6 reasons why Real Property is so difficult and what to do to prepare

Reasons why Real Property is considered one of the most difficult MBE topics:

• Long fact patterns;
• "Race/Race-Notice" statutes to read and (possibly) apply;
• Multiple conveyances;
• "Dry" subject matter;
• Passage of time since Property course(s) taken in law school;
• Lack of familiarity with mortgages

Long fact patterns.  The effect can be mitigated by skipping questions and coming back to them when done with the rest of the test. 

The more difficult questions contain multiple conveyances, often resulting in the bar taker resorting to sketching out a barely legible chart in the margin.  This may be an effective strategy for these difficult questions, but it wastes time.  Better to know the rule, get your facts straight, pick the answer, and move on.

Most law students take Property 1L year.  It's been a while.

Many younger law students don't have life experience with real estate, mortgages, banks, etc.

The way I think Property is best approached is by breaking it down into a few MAIN categories (the subject of an upcoming post...stay tuned). 

Landlord - Tenant Law, also known as "Leaseholds" or "Leasehold Estates," is straightforward for the most part.  Here is a "skeleton" outline to help you identify the major issues of Landlord/Tenant Law

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Landlord / Tenant Law "Skeleton" Outline

The Rule Against Perpetuities: 3 Steps to Defeat the RAP on the BAR

If a Rule against Perpetuities (RAP) question comes up on the MBE, you can use a quick 3 step process to quickly reach the right answer.  

Step 1: Write Down the Future Interest (FI) resulting from conveyance + determine “Condition Precedent”

Step 2: Circle the “Measuring Man” (MM);

Step 3: Ask yourself: within 21 years of the death of MM, will we know who takes?

Here is an example: 

For Tom’s 75th birthday, his wealthier friend Jerry wants to do something special for him.  Tom has one 27 year old son.  Both are in relatively good health.

Jerry conveys to Tom for life, then to the first of Tom’s children to reach age 33.

Step 1: You should recognize this as a Contingent Remainder.  The future interest involved is contingent – meaning it may occur – but only if Tom dies AND if he has no child who is 33 at that time.    

Step 2: Tom Is the “Measuring Man.”  Tom’s life determines whether the “contingency” takes place, so to speak.

Step 3: Tom could die tomorrow; his son could die tomorrow; his son could die tomorrow and the next day Tom could get a woman pregnant.  Think of all of the possibilities.

The Answer: Tom would have his life estate, and Jerry would have a reversion.  

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