Real Property on the MBE: Estates, Covenants, and the Rules Worth Knowing

Real Property accounts for roughly 25 of the 175 scored MBE questions. It is the subject most candidates find disorienting because the terminology is archaic and the concepts feel disconnected from modern life.

The reality is that Property on the MBE tests a finite set of rules. Once you learn the vocabulary and the classification system, the questions become manageable.

Estates in Land

You need to know these estates and their characteristics cold. The MBE tests whether you can classify an estate from the language of a conveyance.

Present Possessory Estates

Fee simple absolute: "To A" or "To A and his heirs." The largest estate. No future interest. Fully alienable, devisable, and descendible.

Fee simple determinable: "To A so long as..." or "To A while..." or "To A until..." Automatically reverts to the grantor when the condition is violated. Grantor retains a possibility of reverter.

Fee simple subject to condition subsequent: "To A, but if [condition], grantor may re-enter." Does NOT automatically terminate. Grantor must exercise the right of entry.

Fee simple subject to executory limitation: "To A, but if [condition], then to B." Shifts to a third party (not the grantor) upon the condition.

Life estate: "To A for life." Measured by A's life (or another's life — pur autre vie). Life tenant has a duty not to commit waste.

The MBE tests the distinction between determinable and condition subsequent constantly. Look for the language: automatic forfeiture words (so long as, while, until, during) = determinable. Right of re-entry words (but if, provided that, on condition that) = condition subsequent.

Future Interests

In the grantor:

• Possibility of reverter (follows fee simple determinable)
• Right of entry / power of termination (follows fee simple subject to condition subsequent)
• Reversion (follows a lesser estate that does not account for the whole fee)

In a third party:

• Remainder (follows naturally after a preceding estate expires)
  • Vested remainder: created in an ascertained person with no condition precedent
  • Contingent remainder: created in an unascertained person or subject to a condition precedent
• Executory interest (divests a preceding estate before its natural termination)
  • Shifting: divests another transferee
  • Springing: divests the grantor

Rule Against Perpetuities

No interest is valid unless it must vest, if at all, within 21 years of a life in being at the creation of the interest. Applies to contingent remainders, executory interests, and certain vested remainders subject to open.

The MBE tests RAP with classic scenarios: gifts to classes, age contingencies over 21, and the fertile octogenarian / unborn widow problems. If the interest might possibly vest too remotely (even if unlikely), it is void under RAP.

Landlord-Tenant

Types of Tenancies

• Tenancy for years: Fixed duration, ends automatically
• Periodic tenancy: Repeating periods, requires notice to terminate (common law: period's length, but 6 months max for year-to-year)
• Tenancy at will: No fixed period, terminable by either party
• Tenancy at sufferance: Holdover tenant, landlord can evict or hold to a new term

Duties

Landlord's duty: Implied warranty of habitability (residential only in most jurisdictions — the premises must be fit for human habitation). Duty to deliver actual possession at the start of the lease.

Tenant's duties: Pay rent. Not commit waste. Not use the premises for illegal purposes.

Tenant's remedies for breach of habitability: Terminate the lease, repair and deduct, withhold rent, or sue for damages.

Covenants and Servitudes

Real Covenants (run with the land at law)

Requirements for burden to run: writing, intent, touch and concern, horizontal and vertical privity, notice.

Requirements for benefit to run: writing, intent, touch and concern, vertical privity.

Equitable Servitudes (enforced in equity)

Requirements: writing, intent, touch and concern, notice. No privity required.

Reciprocal negative easements: When a developer sells lots with restrictions, an implied reciprocal servitude may bind lots sold without the restriction if there was a common scheme.

Easements

Easement appurtenant: Benefits the holder in connection with their use of a specific parcel (dominant tenement). Runs with the land.

Easement in gross: Benefits the holder personally, not in connection with land. Commercial easements in gross are transferable; personal ones generally are not.

Creation: Express grant, reservation, implication (prior use), necessity, prescription (open, notorious, continuous, hostile for the statutory period).

Termination: Release, merger, abandonment (intent + physical act), estoppel, prescription, condemnation, end of necessity.

Recording Acts

Types

• Race: First to record wins regardless of notice
• Notice: A subsequent bona fide purchaser (BFP) for value without notice prevails over a prior unrecorded interest
• Race-notice: A subsequent BFP for value without notice who records first prevails

Know how to identify which type from the statutory language. "No conveyance shall be valid against a subsequent purchaser for value without notice unless recorded" = notice. Add "who first records" = race-notice.

Mortgages

Key rules: a mortgage follows the note (not vice versa). Transfer of the note transfers the mortgage. The recording act determines priority among competing mortgages. Purchase money mortgages have super-priority over prior-recorded mortgages of the same property.

Study Strategy

Property requires memorization more than any other MBE subject. Build a classification chart for estates and future interests. Drill until you can classify a conveyance ("To A for life, then to B if B has graduated from law school") instantly: A has a life estate, B has a contingent remainder in fee simple absolute, grantor has a reversion.