subject to complete defeasance — vested, but a condition subsequent or inherent limitation may divest the remainderman.• Vested subject to open — vested in a class, with at least one member qualified but shares not yet fixed.

Contingent RemainderA contingent remainder is created either (1) in an unascertained person, or (2) subject to a condition precedent. Failure of the condition reverts the interest to the grantor; satisfaction transforms it into an indefeasibly vested remainder.Three abolished common-law doctrines once policed contingent remainders. They are now largely gone, but the bar still tests them as a historical cluster.

MODERN HOSTILITY — the Rule in Shelley's Case, the Doctrine of Worthier Title and the Doctrine of Destructibility of Contingent Remainders are all largely abolished. ALWAYS check the jurisdiction first before applying any of them.

•    Destructibility of Contingent Remainders: at common law, a contingent remainder was destroyed if it did not vest at or before the termination of the preceding freehold estate. Modern law abolishes this; the grantor simply holds subject to a springing executory interest.

•    Rule in Shelley's Case: at common law, "To B for life, then to B's heirs" (B alive) merged the remainder into B's life estate, giving B a fee simple absolute. Modern law abolishes it: B has a life estate, B's heirs have a contingent remainder, and the grantor has a reversion.

•    Doctrine of Worthier Title: a purported remainder in the grantor's heirs is void — B takes a life estate and the grantor a reversion. This is a rule of construction (unlike Shelley's Case) and yields to clearly expressed contrary intent. Practical impact: O and B can together convey a fee simple absolute, because the remainder is back in O.

b) Executory InterestAn executory interest is a future interest in a grantee that, to become possessory, must divest or cut short either the prior estate (shifting) or spring out of the grantor (springing). Shifting executory interests always follow a defeasible fee.All remainders and executory interests are devisable, descendible and alienable.

C. The Rule Against Perpetuities (RAP)The Rule Against Perpetuities prevents "dead-hand" control over property far into the future. The classic formulation: no interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest. The "measuring life" must be a natural person alive when the interest was created, identifiable and connected with the vesting or failing of the interest.

1. Which interests are subject to RAPRAP applies to contingent remainders, executory interests, vested remainders subject to open, options to purchase land, rights of first refusal not in commercial leases, and powers of appointment. It does NOT apply to indefeasibly vested remainders, vested remainders subject to complete defeasance, or any future interests retained by the grantor (possibility of reverter, right of entry, reversion).Vesting timing matters by category:• Contingent remainders vest by (1) identifying the taker and (2) satisfying the condition precedent.• Executory interests vest at taking of possession.• Vested remainders subject to open vest at closing of the class.

All-or-Nothing Rule: if any class member's interest might vest beyond 21 years after the measuring life, ALL members' interests are void. Charitable grants are exempt — a charitable trust can be perpetual, and charity-to-charity conveyances escape RAP entirely.

The four classic "what might happen" fact patternsThese are the canonical bar-exam fact patterns that violate RAP because some far-fetched possibility might delay vesting beyond 21 years after any life in being.Fertile Octogenarian: The common law presumes anyone, at any age, can parent a child — so a grant tied to grandchildren may vest too remotely.Unborn Widow: The grantor (or someone alive) may marry a person not yet born at the creation of the interest, whose life cannot be the measuring life.Slothful Executor: Probate of a will may be delayed for many years; an interest tied to the completion of probate may vest too late.Precocious Toddler: A toddler may be presumed able to have a child, again pushing class-closing past the perpetuities period.

3. Modern RAP reformsTwo doctrines soften the rule. Wait-and-see asks whether the interest actually fails to vest within the perpetuities period, rather than testing only the worst-case scenario at creation. USRAP supplies a 90-year alternative vesting period and authorizes a court to reform a violating instrument under cy pres.

REVIEW EXAMPLE — Why does a charity-to-charity conveyance escape RAP?Answer: Because public policy favors uninterrupted devotion of property to charitable purposes; charitable interests may be perpetual, and a conveyance from one charity to another preserves that exempt character throughout.

D. Concurrent EstatesConcurrent estates arise when two or more persons hold present possessory interests in the same property at the same time. The three modern forms — joint tenancy, tenancy by the entirety, and tenancy in common — differ chiefly in creation, the right of survivorship, and how each can be severed.

1. Joint TenancyJoint tenancy is created by language such as "to A and B as joint tenants with the right of survivorship." Its hallmark is the right of survivorship: on a joint tenant's death, that interest passes automatically to the surviving joint tenant(s). Because of survivorship, a joint tenancy interest is alienable inter vivos but neither devisable nor descendible.Joint Tenancy: A concurrent estate held by two or more persons with the right of survivorship, requiring the four unities (time, title, interest, possession) plus express survivorship language.

Joint tenancy requires the four unities (TTIP) plus express survivorship language — see Appendix B. Where the unity of time is impossible (e.g., the grantor wants to join an existing owner in joint tenancy), historically a straw-man conveyance solved the problem.

Severance of a Joint TenancySeverance breaks one or more of the four unities and converts the joint tenancy into a tenancy in common as to the severed share — extinguishing the right of survivorship for that share. The triggers a bar examinee must recognize are:• Voluntary agreement among the joint tenants.• Court-ordered division by partition — partition in kind is preferred, partition by forced sale is the fallback.• Inter vivos conveyance by a joint tenant: the buyer becomes a tenant in common with the remaining joint tenants (who stay joint tenants between themselves).• Contract to sell: severs at the moment of contracting under equitable conversion.• Mortgages — lien-theory jurisdictions (majority and CA) do NOT sever; title-theory jurisdictions sever on signing.• Forced sale: a judgment lien severs only upon foreclosure sale; foreclosed mortgages sever even in lien-theory states.• Lease: common law severs; modern majority does not (treated as a temporary suspension, with the lease ending at the leasing joint tenant's death in most jurisdictions).• Murder of one joint tenant by another — operates as severance; the murderer is not entitled to the victim's share.

CA-specific: California is a LIEN-THEORY state. A mortgage given by one joint tenant does NOT sever the joint tenancy; if the mortgaging joint tenant dies first, the mortgage falls away as to the surviving joint tenant(s).

2. Tenancy by the EntiretyTenancy by the entirety is a marital-only concurrent estate with the right of survivorship — created in many states by a conveyance "to husband and wife." In TbE states the conveyance is presumed to create TbE unless the deed clearly states otherwise. Tenancy by the entirety is NOT recognized in California.Creation requires a valid marriage, the four unities, and the right of survivorship. Severance is limited: divorce (which becomes a tenancy in common in most states, joint tenancy in others), mutual written agreement — but never by unilateral conveyance or by unilateral creditors (majority rule).

3. Tenancy in CommonTenancy in common is the modern default for any conveyance to two or more non-married persons. Only one unity (possession) is required. There is no right of survivorship; the interests are freely devisable, descendible and alienable.

4. Rights and Duties of Co-TenantsEach cotenant has the right to use the WHOLE property. There is no rent owed by a cotenant in sole possession absent OUSTER — the wrongful exclusion of a fellow cotenant. Ouster is a separate, actionable wrong and also is the gateway to adverse possession against a cotenant. Each cotenant has the duty not to commit waste (same three categories as a life tenant) and the right to bring an action for partition.Taxes: Fair share (pro rata). A cotenant in sole possession may pay up to fair rental value before recovering contribution.Mortgage: Fair share among all cotenants.Repairs : Necessary repairs after notice → contribution at law. Voluntary improvements → contribution only on partition: the improving cotenant gets any increase in value but bears any decrease.

To gain title against a fellow cotenant by adverse possession, the claimant-cotenant must show OUSTER — a clear, unequivocal repudiation of the cotenancy plus actual or constructive knowledge to the other cotenant(s), continued for the statutory period.

E. Conflicts of LawThe law of the situs (where the land is located) governs (1) inter vivos conveyances of real property, (2) transfers by will or intestate succession of real property, and (3) contracts for the transfer of interests in land. This rule survives even when the parties or the lawyers are located elsewhere.

F. Marital PropertyCalifornia is a community-property state. Property acquired during marriage by either spouse is presumed COMMUNITY (each spouse owns one-half). Separate property is property acquired pre-marriage, by gift or inheritance, or after separation. Common-law states typically use either tenancy by the entirety (for spouses) or sole ownership in one spouse's name with equitable distribution at divorce.

Practical interactions to keep in mind: a spouse cannot unilaterally sever a TbE where TbE exists. In California, because TbE is not recognized, spouses may hold real property as joint tenants, tenants in common, or community property; the community-property form carries a one-half interest in each spouse, with rules on management and disposition set out in the Family Code.

CA marital-property characterization is itself testable. Default presumption: acquired DURING the marriage = community. Track the source of funds and the date of acquisition — these two facts decide most CA marital-property questions.

II. Natural RightsBeyond contractually defined property rights, the law recognizes a small set of "natural" rights tied to land — the right to exclude others, to receive support from neighboring or underlying soil, and to share in water that flows over or under the land. These rights are creatures of common law, but in California they interact with civil-code rules and (for water) with a dual riparian/prior-appropriation regime.

A. Right to ExcludeThe right to exclude is enforced by two principal actions: trespass for invasions by tangible objects, and private nuisance for substantial and unreasonable interferences with use and enjoyment.

1. TrespassTrespass is the invasion of land by a tangible physical object — anything from a person to a thrown rock to a deposited substance. The classical remedy is an action for ejectment (recovery of possession) plus damages for the intrusion.

2. Private NuisancePrivate nuisance is a substantial and unreasonable interference with the plaintiff's use and enjoyment of her land. The elements are: (i) an interest in land, (ii) unreasonable interference — measured by balancing the harm against the utility of the defendant's conduct, or by asking whether the harm exceeds what the plaintiff should bear without compensation, and (iii) intentional, negligent or abnormally dangerous conduct by the defendant.

B. Lateral and Subjacent SupportEvery parcel has a right to support from adjoining and underlying land. Lateral support runs from neighbors at the same elevation; subjacent support runs from owners of subsurface estates (typically mineral-rights holders).

1. Lateral SupportThe owner is entitled to the support of land in its NATURAL STATE from adjoining parcels. A neighbor whose excavation causes the land to collapse is strictly liable if the natural soil alone would have collapsed. If the weight of buildings contributed to the collapse, the neighbor is liable only on a showing of negligence.

2. Subjacent SupportThe owner of the surface is entitled to support from below — the holder of a mineral or subsurface estate must not cause the surface to collapse. Liability mirrors lateral support: strict for natural-state land, negligence for improvements.

C. Water RightsWater rights are divided by source. The four categories — riparian, prior appropriation, percolating groundwater and surface water — each have their own framework, and California adds a distinctive dual riparian/prior-appropriation system for surface watercourses.

1. Riparian RightsAdjoining landowners on a watercourse share REASONABLE USE; each is liable for unreasonable interference with the others' uses. Riparian rights are appurtenant to the land — they cannot be transferred apart from the riparian parcel.

2. Prior AppropriationUnder prior appropriation, water belongs to the state. The first user for a beneficial use has the first right; subsequent users may use the remainder without infringing on senior rights. Prior appropriation is the typical western state's rule.

CA dual system: California recognizes BOTH the riparian and the prior-appropriation systems for surface watercourses. Courts allocate among uses, and on a CA essay you must flag this dual-system point rather than picking one regime.

3. Percolating (Ground) WaterModern majority applies a reasonable-use rule to groundwater; the owner may not commit waste. California adds overlying-owner correlative rights — neighboring owners are co-equal users of the underlying basin.

4. Surface WaterSurface water (rainwater runoff) was historically governed by the Common Enemy Doctrine — each owner could repel water from her own land. The modern majority reasonable-use modification, which California has adopted, weighs the upper owner's right to drain against the lower owner's right to be free from unreasonable harm.