Multistate Bar Examination (MBE) Real Property Syllabus

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.

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).

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.

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.

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.

What is the implied covenant of quiet enjoyment and constructive eviction?

Every lease implies that the tenant will not be disturbed in possession by the landlord. Constructive eviction occurs when (1) the landlord's act or failure to act substantially interferes with use/enjoyment, (2) the tenant gives notice and the landlord fails to fix it, and (3) the tenant vacates within a reasonable time. The tenant is then relieved of rent.

What duties does a tenant owe regarding the condition of leased premises and the duty to pay rent?

The tenant must pay rent and avoid waste (must repair ordinary damage but not normal wear and tear). The tenant generally cannot destroy the premises and must return them in the same condition minus ordinary wear, unless the lease provides otherwise.

What may a landlord do when a tenant abandons the premises, and what is the duty to mitigate?

On abandonment the landlord may treat it as an offer of surrender (accept and release the tenant) or re-let on the tenant's account and hold the tenant for the deficiency. The majority/modern rule requires the landlord to make reasonable efforts to MITIGATE by re-renting.

Distinguish an assignment from a sublease.

An assignment transfers the tenant's ENTIRE remaining interest in the lease; the assignee comes into privity of estate with the landlord and is liable for rent/covenants running with the land. A sublease transfers LESS than the entire remaining term (tenant keeps a reversion); the sublessee has no privity with the landlord and is not directly liable to the landlord for rent.

After an assignment, who is liable for rent—the original tenant or the assignee?

The assignee is liable to the landlord via privity of estate (for covenants that run with the land). The original tenant remains liable via privity of CONTRACT (on the lease promise) unless expressly released (novation). Both can be liable, though the landlord recovers only once.

What is the effect of a lease clause prohibiting assignment/subletting, and the Rule in Dumpor's Case?

Restraints on alienation in leases are valid but strictly construed; a clause barring assignment does not bar subletting (and vice versa). Under Dumpor's Case, once a landlord consents to one assignment, the landlord waives the right to object to future assignments unless the consent is expressly reserved.

Define an easement and distinguish an easement appurtenant from an easement in gross.

An easement is a nonpossessory right to use another's land. Appurtenant: benefits the holder in use of a particular parcel (dominant tenement) and burdens another parcel (servient tenement); it runs with the land. In gross: benefits a person or entity, not land (e.g., utility line); transferable if commercial.

List the four ways an easement can be created.

(1) Express grant or reservation (in writing, satisfying the Statute of Frauds); (2) Implication (prior use/quasi-easement); (3) Necessity; (4) Prescription (adverse use).

What are the elements of an easement by implication from prior use?

(1) Common ownership of both parcels that is then severed; (2) the prior use existed before severance, was apparent/continuous, and (3) the use is reasonably necessary for the enjoyment of the dominant parcel.

What are the elements of an easement by necessity?

(1) Common ownership of the dominant and servient parcels, severed into two; and (2) STRICT necessity for access at the time of severance (typically a landlocked parcel). It ends when the necessity ends.

What are the elements of an easement by prescription?

Use that is Open and notorious, Continuous (for the statutory period), Hostile (without permission), and Actual. (No 'exclusive' requirement as in adverse possession.) Mnemonic: OCH—open, continuous, hostile.)

How is an easement terminated? Name the main methods.

END CRAMP: by Estoppel; Necessity ending; Destruction of servient land; Condemnation; Release (written); Abandonment (act showing intent, not mere non-use); Merger (unity of ownership of both parcels); and Prescription (servient owner blocks use for statutory period).

What is a real covenant, and what is required for the BURDEN to run with the land at law?

A real covenant is a written promise concerning land enforceable at law for money damages. For the burden to run: (1) Writing (intent that it run); (2) Intent to bind successors; (3) Touch and concern the land; (4) Horizontal privity (between original parties) AND Vertical privity (successor takes the entire estate); and (5) Notice (to the successor).

What is required for the BENEFIT of a real covenant to run with the land?

(1) Writing/intent that it run; (2) Touch and concern; and (3) Vertical privity. Notably, the benefit does NOT require horizontal privity, and no notice requirement.

What is an equitable servitude, and what are its requirements?

A promise concerning land enforceable in EQUITY by injunction. Requirements (WITNES minus privity): Writing, Intent to bind successors, Touch and concern, and Notice (actual, record, or inquiry) to the burdened party. Privity is NOT required—this is its key advantage over real covenants.

What is the doctrine of reciprocal negative servitudes (common scheme doctrine)?

In a subdivision, an implied equitable servitude binds all lots even without a writing in a deed if (1) the developer had a COMMON SCHEME of restriction when sales began, and (2) the later buyer had NOTICE (actual, record, or inquiry) of the restriction. It is an exception to the writing requirement.

How are equitable servitudes terminated, including changed conditions?

By written release, merger, abandonment, estoppel, or the CHANGED CONDITIONS doctrine—when the neighborhood has so changed that the servitude's original purpose can no longer be achieved. The change must affect the ENTIRE area, not just border lots.

What is a license, and is it revocable?

A license is a revocable, personal privilege to enter another's land for a stated purpose. It is generally freely revocable and not subject to the Statute of Frauds. Exceptions (irrevocable): a license coupled with an interest, and a license made irrevocable by estoppel (licensee invested in reliance).

What is a profit (profit à prendre)?

A nonpossessory right to enter another's land and REMOVE soil or a product of the land (minerals, timber, game). It is governed by easement rules for creation and termination.

State the elements of adverse possession.

Possession that is: (1) Continuous for the statutory period; (2) Open and notorious; (3) Actual and exclusive; and (4) Hostile (without owner's permission). Mnemonic: COAH / 'an ACHO'—Actual, Continuous, Hostile, Open & notorious, Exclusive.

What is 'tacking' in adverse possession, and what is required?

Tacking allows successive adverse possessors to add their periods together to meet the statutory period, provided there is PRIVITY (a voluntary transfer—deed, will, descent) between them. Tacking is not allowed where one possessor ousts another.

How do disabilities affect the adverse-possession statutory period?

If the true owner is under a disability (minority, insanity, imprisonment) at the time adverse possession BEGINS, the statute is tolled until the disability ends. Disabilities arising after possession begins do not toll, and disabilities are not tacked.

What two implied warranties/conditions are part of every land sale contract?

(1) Implied warranty of MARKETABLE title—title reasonably free from doubt (no defects/encumbrances) as of closing; and (2) the duty of the seller to deliver such title at closing. (Note: a contract does NOT imply that the premises are fit—'caveat emptor'—except an implied warranty of fitness/quality from a builder of a NEW home in many states.)

What is the doctrine of equitable conversion, and who bears the risk of loss before closing?

Once a land contract is signed, equity regards the buyer as the owner (holding equitable title) and the seller as holding legal title in trust/security. Under the majority rule, the BUYER bears the risk of loss if the property is damaged before closing through no fault of either party (absent a contrary clause or the Uniform Vendor and Purchaser Risk Act, which shifts risk to the seller until possession/title transfers).

What is the doctrine of merger in the context of deeds, and the effect of the closing?

Under merger, contractual obligations regarding title MERGE into the deed at closing; thereafter the buyer can sue only on the deed's covenants, not the contract, for title defects. (Modern courts limit merger to title issues, allowing separate contract claims for things like fraud or collateral promises.)

What are the required elements for a valid deed?

A deed must be in writing, signed by the grantor, identify the parties, contain words of intent to convey, and describe the land with reasonable certainty. Consideration is NOT required for validity (though it matters for bona-fide-purchaser status). It must then be delivered and accepted.

What constitutes valid 'delivery' of a deed?

Delivery is the grantor's present INTENT to make the deed immediately operative/effective, regardless of physical handing over. It is a question of intent; recording or handing over raises a presumption of delivery, but a deed retained with no present intent (or with conditions making it testamentary) is not validly delivered.

What is the legal effect of an attempted delivery with an oral condition?

If a grantor hands a deed directly to the GRANTEE with an oral condition, the condition is generally disregarded and delivery is absolute (the deed is effective, condition void). A valid conditional delivery is made through a THIRD-party escrow agent.

Compare a general warranty deed, a special warranty deed, and a quitclaim deed.

General warranty deed: grantor warrants against ALL title defects, including those arising before he owned it (all six covenants). Special (limited) warranty deed: warrants only against defects arising DURING the grantor's ownership. Quitclaim deed: NO warranties—conveys only whatever interest the grantor has, if any.

List the six covenants of title and which are present vs. future covenants.

PRESENT covenants (breached, if at all, at delivery; do not run with land in many states): (1) Covenant of seisin, (2) Covenant of right to convey, (3) Covenant against encumbrances. FUTURE covenants (breached upon later disturbance; run to successors): (4) Covenant of quiet enjoyment, (5) Covenant of warranty, (6) Covenant for further assurances.

What remedies are available for a seller's breach of a land sale contract?

The buyer may sue for damages (benefit of the bargain—difference between contract price and market value), seek SPECIFIC PERFORMANCE (because land is unique, the standard remedy), or rescind and recover the deposit. The seller may keep the deposit, sue for damages, or seek specific performance (forcing the buyer to pay).

What is the purpose of recording acts, and whom do they protect?

Recording acts establish priority among competing claimants to land and protect SUBSEQUENT bona fide purchasers (and mortgagees) against prior unrecorded conveyances. They do NOT protect donees, heirs, or those with notice (except under a pure race statute).

State the operative language and rule of a RACE recording statute.

'First to record prevails.' Whoever records first wins, regardless of notice. Even a subsequent purchaser WITH actual knowledge of a prior unrecorded deed prevails if he records first. (Rare.)

State the operative language and rule of a NOTICE recording statute.

A subsequent bona fide purchaser (BFP) prevails over a prior grantee who failed to record, IF the subsequent purchaser took WITHOUT notice (actual, record, or inquiry) and gave value. Recording by the subsequent purchaser is not required to prevail. Typical language: 'unless recorded... not valid against a subsequent purchaser without notice.'

State the operative language and rule of a RACE-NOTICE recording statute.

A subsequent BFP prevails only if he (1) took WITHOUT notice of the prior conveyance AND (2) RECORDS FIRST (before the prior grantee). Typical language: 'unless recorded... not valid against a subsequent purchaser without notice who records first.'

Define the three types of notice under recording acts.

(1) Actual notice—real knowledge of the prior interest. (2) Record (constructive) notice—properly recorded documents in the chain of title. (3) Inquiry notice—facts that would lead a reasonable person to investigate (e.g., someone in possession, references in recorded deeds).

Who qualifies as a bona fide purchaser (BFP)?

One who (1) takes for VALUE (not a gift/devise/inheritance) and (2) takes WITHOUT notice (actual, record, or inquiry) of the prior interest. Donees, heirs, and devisees are not BFPs and cannot use notice/race-notice statutes.

What is the 'shelter rule'?

A person who takes from a bona fide purchaser protected by the recording act 'shelters' under that BFP's protection—acquiring the same priority—even if that person otherwise had notice or did not pay value. This protects the BFP's ability to convey what she has.

What are a 'wild deed' and an estoppel-by-deed (after-acquired title) situation, and their effect on chain of title?

A wild deed is a recorded deed outside the chain of title (because a prior link is unrecorded); it does NOT give constructive notice. Estoppel by deed: if a grantor conveys land he doesn't yet own (with warranty) and later acquires title, that title automatically passes to the earlier grantee; but a later BFP may still prevail because the after-acquired title deed is outside the chain in most states.

What is marketable title, and what defects make title unmarketable?

Title reasonably free from doubt that a prudent buyer would accept. Defects rendering it unmarketable include: defects in the record chain, encumbrances (mortgages, liens, easements, restrictive covenants—unless waived/known), zoning violations (not mere zoning), and title acquired by adverse possession that hasn't been quieted.

How does title insurance protect a buyer, and how does it differ from deed covenants?

Title insurance indemnifies the insured against losses from covered title defects existing at the policy date and pays defense costs. Unlike deed covenants (which run against a possibly-insolvent grantor), it gives a contractual claim against a solvent insurer; but it covers only listed/standard risks and excludes stated exceptions.

What is the difference between a lien-theory and a title-theory state for mortgages?

In a LIEN-theory state (majority), the mortgagee holds only a lien/security interest and the mortgagor keeps title and possession—a mortgage does NOT sever a joint tenancy. In a TITLE-theory state, the mortgagee holds legal title until the debt is paid, and granting a mortgage CAN sever a joint tenancy.

Define a mortgage and the equity of redemption.

A mortgage is a security interest in land given to secure a debt (mortgagor = borrower/debtor; mortgagee = lender). The equity of redemption is the mortgagor's right, BEFORE foreclosure sale, to redeem the land by paying the full debt (plus interest/costs); it cannot be waived in the mortgage ('clogging the equity of redemption' is prohibited).

What is an equitable mortgage and a deed of trust?

An equitable mortgage arises when a deed absolute is given as security for a loan—courts treat it as a mortgage requiring foreclosure. A deed of trust conveys title to a third-party trustee to hold as security; on default the trustee may sell the property (often via power of sale), functioning like a mortgage.

What is an installment land contract (contract for deed) as a financing device?

The buyer pays in installments and the seller retains legal title until full payment, then conveys a deed. Traditionally forfeiture clauses let the seller keep payments on default, but many courts now require foreclosure-like protections, restitution, or treat it as a mortgage to protect the buyer's equity.

When a grantee takes property 'subject to' a mortgage versus 'assuming' it, who is personally liable?

'Subject to': the grantee takes the land but does NOT promise to pay; only the original mortgagor remains personally liable, though the land can still be foreclosed. 'Assuming': the grantee PROMISES to pay the debt and becomes primarily liable; the original mortgagor becomes secondarily liable (surety) unless released by a novation.

Does a 'due-on-sale' clause affect a transfer of mortgaged property?

A due-on-sale clause lets the lender demand full payment (accelerate) if the mortgagor transfers the property without consent. They are generally enforceable (federally validated by the Garn-St. Germain Act), preventing buyers from taking over loans without the lender's approval.

What is the order of priority among mortgages and other liens, and the general rule?

Priority is generally determined by 'first in time, first in right,' subject to the recording acts (a later mortgagee who is a BFP recording first under the statute may gain priority over a prior unrecorded mortgage). A purchase-money mortgage has special priority over previously arising claims against the mortgagor.

What is a purchase-money mortgage (PMM) and its priority advantage?

A PMM is a mortgage given to secure a loan used to BUY the very property securing it (to the seller or a third-party lender). It has priority over other claims, liens, and mortgages against the buyer that arose before acquisition, even if those were recorded first; a seller-PMM generally beats a third-party-PMM.

What is foreclosure, and what is the effect of a foreclosure sale on junior and senior interests?

Foreclosure is the forced sale of the mortgaged property to satisfy the debt. The foreclosing mortgage and all JUNIOR interests are wiped out (junior lienholders are paid from surplus in order of priority); SENIOR interests survive—the buyer takes subject to them. Necessary junior parties must be joined or their interests survive.

How are proceeds of a foreclosure sale distributed, and what is a deficiency judgment?

Proceeds pay: (1) foreclosure expenses/costs and attorney's fees, (2) the foreclosing mortgage debt, (3) junior interests in order of priority, then (4) any surplus to the mortgagor. If proceeds are insufficient, the lender may seek a DEFICIENCY JUDGMENT against the debtor personally for the shortfall (subject to anti-deficiency statutes in some states).

Distinguish the equity of redemption from a statutory right of redemption.

Equity of redemption: the right to redeem by paying the debt BEFORE the foreclosure sale (exists in all states; cannot be clogged). Statutory right of redemption: in about half the states, the right to redeem AFTER the foreclosure sale within a set period by paying the SALE PRICE (not the debt), reclaiming the property from the foreclosure purchaser.

What is a deed in lieu of foreclosure?

The mortgagor voluntarily conveys the property to the mortgagee to satisfy the debt and avoid foreclosure. The lender takes title immediately but takes SUBJECT TO any junior liens (which are not extinguished as they would be in a foreclosure sale).