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
Oscar, the owner of Blackacre in fee simple absolute, conveyed the property "to Alice for life, then to Alice's children." At the time of the conveyance, Alice was 45 years old and had two adult children, Bob and Carol. Five years later, Alice had another child, David. Alice subsequently died, survived by Bob, Carol, and David. Bob had predeceased Alice by one month but left a will devising all of his real property interests to his wife, Wendy. Who holds title to Blackacre upon Alice's death?
- Bob's estate (through Wendy), Carol, and David each hold a one-third interest in fee simple.
- Carol and David each hold a one-half interest in fee simple, because Bob's interest was extinguished when he predeceased the life tenant.
- Carol and David each hold a one-half interest in fee simple, because the class of Alice's children closed at Alice's death and only includes children who survived her.
- Bob and Carol each hold a one-half interest in fee simple, because the class closed at the time of the original conveyance when Alice already had two children.
Show answer
Correct: Bob's estate (through Wendy), Carol, and David each hold a one-third interest in fee simple.
The grant "to Alice for life, then to Alice's children" creates a life estate in Alice and a vested remainder subject to open (also called a vested remainder subject to partial divestment) in Alice's children. Because Alice had living children (Bob and Carol) at the time of the conveyance, the remainder vested immediately in Bob and Carol, subject to open to let in after-born children. When David was born, he shared in the remainder. Under the common law, vested remainders are alienable, devisable, and descendible. Bob's one-third vested remainder interest was therefore devisable. Although Bob predeceased Alice, his interest passed through his will to Wendy. At Alice's death, the class closed under the rule of convenience (the class closes at the time of distribution, i.e., the life tenant's death), and the property is divided equally among Bob (through Wendy), Carol, and David. See Restatement (First) of Property §§ 157, 162 (vested remainders are transferable and devisable).
Owen owns Blackacre, a 40-acre parcel of undeveloped land. In 2005, Owen conveyed the eastern 20 acres (Eastacre) to Adams by a deed that stated: "Together with a right-of-way across the western portion of Blackacre along the existing gravel path for ingress and egress to County Road 12." Adams used the gravel path regularly from 2005 to 2015. In 2015, the county opened a new public road directly abutting the eastern boundary of Eastacre, providing Adams convenient access to the public road system without crossing Owen's land. Adams immediately stopped using the gravel path across Owen's property. In 2023, Adams sold Eastacre to Baker. Baker now seeks to use the gravel path across Owen's remaining western 20 acres to reach County Road 12, claiming the original easement. Owen refuses, arguing the easement was extinguished. Which of the following best states the likely outcome?
- Baker may use the easement because it was expressly created by grant, was appurtenant to Eastacre, and mere nonuse does not extinguish an easement.
- Baker may not use the easement because the opening of the new public road rendered the easement unnecessary, thereby terminating it under the doctrine of termination by necessity.
- Baker may not use the easement because Adams's eight-year nonuse constituted abandonment as a matter of law.
- Baker may not use the easement because Adams's cessation of use combined with the changed circumstances created an estoppel that extinguished the easement.
Show answer
Correct: Baker may use the easement because it was expressly created by grant, was appurtenant to Eastacre, and mere nonuse does not extinguish an easement.
Under well-established property law, an express easement appurtenant runs with the dominant estate and passes to subsequent grantees. Crucially, mere nonuse of an easement—even for an extended period—does not by itself extinguish the easement. See Restatement (Third) of Property: Servitudes § 7.4. An easement by grant can be terminated by release, merger, abandonment, estoppel, condemnation, or other affirmative acts, but abandonment requires both nonuse AND affirmative acts demonstrating an intent to permanently relinquish the easement. The mere availability of an alternative route and cessation of use for eight years, without more, does not constitute abandonment. The easement therefore survived and passed to Baker with the conveyance of Eastacre.
Landlord and Tenant entered into a written lease for a commercial warehouse for a term of three years at $3,000 per month. The lease contained no provisions regarding maintenance or repair obligations. During the second year of the lease, the roof began leaking severely due to natural deterioration, causing water damage to Tenant's stored inventory. Tenant demanded that Landlord repair the roof, but Landlord refused, asserting that the duty to repair fell on Tenant. Tenant then vacated the premises and stopped paying rent, claiming constructive eviction. Landlord sued Tenant for the remaining rent due under the lease. Which of the following is the most accurate statement regarding the parties' rights and obligations?
- Landlord will prevail because, under the common law, a commercial tenant has a duty to make repairs when the lease is silent on the issue.
- Tenant will prevail on a constructive eviction theory because the severe roof leak rendered the premises substantially unsuitable for their intended commercial purpose, and Tenant vacated within a reasonable time.
- Landlord will prevail because the implied warranty of habitability applies to this lease, giving Tenant a right to reduced rent but not the right to vacate the premises entirely.
- Tenant will prevail because under the doctrine of independent covenants, the landlord's failure to repair the roof automatically excuses the tenant's obligation to pay rent.
Show answer
Correct: Tenant will prevail on a constructive eviction theory because the severe roof leak rendered the premises substantially unsuitable for their intended commercial purpose, and Tenant vacated within a reasonable time.
Under the doctrine of constructive eviction, a tenant may terminate the lease and cease paying rent if (1) the landlord's act or failure to act creates a condition that substantially interferes with the tenant's use and enjoyment of the premises, (2) the tenant notifies the landlord, and (3) the tenant vacates within a reasonable time. See Reste Realty Corp. v. Cooper, 53 N.J. 444 (1969). Even though there is no implied warranty of habitability in commercial leases, the landlord retains an obligation not to interfere with the tenant's quiet enjoyment. A severe, persistent roof leak causing inventory damage substantially impairs the use of a warehouse. Although the lease was silent on repairs, a landlord generally bears responsibility for structural components like the roof, and the failure to address a known structural deficiency after notice can support constructive eviction.
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