Gavin Howe
The Multistate Bar Examination (MBE) is a challenging exam that covers a wide range of topics in US law, including real property law. The exam is designed to test examinees' knowledge of property law, including concepts such as ownership, concurrent estates, and mortgages. While the MBE covers many standard property law concepts, it also delves into more nuanced areas, such as the differences between joint tenancy and tenancy in common, and the rules of sale and mortgages. With approximately 25 scored questions on real property, the MBE requires a strong understanding of the various doctrines and their applications. The exam also tests knowledge of recording acts, adverse possession, and the rules of sale, often combining real property concepts with other areas of law such as torts or contracts.
| Characteristics | Values |
|---|---|
| Number of questions | 25 |
| Topics | Property ownership, title to the property, rights in land, drafting, review and negotiation of closing documents, persons authorized to execute real estate documents |
| Subtopics | Differences between joint and common tenancies, nuances of joint tenancy and tenancy in common, concurrent estates, present and future interests, easements, covenants, equitable servitudes |
| Rules | First-in-time, first-in-right; no need to record to have title; a deed does not require donative intent, delivery, or acceptance consideration; a valid deed requires writing, a competent grantor, grantee identity, words of conveyance, an adequate description of the land, consideration, grantor signature, witnesses, and grantee receipt |
| Other | Tenancy in common is devisable and inheritable; there is no right of survivorship; tenancy by the entirety is similar to joint tenancy except it can only be severed by death, divorce, mutual agreement, or a mutual creditor of both executing on his interest; a landlord can constructively evict a tenant if there is something that renders the premises unusable, the landlord fails to act after being notified, and the tenant leaves |
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What You'll Learn
Property ownership
The MBE covers both real property and personal property. Real property ownership questions on the MBE may focus on the following:
- Concurrent estates: properties owned by more than one person at a time. The three types of concurrent estates are tenancy in common, joint tenancy, and tenancy by the entirety. Tenants in common do not have a right of survivorship, whereas joint tenants do.
- Present and future interests: this topic covers both present estates, where the holder has the right to possession of the property, and future interests.
- Easements, covenants, and equitable servitudes: an easement is a non-possessory interest that gives someone the right to use the land of another. Easements are generally perpetual.
- Adverse possession: the general rule is that a title vests in a possessor if the owner does not take action to evict them within the statutory period.
- Closing documents: the NCBE has recently started testing examinees on the drafting, review, and negotiation of closing documents, which include information on brokers' commissions, taxes, inspection contingencies, and warranties.
The MBE also covers personal property ownership, including the sale of goods and bailments.
The MBE rarely takes a straightforward approach to property law and often tests obscure topics and multistep analyses. Many questions are structured as real estate sales, requiring knowledge of the rules of sale and at least one other doctrine. It is important to pay close attention to the actual question being asked to determine which body of law to apply.
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Types of tenancy
The National Conference of Bar Examiners (NCBE) breaks real property into categories and subtopics, including the differences between joint and common tenancies. Concurrent estates, or properties owned by more than one person at a time, are divided into three types of tenancies: tenancy in common, joint tenancy, and tenancy by the entirety.
Tenancy in Common provides each party with a concurrent, or simultaneous, undivided ownership interest in the real property. In other words, ownership rights to a property are shared. Each tenant in common may acquire their interests in the real property via separate instruments, and each party can own a different percentage of the property. For example, two owners might each have an undivided ownership interest of 40%, while a third owner has an undivided ownership interest of 20%. Tenants in common do not have a right of survivorship, meaning that they do not automatically inherit the share of a deceased tenant.
Joint tenancy, on the other hand, does possess the right of survivorship. If John, June, and Joan own a property as joint tenants with rights of survivorship (JTWROS), and John dies, June and Joan will then automatically own the property equally. Unlike tenants in common, joint tenants do not need to execute and record a deed to transfer a deceased tenant's ownership interest.
Tenancy by Entirety (TBE) is similar to joint tenancy with right of survivorship, but it is a legal arrangement that only married couples can enter into. Tenancy by the entirety can only be severed by death, divorce, mutual agreement, or a mutual creditor of both executing on their interest.
Another type of tenancy is tenancy in severalty, which is when someone has an exclusive right to ownership not shared with anyone else. This type of tenancy can apply to people or corporations as the sole owner.
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Title to the property
The MBE will contain around 25 questions from Real Property, with about five of them on property ownership. The National Conference of Bar Examiners (NCBE) breaks Real Property into categories and subtopics. It is important to remember that the MBE is a national exam, so local laws should be ignored.
The NCBE likes to test the nuances of and differences between joint tenancy and tenancy in common. A concurrent estate is a property that is owned by more than one person at a time. The default tenancy is a tenancy in common. Tenants in common only have one unity: the right to possess the entire premises. They do not have a right of survivorship. A joint tenancy is created by using the language “as joint tenants with rights of survivorship” or some very similar variant. Joint tenants do possess the right of survivorship, and the tenancy can only be severed in very limited ways.
The NCBE also examines the differences and nuances between joint and common tenancies. Concurrent estates are properties owned by more than a single entity at a time. Some have rights of survivorship, while tenants in common do not. In present estates, the holder of such an interest has the right to possession of the property. In the law profession, the meaning of “fee simple” is ownership without encumbrances. There is no time limit on how long a fee simple estate can last, and it can be sold, divided, devised, or inherited.
The recording act affects priority battles regarding the title to the property and mortgage priority. It is possible to change the common law result through a recording act. The rule of common law is "first in time, first in right". The general rule of adverse possession is that a title vests in a possessor if the owner does not take action to evict them within the statutory period. A valid deed requires writing, a competent grantor, grantee identity, words of conveyance, an adequate description of the land, consideration, grantor signature, witnesses, and grantee receipt.
The MBE tests a limited number of contracts topics. The questions usually turn on one of five issues: whether a contract was formed, whether a contract was breached, what consequences follow from a breach, what defences a party could raise after breaching, and what remedies are available for a breach.
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Contracts and deeds
Contracts
Real estate contracts are a fundamental aspect of property law and are covered in the MBE exam. One important principle to understand is that real estate contracts must generally be in writing and signed by the parties involved. This requirement falls under the Statute of Frauds, which mandates that certain types of contracts, including those involving the transfer of real estate, must be in writing to be enforceable. However, there is an exception to this rule known as the part performance exception, which applies in specific circumstances where there is only a partial written agreement.
Marketable title is another critical concept in real estate contracts. It refers to a title that is reasonably free of defects and must be provided on the day of closing. If a buyer sues before the closing date due to a lack of marketable title, they typically should not win the case, according to the NCBE's perspective on this issue.
Deeds
Deeds play a crucial role in transferring ownership of property. A valid deed requires several elements, including writing, a competent grantor, clear identification of the grantee, words of conveyance, an adequate description of the land, consideration, the grantor's signature, witnesses, and grantee receipt. Different types of deeds, such as general warranty deeds, special warranty deeds, and quitclaim deeds, can convey property interests that are not leaseholds.
It's important to understand the concept of merger, which occurs when the contractual provisions effectively disappear into the deed upon delivery. After the deed is handed over, the buyer can only sue based on the deed and not the contract, as per the doctrine of merger. Covenants in a land-sale contract become part of the deed upon completion of the sale, resulting in a merger.
Types of Tenancy
Understanding the different types of tenancy is essential in MBE property law. Tenancy in common is the default type, where tenants have the right to possess the entire premises but do not have a right of survivorship. On the other hand, joint tenancy includes the right of survivorship, and it can only be severed in limited ways. Concurrent estates refer to properties owned by more than one person or entity simultaneously, and they can be either joint tenancies or tenancies in common.
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Easements, covenants, and equitable servitudes
An easement is a non-possessory interest that gives one person the right to use the land of another. Easements can be express, implied, or created through adverse possession. They are generally perpetual but can be terminated by actions such as merger, abandonment, or estoppel. For example, a right-of-way that allows someone to cross another's land is a type of easement.
Both covenants and equitable servitudes restrict how a landowner can use their land. Covenants are formal agreements or promises concerning land use, typically included in the property deed. They are considered legal obligations tied to the land and can be enforced by monetary damages if breached. Covenants require both horizontal and vertical privity to run with the land.
Equitable servitudes, on the other hand, are typically created through covenants included in property deeds or agreements between landowners. They do not always need to be written in the deed but must meet certain legal requirements, including intent, touch and concern the land, and notice to subsequent landowners. Equitable servitudes are enforced through equitable remedies, such as injunctions, rather than monetary damages. They are broader than covenants as they can apply even when a covenant might fail due to lack of privity or other technical issues.
In summary, the key differences between easements, covenants, and equitable servitudes lie in the nature of the rights and restrictions they confer, the remedies available in the event of a breach, and the requirements for their creation and enforcement. Understanding these concepts is crucial for landowners, buyers, and developers to ensure compliance with legal obligations and to avoid potential disputes.
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Frequently asked questions
The rule of common law is "first in time, first in right".
A title vests in a possessor if the owner does not take action to evict them within the statutory period.
The three types of concurrent estates are tenancy in common, joint tenancy, and tenancy by the entirety. Tenants in common only have one unity: the right to possess the entire premises. They do not have a right of survivorship. On the other hand, joint tenants possess the right of survivorship.
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