Welcome to the Bar Exam Toolbox podcast. Today, we're doing something a little different. We're going to take a bird's eye view of some key Real Property topics we've covered in our "Listen and Learn" series. Specifically, we'll be focusing on property ownership and interests. Check back next week for Part 2 in this series. Your Bar Exam Toolbox hosts are Alison Monahan and Lee Burgess, that's me.
We're here to demystify the bar exam experience, so you can study effectively, stay sane, and hopefully pass and move on with your life. We're the co-creators of the Law School Toolbox, the Bar Exam Toolbox, and the career-related website CareerDicta. Alison also runs The Girl's Guide to Law School. If you enjoy the show, please leave a review on your favorite listening app, and check out our sister podcast, the Law School Toolbox podcast.
If you have any questions, don't hesitate to reach out to us. You can reach us via the contact form on BarExamToolbox.com, and we'd love to hear from you. And with that, let's get started. In our episode on concurrent estates, we discussed how multiple people can own property at the same time. We covered three main types - tenancy in common, joint tenancy, and tenancy by the entirety. Tenancy in common is the default form of concurrent ownership.
Each tenant has the right to possess the entire property, even if they have different fractional shares of ownership. There's no right of survivorship here. Let's consider an example: Alice and Bob own Blackacre as tenants in common, with Alice owning 75% and Bob 25%. If Alice dies, her 75% interest doesn't go to Bob. Instead, it would pass to Alice's heirs, according to her will or state intestacy laws. Joint tenancy, on the other hand, does have a right of survivorship.
To create a joint tenancy, you need what we call the "four unities" - possession, interest, time, and title. Here's a quick example: If Carol and David buy Greenacre as joint tenants with the right of survivorship, they each have an equal right to possess the entire property. They have equal ownership interests. They acquired their interests at the same time and through the same deed. If Carol dies, her interest automatically passes to David, regardless of what Carol's will might say.
Tenancy by the entirety is similar to joint tenancy, but it's only for married couples. It requires a fifth unity - the unity of person. For instance, if Emily and Frank - a married couple - buy Blueacre as tenants by the entirety, neither can sell or encumber the property without the other's consent. If they divorce, the tenancy by the entirety usually converts to a tenancy in common. Now let's shift gears to present and future estates, which we covered in two episodes.
These episodes delve into how property ownership can be divided over time. The most common form of ownership is the fee simple absolute. Think of this as the whole pie of property rights. But sometimes that pie gets sliced up into present and future interests. For instance, a life estate grants possession of property to someone for the duration of a person's life. Let's say Greg owns Redacre and grants Redacre to Hannah for life. Hannah has a life estate in Redacre.
She can use and enjoy the property for her lifetime, but she can't sell or will away the future ownership of the property. When Hannah dies, the property goes to whoever holds the future interest. If Greg's grant said "to Hannah for life, then to Ian", Ian would hold a type of future interest called a "remainder". But if Greg had simply said "to Hannah for life" without specifying what happens after, Greg would hold a reversion. The property would come back to him after Hannah's death.
We also talked about defeasible fees, which are ownership interests that can be terminated if a specific event occurs. For example, if Greg grants Redacre to Hannah, so long as it's used as a farm, Hannah has a fee simple determinable. If Redacre ever stops being used as a farm, it automatically reverts to Greg or his heirs. Greg's future interest here is called a "possibility of reverter". Now let's talk about two types of non-possessory interests in land - easements and covenants.
We covered easements and covenants in two episodes. An easement is a right to use someone else's land for a specific purpose. For example, Jane might have an easement to use Kevin's driveway to access her landlocked property.
This could be created by express grant [Kevin signs a deed granting the easement]; by implication [if Janet's and Kevin's properties were once a single parcel and the driveway was the only access]; or even by prescription [if Janet used the driveway openly and continuously for a statutory period, usually 20 years]. Covenants, on the other hand, are promises regarding the use of land. They can be affirmative [requiring the owner to do something], or restrictive [prohibiting certain uses].
For example, a covenant might require all homes in a neighborhood to be painted white, or prohibit owners from operating businesses out of their homes. The key thing to remember about covenants is that they can run with the land, meaning they can bind future owners of the property. As you can see, these topics are all interconnected. There are different ways of slicing up the rights that come with property ownership.
When you're studying for an exam, try to think about how these concepts relate to each other. Let's consider a complex example: Liam owns Yellowacre and grants Yellowacre to Maria and Nate as joint tenants with right of survivorship, but if the property is ever used for commercial purposes, then to Oscar. Maria and Nate are joint tenants with a defeasible fee - specifically, a fee simple subject to an executory limitation. Oscar has a future interest called an "executory interest".
If Maria dies, her interest would pass to Nate due to the right of survivorship. But if either Maria or Nate, or Nate alone after Maria's death, uses Yellowacre for commercial purposes, the property would go to Oscar in fee simple absolute. Remember, the bar examiners love to test these topics in combination. They might give you a fact pattern involving joint tenants, where one tenant grants an easement, or a life estate holder violates a covenant.
The key is to spot all the issues and understand how these different property interests interact. As you review these topics, I encourage you to create visual aids. Draw out the timelines for future interests, or make charts comparing the different types of concurrent ownership. And of course, practice applying these rules to hypothetical scenarios. The hypos we discuss in our "Listen and Learn" episodes are a great place to start. That's all for our overview of property ownership and interests.
In our next episode, we'll be covering property regulation and transfer, including topics like zoning, recording statutes, and adverse possession. If you enjoyed this episode of the Bar Exam Toolbox podcast, please take a second to leave a review and rating on your favorite listening app. We'd really appreciate it. And be sure to subscribe so you don't miss anything.
If you have any questions or comments, please don't hesitate to reach out to myself or Alison at lee@barexamtoolbox.com or alison@barexamtoolbox.com. Or you can always contact us via our website contact form at BarExamToolbox.com. Thanks for listening, and we'll talk soon!