Property Attack Outlines

Easements and Covenants

A.    CHARACTERIZE THE NATURE OF THE PROPERTY RIGHT. Does the property right involve
the right to enter and/or use land owned by another person, or does the property right involve a promise
by the owner concerning the owner’s use of his own land?
1.    Right To Use Land Owned By Another Person? Determine whether the property right is an
easement, profit, lease or license.
a.    Easement. An easement is the irrevocable right to enter land owned by another
person.
i.    Created In Writing? If yes, an express easement may have been created.
Proceed to Part B for further analysis.
ii.   Created By Oral Permission Of Owner? If yes, the property right is a license.
Proceed to Part A.1.d to determine if the license is revocable or irrevocable.
iii.  Created By Operation Of Law? Was a single parcel severed? If yes, an
implied easement may have been created. Proceed to Parts C.1 and C.2 for further
analysis.
iv.  Created By Prescription? Did the person asserting the easement right enter
the land without the permission of the owner? If yes, a prescriptive easement may have
been created. Proceed to Part C.3 for further analysis.
b.    Profit. A profit is the right to remove from another’s land something that is part of
the land (timber, minerals, fish or game).
i.    Created In Writing? If yes, a profit may have been created. Proceed to Part B
for further analysis.
ii.   Created By Oral Permission Of Owner? If yes, the property right is a license.
Proceed to Part A.1.d to determine if the license is revocable or irrevocable.
c.    Lease. A lease is the right of exclusive and complete possession and use of property
owned by another for a fixed or renewable periodic period.
i.    Shared Possession Or Use With Owner? If the owner retains the right to
possess or use the property, the property right created is either an easement or a license.
ii.   Landlord And Tenant Relationship Created? If a lease is created, the parties
are in a landlord-tenant relationship
d.    License. A license is the revocable permission to enter and/or use property owned by
another.
i.    Presumed Revocable. Normally, a license is revocable at will by the owner of
the property.
ii.   Not Transferrable. A revocable license does not “run with the land” and does
not bind or benefit successors.

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 iii.  Irrevocable? A license may become irrevocable if the license is coupled with
a written and irrevocable profit right, or by estoppel based on reasonable detrimental
reliance by the licensee.
2.    Promise By The Owner Concerning The Owner’s Own Use Of The Land? Determine
whether the promise: (1) creates a covenant/servitude; (2) creates a negative easement; or (3) the
owner holds title as a defeasible fee simple.
a.    Mutual Burden And Benefit? Is the owner’s promise part of a mutually binding
restriction on the use of land that simultaneously burdens and benefits a group of adjacent
landowners? If yes, a covenant or servitude may have been created. Proceed to Part E for further
analysis.
i.    Owner’s Promise To Pay Money. A promise to pay money is enforceable
only as a real covenant. Proceed to Part E for further analysis.
ii.   Owner’s Promise To Take Affirmative Action Concerning The Owner’s
Land. The owner’s promise may be enforceable as a real covenant or an equitable
servitude. Proceed to Part E for further analysis.
b.    Negative Easement? Did the owner unilaterally promise to restrict the use of the
owner’s own land so as to benefit an adjacent parcel?
i.    English Common Law Rule. Was the owner’s promise not to interfere with
light, air flow, artificial stream flow, or building support in order to benefit an adjacent
parcel? If yes, the English common law recognized a negative easement right that is
enforceable against subsequent owners of the burdened parcel without establishing
horizontal and vertical privity.
ii.   Modern American Law Rule. American courts generally are reluctant to
recognize negative easements beyond the traditional four types recognized at English
common law.
c.    Defeasible Fee Simple? Was the restriction on the owner’s use coupled with an
express or implied future interest that was retained by the grantor (FSD or FSSCS) or given to a
third party (FSSEL)? If yes, the current owner holds a defeasible fee simple (FSD, FSSCS, or
FSSEL).
B.    ANALYSIS OF EXPRESS EASEMENTS AND PROFITS. An express easement or a profit must
be created in the form of a writing. Once created, the writing governs the terms and conditions by which
the easement or profit right is transferred and the scope of use. The writing also may provide for the
termination of the easement or profit.
1.    Does The Writing Satisfy The Statute Of Frauds? The writing must describe the easement
right and be signed by the owner of the parcel that is burdened by the easement or profit right.
a.    Easement Retained By Grantor? In conveying title to the grantee, the grantor may
retain an easement right for himself in the property being conveyed.
b.    Easement Right For A Third Party? Did the grantor use only one deed to
simultaneously convey the property to the grantee and create an easement right in the same

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 property being conveyed to a third party? If so, whether the easement is valid depends on the rule
the jurisdiction follows.
i.    Majority Common Law Rule. The easement right created by the writing in
favor of the third party is void.
ii.   Minority Modern Rule. The easement right created by the writing in favor of
the third party is valid.
2.    Did The Owner Retain The Right To Revoke? If the writing is silent concerning the
owner’s right to revoke, then an express easement or profit right is created. If the owner expressly
retained a right to revoke, the writing creates a license. If the writing creates a license, proceed to Part
A.1.d above for further analysis.
3.    Is The Express Easement Or Profit Transferrable? Determine if the burden of the express
easement or profit is transferrable to a successor owner of the burdened parcel. To determine if the benefit
of the easement or profit is transferrable or assignable, proceed to Part B.3.b. for an appurtenant
easement, to Part B.3.c. for an easement in gross, and to Part B.3.d. for a profit.
a.    Transfer Of Burden Of Easement (All Types) Or Profit. The burden of an
appurtenant easement, an easement in gross, or a profit transfers automatically with the transfer
of title to the burdened parcel.
i.    Bona Fide Purchasers Of The Burdened Parcel take title subject to the burden
of the easement or profit if the purchaser has actual, constructive (record) or inquiry
notice of the easement or profit. If the bona fide purchaser lacks notice, the purchaser
takes title free of the burden if all of the requirements of the jurisdiction’s recording act
are satisfied.
ii.   Donees, Devisees And Heirs generally take title subject to the burden of the
easement or profit (unless the jurisdiction’s recording act also extends protection to
donees, devisees and heirs).
b. Appurtenant Easement: Transfer Of Benefit. The benefit of an appurtenant easement
transfers automatically with the transfer of title to the benefitted parcel, even if the new
owner lacks notice of it.
c.    Easement In Gross: Transfer Of Benefit. The benefit of an easement in gross must be
assigned by a writing that satisfies the Statute of Frauds.
i.    Can The Benefit Of The Easement In Gross Be Transferred Without Consent
By The Owner Of The Burdened Parcel?
•    Majority Rule (Restatement Of Property). When the writing that created the
easement in gross is silent concerning transfer, the benefit of an easement in gross is
transferrable to another person only if it is commercial in character.
•    Minority Rule (Restatement (Third) Of Servitudes). When the writing that
created the easement in gross is silent concerning transfer, the benefit of an easement in
gross is presumed to be transferrable.

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 •    Implied Intent For Highly Personal Recreational Uses. Under the minority
rule, the implied intent of the parties is that the benefit of the easement in gross is not
transferrable for recreational uses that are considered highly personal in nature, such as
the right to hunt or fish on someone else’s land.
ii.   Adjacent Landowner Holds Benefit Of Easement In Gross. If the holder of
the benefit of the easement in gross owns a parcel that is adjacent to the parcel burdened
by the easement, the benefit of the easement in gross does not transfer automatically with
a change in ownership of the adjacent parcel. To transfer the benefit, the holder of the
benefit of the easement in gross must assign the benefit in writing personally to the new
owner.
d.    Profit: Transfer Of Benefit. If the writing creating the profit is silent concerning
transfer, the benefit of a profit is presumed to be transferrable to another person without
the consent of the owner of the burdened parcel. The benefit of the profit must be
transferred to another person in the form of a writing that satisfies the Statute of Frauds.
4.    Is The Benefit of the Express Easement Or Profit Right Divisible Among Multiple
Parties? Is the benefit of the express easement or profit right being transferred to more than one parcel? If
yes, proceed to Part B.4.a for division of an appurtenant easement, to Part B.4.b for division of an
easement in gross, and to Part B.4.c for division of a profit.
a.    Division Of Benefit Of Appurtenant Easement. The benefit can be divided if the
benefitting parcel is subdivided into lots so that each lot owner has the benefit of the easement.
i.    Foreseeable And Reasonable? The division of the appurtenant easement
cannot overburden the servient parcel beyond what is foreseeable and reasonable for the
normal development of the benefitting parcel at the time the easement was created.
ii.   Scope And Location? The division of 421 the easement cannot exceed the
scope of the easement or change its location as fixed by the terms of the writing that
created the easement. Proceed to Parts B.5 and B.6 below to analyze scope and location
issues.
b.    Division Of Benefit Of Easement In Gross. Does the holder of the easement in gross
have the exclusive right to use the owner’s property for the purposes of the easement (or,
does the holder share use with the owner of the burdened parcel)?
i.    If The Benefit Is For Exclusive Use, the easement right may be divided
among multiple parties by the holder of the easement in gross, subject to the limitations
on the scope of the easement. Proceed to Part B.5 below to analyze scope issues.
ii.   If The Benefit Is Not For Exclusive Use, then the holder of the benefit of the
easement in gross cannot divide the easement in gross among multiple parties.
c.    Division Of Profit. A profit is presumed to be divisible among multiple co-owners.
i.    Common Law Rule (One–Stock Rule) Limitation. Under the one stock rule,
each co-owner of the profit must agree to how the profit will be used and each co-owner
may veto a proposed use by any other co-owner.

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 ii.   Modern Rule Limitation. Under the Restatement (Third) of Servitudes view,
each co-owner’s use of the profit must be reasonable under the 422 circumstances. The
consent of the other co-owners is not required so long as the use by one co-owner is
reasonable.
5.    Is The Use Of The Express Easement Or Profit Within The Scope Of The Writing? Use
that is outside the scope of the express easement or profit right is a misuse. Misuse is a trespass permitting
the owner of the burdened parcel to sue the trespasser for damages or injunctive relief.
a.    Terms Of The Writing Govern. Look to the language of the written instrument that
created the express easement or profit right and the circumstances surrounding its creation to
determine if a change in use is beyond the grantor’s intended scope of the express easement or
profit.
b.    Change In Use of Appurtenant Easement. The change in use of an appurtenant
easement cannot overburden the servient parcel beyond what is foreseeable and reasonable for the
normal development of the benefitting parcel at the time the easement was created.
c.    Per Se Misuse Of Appurtenant Easement. An appurtenant easement cannot be used
to access or cross any tract of land that is not part of the benefitting parcel, even if the tract and
the benefitting parcel are under common ownership and no additional burden is placed on the
servient parcel.
6.    Change In Location Or Widening Of Easement. Does the change involve moving the
location or widening the easement?
a.    Common Law (Majority) Rule. Once the location of the easement is fixed by the
writing, it cannot be changed without the consent of the owners of the dominant and servient
parcels. If the width of the easement is specified in the writing, it cannot be widened without the
consent of both the owners of the dominant and servient parcels.
i.    Indeterminate Width? If the width of the express easement is not specified in
the writing that created the easement, proceed to Parts B.5.a. and B.5.b. above for a scope
analysis.
b.    Modern (Minority) Rule. The Restatement (Third) of Servitudes permits the owner
of the burdened parcel to change the location of the easement, at his or her own expense, if the
change does not “significantly lessen the utility of the easement, increase the burdens on the
owner of the easement in its use and enjoyment, or frustrate the purpose for which the easement
was created.”
C.    ANALYSIS OF EASEMENTS ARISING BY OPERATION OF LAW (CREATION,
TRANSFER AND SCOPE OF USE). If the land was originally held in common ownership and later
was severed into two or more parcels with separate ownership, determine if an easement implied from
strict necessity (Part C.1) or an easement implied from the owner’s prior use (Part C.2) has been created.
If the circumstances involve an adverse and uninterrupted use of another owner’s property, determine
whether a prescriptive easement right has been created (Part C.3). To determine the scope and potential
misuse of an easement arising by operation of law, proceed to Part C.4.
1.    Easement Implied From Strict Necessity (All Jurisdictions). Was the necessity for the
easement caused by the original severance of the parcel into two or more parcels?

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 a.    If yes, an easement implied from strict necessity exists.
b.    If no, proceed to Part C.3 to determine if a prescriptive easement right exists if there
has been an adverse and uninterrupted use. 424
2.    Easement Implied From Prior Use (Majority Rule). Before the moment of original
severance, was part of the tract being used by the common owner for the benefit of another part of the
owner’s tract?
a.    No. Proceed to Part C.3 to determine if a prescriptive easement right exists if there
has been an adverse and uninterrupted use.
b.    Yes. After the moment of severance, is continuation of the prior use reasonably
necessary for the new owner to enjoy the (now-severed) parcel?
i.    Yes. An easement implied from prior use exists.
ii.   No. Proceed to Part C.3 to determine if a prescriptive easement right exists
based on an adverse and uninterrupted use.
3.    Prescriptive Easement. To establish a prescriptive easement right, the three elements
described in Parts C.3.a through C.3.c below must be satisfied. Did the person claiming the prescriptive
easement right engage in:
a.    An Open and Notorious Use?
b.    That Was Adverse (Hostile)? Is the use of the property without the permission or
consent of the owner?
i.    Exclusive Or Shared Use? If use of the property is shared with the owner of
the property, consider whether the owner has expressly or implicitly given permission for
the use (thereby negating the hostility element).
ii.   Objective Or Subjective Test For Hostility? Jurisdictions differ in the test
used for the hostility element.
•    Objective Test. The objective test requires only that the use of the 425
property be without the owner’s consent. The prescriptive user’s state of mind is
irrelevant.
•    Subjective Test. In addition to lacking the consent of the owner, the
prescriptive user also must have a good faith belief that he is using the property lawfully.
•    Knowing Trespassers can never establish a prescriptive easement in a
jurisdiction that follows the subjective test.
c.    And Continuous and Uninterrupted For The Statute Of Limitations Period?
i.    Tacking. Prescriptive users can tack their use against multiple owners of the
burdened property.
ii.   Interruption By Owner Or Abandonment. If an owner interrupts the use or
the use is abandoned before the statute of limitations period is complete, the

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 statute of limitations is not tolled, but rather starts over again if the use later
resumes.
4.    Transfer Of An Implied Easement Right. The benefit and the burden of an easement
implied from strict necessity or prior use transfers automatically with the transfer of ownership to the
dominant and servient parcels.
5.    Is The Use Within The Scope Of The Easement Arising By Operation Of Law? The
rules for analyzing scope and potential misuse vary based on the type of easement.
a.    Easement Implied From Strict Necessity. Look to the degree of necessity required at
the time of the original severance to determine scope and misuse.
b.    Easement Implied From Prior Use. Look to the nature of the owner’s use
immediately prior to the original severance to determine scope and misuse.
c.    Prescriptive Easement. Look to the actual use during the statute of limitations period
to determine scope and misuse.
D.    TERMINATION OF EASEMENTS AND PROFITS. Termination can occur based on the terms
of a written instrument or automatically by operation of law under certain circumstances.
1.    Termination By Written Instrument. Does a writing provide for termination at the
easement or profit right?
a.    Termination Provision (Express Easements And Profits Only). Did the writing that
created the express easement or profit right provide expressly for its termination? If yes, the
express easement or profit expires according to the terms of the writing.
b.    Release (All Types Of Easements And Profits). Did the person who holds the benefit
of the easement or profit right execute and sign a writing that releases the right to the owner of
the burdened parcel? If yes, the easement or profit is terminated by the delivery of the written and
signed release to the owner of the burdened parcel.
i.    Oral Release? An oral release is ineffective because it fails to satisfy the
Statute of Frauds. Proceed to Part D.2.b below to determine if the property right has been
terminated by abandonment.
2.    Termination By Operation Of Law? Determine if any of the following circumstances
apply to terminate the easement or profit right automatically by operation of law.
a.    Merger By Acquisition Of FSA Title? Did the person who holds the benefit of the
easement 427 or profit acquire FSA title to the burdened parcel? If yes, the property right is
extinguished and terminated based on the merger of the lesser property right into the superior
FSA title.
i.    No Automatic Revival By Subsequent Transfer Of Burdened Parcel. Once
extinguished by merger into FSA title, the easement or profit right is not automatically
revived by the subsequent transfer of the formerly burdened parcel to a new owner. If a
new easement or profit right is not created in writing prior to or as part of the subsequent
transfer, proceed to Parts C.1 and C.2 above to determine if the severance and transfer of
the parcel creates a new implied easement from strict necessity or prior use.

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 b.    Abandonment? Did the person who holds the benefit of the easement or profit cease
using it with the intent to abandon the right? If yes, the easement or profit is automatically
terminated.
i.    Proving Intent. Did the person who holds the benefit of the easement or profit
give an oral release of the benefit of the easement or profit or make other statements
indicating an intent to abandon?
ii.   Period Of Nonuse. To constitute abandonment, the period of nonuse by the
holder of the benefit of the easement or profit must be consistent with an intent to
abandon the use, but does not have to satisfy the statute of limitations required to create a
prescriptive easement.
c.    Necessity Ends (Easements Implied From Necessity Only)? Did circumstances
change so that the easement right is no longer strictly necessary? If yes, an easement implied
from strict necessity automatically terminates by operation of law.
i.    Changed Circumstances And Easements Implied From Prior Use. A change
in circumstances does not terminate an easement implied from prior use.
d.    Interruption By Owner Of Burdened Parcel (Prescriptive Easements Only)? Did
the owner of the burdened parcel interrupt the use of the easement right continuously for the
statute of limitations period necessary to establish a prescriptive easement? If yes, the prescriptive
easement right is terminated.
i.    Abandonment As Alternative Theory. If the interruption of use is not
sufficient to satisfy the statute of limitations, proceed to Part D.2.b above to determine if
the person holding the property right has abandoned it.
E.    ANALYSIS OF REAL COVENANTS AND EQUITABLE SERVITUDES. To determine if a real
covenant or an equitable servitude has been validly created by the promise between the original owners,
proceed to Part E.1. To determine whether the burden and benefit of the original promise run to
successors, proceed to Parts E.2 through E.3. If enforcement of a real covenant or an equitable servitude
is being challenged, proceed to Part E.5.
1.    Has A Real Covenant Or An Equitable Servitude Been Validly Created? Determine if
the circumstances surrounding the original promise satisfy the three elements for creation below.
a.    Created In Writing. Is the original promise in the form of a writing that was signed
or accepted by the original owner of the burdened parcel (the promisor) so as to satisfy the Statute
of Frauds?
i.    Yes. The promise forms a real covenant or an equitable servitude if the other
creation elements are satisfied.
ii.   No. The promise may form an equitable servitude if evidenced by a common
scheme and the other creation elements are satisfied.
b.    Intent To Run To Successors. Does the writing indicate that the benefit and burden
of the promise bind and benefit “assigns” or “heirs, successors and assigns” of the original
parties?

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 i.    Yes. The promise forms a real covenant or an equitable servitude if the
promise touches and concerns the land. Proceed to Part E.1.c. below for further analysis.
ii.   No. The promise is merely a contractual agreement that binds only the
original parties and does not form a real covenant that runs with the land and binds
successors in interest.
iii.  If There Is No Writing, intent to apply the promise as an equitable servitude
to successors or assigns of the original parties can be inferred from a common scheme. If
a common scheme exists, proceed to Part E.1.c. below to determine if the equitable
servitude touches and concerns the land.
c.    Touch And Concern. The promise touches and concerns the land if you can answer
“yes” to any one of the questions in i through iv below. After analyzing touch and concern issues,
consider whether the promise contains a benefit that is in gross under Part E.1.c.v. before
proceeding to the burden side (Parts E.2 and E.3) and benefit side (Part E.4) analysis.
i.    Physical Touching Of The Land. Does the promise involve the physical
touching (maintaining, repairing, or building structures) of the land itself?
ii.   Use Restrictions. Does the promise relate to using or not using the land in a
certain way (only residential use, prohibiting multi-family residential use or commercial
use, only a specified type of business)?
iii.  Payment Of Money. Does the promise involve the payment of money for the
use of land (rent, amenities) or for improvements to the land (homeowners’ association
dues, maintenance of common areas, or utilities access)? Analyze how the payment of
money is connected to the use or improvement of the land.
iv.  Economic Impact. Does the promise have an economic impact on the land by
making the burdened parcel less valuable and the benefitting parcel more valuable? If the
promise touches and concerns solely or primarily due to its economic impact, consider
public policy-based arguments.
v.    Benefit In Gross. Does the benefit of the promise accrue to a person or
persons rather than to a parcel? If yes, the benefit is in gross. Whether the burden of the
promise will be permitted to run to a successor depends on the rule followed by the
jurisdiction.
•    Common Law Rule. The burden of a covenant or servitude with a benefit that
is in gross can only be enforced against the original promisor and not against a successor.
•    Minority (Restatement (Third) Of Servitudes) Rule. The burden of a covenant
or servitude with a benefit that is in gross may be enforced against a successor to the
original promisor.
2.    Does The Burden Of The Covenant Run To Successors? Assuming that the
burden is not in gross, determine if the three elements below are satisfied. If yes, the burden of
the covenant can be enforced against a successor to the original promisor. If no, proceed to Part
E.3 below to determine if the burden of the promise is enforceable as an equitable servitude
against a successor to the original promisor.

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 a.    Horizontal Privity? Horizontal privity exists if the original parties to the
promise (A and B in the box diagram) are either landlord and tenant, grantor and grantee,
or one party holds an easement right in the other party’s land.
b.    Traditional Vertical Privity? Traditional vertical privity exists if the original
promisor B conveyed his entire estate in the land to the successor B1. 432
c.    Notice To BFP? If the successor B1 is a bona fide purchaser of the burdened
parcel from the original promisor B, the burden of the promise binds the purchaser B1
only if B1 had actual or constructive (record) notice of the real covenant.
3.    Does The Burden Of The Servitude Run To Successors? If the burden of a real
covenant does not run to a successor, the burden of the original promise may still be enforced via
injunctive relief as an equitable servitude. Horizontal privity between the original parties (A and
B) is not required for the burden of an equitable servitude to run to a successor B1. If the two
elements below are satisfied, the burden of the original promise by B may be enforced against a
successor B1 through injunctive relief.
a.    Minimal Vertical Privity? Minimal vertical privity exists if the original
promisor B conveyed any part of his estate in the land to the successor B1.
b.    Notice To BFP? If the successor B1 is a bona fide purchaser of the burdened
parcel from the original promisor B, the burden of the promise binds the purchaser B1 if
B1 had actual or constructive notice of the covenant. For an equitable servitude,
constructive notice can be established by a recording or can be inferred from the
existence of a common scheme.
4.    Does The Benefit Of The Real Covenant Or Equitable Servitude Run To
Successors? For either a real covenant or an equitable servitude, the benefit of the promise runs
to and is enforceable by the successor A1 if A1 is in minimal vertical privity with the original
promisee A. Minimal vertical privity exists if the original promisee A conveyed any part of his
estate in the benefitted land to the successor A1.
5.    Has The Real Covenant Or Equitable Servitude Been Terminated Or Is It
Unenforceable On Public Policy Grounds? Termination may be by written agreement or by
operation of law, or a court may refuse to enforce the covenant or servitude based on public
policy.
a.    Termination By Written Agreement? The real covenant or equitable
servitude is terminated if the writing that contains the original promise expressly provides
that the promise is binding only for a limited duration. The current owner of the
benefitted parcel also can terminate the burden of the covenant or servitude by executing
a written release that satisfies the Statute of Frauds.
b.    Termination By Operation Of Law? Do the following circumstances
indicate termination has occurred or that the promise should not be enforced?
i.    Merger Due To Common Ownership? If a common owner acquires
title to the parcels that are burdened by and benefit from the original promise, the
real covenant or equitable servitude is terminated with respect to the parcels
under common ownership.

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 ii.   Change In Neighborhood? A court may refuse to enforce the promise
if the physical character of the neighborhood has so changed that the purpose of
the real covenant is outdated and its benefits have been substantially reduced or
lost.
iii.  Equitable Principles? A court may (but rarely does) refuse to enforce
the burden of an equitable servitude based on equitable principles of estoppel
and/or extreme hardship. Financial burden alone is not extreme hardship.
iv.  Abandonment? A court may refuse to enforce the original promise if
the current owner of the benefitted parcel has clearly indicated an intent to
abandon the benefit of the real covenant or equitable servitude.
•    Affirmative Covenant To Pay Money. The burden of an affirmative
covenant to pay money cannot be terminated by abandonment through a refusal
by the owner of the burdened parcel to pay over a long period of time.
c.    Violation Of Public Policy? Determine if enforcement of the real covenant or
equitable servitude would violate a federal, state, or local laws, or would infringe upon
federal Constitutional rights. If yes, the court will not enforce the promise based on
superseding federal, state or local statutory law or on Constitutional grounds.

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Co-Ownership
 ATTRIBUTES OF COMMON LAW CO–OWNERSHIP (SUBSEQUENT EVENTS ANALYSIS). Use the
checklist below to determine the effect of subsequent events on ownership of the property.

For disputes involving an attempted voluntary transfer or severance of a co-ownership interest, proceed to
Part B.1 of the checklist.

For the death of a co-owner, proceed to Part B.2. For 213 disputes among co-owners, proceed to Part B.3.

For disputes involving creditors, proceed to Part B.4.

If the dispute involves the property rights of a surviving spouse, or a divorce and the related division of marital
property, proceed to Part D.

1.    Voluntary Transfer Or Severance Of Co–Ownership Interests.

a.    Transfer Of JTWROS Interest. Did a joint tenant transfer the joint tenant’s interest to a third party? If
yes, the transferred interest is severed and becomes a TIC. Any remaining JTWROS interests remain unchanged.

i.    Knowledge And Consent Not Required. A severance by voluntary transfer to a third party is
effective without the knowledge or consent of the other joint tenants.

ii.   Secret “Self” Severance. An attempted severance by transferring the property to oneself as a

TIC is void under the common law rule. Modernly, a few jurisdictions (e.g., California) permit such a
secret “self” severance.

iii.  Attempted Transfer At Death Via Will. To transfer a JTWROS interest at death via a devise
under a will, the testator must validly sever the JTWROS interest and thereby change it to a TIC interest
prior to death. If the JTWROS is not severed prior to death, the attempted devise under the will is not
effective because the JTWROS interest of the decedent was extinguished at death and therefore is not part
of the decedent’s estate.

b.    Mutual Agreement To Sever JTWROS Interests. Did all the joint tenants mutually 214 agree to sever
their JTWROS interests? If yes, they own the property as a TIC.

c.    Transfer Of TBE Property. Did both husband and wife agree together to convey the property? If yes,
the transfer is valid. If no, the attempted transfer is invalid. TBE property cannot be severed by a unilateral
attempted conveyance by one of the spouses.

2.    Death Of A Co–Owner. Apply the appropriate rule below based on the form of co-ownership held by the
deceased co-owner at death.

a.    JTWROS Property. The deceased co-owner’s share is allocated to the surviving joint tenant(s). Do not
allocate to any person who owns a TIC or TBE share in the same property.

b.    TBE Property. The deceased spouse’s share goes to the surviving spouse.

c.    TIC Property. The deceased co-owner’s share passes to the deceased co-owner’s estate. Subsequent
ownership is determined by the terms of the deceased co-owner’s will, or by state intestate succession law if the co-
owner died without a valid will.

3.    Disputes Among Co–Owners. Identify the nature of the dispute and apply the appropriate rule.

a.    Disputes Concerning Occupancy By A Co–Owner. Is one of the co-owners occupying or otherwise

using the property?

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 i.    Majority Rule. Absent a contrary agreement, any co-owner is entitled to occupy and use the
entire property rent-free.

•    Ouster Occurs. Under the majority rule, a co-owner in possession must pay fair market value
rent to any other co-owner who has been ousted by the co-owner in possession.

•    Definition Of Ouster. Ouster occurs in all jurisdictions if the other co-owner demands to use
the property and is physically prevented from doing so by the co-owner in possession. Some jurisdictions
recognize ouster if a demand for shared use is made and the co-owner in possession rejects the demand.

ii.   Minority Rule. Absent a contrary agreement, an occupying co-owner must pay fair market
value rent to the other co-owner(s) for use of the property.

b.    Disputes Over A Lease Authorized By Less Than All Co–Owners. Did one co-owner lease a portion of
the property to a third party without the consent of the other co-owner(s)?

i.    Lease Is Valid. The lease is valid even if the other co-owner(s) did not know of or refused to
consent to the lease to the third party. ii.   Lease Not A Severance Of JTWROS. A lease of part of the
property by one co-owner does not sever a JTWROS.

iii.  Effect If Leasing Joint Tenant Dies. If the co-owner who leased the property dies, the lease is
extinguished if the leasing co-owner’s interest was part of a JTWROS. If the leasing co-owner’s interest
was held as a TIC, the lease remains intact.

iv.  Ouster May Trigger Additional FMV Rent. If another co-owner who 216 did not consent to
the lease is ousted from the leased premises by the tenant, the tenant may also owe fair market value rent to
the ousted co-owner under the majority rule for an ousted co-owner described in Part B.3.a.i of the
checklist above.

c.    Disputes Over Mortgaging Co-Owned Property. Use the checklist below to determine whether the
mortgage severs the share of the mortgagor and analyze the effect of subsequent events after the mortgage is
granted.

i.    JTWROS Property: Does The Mortgage Sever? In alien theory (majority) jurisdiction, a
JTWROS is not severed if one joint tenant grants a mortgage on the joint tenant’s interest in the property.
In a title theory (minority) jurisdiction, the mortgaging joint tenant’s interest is severed and becomes a TIC
interest.

•    TIC Property. Any tenant in common can mortgage his or her TIC interest in the property. The
mortgage is limited to the TIC share of the property.

•    TBE Property. Both husband and wife must mortgage the property together in order for the
mortgage to attach to the real estate.

ii.   JTWROS Property: Effect Of Death On The Mortgage? Determine if the jurisdiction applies
the lien theory or title theory of mortgages and apply the appropriate rule below.

•    Lien Theory (Majority) Jurisdiction. The extent of the mortgage co-exists with the mortgaging
joint tenant’s undivided interest in the property. If the mortgaging joint tenant fails to survive, the mortgage
is extinguished by the death of the mortgaging joint tenant. If the mortgaging joint tenant is the survivor,
the mortgage extends to the entirety of the property. If the mortgaging joint tenant owns 100% of the
property as the survivor, the mortgagee can collect the debt owed from 100% of the proceeds at a foreclose
sale.

•    Title Theory (Minority) Jurisdiction. The original grant of the mortgage severs the mortgaging
joint tenant’s interest and turns it into a TIC interest. Therefore, death of either the mortgagor or the other

13
 co-owners of the property has no impact on the mortgage, which remains as an encumbrance on the
mortgagor’s TIC share.

iii.  JTWROS Property: Effect Of Foreclosure? Determine if the jurisdiction applies the lien theory
or title theory of mortgages and apply the appropriate rule below.

•    Lien Theory (Majority) Jurisdiction. Foreclosure of the mortgaging joint tenant’s interest
severs the JTWROS and converts the mortgagor’s interest into a TIC. The foreclosing mortgagee is entitled
only to the sale proceeds from the TIC interest. If there are two or more other joint tenants besides the
mortgagor, their JTWROS interests are not affected by the foreclosure sale. The foreclosure sale purchaser
holds a TIC share in the property.

•    Title Theory (Minority) Jurisdiction. The foreclosing mortgagee is entitled only to the sale
proceeds from the severed TIC interest held by the mortgagor. If there are two or more other joint tenants
besides the mortgagor, their JTWROS interests are not affected by the foreclosure sale. The foreclosure
sale purchaser holds a TIC share in the property.

d.    Disputes Over Other Money Issues. Identify the nature of the dispute and apply the appropriate rule.

i.    Income, Taxes And Mortgage Liability. Absent an agreement among the co-owners, income
from the property, taxes owed, and mortgage liability are allocated pro rata among the co-owners based on
their proportionate shares in the property.

ii.   Repairs. The co-owner who pays for repairs is not entitled to reimbursement from the other
co-owners and can only recover the costs of the repairs in the form of a credit as part of an accounting
action or a partition sale.

iii.  Improvements. The co-owner who 219 pays for improvements is not entitled to
reimbursement from the other co-owners. The improving co-owner can only recover the costs of the
improvements through a partition sale, where the improving co-owner receives from the sale proceeds the
increase in value of the property attributable to the improvements. In a physical partition, the improving co-
owner may receive the improved portion of the property in the rare circumstance where this can be done in
a manner that is fair to the other co-owners.

4.    Disputes Involving Creditors Of A Co–Owner. Creditors of a co-owner can reach any real property (including a
JTWROS or TIC interest) owned by the co-owner to the same extent that the debtor could voluntarily transfer the
JTWROS or TIC interest in the property. For TBE property, under the majority rule creditors of one spouse alone
cannot reach TBE property while the other spouse is alive. A creditor of both spouses can reach TBE property.

a.    Mechanics Of A Creditor’s Judgment Lien. Once recorded, the creditor’s judgment lien attaches
automatically by operation of law to any real property (or a partial TIC or JTWROS interest therein) owned by the
debtor in the county where the lien is filed. The judgment lien also attaches to the debtor’s after acquired real
property (or a partial TIC or JTWROS interest therein). Once the lien attaches, the lien continues to encumber the
property if the property is later transferred. Once the judgment lien has attached, the creditor may bring a foreclosure
action, where the court will order the real property (or partial interest therein) encumbered by the judgment lien to
be sold at public auction. The sale proceeds are used first to repay in full the debt owed to the foreclosing creditor,
with any remaining balance going to the owner of the property interest that was foreclosed.

b.    Debtor’s Interest Is TIC Or JTWROS. A creditor can always reach (via foreclosure of an attached
judgment lien) any partial property interest held by the debtor as a TIC or a JTWROS. Foreclosure of the attached
judgment lien severs the debtor’s JTWROS interest and converts it to a TIC interest. The foreclosing creditor is
entitled only to the sale proceeds from the TIC interest. If there are two or more other joint tenants besides the
debtor, their JTWROS interests are not affected by the foreclosure sale.

c.    Debtor’s Interest Is TBE. The majority rule is that while both spouses are alive, the judgment lien of a
creditor of only one spouse does not attach to TBE property (based on the Married Women’s Property Act).

14
 i.    Lifetime Transfers Of TBE Property. Under the majority rule, both spouses can convey the TBE
property together to a third party unencumbered by (free of) the creditor’s judgment lien.

ii.   Effect Of Death. If the TBE property is held by both spouses and the debtor-spouse dies first, the
creditor’s judgment lien cannot attach to the property. If the non-debtor-spouse dies first, then the creditor’s
judgment lien attaches to the entirety of the property and can be foreclosed 221 by the creditor, who would
be entitled to repayment from 100% of the sale proceeds.

iii.  Exception Where Both Spouses Are Joint Debtors. If both spouses are joint debtors of the creditor, the
policy underlying the Married Women’s Property Act is not implicated. The creditor’s judgment lien
attaches to the entirety of the TBE property and can be foreclosed.

C.    ATTRIBUTES OF COMMUNITY PROPERTY OWNERSHIP (SUBSEQUENT EVENTS ANALYSIS).

Determine the effect of subsequent events on the ownership of community property. If the dispute involves the
community property rights of a surviving spouse, proceed to Part D.

1.    Transfers and Transmuting Issues. Identify the nature of the dispute and apply the appropriate rule.

a.    Attempted Unilateral Transfers Of Community Real Property. For real property held by the
spouses as community property, irrespective of how legal title to the real estate is held, both spouses must
agree to convey and both must sign the deed that transfers title to the real estate.

i.    Exception For Transfer To Spouse. One spouse always may unilaterally convey that
spouse’s interest in community property to the other spouse, who then holds the property as
separate property.

ii.   Exception For Management Rights To Personal Property. For personal property, the
spouse with management rights unilaterally may transfer the community property.

b.    Transmuting Community Property Into Another Form Of Ownership By Mutual Agreement. Spouses
can agree to hold community property as the separate property of one spouse alone, or in another form of co-
ownership recognized by the jurisdiction of domicile. No community property state recognizes the TBE form of co-
ownership.

c.    Changing Another Form Of Ownership To Community Property By Mutual Agreement. Spouses who
are domiciled in a community property state can mutually agree to hold any separate property of one spouse, or
property held in another form of co-ownership, as community property.

2.    Rights Of Creditors. Creditor’s rights generally are coterminous with the debtor’s management rights to
community property.

3.    Death Of A Spouse. There are no survivorship rights for community property. The deceased spouse’s one-half
interest in community property passes to the deceased spouse’s estate. New ownership of the deceased spouse’s one-
half interest in community property is determined by the deceased spouse’s will, or by a statute of intestate
succession if the deceased spouse died without a will.

D.    DEATH AND DIVORCE. Identify the nature of the dispute using the list below and apply the appropriate rule.

1.    Death: Property Rights Of The Surviving Spouse. Identify the state of domicile at death to determine
the property rights of the surviving spouse.

a.    Domicile At Death In Common Law State. The surviving spouse is entitled to choose
between: (1) taking the property left to the surviving spouse under the terms of the deceased spouse’s will;
or (2) electing against the will and choosing instead to take the statutory elective share of the deceased
spouse’s estate.

15
 •    In addition, the surviving spouse keeps any other property owned by the surviving spouse
(including a one-half share of any previously acquired community property).

b.    Domicile At Death In Community Property State. The surviving spouse owns one-half of any
community property, plus any property owned by the deceased spouse that is left to the surviving spouse
under the terms of the deceased spouse’s will or as an intestate heir.

c.    Rule For Migrating Couples. As a general rule, the surviving spouse receives a potential
windfall if the couple were longtime community property state residents and later changed domicile to a
common law state. The surviving spouse can be left impoverished (disinherited under the deceased
spouse’s will) if the couple were longtime common law state residents and later changed domicile to a
community property state.

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 Landlord/Tenant
A.    DETERMINE THE TYPE OF LEASE ARRANGEMENT. Does a lease arrangement exist? If so,
what type of tenancy is created between the landlord and tenant? Or, has some other type of private land
use arrangement been created instead?

1.    Types Of Lease Arrangements. Analyze the agreement between the parties to determine if a
lease exists.

a.    Term Of Years Tenancy. A term of years lasts for a fixed period of time. The
beginning and ending date are stated or can be ascertained.

i.    Notice To Terminate? No notice is required to terminate a term of years

lease. The lease expires automatically at the end of the term.

ii.   Effect Of Death? Death of the landlord or the tenant has no effect on a term
of years lease. The deceased tenant’s estate is responsible for rent and other lease
obligations for the duration of the term.

iii.  Only One Party Can Terminate Prior To End Of Lease Term? If yes, the
arrangement is a determinable term of years.

b.    Periodic Tenancy. A periodic tenancy lasts for a fixed period that automatically
renews until terminated by giving notice. No final termination date is stated in the lease, which can
be renewed indefinitely.

i.    Notice To Terminate? The terminating party must give notice to terminate a

periodic tenancy.

•    Termination Date Must Be Specified In Notice. The notice of termination

must specify that the lease will be terminated on the last day of the period. If the notice
does not specify the last 248 day of the period as the termination date, the court will
either treat the notice as effective as of the end of the next period, or treat the notice as
ineffective to terminate the lease at all.

•    Advance Notice To Terminate Year–To–Year Tenancy. Six months advance

notice of termination is required.

•    Advance Notice To Terminate Month–To–Month Tenancy. One month’s

advance notice of termination is required.

•    Advance Notice To Terminate Other Periodic Tenancies. Advance notice of

termination equal to the length of the period is required, but no longer than six months.

ii.   Effect Of Death? Death of the landlord or the tenant has no effect on a

periodic tenancy. Unless the deceased tenant’s estate wants to maintain the lease, the
personal representative must give the notice to terminate. iii.  Only One Party Can
Terminate? If yes, the arrangement is a determinable periodic tenancy.

c.    Tenancy At Will. A tenancy at will lasts so long as both landlord and tenant mutually
agree. The key characteristic of a tenancy at will is that the lease has no fixed duration or period.
Both parties must have the right to terminate the lease for a tenancy at will to exist.

i.    Notice To Terminate? In a true tenancy at will, the landlord or the tenant can
terminate the tenancy effective immediately without providing advance notice of the
termination.

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 ii.   Effect Of Death? Death of the landlord or the tenant automatically
terminates a tenancy at will.

iii.  Only The Tenant Can Terminate? If the duration of the lease is unspecified
and the court rules that only the tenant may terminate, the tenant has a determinable life
estate.

d.    Tenancy At Sufferance (Holdover Tenant). A tenancy at sufferance arises when the

tenant remains in possession after the lease term expires.

i.    Landlord’s Election Of Remedies Is Irrevocable. The landlord must

irrevocably elect to either evict the tenant or renew the original lease.

ii.   Eviction Option. The landlord evicts the holdover tenant and sues for
damages for lost rent. Proceed to Part B.1 of the checklist for the landlord’s method of
eviction.

iii.  Renewal Option. The landlord treats the original lease as renewed. The
terms and conditions of the original lease govern during the renewal period.

•    Periodic Or Term Of Years For Renewed Lease? The majority rule treats the
renewed lease as a periodic tenancy (notice must be given later to terminate). The
minority rule treats the renewed lease as a term of years (no notice required to terminate
at the end of the renewed term).

•    Length Of Renewal? The renewal period is determined either by how rent is

paid in the original lease, or the length of the original term. Under either approach, the
maximum renewal period is for one year.

2.    Other Property Arrangements. Language that appears to create a lease may instead
create a different type of property arrangement between the two parties. The numerous
clausus principle supports characterizing the parties’s arrangement as a standardized form
of property rights to minimize transaction costs.

a.    Determinable Life Estate. In a determinable life estate, the owner grants

another person the right to occupy the property for life or until that person decides to
vacate.

b.    License. In a license, the owner grants another person permission to enter

and/or use the owner’s land. A license is revocable by the owner and is not transferable
by the licensee to another person without the permission of the owner.

c.    Easement. In an easement, the owner grants another person the right to

ingress and egress across the owner’s land.

d.    Profit. In a profit, the owner grants another person the right to enter the
owner’s land and remove a natural resource (water, timber, coal, fish, wild game, etc.).

3.    Statute Of Frauds. The Statute of Frauds requires that certain types of private land
use arrangements must be in the form of a writing, signed by the party to be bound, in
order to be enforceable. A term of years lease for a term 251 of more than one year must
be in the form of a writing that satisfies the Statute of Frauds. A periodic tenancy with a
period that is less than or equal to one year does not need to satisfy the Statute of Frauds
to be enforceable (even if the period renews so that the duration of the tenancy exceeds
one year).

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B.    LANDLORD CLAIMS AGAINST A NONPAYING TENANT (AND TENANT
DEFENSES/COUNTERCLAIMS). If the nonpaying tenant remains in possession of the leased property, proceed to
Part B.1. If the nonpaying tenant is no longer in possession, proceed to Part B.2. Conclude your analysis by
examining other potential landlord claims against the tenant under Part B.3. 1.    Tenant Remains In Possession. The
landlord may evict a nonpaying tenant who remains in possession prior to expiration of the lease. Eviction
terminates the lease and with it the evicted tenant’s obligation to pay rent for the remaining term of the lease.

a.    Self–Help Eviction Permitted? At common law, self-help eviction is permitted if requirements i

through iii below are satisfied. The modern trend is to prohibit self-help eviction and require the landlord to evict the
nonpaying tenant in possession through the judicial process.

i.    Based On Tenant’s Failure To Pay Rent? A landlord can always evict a tenant for nonpayment
of rent, provided that the landlord first gives the tenant notice and an opportunity to pay. It is not necessary
for the landlord to have the express power to retake possession in the lease to engage in a self-help eviction
based on the tenant’s failure to pay rent.

ii.   Based On The Power To Retake Possession? Did the tenant violate a term in the lease that
triggers the 252 landlord’s express right under the lease to retake possession upon the tenant’s default? If
no, then the landlord cannot use self-help eviction. If yes, determine whether the landlord’s means of self-
help eviction were peaceable under iii below.

iii.  Peaceable Means? Even if the landlord has the legal right to retake possession upon the
tenant’s default, the landlord’s self-help eviction is a wrongful eviction if the means used to accomplish it
are not peaceable. Look for circumstances that could lead to confrontation or violence between the landlord
and the tenant to determine if the landlord’s means of self-help eviction are peaceable.

b.    Tenant’s Responses (Defenses And Counterclaims To An Eviction). Determine the tenant’s potential
defenses and counterclaims using Parts B.1.b.i through b.iv.

i.    Wrongful Eviction Claim? Was the landlord’s self-help eviction wrongful? If yes, the tenant is
entitled to damages for wrongful eviction and is not liable for rent after the eviction. The landlord’s
eviction is wrongful if: (1) the jurisdiction prohibits self-help eviction; (2) the landlord lacked the necessary
authority under the lease to retake possession; or (3) the means used by the landlord to evict the tenant were
not peaceable.

ii.   (Residential Property Only) Breach of IWH? The tenant may lawfully withhold rent and
remain in possession if: (1) the premises are so defective 253 as to not be habitable; (2) the tenant has given
notice to the landlord of the defective(s) that need to be repaired before ceasing to pay rent to the landlord;
and (3) the landlord has failed to act to make the premises habitable. The landlord’s eviction of the tenant
for nonpayment of rent is not wrongful if the tenant stops paying rent first, and then afterwards provides
notice to the landlord of repairs needed to make the premises habitable. Proceed to Part D for further
analysis of a breach of the IWH.

iii.  (Residential Property Only) Retaliatory Eviction Claim? Is the landlord’s motive in evicting
the tenant retaliation for tenant complaints about repairs that are needed to the property? If yes, the tenant
may recover damages for a retaliatory eviction. Look to the timing and circumstances surrounding the
tenant’s complaint and the eviction by the landlord. State statutes may create a rebuttable presumption of
retaliatory eviction if the eviction occurs within a certain number of months of the tenant’s complaint.

iv.  (Residential Property Only) Claim Of Discrimination Under FHA § 3604(b)? A landlord who
selectively exercises a power under the lease to retake possession if the tenant defaults based on a FHA-
protected category engages in discrimination in the terms and 254 conditions of the lease. Proceed to Part G
for further analysis of a tenant claim of prohibited housing discrimination under the FHA.

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2.    Tenant Has Abandoned Possession. Abandonment occurs if the tenant has vacated the leased premises
with no intent of returning to occupy the premises and has ceased to pay rent due under the terms of the
lease.

a.    Landlord Accepts Offer Of Surrender. Abandonment is an implied offer of surrender by the

tenant to the landlord. The tenant also may expressly offer to surrender the leased premises to the landlord.

i.    Acceptance Terminates The Lease. The landlord’s acceptance of an express or

implied offer of surrender cuts off the tenant’s obligation to pay further rent as of the moment of
the landlord’s acceptance. The tenant is still liable for rent that accrued up to the point of
acceptance.

•    Just Mitigating? If the landlord relets the leased property, determine if the landlord’s
conduct is consistent with the provisions of the original lease (mitigating) or inconsistent
(acceptance of surrender).

•    Factors To Consider. When analyzing the landlord’s conduct as a potential acceptance

of an offer of surrender, compare the rent, terms and conditions of the abandoning tenant’s lease
with the new lease. Any extension of duration or other changes in the terms suggest acceptance of
the abandoning tenant’s offer of surrender and termination of the old lease. Any alterations to the
relet premises necessary for the new tenant suggest acceptance of the tenant’s offer of surrender
and termination of the old lease.

ii.   Are Anticipatory Repudiation Damages Available? An abandoning tenant who

clearly and unequivocally repudiates the lease may be liable for anticipatory damages to the
landlord.

•    Measure Of Damages For Anticipatory Repudiation. Damages for anticipatory

repudiation are the difference between the lease rental rate and the (lower) fair market rent for the
remainder of the lease term.

•    Landlord’s Strategy. The advantage of suing for anticipatory repudiation damages is

that the landlord can sue the tenant for rent for the remaining balance of the lease term rather than
waiting for the lease term to expire. The disadvantage is that the landlord must prove what the fair
market rent will be for the remainder of the lease term. If awarded, anticipatory damages are paid
as a discounted present value lump sum.

b.    Landlord Does Not Accept Offer of Surrender. If the landlord does not accept the tenant’s
offer of surrender, the tenant remains liable for rent due under the terms of the lease. Under the common
law rule, rent is due only as it accrues under the terms of the lease and cannot be accelerated (unless the
court allows a contract claim for damages for anticipatory repudiation of the lease). Depending on the
jurisdiction, the landlord may have a duty to mitigate the tenant’s damages by making reasonable efforts to
relet the leased premises.

i.    Did Landlord Have A Duty To Mitigate Damages? The majority rule is that the
landlord has a duty to make reasonable efforts to relet the premises to mitigate the abandoning
tenant’s damages for lost rent. The minority rule is that the landlord has no duty to mitigate the
abandoning tenant’s damages.

ii.   Vacant Stock? In a majority rule jurisdiction, if the landlord has other units for rent,
the landlord must treat the abandoned property as part of the landlord’s vacant stock. The landlord
must show the property to prospective tenants on the same basis as the landlord’s other vacant
units.

iii.  Effect Of Failure To Mitigate In Majority Jurisdiction? Majority jurisdictions are

divided concerning the consequences for a landlord who fails to mitigate. Some majority

20
 jurisdictions rule that the tenant owes no rent to the landlord at all. Other jurisdictions rule that the
tenant owes only the difference between the lease rent rate and the rent the landlord would have
received if the landlord had made reasonable efforts to relet the property.

c.    Tenant’s Responses (Defenses And Counterclaims To A Damages Claim For Rent).

Determine the tenant’s potential defenses and counterclaims using Parts B.2.c.i through c.iv.

i.    (All Properties) Constructive Eviction Claim (Breach Of CQE Defense). To assert a

breach of the CQE, the tenant must give notice to the landlord of the situation giving rise to the
breach and then vacate the leased premises within a reasonable time after giving the notice.
Proceed to Part C for further analysis of a constructive eviction claim/breach of the CQE defense
by the tenant.

ii.   (Residential Property Only) Breach of IWH. A breach of the IWH entitles the
residential tenant to vacate the property and terminates the lease so that no more rent is owed to
the landlord. The residential tenant must first give notice to the landlord of the condition making
the premises uninhabitable and give the landlord a reasonable opportunity to make repairs before
vacating to assert a breach of the IWH as a defense to the landlord’s claim for nonpayment of rent.
Proceed to Part D for further analysis of breach of the IWH.

iii.  (All Properties) Illegal Lease. Did the landlord know that the leased premises were
uninhabitable or unsafe at the time the tenant entered into the lease? If yes, proceed to Part C.3 for
further analysis of a potentially illegal lease.

iv.  Interference With Tenant’s Legal Or Right To Possession (Illegality, Impossibility,

And Frustration). These defenses, if applicable, will permit the tenant to vacate and terminate the
lease, thereby cutting off the tenant’s obligation to pay rent. Proceed to Part E for further analysis
of these defenses.

3.    Other Landlord Damages Claims Based On Lease Terms Or Physical Harm To The Premises.
Determine if the landlord may have other damages claims against the tenant by using Parts B.3.a through
3.c.

a.    Breach Of Contract Claim Based On Lease Terms. Did the landlord incur
damages because the tenant failed to perform any tenant promises under the terms of the lease?

b.    (Commercial Property Only) Permissive Or Involuntary Waste. Did the tenant fail
to maintain the condition of the premises (normal wear and tear excluded)?

c.    Affirmative Waste. Did the tenant damage the leased property or change its physical
condition? Under the common law rule, the landlord can recover damages for any change to the
condition of the leased premises by the tenant (even a change that enhanced the property’s value)
as waste. The modern rule is that the tenant does not owe damages to the landlord for changes to
the premises that enhance the value of the property (ameliorating waste).

C.    (ALL PROPERTIES) THE COVENANT OF QUIET ENJOYMENT, PARTIAL EVICTION AND

THE ILLEGAL LEASE. The CQE is implied in every lease. Proceed to Part C.1 for an analysis of breach of the
CQE. A substantial breach of the CQE is tantamount to constructive eviction of the tenant from the entire premises
by the landlord. For a partial eviction situation (actual or 259 constructive), proceed to Part C.2. If the premises were
defective at the commencement of the lease, proceed to Part C.3 to determine if the lease is illegal.

1.    Elements For Breach Of CQE. A breach of the CQE occurs if the landlord’s wrongful conduct
causes a substantial interference with the tenant’s use and enjoyment of the leased property.

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 a.    Landlord’s Wrongful Conduct. Wrongful conduct by the landlord is established by a
breach of an express covenant in the lease (e.g., a promise that the landlord will maintain
heating/cooling/utilities service or provide needed repairs) or a breach of the common law duties
of a landlord. These duties are the: (1) duty to maintain common areas; (2) duty to disclose latent
defects; (3) duty to make promised repairs non-negligently; (4) duty not to make affirmative
misrepresentations concerning the condition of the leased premises; (5) duty to provide habitable
premises for the short-term lease of a furnished dwelling; and (6) duty to abate immoral or
nuisance conduct by other tenants on the landlord’s property.

i.    Tort Liability? The landlord also may be liable in tort for personal injuries
that occur on the leased premises. For further analysis of potential tort liability claims,
proceed to Part G.

ii.   Failure To Act? The landlord’s wrongful conduct may consist of failing to

act to stop conduct by third parties that substantially interferes with the tenant’s use and
enjoyment of the property. Examples include failing to stop nuisances or control
activities in common areas that the landlord has a duty to maintain for the use of all
tenants.

b.    Caused Substantial Interference. Is the wrongful conduct by the landlord the cause of
substantial interference with the tenant’s use and enjoyment of the leased premises?

i.    Objective Standard For Substantial Interference. Would a reasonable person

find the interference renders the premises unsuitable for the tenant’s bargained-for use
and enjoyment?

ii.   Factors For Determining Substantial Interference. Consider the following

factors when discussing whether the interference is substantial. Is the interference with
the tenant’s use and enjoyment of the leased premises: (1) foreseeable by the tenant; (2)
particularly severe or harmful in degree; (3) permanent or intermittent in nature; or (4)
capable of being abated by the tenant?

iii.  Partial Physical Interference. If the interference affects only part of the

leased premises, proceed to Part C.2 for further analysis.

c.    Tenant Gave Notice And Opportunity To Cure. Did the tenant give notice to the
landlord of the defect(s) or interference and a reasonable time for the landlord to cure the
problem? If no, the tenant cannot asset a breach of the CQE.

d.    Tenant Vacated Within A Reasonable Time. Did the tenant vacate the premises
within a reasonable time after the interference occurred and notice had been given to the landlord?

i.    Traditional (Majority) View. If yes, the tenant may terminate the lease, cease
paying rent, and sue the landlord for damages resulting from the dislocation. If no, the
tenant must continue to pay rent to the landlord, but can sue for damages.

ii.   Modern (Minority) View. The tenant may remain in possession, abate rent,
and sue for damages for breach of the CQE without vacating the property.

2.    (All Properties) Partial Eviction Claims.

a.    Actual Eviction By Landlord From Part Of Premises. The traditional view is that any actual
eviction of the tenant by the landlord from all or part of the leased premises terminates the lease and
relieves the tenant from paying all rent. The modern view is that the tenant may only partially abate the rent
for a partial actual eviction by the landlord.

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 b.    Partial Constructive Eviction. If the landlord’s wrongful conduct causes a substantial
interference with only part of the tenant’s use and enjoyment of the premises, the tenant must continue to
pay all rent due under the lease terms, but may sue the landlord for damages.

3.    Illegal Lease. At the inception of the lease, did the landlord know that the leased premises were in
substantial violation of the housing code or otherwise so unsafe as to be uninhabitable? If yes, the tenant is
not liable for rent due under the terms of the lease.

D.    RESIDENTIAL LEASES: IMPLIED WARRANTY OF HABITABILITY (IWH). The IWH applies

only to leases of residential property. The common law rule is that the landlord has no duty to offer or
maintain habitable leased premises. The modern rule is that residential leases contain an implied warranty
(the IWH) that 262 the landlord will offer and maintain residential premises for the duration of the lease
that are fit for human habitation.

1.    Standard For IWH. The touchstone standard for the IWH is whether the premises are safe and
fit for human habitation. A substantial violation of the local housing code can establish a breach of the
IWH, but a housing code violation is not necessary to establish a breach of the IWH.

a.    Waiver By Tenant At Inception Of Lease. The IWH is based on public health and
safety and effective enforcement of housing codes. Any purported waiver of the IWH by the
tenant is void.

b.    Notice Of Needed Repairs. If the landlord is not aware of the condition, the tenant is
required to give notice to the landlord and a reasonable opportunity to repair before a breach of the
IWH occurs.

2.    Tenant’s Remedies For Breach Of IWH. If the landlord fails to repair the condition that makes
the leased premises uninhabitable, a breach of the IWH occurs that gives rise to the following tenant
remedies.

a.    Vacate, Cease Rent And Sue For Damages. The tenant may terminate the lease, cease
paying further rent, and sue for damages related to relocation (e.g., moving costs and higher rent
for a replacement property).

b.    Remain In Possession. If tenant elects to remain in possession, the tenant may, after
notice to and failure to respond by the landlord, either: (1) withhold the rent due until the landlord
remedies the condition; or (2) deduct a reasonable amount from the rent due and use the money for
necessary repairs.

c.    Punitive Damages. The court may award punitive damages to the tenant if the
landlord 263 knowingly and willfully refused to address conditions that are a significant health
and safety danger.

3.    Retaliatory Eviction. The landlord may not retaliate by evicting a tenant who makes a good
faith request for needed repairs and who withholds rent until the repairs are made.

a.    Proof Of Retaliatory Motive. To assert a claim of retaliatory eviction, the tenant must
prove that the landlord’s motive in evicting was to retaliate against the tenant for requesting
repairs based on the landlord’s duty under the IWH. A rebuttable presumption of retaliatory
motive may arise under a state statute if the landlord’s actions occur within a specified time (e.g.,
3–6 months) after the tenant’s notice that repairs are needed.

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 b.    Tenant Must Not Be In Prior Default On Rent. To successfully assert a retaliatory
eviction claim, the tenant cannot be in default on rent payments before providing notice of needed
repairs to the landlord and withholding rent.

E.    TENANT’S DEFENSES TO NONPAYMENT OF RENT BASED ON THE TENANT’S RIGHT TO

POSSESSION. If a tenant fails to pay rent based on another tenant’s claim of a superior right to possess the leased
premises, proceed to Part E.1. For a tenant’s nonpayment of rent based on the physical possession of the leased
premises by a holdover tenant, proceed to Part E.2. For a tenant’s nonpayment of rent based on the destruction of the
leased premises, proceed to Part E.3. For a tenant’s nonpayment of rent based on an impossibility, illegality, or
frustration defense, proceed to Part E.4.

1.    Interference With Tenant’s Right To Legal Possession. The tenant must have the legal right to
possession of the premises for the duration of the lease. The mere threat of another tenant’s competing
claim to legal possession of the premises does not allow the occupying tenant to terminate the lease or to
stop paying rent. Once the tenant has taken possession of the leased premises, the tenant may not terminate
the lease and must continue to pay rent unless and until the tenant is actually evicted by a court ruling that
another competing tenant has the superior legal right to possession of the leased property.

2.    Interference With The Tenant’s Right To Physical Possession (Eviction Of A

Holdover Tenant). Whether the landlord has a duty to put the tenant in physical possession of the
leased premises depends on whether the jurisdiction follows the English Rule or the American
Rule.

a.    English Rule Jurisdiction. The landlord must provide the tenant with actual physical
possession of the premises, but only for the first day of the lease term. Thereafter, the tenant is
responsible for evicting trespassers.

i.    Tenant’s Remedies Against Landlord. If the landlord fails to evict a

holdover tenant, the incoming tenant may terminate the lease and sue the landlord for
damages, or may cease to pay rent to the landlord until the tenant is able to take physical
possession.

ii.   Tenant’s Remedies Against Holdover Tenant/Trespasser. The tenant may

evict the holdover tenant/trespasser and sue for damages.

b.    American Rule Jurisdiction. The landlord is not responsible for providing the tenant
with actual physical possession of the premises on the first day of the lease term.

i.    Tenant Has No Remedy Against Landlord. The tenant cannot terminate the
lease and must continue to pay rent to the landlord while evicting the holdover
tenant/trespasser.

ii.   Tenant’s Remedies Against Holdover Tenant/Trespasser. The tenant must

evict the holdover tenant/trespasser and sue for damages.

3.    Destruction Of The Leased Premises. When the leased premises are destroyed, the express
terms of the lease govern whether the tenant remains liable for rent. If the express terms of the lease do not
address the destruction of the leased property, whether the tenant remains liable for rent depends on
whether the jurisdiction applies the common law rule or the modern rule.

a.    Common Law (Minority) Rule. The tenant remains liable for rent even if the leased
property is destroyed.

b.    Modern (Majority) Rule. The tenant is not liable for rent if the leased property is
destroyed, unless the destruction is caused by the tenant’s own negligence.

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 4.    Illegality, Impossibility And Frustration Defenses. If circumstances permit, the tenant may
assert these defenses to a claim by the landlord for nonpayment of rent.

a.    The Tenant’s Use Has Become Illegal. A change in the law after the lease is executed
that makes the tenant’s use of the leased premises illegal relieves the tenant of the further
obligation to pay rent.

i.    Partial Or Alternative Legal Use Still Possible? If the tenant can still use part
of the leased property or the property has an alternative legal use, the tenant remains
liable for rent.

b.    Impossibility of Performance Defense. Impossibility is closely associated with illegal

use or destruction of the property. Mere hardship (e.g., increased inconvenience or financial
expense) does not make the tenant’s performance under the lease impossible.

c.    (Commercial Property Only) Frustration Defense. Have changed circumstances so

frustrated the fundamental purposes for which the tenant entered the lease that it is now a hardship
for the tenant to continue to perform the tenant’s obligations under the lease? Mere financial
hardship (making less profit than anticipated) does not frustrate the fundamental purpose of the
lease.

F.    DISCRIMINATION CLAIMS BY THE TENANT. Have the tenant’s federal rights under the Federal Fair
Housing Act (“FHA”) or the Civil Rights Act of 1866 (“CRA”) been violated? For potential violations of the FHA
in the selection of a tenant, proceed to Part F.1. For discrimination by the landlord in the terms and conditions of the
lease or failure to accommodate a handicapped tenant, proceed to Part F.2. For discrimination in advertising,
proceed to Part F.3. For remedies for an FHA violation, proceed to Part F.4. For violations of the CRA, proceed to
Part F.5.

1.    Fair Housing Act: Discrimination In The Selection Of Tenants. Section 3604 Of the FHA prohibits
discrimination in the rental of housing.

a.    Does An Exception Apply? Section 3603(b) excepts certain rental properties from the discrimination
prohibitions (but not the advertising prohibitions of § 3604(c)) of the FHA. The landlord can discriminate in the
selection of tenants if the rental property is:

i.    A Single Family House that is rented without the services of a real estate professional, the
owner owns three or fewer such houses, and any advertisement of the property does not violate the FHA’s
advertising prohibition in § 3604(c).

ii.   A Dwelling Occupied By The Owner where the owner rents out rooms or units in the rest of
the 267 building to no more than three other families who live independently of each other.

b.    Is The Tenant A Protected Person? Assuming an exception does not apply, determine if the tenant is
protected from housing discrimination under the FHA.

i.    Protected Categories Of Tenants. Under § 3604(a), the landlord cannot refuse to rent to a
tenant based on race, color, religion, sex, familial status or national origin. Under § 3604(f)(1), the landlord
cannot refuse to rent because of a handicap of the tenant, or the handicap of a person who resides with or is
associated with the tenant. Persons who are handicapped include recovering (not current) alcoholics or drug
addicts.

•    Familial Status is defined as having minor children under age 18. Increasing the monthly rent
or the damages deposit over the amount normally charged to other tenants because minor children are
residing on the property is familial status discrimination under the FHA.

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 •    Recovered Substance Abusers are protected as handicapped persons under the FHA.

•    Qualifying Senior Housing is an exception to the prohibition on discrimination based on

familial status.

ii.   Permitted Forms Of Discrimination. The FHA does not prohibit a landlord 268 from refusing
to rent to a tenant based on occupation, sexual orientation, whether the tenant is married, numerical
occupancy limits designed to maintain the economic value of the property, or based on the tenant’s current
illegal use of a controlled substance.

c.    Can Tenant Establish A Prima Facie Case? To establish a prima facie case, the tenant must: (1) be a
protected person under the FHA; (2) have offered to lease the property; (3) been rejected by the landlord; and (4) the
rental property must have remained available for rent by others.

i.    Misrepresented As Not Available. If the property is misrepresented by the landlord or the

landlord’s agent as not being available for rent when in fact the property is available, § 3604(d) is the
source of the FHA violation.

ii.   Proof Of Discriminatory Intent Not Required. Proof of discriminatory intent by the landlord is
not required to establish a prima facie case under the FHA.

d.    Can Landlord Show A Nondiscriminatory Reason For Rejecting The Tenant? If no, the tenant wins
under the FHA. Proceed to Part F.4 to determine the tenant’s remedies. If yes, the burden of proof shifts back to the
tenant to prove the landlord’s purported nondiscriminatory reason is a pretext for prohibited housing discrimination.

e.    Can Tenant Prove The Landlord’s Reason Is A Pretext For Prohibited Discrimination? Proof of actual
discriminatory intent by the landlord 269 is not required. The tenant only must show evidence that the landlord’s
stated reason for rejecting the tenant is not the real reason. If pretext is proven, proceed to Part F.4 to determine the
tenant’s remedies.

2.    Fair Housing Act: Discrimination In Terms And Conditions And Reasonable Accommodations For
Handicapped Persons. Section 3604(b) of the FHA prohibits discrimination in the terms and conditions of the
tenant’s lease based on race, color, religion, sex, familial status or national origin. Section 3604(f)(2) prohibits
discrimination in the terms and conditions of the lease based on the handicap of the tenant, or the handicap of a
person who resides with or is associated with the tenant. Section 3604(f)(3) requires the landlord to make reasonable
accommodations for handicapped persons.

a.    Does An Exception Apply? Refer to the exceptions in Part F.1.a. If the rental unit is a qualifying single
family house or a dwelling occupied by the owner, then the prohibitions and requirements of §§ 3604(b), 3604(f)(2),
and 3604(f)(3) do not apply.

b.    Discrimination In Terms And Conditions Of The Lease. Sections 3604(b) and 3604(f)(2) of the FHA
prohibit the landlord from discriminating against protected persons in the terms and conditions of the lease.
Determine if the tenant is a protected person under Part F.1.b above. If yes, the tenant potentially has a prima facie
case if the terms and conditions of the protected tenant’s lease are different from other tenants.

c.    Failure To Make Reasonable Accommodations? Section 3604(f)(3) makes it unlawful discrimination

for the landlord to refuse to make reasonable accommodations for a handicapped person who resides on the leased
premises.

i.    Modifications To Premises. The tenant 270 must be permitted to make reasonable

modifications to the leased premises for the handicapped tenant or a handicapped person residing there.
The tenant must agree to pay for the modifications and to restore the premises at the end of the lease.

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 ii.   Modifications To Landlord’s Rules, Policies And Procedures. The landlord must make
reasonable modifications to rules, policies and procedures that are necessary to give a handicapped tenant
an equal opportunity to use and enjoy the property.

3.    Fair Housing Act: Discrimination In Advertising. Section 3604(c) of the FHA prohibits any printed or oral
public statement that indicates a preference for or discrimination against a prospective tenant based on race, color,
religion, sex, familial status, national origin, or handicap.

a.    No Exceptions To Prohibition On Discrimatory Advertising. The prohibition on discrimination in

advertising applies to all types of residential properties, even those exempt from the general nondiscrimination
provisions of the FHA under § 3603(b) (i.e., a qualifying single family house or dwelling occupied by the owner).

b.    Standard For Determining Violation. Would the ordinary listener or ordinary reader think the statement
indicates a preference for or discrimination against renting the property to a protected person? Refer to Part F.1.b
above to determine the characteristics of a protected person.

4.    Remedies For FHA Violations. The tenant’s possible remedies for a FHA violation are injunctive relief,
compensatory damages and punitive damages.

5.    Civil Rights Act Of 1866 (42 U.S.C. § 1982). The CRA (“§ 1982”) prohibits discrimination based solely on
“race” in the rental of property. Unlike the FHA, there are no exceptions based on the type of property being rented.

a.    Was Discrimination Based On Tenant’s Race? Under the CRA, race connotes ancestry or ethnicity. If
the discrimination in rental of the property is based on national origin or religion, refer to Part F.1 above for analysis
of a possible FHA violation.

b.    Was Discrimination Limited To The Refusal To Sell Or Lease The Property? The CRA only applies to
the sale or leasing of property. Discrimination in the terms and conditions of the lease and discriminatory advertising
are not prohibited by § 1982. Refer to Part F.2 above if the landlord’s conduct involves the terms and conditions of
the lease, or to Part F.3 if the conduct involves statements or advertising for analysis of a possible FHA violation.

c.    Remedies For CRA Violations. Remedies available to the tenant are injunctive relief and damages.

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RAP Step by Step:  
1.    CLASSIFY THE FUTURE INTERESTS AND DETERMINE WHETHER THE GRANTING
INSTRUMENT CONTAINS A SAVINGS CLAUSE. 
Classify the future interests in the grant to determine if the grant contains an Exeutory interest, a
Contingent Remainder or a Vested Remainder Subject to Open. If the grant contains any of these three types of
future interests, note that the existence of a savings clause in the granting instrument eliminates the need to strike
any future interest that is void under the RAP. Absent a savings clause, each of the three types of future interests
must be tested for validity under the common law version of the RAP (even if the jurisdiction applies a modern
approach). 
Begin by identifying the perpetuities period and the relevant LIB according to Part B of the checklist.  
If the future interest being tested is an EI, proceed to Part C. If the future interest being tested is a
CR, proceed to Part D. 
 If the future interest being tested is a VRSO, proceed to Part E. If the jurisdiction applies the
common law version of the RAP, proceed to Part F to strike a void future interest.  
If the jurisdiction applies a modern version of the RAP, proceed to Part G for further analysis of a
future interest that is void under the common law version of the RAP. 
2.    DETERMINE THE PERPETUITIES PERIOD AND THE RELEVANT LIVES IN BEING.  
Identify the point in time when the perpetuities period begins and use this moment as your reference point
to identify the relevant LIB. 
1.    Perpetuities Period Begins? The perpetuities period begins when the future interests created by the
language of the grant become effective.  
a.    Inter Vivos Grant. The perpetuities period begins when the grant of the future interest
becomes irrevocable.  
b.    Devise In A Will. The perpetuities period begins when the testator who made the will
containing the grant dies.  
2.    Relevant LIB? List all individuals who are alive when the grant is made and whose actions during life
or by their death can impact the future interest being tested. 
 a.    LIB Expressly Named Or Described In Grant. Consider all individuals who are either named
or described as a class in the language of the grant as potential candidates for your list of relevant LIB.  
b.    LIB Implied From Grant Language. Consider whether persons not identified or described in
the language of the grant who nevertheless are relevant LIB (e.g., the parents of a class of grandchildren). 
3.    TESTING AN EXECUTORY INTEREST.  
An EI is RAP-vested once the EI comes into present possession. Look to the terms and conditions of the
grant language to determine when, if ever, the EI is extinguished (“fails”). 
1.    When Must The EI Turn Into A Present Interest? Focus on your list of relevant LIB to
determine when the  perpetuities period ends. If the EI could turn into a present interest beyond the lifetime of all
of your relevant LIB (plus 21 years), then the EI is void. Proceed to Part F to strike the grant language that creates
the EI.  
2.    When Must The EI Be Extinguished? Focus on your list of relevant LIB to determine when the
perpetuities period ends. If the EI permanently could be extinguished beyond the lifetime of all relevant LIB (plus
21 years), then the EI is void. Proceed to Part F to strike the grant language that creates the EI. 
 3.    Is The EI Valid? If the EI must, under all circumstances, either turn into a present interest or be
forever extinguished within the perpetuities period (relevant LIB plus 21 years), then the EI is valid under the RAP. 
 
D.    TESTING A CONTINGENT REMAINDER.  
If the CR is held by an individual, proceed to Part D.1. If the CR is a class gift, proceed to Part D.2.  
1. CR Held By An Individual. A CR held by an individual is RAP-vested when all
preconditions are satisfied and the CR turns into a VR. The CR does not need to come into
present possession within the perpetuities period. The RAP analysis depends on whether the
jurisdiction applies the Doctrine of Destructability.  
a.    Doctrine of Destructibility Applies. Focus on the moment of natural termination of the prior
present interest.  
i.    Must the natural termination of the prior present interest (LE or TY) occur within
the perpetuities period (relevant LIB plus 21 years)? If yes, the CR is valid. The CR will either

28
 RAP-vest or be destroyed at the moment of natural termination of the prior present interest due
to the Doctrine of Destructibility. 
ii.   Could the prior present interest (LE, TY or FT) naturally terminate after the
perpetuities period ends (relevant LIB plus 21 years)? 
 If yes, the CR is void, unless you can show that the ability to satisfy the
precondition is held or controlled solely by persons who were alive at the time the grant
was made. Remember that to satisfy the RAP, the CR does not need to come into present
possession within the perpetuities period. The CR only must turn into a VR or be
permanently extinguished because it becomes impossible for the precondition to be
satisfied within the perpetuities period.
•    If only persons who are alive when the grant is made can determine whether the
precondition is satisfied, then the CR is valid if the precondition itself does not contain a
time element exceeding 21 years. 
 •    If the precondition contains a time element that exceeds 21 years, determine if the
individual who holds the CR must either satisfy or fail the time element within the
perpetuities period (LIB plus 21 years). If not, then the CR is void. Proceed to Part F to
strike the void CR.  
•    If a person who is not alive at the time the grant is made can affect whether the
precondition is satisfied, or if a LIB cannot satisfy a time element in the precondition
within 21 years, then the CR is void. Proceed to Part F to strike the void CR. 
b.    Doctrine of Destructibility Abolished.(not on exam) The CR will survive and turn into a
springing EI if the precondition has not yet been satisfied at the natural termination of the prior
present interest. Focus on who has the ability to determine whether the precondition will
be satisfied, and determine if all such persons are alive at the time the grant is effective (LIB).  
i.    Can the precondition only be satisfied by the actions during life or due to the death of
a LIB? If yes, the CR is valid if the precondition does not contain a time element exceeding 21
years.  
ii.   If the precondition contains a time element that exceeds 21 years, determine if the
individual who holds the CR must be able to satisfy the time element within the perpetuities
period (LIB plus 21 years). 
 If yes, the CR is valid. If no, then the CR is void. Proceed to Part F to strike the
void CR.  
iii.  Can the precondition be satisfied by the actions during life or due to the death of a
person who was not alive at the time the grant was made? 
 If yes, the CR is void. Proceed to Part F to strike the void CR. 
2.    CR Class Gift. A CR held by a class is RAP-vested when the class closes and all internal
preconditions imposed on the class members (if any) are satisfied by all class members. RAP-vesting
occurs when the CR turns into a VR. The CR does not need to come into present possession within the
perpetuities period. The RAP analysis depends on whether the governing jurisdiction applies the Doctrine
of Destructibility. 
a.    Doctrine of Destructibility Applies. (not on exam) Focus on the moment of natural
termination of the prior present interest.  
i.    Must the natural termination of prior present interest (LE or TY) occur within the
perpetuities period (LIB plus 21 years)? If yes, the CR is valid. The CR will either RAP-vest or be
destroyed at the moment of natural termination of the prior present interest due to the Doctrine of
Destructibility.  
ii.   Could the prior present interest (LE, TY or FT) naturally terminate after the
perpetuities period ends (LIB plus 21 years)?  
If yes, the CR is void, unless you can show that the class will close and all internal
preconditions (if any) imposed on the class members will, under all circumstances, be satisfied by
all class members within the perpetuities period under the all-or-nothing rule for class gifts. 
 •    If all parents who can give rise to class members are alive at the time the grant is
made, then the class will close within the perpetuities period because the parents are all relevant
LIB. If there are no other internal preconditions, the CR is valid. 

29
  •    If a parent to the class could be born after the grant is made, then the afterborn parent
can prevent the class from closing in time, and the CR class gift is void. Proceed to Part F to strike
the void CR. 
•    If the grant contains an internal precondition, determine when all class members will
satisfy the internal precondition. Under the all-or-nothing rule for class gifts, each and
every member of the class must be able to satisfy an internal precondition (or as a group must all
fail the precondition) within the perpetuities period. If the CR class gift is void, proceed to Part F
to strike the void CR. 
b.    Doctrine of Destructibility Abolished. Under the exception to the Rule of Convenience, a
CR held by a class will survive and turn into a springing EI if, at the moment of natural termination of the
prior present estate, there are still no class members or no class members have satisfied an internal
precondition. The CR class gift is void under the RAP unless the class will close and all internal
preconditions imposed on the class members (if any) will be satisfied within the perpetuities period. 
 i.    When will the class close? Are all parents who can give rise to class members alive
at the time the grant is made?  
If yes, the class will close within the perpetuities period.   
•    If there are no other internal preconditions, the CR is valid.  
•    If the grant contains internal preconditions, determine when all class members will
satisfy the internal precondition. Proceed to Part C.2.b.ii for further analysis.  
•    If a parent to the class could be born after the grant is made, then the afterborn parent
can prevent the class from closing in time, and the CR class gift is void. Proceed to Part F to strike
the void CR. 
•    If a parent to the class could be born after the grant is made, then the afterborn parent
can prevent the class from closing in time, and the CR class gift is void. Proceed to Part F to strike
the void CR. 
ii.   When will an internal precondition be satisfied by all class members? Under the
all-or-nothing rule for class gifts, each and every member of the class must be able to satisfy an
internal precondition (or as a group must all fail the precondition) within the perpetuities period
(relevant LIB plus 21 years). 
 •    If only persons who were alive when the grant was made will determine or influence
whether the internal precondition is satisfied, then the CR is valid so long as the precondition does
not contain a time element exceeding 21 years.  
•    If the precondition contains a time element that exceeds 21 years, determine if each
class member must satisfy the time element within the perpetuities period (LIB plus 21 years). If
yes, the CR is valid. If no, then the CR is void. Proceed to Part F to strike the void CR.  
•    If a person born after the grant is made can determine or influence whether the
precondition is satisfied for a class member, then the CR is void because the afterborn person can
cause the precondition to be satisfied after the perpetuities period ends. Proceed to Part F to strike
the void CR. 
E.    TESTING A VESTED REMAINDER SUBJECT TO OPEN.  
A VRSO does not need to come into present possession within the perpetuities period to satisfy the RAP. A
VRSO satisfies the RAP if the VRSO turns into a VR within the perpetuities period (LIB plus 21 years). A VRSO
closes and turns into a VR at the earlier of:  
(1) the natural termination of the prior present interest; or  
(2) when it becomes impossible for any more class members to come into existence (typically, the
class closes by death because a parent or parents have died, and no more children or grandchildren can be
born).  
1.    Must The Class Close Within The Perpetuities Period? Determine when the VRSO will close under
Parts E.1.a and E.1.b of the checklist.  
a.    Does The Class Close By Natural Termination Of The Prior Present Interest? Must the prior
present interest (LE or TY) naturally terminate within the perpetuities period (LIB plus 21 years)? 
 i.    If yes, then under the Rule of Convenience the VRSO will close within the
perpetuities period.  
•    If the grant does not contain an internal precondition, the VRSO is valid.  •    If the
grant contains an internal precondition, proceed to Part E.2 for further analysis. 

30
  ii.   If no, proceed to Part E.1.b to determine whether the class closes by death within the
perpetuities period. 
 b.    Does The Class Close By Death? Are the persons (typically, parents) who give rise to the
class members all LIB at the time the grant is made?  
i.    If yes, then the VRSO will close within the perpetuities period upon the death of the
last to die of the LIB who give rise to the members of the class.  
•    If the grant does not contain an internal precondition, the VRSO is valid.  •    If the
grant contains an internal precondition, proceed to Part E.2 for further analysis. 
 ii.   If no, then the VRSO is void due to one or more persons who could be born after the
grant is made, thereby preventing the class from closing within the perpetuities period. Proceed to
Part F to strike the void VRSO.  
2.    Is An Internal Precondition Satisfied By All Class Members Within The Perpetuities Period? If
the grant contains an internal precondition, under the all-or-nothing rule for class gifts each and
every member of the class must be able to satisfy the internal precondition within the perpetuities period or
else the VRSO is void for all class members, even for those members who have satisfied the internal
precondition within the perpetuities period.  a.    Are Only Persons Who Were Alive When The Grant Was
Made Able To Determine Or Influence Whether The Internal Precondition Is Satisfied? 
i.    If yes, the VRSO is valid so long as the precondition does not contain a time element
exceeding 21 years.  
ii.   If the precondition contains a time element that exceeds 21 years, determine if each
class member must satisfy the time element within the perpetuities period (LIB plus 21 years). If
yes, the VRSO is valid. If no, then the VRSO is void. Proceed to Part F to strike the void VRSO.  
b.    Could A Person Born After The Grant Is Made Determine Or Influence
Whether The Precondition Is Satisfied For A Class Member? If yes, the VRSO is void because the
afterborn person can cause the precondition to be satisfied for one of the class members after the
perpetuities period ends. Under the all-or-nothing rule for class gifts, the VRSO is void, even for those
class members who have satisfied the precondition within the perpetuities period. Proceed to Part F to
strike the void VRSO.  
F.    UNDER THE COMMON LAW RAP, STRIKE ANY VOID FUTURE INTEREST AND RE–
ANALYZE THE GRANT. If a future interest is void under the common law version of the RAP, proceed
to Parts F.1 through F.3 below. If the jurisdiction applies a modern approach to the RAP, omit Part F and
proceed directly to Part G of the checklist.  
1.    Strike The Void Future Interest. Begin at the end of the granting clause that creates the void
future interest and work backwards to “line out” the void language. Stop striking once you reach the end of
the granting clause for the next prior interest that is valid.  
2.    Reclassify The Interests Created By The Revised Grant. Read the revised grant language that
remains and determine what present and future interests are created. Do not consider the original grantor’s
intent when reclassifying the remaining interests. 
3.    Analyze The Facts Using The Revised Grant Language. Treat the revised grant language as if
it were the original language of the grant and apply the facts of the problem accordingly. Do not consider
the original grantor’s intent (it will likely be contradicted). 
 
G.    MODERN RAP APPROACHES. If the jurisdiction applies the wait-and-see approach, proceed to
Part G.1. If the jurisdiction applies the USRAP approach, proceed to Part G.2.  1.    Wait–And–See
Approach. Is the future interest valid under the common law version of the RAP?  
a.    If yes, then the future interest is valid under the wait-and-see approach. 
b.    If no, do not strike the future interest. Wait to see if the future interest RAP-vests
within the common law perpetuities period (LIB plus 21 years).  
i.    An EI becomes RAP-vested when the interest comes into present possession
or is permanently extinguished.  
ii.   A CR or VRSO becomes RAP-vested when the future interest turns into a
VR or, for a CR, is permanently extinguished. Under the all-or-nothing rule for class
gifts, any preconditions must be satisfied by all class members within the perpetuities
period.  

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 c.    If the future interest has not RAP-vested by the end of the perpetuities period, the
court must reform the grant to RAP-vest the future interest in a manner that most closely
approximates the original intent of the grantor. 
2.    USRAP Approach. Is the future interest valid under the common law version of the RAP?  
a.    If yes, then the future interest is valid under the USRAP. 
b.    If no, do not strike the future interest. Wait to see if the future interest RAP-vests
within 90 years from the moment when the grant is made.  
i.    An EI becomes RAP-vested when the interest comes into present possession
or is permanently extinguished. 
 ii.   A CR or VRSO becomes RAP-vested when the future interest turns into a
VR or, for a CR, is permanently extinguished. Under the all-or-nothing rule for class
gifts, any preconditions must be satisfied by all class members within the perpetuities
period.  
c.    If the future interest has not RAP-vested by the end of the 90 year term, the court
must reform the grant to RAP-vest the future interest in a manner that most closely approximates
the original intent of the grantor.

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