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
Owen, the owner of Greenacre in fee simple, conveyed the property to Alice by a valid deed on March 1. Alice did not record her deed. On April 15, Owen conveyed the same property to Bob by a valid deed for $200,000. Bob had no actual knowledge of the prior conveyance to Alice, but a title search would have revealed a recorded lis pendens filed by Alice's contractor related to work performed on Greenacre, which referenced Alice as the current owner. Bob recorded his deed on April 16. Alice recorded her deed on April 20. The jurisdiction's recording statute provides: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law." As between Alice and Bob, who has superior title to Greenacre?
- Alice, because she was the first grantee and Bob had constructive notice of her interest.
- Bob, because he recorded his deed before Alice recorded hers.
- Bob, because he paid valuable consideration and had no actual knowledge of Alice's deed.
- Bob, because Alice's failure to promptly record her deed estops her from asserting title against a subsequent purchaser.
Show answer
Correct: Alice, because she was the first grantee and Bob had constructive notice of her interest.
The statute is a notice-type recording act, which protects only subsequent purchasers who are "without notice." Under notice statutes, a subsequent purchaser prevails only if they lacked actual, constructive, and inquiry notice at the time of their conveyance. Here, the recorded lis pendens referencing Alice as the current owner was in Bob's chain of title and would have been discovered by a reasonable title search. This constitutes constructive notice of Alice's prior interest. Because Bob had constructive notice of Alice's ownership at the time he took his deed on April 15, he does not qualify as a bona fide purchaser "without notice" under the statute. Therefore, Alice's prior conveyance prevails. See, e.g., Luthi v. Evans, 576 P.2d 1064 (Kan. 1978) (discussing constructive notice from recorded instruments).
In 1990, Owen owned two adjacent parcels, Lot A and Lot B. Owen sold Lot A to Baker by a deed that included the following language: "Together with a right-of-way over the existing gravel road crossing Lot B for ingress and egress to the public highway." Owen retained Lot B. In 2005, Baker sold Lot A to Chen by a general warranty deed that made no mention of any easement or right-of-way over Lot B. In 2010, Owen sold Lot B to Davis. When Chen attempted to use the gravel road across Lot B, Davis blocked the road and asserted that the easement had been extinguished when Baker conveyed Lot A to Chen without mentioning it. Does Chen have an enforceable easement over the gravel road on Lot B?
- Yes, because the easement was appurtenant to Lot A and passed automatically with the transfer of the dominant estate, even though it was not mentioned in Baker's deed to Chen.
- No, because the easement was not mentioned in Baker's deed to Chen, which constitutes an abandonment of the easement.
- No, because the easement was personal to Baker and could not be transferred to a subsequent purchaser of Lot A.
- No, because the easement was extinguished by merger when Owen owned both Lot A and Lot B at the time of the original grant.
Show answer
Correct: Yes, because the easement was appurtenant to Lot A and passed automatically with the transfer of the dominant estate, even though it was not mentioned in Baker's deed to Chen.
An easement appurtenant runs with the land and automatically transfers with the dominant estate, regardless of whether it is mentioned in the deed of conveyance. Under Restatement (Third) of Property: Servitudes § 5.1, an appurtenant easement is transferred when the dominant estate is transferred, even if the instrument of transfer does not mention the easement. The easement here was expressly granted in the 1990 deed and attached to Lot A as the dominant estate. Baker's failure to mention it in the deed to Chen does not extinguish it. Chen therefore holds an enforceable easement over Lot B.
Owen owned Blackacre in fee simple. In 2018, Owen conveyed Blackacre to Alice by a valid deed, but Alice did not record the deed. In 2020, Owen—who no longer had any interest in Blackacre—conveyed the same property to Bob by a valid warranty deed for $200,000. Bob had no actual knowledge of the prior conveyance to Alice but had heard rumors from a neighbor that 'someone might have bought that property a while back.' Bob did not investigate these rumors and promptly recorded his deed. The jurisdiction has a notice recording statute providing: 'No conveyance of an interest in land shall be valid against any subsequent purchaser for value without notice thereof, unless the conveyance is recorded.' Alice now sues Bob to quiet title. Who is most likely to prevail?
- Alice, because Bob had inquiry notice of her prior unrecorded conveyance and therefore cannot qualify as a bona fide purchaser.
- Bob, because he paid valuable consideration and recorded his deed first under the jurisdiction's recording statute.
- Bob, because unverified rumors are insufficient to constitute legally cognizable notice of a prior conveyance.
- Alice, because Owen had nothing to convey to Bob, and recording statutes do not protect a grantee who receives a deed from a grantor with no title.
Show answer
Correct: Alice, because Bob had inquiry notice of her prior unrecorded conveyance and therefore cannot qualify as a bona fide purchaser.
Under the bona fide purchaser (BFP) doctrine, a subsequent purchaser must take without notice—actual, constructive, or inquiry—to be protected under a notice-type recording statute. Inquiry notice arises when a purchaser is aware of facts that would prompt a reasonable person to investigate further. Here, Bob heard rumors from a neighbor suggesting someone else may have purchased the property. A reasonable purchaser would have investigated, and such investigation would have revealed Alice's prior conveyance. Because Bob failed to investigate, he is charged with inquiry notice and cannot qualify as a BFP. See, e.g., Restatement (Third) of Property: Servitudes § 6.5 (discussing inquiry notice); see also generally the notice recording act standard requiring absence of notice as a prerequisite for protection.
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