Real Property on the Multistate Essay Exam: Highly Tested Topics and Tips

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Here, we give you an overview of Real Property on the Multistate Essay Exam (MEE). We will reveal some of the highly tested topics and give you tips for approaching a Real Property MEE question.

Note that Real Property is regularly tested on the Multistate Essay Exam. It is tested, on average, about once a year.

In this post, we give you tips for approaching Real Property on the Multistate Essay Exam and we reveal some of the highly tested issues in Real Property MEE questions.

Real Property on the Multistate Essay Exam

1. First, be aware of how Real Property is tested

As noted above, Real Property is tested, on average, about once a year. It has been turning up less frequently on recent exams, but it is certainly fair game for an MEE question. Real Property is generally tested on its own (i.e., it is not combined with another subject).

Real Property is a hard subject to learn for most students. It is best to focus on the highly tested issues to begin with. And, also make sure you understand key Real Property vocabulary, as we note below.

2. Be aware of the highly tested Real Property issues

The Examiners tend to test several of the same issues consistently in Real Property Multistate Essay Exam questions. You can maximize your score by being aware of these highly tested issues. (We have a nice summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)

Some of the highly tested Real Property Multistate Essay Exam issues include:

Real estate contracts and deeds

Deeds

The concept of “deeds” frequently is tested when we see Real Property on the Multistate Essay Exam. Remember that there are two different types of deeds: the quitclaim deed and the warranty deed.

  • If a quitclaim deed is given, the grantee gets whatever the grantor has. There are no covenants.
  • A warranty deed has six covenants: right to convey, seisen, no encumbrances, further assurances, quiet enjoyment, and warranty.

Execution of the contract of sale

The doctrine of equitable conversion states that as soon as the contract is signed (but before closing), the buyer’s interest is real property and the seller’s interest is personal property. The risk of loss passes to the buyer upon the signing of the contract. That means if something happens to the property after the contract is signed—say, a tornado destroys the house—then the buyer still must close and pay the seller the full purchase price (assuming the property is not insured!).

Recording acts

If you see a recording act issue tested, you should start your answer by discussing the common law principle of “first-in-time, first-in-right.”

Remember that a grantor can only convey the rights it has at the time of conveyance. Many states have implemented recording acts that change the common law result. There are three different types of recording acts:

  1. Notice acts: “A conveyance of interest in land is not valid against any subsequent purchaser for value without notice unless it is recorded.” (This has the word “recorded” but says nothing about recording first.) These tend to be tested on the MEE.
  2. Race-notice acts: “No conveyance of an interest in land is valid against any subsequent purchaser for value without notice unless it is recorded first.” (This act mentions both notice and “recording first,” which is your cue it is a race-notice act!)
  3. Pure race acts: protects a subsequent purchaser who records first (rare and virtually never tested!).

Be aware of the types of notice a grantee could have—actual, inquiry, or record notice. Notice is frequently tested.

Mortgage liability

It would not be surprising to see a question on Real Property on the Multistate Essay Exam test who is liable on a mortgage when the title to the property gets transferred. This was last tested in July 2013 so it is not very common, but it is important to understand these principles. We suspect it will show up again! When the mortgagor transfers title to the property, the mortgage remains on the property and the mortgagor is still personally liable for the loan.

Tip: of you mix up “mortgagor” and “mortgagee” remember, “it is better to be the mortgagee” (or the bank).

  • Generally, if the transferee takes the land “subject to” the mortgage, it will not be personally liable. So, if Amy transfers land to Bob and he takes it subject to the mortgage, she is personally liable. He is not liable. (Note: His land could be foreclosed on if Amy does not pay the mortgage, so he may end up paying it to avoid foreclosure. In most states, this does not mean he “impliedly assumes” the mortgage, so even if he does this, he is not liable.)
  • If the transferee “assumes” the mortgage, it will be personally liable along with the original mortgagor. So, if Amy transfers land to Bob and he “assumes” the mortgage, the bank could go after Amy or Bob for the mortgage payments due. They are both liable.
  • Additionally, a novation can occur if the original mortgagor, the transferee, and the mortgagee all agree that the mortgagor is no longer liable and the transferee will assume all its duties. So, in the above example, if Amy transferred the land to Bob. And, Amy, Bob, and the bank all agree that Amy is no longer liable and Bob “steps into her shoes,” then only Bob is liable on the mortgage. Amy is no longer liable.

In the first case, only Amy is liable. In the second case, Amy and Bob are liable. In the last case, just Bob is liable.

Leases

The concept of leases turns up frequently in Real Property on the Multistate Essay Exam, including just recently in February 2017. Be aware of the following points:

  • Assignment or subleasing is permitted as long as there is no language in the original lease prohibiting it.
  • The tenant has specific duties, including the duty to pay rent. If the tenant does not pay rent but has abandoned the property, the landlord can sue the tenant for damages or treat it as a surrender. Under the common law, the landlord has no duty to mitigate damages. However, many states have instituted their own laws requiring landlords to make a reasonable attempt to mitigate damages.

3. Use proper Real Property vocabulary 

It is important to understand and be able to define key terms. We also think it is a good idea to bold and underline these key “buzzwords” on your MEE answers. By doing so, you will draw the grader’s attention to them and maximize your potential points.

If you are trying to learn tricky Real Property concepts, making sure you understand the key legal vocabulary can be very helpful.

Here are a few Real Property terms you should be aware of:

  • Equitable conversion: The idea that the buyer’s interest is real property as soon as the contract of sale is signed, and the seller’s interest is personal property (that is, the money made from the sale). You can think that “in equity, the land converts to the buyer” if you have trouble remembering this definition.
  • Warranty deed: it contains six warranties (or covenants).
  • Quitclaim deed: it contains no covenants.
  • Merger: once the closing occurs, the contract “merges” with the deed and the buyer can only sue on the deed at that point.
  • Wild deed: a deed that is not properly recorded in the chain of title—it is recorded too early or too late.
  • Mortgagor: homeowner or party responsible for the mortgage.
  • Mortgagee: bank (or whoever lends money in exchange for a security interest)
  • Term-of-years lease: This term is deceiving because it does not have to be “for years.” It just has a specific start and end date. You can also think of this as a “fixed term” lease if it easier for you to remember it that way.
  • Assignment: the tenant gives everything it has to an assignee.
  • Sublease: the tenant plans on coming back to the property so it still has an interest in the property.
  • Easement: the non-possessory right to use the property of another (in other words, an easement holder does not own the property that is subject to the easement; it merely has a right to use the property).
  • Joint tenancy: when parties own an equal interest in land with the right of survivorship (as opposed to tenants in common, where there is no right of survivorship).
  • Adverse possession: when a party possesses land adversely (e.g., without permission) that party can become the true owner of the land after the statutory period has passed.

Being familiar with these key vocabulary terms will make learning Real Property easier. And, it will also get you more points on an essay question if you are able to use the proper vocabulary.

4. Practice!

Practice is critical if you want to master Real Property on the Multistate Essay Exam. As an added bonus, you may also see your Multistate Bar Exam (MBE) score improve if you practice writing answers to Real Property Multistate Essay Exam essays.

Note that since many Real Property issues are tested repeatedly, practice can make a big difference. For example, many of the same concepts in February 2018 were tested in February 2010! Any student who completed the February 2010 question would have been at a big advantage on the February 2018 exam.

Here are some links to (free) Real Property Multistate Essay Exam questions and National Conference of Bar Examiners (NCBE) point sheets. (If you would like to purchase a book of Real Property MEE questions and NCBE point sheets, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)

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