Real Property on the NextGen Bar Exam
Real Property is the subject that rewards raw memorization more than any other on the bar exam. There's no reasoning your way through the language markers for defeasible fees — you either know that "so long as" creates a fee simple determinable or you don't. You either know the four unities for joint tenancy or you don't. This is the one subject where flashcard grinding genuinely pays off.
The estate classification system is the backbone. Fee simple absolute: greatest estate, no conditions, no future interest. Fee simple determinable: automatic forfeiture when a condition occurs — language triggers are "so long as," "while," "during" — grantor retains a possibility of reverter. Fee simple subject to condition subsequent: doesn't automatically terminate; grantor must exercise a right of entry — language triggers are "but if," "provided that," "on condition that." The exam gives you a grant and asks you to classify it. The answer lives entirely in the language of the grant. Read the words; match the pattern.
Future interests are where most candidates hit a wall. The trick is matching each future interest to the estate that precedes it. Possibility of reverter follows a fee simple determinable. Right of entry follows a fee simple subject to condition subsequent. Remainders (vested or contingent) follow life estates. Executory interests cut short a preceding estate. If you can reliably match the pairs, you can handle any future interests question.
Recording acts are the second most tested area. Three types exist: race (first to record wins, regardless of notice), notice (subsequent BFP without notice prevails, even without recording), and race-notice (subsequent BFP must take without notice AND record first). Race-notice is the majority rule and the most tested. The key analytical move: identify the recording act type, then check whether the subsequent purchaser qualifies as a bona fide purchaser for value without notice. "Notice" includes actual, constructive (recorded in the chain of title), and inquiry notice (visible physical possession).
Landlord-tenant law tests three main concepts. The implied warranty of habitability (residential leases, non-waivable, covers conditions substantially impairing health and safety). Constructive eviction (landlord's action or inaction substantially interferes with quiet enjoyment — but the tenant must vacate within a reasonable time, which is the trap). And assignment vs. sublease: assignment = full transfer of remaining lease term (privity of estate with landlord); sublease = partial transfer (no privity of estate, original tenant remains liable).
The Rule Against Perpetuities scares students but appears rarely. When it does, the "what could go wrong" analysis works: assume every bad scenario (people die, conditions never happen, babies are born) and check whether the interest could possibly vest more than 21 years after a life in being at creation. If the worst-case scenario violates the rule, the interest is void from the start.
Exam Tips
- Language markers are everything for defeasible fees. "So long as" / "while" / "during" = determinable (automatic forfeiture). "But if" / "provided that" / "on condition that" = condition subsequent (right of entry required). Memorize these cold.
- Recording act analysis: (1) identify the type (race, notice, race-notice), (2) determine if subsequent purchaser is a BFP for value without notice, (3) check if they recorded first (for race and race-notice). The majority rule is race-notice.
- Joint tenancy severance: when one cotenant conveys their interest, the joint tenancy is severed as to that share — converted to tenancy in common. The remaining cotenants retain joint tenancy between themselves.
- Constructive eviction trap: the tenant MUST vacate within a reasonable time. If they stay and keep paying rent, they've waived the claim. This detail catches people every time.
- RAP: use the "fertile octogenarian" and "unborn widow" thought experiments to find the worst-case vesting scenario. If there's any possibility of vesting beyond lives in being + 21 years, the interest is void ab initio.
Key Rules to Know
- Fee simple determinable: "so long as / while / during" → automatic forfeiture + possibility of reverter in grantor
- Joint tenancy: four unities (TTIP: Time, Title, Interest, Possession) + right of survivorship; severed by any cotenant's conveyance
- Race-notice recording act (majority rule): subsequent BFP must take without notice AND record first to prevail over prior unrecorded interest
- Implied warranty of habitability: residential only, non-waivable, covers conditions substantially affecting health/safety
- RAP: interest must vest (if at all) within 21 years after a life in being at creation — void ab initio if any possibility of violation
Sample Practice Questions
Alice, Bob, and Carol purchased a lakefront cabin together. The deed stated: "To Alice, Bob, and Carol as joint tenants with right of survivorship." Five years later, Bob conveyed his interest in the cabin to his business partner, David, by quitclaim deed without the knowledge or consent of Alice or Carol. Shortly thereafter, Alice died intestate, survived by her son, Eric. Who holds title to the cabin and in what form?
- David and Carol each hold a one-half interest as joint tenants with right of survivorship.
- Carol holds a one-third interest, David holds a one-third interest, and Eric holds a one-third interest, all as tenants in common.
- Carol holds a two-thirds interest and David holds a one-third interest, with Carol and David holding as tenants in common.
- Carol holds a one-third interest, David holds a one-third interest, and Eric holds a one-third interest, with Carol and Eric as joint tenants and David as a tenant in common.
Show answer
Correct: Carol holds a two-thirds interest and David holds a one-third interest, with Carol and David holding as tenants in common.
Correct. Bob's quitclaim deed to David severed the joint tenancy only as to Bob's one-third interest, making David a tenant in common holding one-third. Under the majority rule (see Harms v. Sprague, 105 Ill.2d 215 (1984); see also 7 Thompson on Real Property § 31.06(b)), Alice and Carol remained joint tenants with respect to their combined two-thirds interest. Upon Alice's death, her one-third interest passed to Carol by right of survivorship, giving Carol a two-thirds interest. Carol and David now hold as tenants in common because there is no joint tenancy between them—David took his interest by a separate conveyance that severed the unity of time and title.
Harriet, an elderly widow, executed a warranty deed conveying her lakefront property to her grandson, Marcus. She placed the deed in a sealed envelope labeled "For Marcus — Lakefront Property" and put it in her personal safe deposit box at First National Bank. She told her attorney, "I've signed the deed giving the lakefront property to Marcus, and it's in my safe deposit box. I want him to have it, but I'm not ready for him to know about it yet because I don't want him to stop visiting me." Harriet retained exclusive access to the safe deposit box and continued to pay property taxes on the lakefront property for the next three years. She never told Marcus about the deed. After Harriet died, Marcus found the deed in her safe deposit box and recorded it. Harriet's other heirs challenge the validity of the conveyance. Which of the following is the strongest argument supporting the heirs' challenge?
- The deed was never recorded during Harriet's lifetime.
- Harriet retained exclusive control over the deed and the power to retrieve or destroy it, demonstrating a lack of present donative intent to pass title.
- The deed was invalid because Marcus never provided consideration for the conveyance.
- The deed was invalid because Marcus was unaware of the conveyance during Harriet's lifetime.
Show answer
Correct: Harriet retained exclusive control over the deed and the power to retrieve or destroy it, demonstrating a lack of present donative intent to pass title.
Delivery requires the grantor to relinquish dominion and control over the deed with the present intent to convey an interest in the property. Under the general rule of deed delivery, placing a deed in one's own safe deposit box, to which the grantor retains exclusive access, does not constitute delivery because the grantor maintains the ability to retrieve and destroy the deed at any time. See, e.g., Rosengrant v. Rosengrant, 629 P.2d 800 (Okla. Ct. App. 1981). Harriet's statement that she was 'not ready' for Marcus to know about the deed, combined with her retention of exclusive control, strongly suggests she did not have the present intent to pass title. This lack of relinquishment of dominion and control is the strongest argument against valid delivery.
In 2005, Harper began using a vacant parcel of land owned by Donovan. Harper cleared brush, planted a vegetable garden covering roughly one-third of the parcel, erected a small tool shed, and installed a visible fence around the cultivated area. Harper maintained the garden and shed continuously, paying no property taxes on the land. In 2012, Donovan walked past the property and noticed the garden, fence, and shed but said nothing and took no action. Harper never claimed to own the parcel in any public filing or conversation; when a neighbor once asked about the land, Harper replied, "I know it's not mine, but nobody seems to care." The jurisdiction's statute of limitations for adverse possession is 15 years and does not require payment of property taxes. In 2021, Donovan files an ejectment action against Harper. Which of the following is the strongest basis for denying Harper's adverse possession claim?
- Harper's use was not hostile and under a claim of right because Harper acknowledged that the land belonged to someone else.
- Harper did not possess the entire parcel because the garden and fence enclosed only one-third of the property.
- Donovan's knowledge of Harper's use in 2012 interrupted the running of the statutory period.
- Harper's failure to pay property taxes on the parcel is fatal to the adverse possession claim.
Show answer
Correct: Harper's use was not hostile and under a claim of right because Harper acknowledged that the land belonged to someone else.
Under the majority rule, adverse possession requires that the claimant's possession be 'hostile' and 'under a claim of right,' meaning the possessor must occupy the land as if it were their own, asserting ownership inconsistent with the true owner's title. See Restatement (Third) of Property: Servitudes (by analogy) and the traditional common law elements summarized in cases like Mannillo v. Gorski, 54 N.J. 378 (1969). Harper's express admission — 'I know it's not mine' — negates the hostility/claim-of-right element under the majority approach, which requires that the possessor at least act as though they claim the land as their own. A possessor who openly concedes another's superior title is generally treated as a permissive user or licensee, defeating the hostility requirement.
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