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 a ground-floor commercial space in a mixed-use building for a five-year term to operate a bakery. Two years into the lease, the landlord began extensive renovations on the floors directly above, which caused persistent dust infiltration into the bakery, jackhammer noise making customer conversations impossible during business hours, and intermittent loss of water service lasting several hours each day. The tenant repeatedly complained to the landlord in writing over a three-month period, but the landlord took no remedial action. The tenant continued operating the bakery for an additional eight months after the problems began, then vacated the premises and ceased paying rent. The landlord sued for the remaining lease payments. The tenant raised constructive eviction as a defense. Which of the following is most likely to defeat the tenant's constructive eviction defense?
- The landlord's renovations were undertaken to comply with updated building code requirements, making them legally necessary.
- The tenant failed to vacate the premises within a reasonable time after the conditions became intolerable.
- The lease contained no express covenant of quiet enjoyment.
- The tenant's written complaints did not specifically demand that the landlord cure the conditions within a stated deadline.
Show answer
Correct: The tenant failed to vacate the premises within a reasonable time after the conditions became intolerable.
A key element of constructive eviction is that the tenant must vacate the premises within a reasonable time after the conditions substantially interfere with the tenant's use and enjoyment. Here, the tenant remained for eight months after the problems began (and five months after the landlord failed to respond to three months of complaints). Courts have consistently held that remaining in possession for an extended period after conditions become intolerable undermines the claim that the tenant was effectively 'evicted.' See Reste Realty Corp. v. Cooper, 53 N.J. 444 (1969); Restatement (Second) of Property: Landlord & Tenant § 6.1 (requiring the tenant to vacate within a reasonable time). The tenant's prolonged continued occupancy suggests the interference was not sufficiently severe to constitute eviction, or that the tenant waived the claim.
Owen, the owner of Blackacre in fee simple, conveyed Blackacre to Alice by warranty deed on March 1. Alice did not record her deed. On April 15, Owen conveyed the same property to Bob by warranty deed. Bob had no actual knowledge of Alice's deed and conducted a reasonable title search that did not reveal Alice's interest. Bob did not immediately record his deed. On April 20, Alice recorded her deed. On April 25, Bob recorded his deed. The jurisdiction's recording statute provides: "No conveyance or mortgage of real property shall be valid against any subsequent purchaser for value without notice whose conveyance is first recorded." As between Alice and Bob, who has superior title to Blackacre?
- Alice, because she recorded her deed before Bob recorded his deed.
- Bob, because he was a bona fide purchaser for value without notice of Alice's prior conveyance.
- Bob, because Alice's failure to promptly record her deed rendered it void against a subsequent good-faith purchaser.
- Alice, because under this statute, the first grantee in time always prevails regardless of recording order.
Show answer
Correct: Alice, because she recorded her deed before Bob recorded his deed.
The statute in question is a race-notice statute, which requires a subsequent purchaser to satisfy two conditions to prevail over a prior grantee: (1) the subsequent purchaser must take without notice of the prior conveyance, and (2) the subsequent purchaser must record first. While Bob satisfied the notice requirement (he had no actual or constructive notice of Alice's deed at the time of his purchase), he failed to satisfy the race requirement because Alice recorded her deed on April 20, five days before Bob recorded on April 25. Under a race-notice statute, both elements must be met. Because Bob did not record first, Alice's prior conveyance prevails. See, e.g., Restatement (Third) of Property: Servitudes § 7.15 (discussing recording act requirements); 4 Tiffany, Real Property § 1263 (discussing race-notice statutes).
In 2005, Garcia began using a vacant lot owned by Thompson to park her delivery trucks and store construction materials. Garcia paved a portion of the lot, installed a chain-link fence around the perimeter, and posted a sign reading "Garcia Construction — Private Parking." She paid no property taxes on the lot. Thompson lived in another state and was unaware of Garcia's activities. In 2010, Garcia allowed her friend Mendez to use a corner of the lot to store landscaping equipment, though Garcia retained control over access to the lot and continued her own use. In 2023, Thompson discovered Garcia's use and filed a quiet title action. The jurisdiction requires a 15-year statutory period for adverse possession and does not require payment of property taxes. Garcia claims she has acquired title by adverse possession. Which of the following facts, if true, would most likely defeat Garcia's adverse possession claim?
- Thompson never knew about Garcia's use of the property until 2023.
- Garcia never paid property taxes on the lot.
- In 2012, Garcia sent Thompson a letter asking to purchase the lot, stating she knew it belonged to Thompson.
- Garcia allowed Mendez to use a corner of the lot for equipment storage beginning in 2010.
Show answer
Correct: In 2012, Garcia sent Thompson a letter asking to purchase the lot, stating she knew it belonged to Thompson.
This fact would most likely defeat Garcia's claim because it undermines the 'hostility' or 'claim of right' element. By acknowledging Thompson's ownership and seeking to purchase the property in 2012 — seven years into the statutory period — Garcia demonstrated that her possession was not under a claim of right but rather was permissive or subordinate to Thompson's title. This acknowledgment of the true owner's superior title effectively interrupts the running of the statutory period, requiring Garcia to restart the clock. See Restatement (Third) of Property: Servitudes § 2.17; Gorski v. Troy, 929 P.2d 1153 (Wyo. 1996) (recognition of owner's title destroys hostility element and interrupts adverse possession). Even if the clock restarted in 2012, only 11 years would have elapsed by 2023, falling short of the 15-year requirement.
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