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
A tenant leased the second floor of a commercial building for use as a photography studio under a five-year lease. Six months into the lease, the landlord began extensive renovations on the first floor, which produced constant jackhammer noise, heavy dust infiltration into the tenant's studio despite sealed windows, and intermittent loss of electricity lasting several hours each day. The tenant repeatedly complained to the landlord in writing over a two-month period, but the landlord took no steps to mitigate the disruption. The tenant continued to operate her studio during this period, though she lost several clients. After two months of complaints, the tenant vacated the premises and stopped paying rent. The landlord sued for unpaid rent for the remainder of the lease. Which of the following is the tenant's strongest defense?
- Constructive eviction, because the landlord's renovations substantially interfered with the tenant's use and enjoyment, the tenant gave notice and a reasonable opportunity to cure, and the tenant vacated within a reasonable time.
- Breach of the implied warranty of habitability, because the conditions rendered the premises unsuitable for their intended commercial use.
- Constructive eviction, because the landlord's renovations made the premises completely unusable, even though the tenant did not vacate the premises.
- The landlord breached the covenant of quiet enjoyment, but the tenant's remedy is limited to damages and does not excuse the obligation to pay rent for the remainder of the lease term.
Show answer
Correct: Constructive eviction, because the landlord's renovations substantially interfered with the tenant's use and enjoyment, the tenant gave notice and a reasonable opportunity to cure, and the 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 omission substantially interferes with the tenant's use and enjoyment of the premises; (2) the tenant gives notice to the landlord and a reasonable opportunity to cure; and (3) the tenant vacates within a reasonable time after the landlord fails to cure. See Reste Realty Corp. v. Cooper, 53 N.J. 444 (1969). Here, all three elements are satisfied: the constant noise, dust, and electricity outages caused by the landlord's own renovations substantially interfered with the studio's operation; the tenant complained in writing for two months giving the landlord ample opportunity to mitigate; and the tenant vacated after the landlord failed to act. This is the tenant's strongest defense.
Oscar, the owner of Blackacre in fee simple absolute, conveys Blackacre "to Alice for life, then to Bob and his heirs if Bob has graduated from law school, but if Bob has not graduated from law school at the time of Alice's death, then to Carol and her heirs." At the time of the conveyance, Bob has not yet graduated from law school. What are the future interests created by this conveyance?
- Bob has a contingent remainder in fee simple absolute, and Carol has an alternative contingent remainder in fee simple absolute.
- Bob has a contingent remainder in fee simple absolute, and Carol has a shifting executory interest in fee simple absolute.
- Bob has a vested remainder subject to divestment in fee simple absolute, and Carol has a shifting executory interest in fee simple absolute.
- Bob has a contingent remainder in fee simple absolute, Carol has an alternative contingent remainder in fee simple absolute, and Oscar retains no interest whatsoever.
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Correct: Bob has a contingent remainder in fee simple absolute, and Carol has an alternative contingent remainder in fee simple absolute.
This is correct. Under traditional property law, when a grantor creates a life estate followed by two remainders that are subject to conditions precedent that are the logical complements of each other, both are classified as alternative contingent remainders. Bob's remainder is contingent because it is subject to the condition precedent that he has graduated from law school at Alice's death. Carol's remainder is likewise contingent because it is subject to the alternative condition precedent—that Bob has NOT graduated from law school at Alice's death. Because these two conditions are mutually exclusive and exhaustive, they are classic alternative contingent remainders. See Restatement (First) of Property § 157 (defining contingent remainders). Oscar also retains a reversion by operation of law (since contingent remainders may fail entirely in some jurisdictions), but the question asks about the interests created by the conveyance.
Owen, the owner of Blackacre in fee simple absolute, conveyed the property "to Alice for life, then to Alice's children and their heirs." At the time of the conveyance, Alice was 45 years old and had two living children, Beth and Carl. Five years later, Alice had a third child, David. Alice then purported to sell Blackacre in fee simple absolute to Purchaser by warranty deed. Alice is still alive. What is the most accurate description of Purchaser's interest in Blackacre?
- A fee simple absolute, because the warranty deed merged all interests in Blackacre.
- A life estate pur autre vie, measured by Alice's life.
- A fee simple subject to executory limitation, which will divest upon Alice's death.
- Nothing, because a life tenant has no power to transfer her interest to a third party.
Show answer
Correct: A life estate pur autre vie, measured by Alice's life.
Correct. Alice holds only a life estate in Blackacre. When a life tenant conveys her interest to another, the grantee receives a life estate pur autre vie — an estate measured by the life of someone other than the holder (here, Alice's life). Under common law property principles, a grantor can convey no greater estate than she possesses. Since Alice's children (Beth, Carl, and David) hold a vested remainder subject to open in fee simple, those interests are not affected by Alice's purported conveyance. See Restatement (First) of Property § 56 (life estate pur autre vie arises when a life tenant transfers her estate).
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