Multistate Bar Examination (MBE) Real Property Syllabus

Real Property syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Real Property in Multistate Bar Examination (MBE), not a summary of it.

1. 1

   Ownership Interests and Estates in Land

   3 topics

   • Present Possessory Estates
     • Fee simple absolute and defeasible fees
     • Life estates and waste
     • Fee tail
   • Future Interests
     • Reversions, possibilities of reverter, rights of entry
     • Remainders: vested and contingent
     • Executory interests
     • Rule Against Perpetuities
   • Concurrent Ownership
     • Joint tenancy and right of survivorship
     • Tenancy in common and tenancy by the entirety
     • Rights and duties of cotenants; partition
2. 2

   Landlord-Tenant Law

   3 topics

   • Types of Tenancies
     • Tenancy for years and periodic tenancy
     • Tenancy at will and at sufferance
   • Duties and Rights of the Parties
     • Implied warranty of habitability
     • Covenant of quiet enjoyment and constructive eviction
     • Tenant duties and landlord remedies
   • Assignment and Subletting
     • Distinguishing assignments from subleases
     • Privity of contract and estate
3. 3

   Rights in the Land of Others and Land Use

   4 topics

   • Easements
     • Creation: express, implication, necessity, prescription
     • Scope, transfer, and termination
     • Appurtenant vs. in gross
   • Covenants and Equitable Servitudes
     • Real covenants and the requirements for running
     • Equitable servitudes and common schemes
     • Touch and concern, notice, and privity
   • Licenses and Profits
     • Revocable licenses and irrevocable licenses by estoppel
     • Profits a prendre
   • Adverse Possession
     • Elements: open, notorious, hostile, continuous, exclusive
     • Tacking and disabilities
4. 4

   Real Estate Contracts and Conveyancing

   3 topics

   • Land Sale Contracts
     • Statute of Frauds and part performance
     • Marketable title and time of essence
     • Equitable conversion and risk of loss
   • Deeds and Delivery
     • Types of deeds and covenants of title
     • Delivery and acceptance
     • Description and acknowledgment requirements
   • Closing and Remedies
     • Merger doctrine
     • Remedies for breach of the sale contract
5. 5

   Title Assurance and Recording

   3 topics

   • Recording Acts
     • Notice, race, and race-notice statutes
     • Bona fide purchasers and shelter rule
     • Types of notice: actual, constructive, inquiry
   • Title Defects and Assurance
     • Chain of title and wild deeds
     • Title insurance
   • Conflicting Conveyances
     • Estoppel by deed
     • Priority disputes
6. 6

   Mortgages and Security Interests in Land

   3 topics

   • Mortgage Fundamentals
     • Mortgages, deeds of trust, and installment contracts
     • Lien theory vs. title theory
   • Transfers and Assumptions
     • Transfer by the mortgagor and due-on-sale clauses
     • Assumption vs. taking subject to
   • Foreclosure and Redemption
     • Foreclosure procedures and priorities
     • Equity of redemption and statutory redemption
     • Deficiency judgments

Real Property flashcards for Multistate Bar Examination (MBE)

25 of 78 cards from the Real Property deck — real questions with worked answers.

1. What is the defining characteristic of a fee simple absolute, and what words create it?

   It is the largest possessory estate—absolute ownership of potentially infinite duration, freely devisable, descendible, and alienable. Created today by a grant 'to A' (or 'to A and his heirs'); no accompanying future interest exists.

2. Distinguish a fee simple determinable from a fee simple subject to a condition subsequent, including the language and the accompanying future interest.

   Fee simple determinable uses durational language ('so long as,' 'while,' 'until') and AUTOMATICALLY ends, reverting via a possibility of reverter in the grantor. Fee simple subject to a condition subsequent uses conditional language ('but if,' 'provided that,' 'on condition that') plus an express right of re-entry; it does NOT end automatically—the grantor must exercise the right of entry (power of termination).

3. What is a fee simple subject to an executory limitation, and what future interest follows it?

   A fee simple that automatically divests to a THIRD PARTY (not the grantor) upon a stated event. The third party holds an executory interest. Example: 'to A, but if A stops farming, to B.'

4. Define a life estate and a life estate pur autre vie.

   A life estate is an estate measured by the life of the holder ('to A for life'); the holder is a life tenant. A life estate pur autre vie is measured by the life of someone OTHER than the holder ('to A for the life of B'). On the measuring life's death the property passes to the reversion or remainder.

5. What is the doctrine of waste, and name the three types?

   Waste limits a life tenant's use to protect future-interest holders. (1) Affirmative (voluntary) waste—actively damaging/exploiting the land (e.g., mining); (2) Permissive waste—failing to maintain/pay taxes or interest; (3) Ameliorative waste—altering the property to increase its value, generally actionable only if it changes the property's character without consent.

6. What is a reversion, and is it vested?

   A reversion is the future interest retained by a grantor who transfers an estate of LESSER duration than she has (e.g., conveys a life estate, keeping the rest). It is a vested interest, fully transferable, and not subject to the Rule Against Perpetuities.

7. Compare a possibility of reverter and a right of entry (power of termination).

   A possibility of reverter follows a fee simple determinable and vests AUTOMATICALLY in the grantor when the condition occurs. A right of entry follows a fee simple subject to a condition subsequent and must be AFFIRMATIVELY exercised; it does not vest automatically. Both are retained by the grantor and exempt from RAP.

8. Distinguish a vested remainder from a contingent remainder.

   A remainder is vested if it is given to an ascertained person AND is not subject to any condition precedent (other than the natural termination of the prior estate). It is contingent if given to an unascertained person OR subject to a condition precedent (or both).

9. Define the three kinds of vested remainders.

   (1) Indefeasibly vested—certain to take in full ('to A for life, then to B'). (2) Vested subject to open (subject to partial divestment)—given to a class with at least one ascertained member but the class can still grow ('to A for life, then to A's children'). (3) Vested subject to total divestment—vested but can be cut off by a condition subsequent ('to A for life, then to B, but if B dies under 21, to C').

10. What is an executory interest, and what are the two types?

    A future interest in a THIRD PARTY that cuts short (divests) a prior estate. Shifting executory interest divests a prior grantee/transferee; springing executory interest divests the grantor (e.g., follows a gap in possession).

11. State the common-law Rule Against Perpetuities.

    No interest is valid unless it must vest, if at all, within 21 years after the death of some life in being at the creation of the interest. It applies to contingent remainders, executory interests, and vested remainders subject to open. If there is any possibility the interest could vest too remotely, it is void from the outset.

12. Which future interests are exempt from the Rule Against Perpetuities?

    Interests retained by the grantor (reversions, possibilities of reverter, rights of entry) and indefeasibly vested remainders are exempt. RAP applies to contingent remainders, executory interests, and vested remainders subject to open.

13. What is the class-closing 'rule of convenience'?

    Absent contrary intent, a class closes (no new members may enter) when any member becomes entitled to immediate possession/distribution. This helps avoid RAP violations by limiting which members count.

14. Explain the Rule in Shelley's Case (common law) and its modern status.

    At common law, a grant 'to A for life, then to A's heirs' merged the life estate and remainder so A took a fee simple, defeating the remainder in the heirs. The rule has been ABOLISHED in nearly all states; today A takes a life estate and A's heirs take a contingent remainder.

15. Explain the Doctrine of Worthier Title.

    A remainder in the grantor's own heirs is invalid; instead the grantor retains a reversion. Thus 'to A for life, then to my (grantor's) heirs' gives A a life estate and the grantor a reversion. It is a rule of construction (rebuttable by intent), applying to inter vivos transfers.

16. List the three unities required for a joint tenancy and the survivorship feature.

    Joint tenancy requires the four unities—Time, Title, Interest, Possession (the last three plus express survivorship language). Its hallmark is the right of survivorship: when one joint tenant dies, the share passes automatically to the surviving joint tenant(s), bypassing probate.

17. How is a joint tenancy severed, and what is the result?

    A severance destroys the right of survivorship and converts the interest into a tenancy in common. Severance occurs by inter vivos transfer (sale) of a joint tenant's interest; in many states by a mortgage in a title-theory state; and by partition. The severing tenant's share becomes a tenancy-in-common share. A will cannot sever (survivorship operates at death first).

18. What is a tenancy by the entirety, and how is it severed?

    A marital joint tenancy between spouses with right of survivorship, recognized in some states. Neither spouse can unilaterally convey or encumber the property or defeat the other's survivorship right. It is severed only by death, divorce, mutual agreement, or execution by a joint creditor.

19. Describe a tenancy in common.

    Co-ownership where each co-tenant holds a separate, undivided, freely transferable interest with NO right of survivorship. Each tenant has a right to possess the whole. On death, the share passes by will or intestacy. It is the default/modern presumption for multi-grantee conveyances.

20. When does one co-tenant owe rent to another for occupying the property?

    A co-tenant in sole possession owes nothing for using the property unless there has been an OUSTER (denial of another co-tenant's right to possess). However, a co-tenant must share net rents received from THIRD parties and account for net profits from exploiting the land.

21. What is partition, and what are its two forms?

    A judicial remedy allowing any co-tenant (joint tenant or tenant in common, not tenants by the entirety) to end co-ownership. Partition in kind physically divides the land (preferred); partition by sale divides the proceeds when physical division is impractical or would harm value.

22. Define a tenancy for years (estate for years).

    A leasehold for a FIXED, determined period (any length). It ends automatically at the stated term's end with no notice required. A term over one year must satisfy the Statute of Frauds (writing).

23. Define a periodic tenancy and the notice required to terminate.

    A leasehold that continues for successive intervals (month-to-month, year-to-year) until proper notice. At common law, notice must equal the length of the period (capped at six months for a year-to-year tenancy); the termination must be effective at the end of a period.

24. Define a tenancy at will and a tenancy at sufferance.

    Tenancy at will: no fixed duration, terminable by either party at any time (modern statutes often require reasonable notice). Tenancy at sufferance: arises when a tenant wrongfully HOLDS OVER after a lease ends; the landlord may evict or bind the tenant to a new periodic tenancy.

25. State the landlord's implied warranty of habitability and the tenant's remedies for breach.

    In residential leases, the landlord must maintain the premises fit for human habitation (meeting housing codes/basic living requirements); it is non-waivable. On breach, the tenant may: move out and terminate, repair and deduct, reduce/withhold rent, or remain and seek damages.

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