Transcript

Bar Exam Breakdown

Hello. My name is Danielle D'Onfro, and I'm an associate professor of law at Washington
University in St. Louis. Today, we're going to begin talking about property, and we're going to
spend this lecture just getting set up. Property on the bar just covers real property. This might be
a bit smaller than the property class that you probably took as a 1L.

Five Categories
There are 25 real property questions on the bar and these 25 questions are broken into five
categories. Each of these five categories has about five questions each. For the bar, it includes
roughly five questions from each of the categories. Let's talk about the categories now.

Real Property Ownership

The first one is ownership of real property. This category includes all of the estates, including
those fiddly future interests that nobody likes, the rule against perpetuities, co-tenancy, and
landlord-tenant law. As a law student, you might have heard that the rule against perpetuities, in
its common law form, is not very useful anymore. Unfortunately, the bar loves to test the rule
against perpetuities in its common law form. We're going to spend quite a bit of time when we
talk through ownership of real property doing rule against perpetuities problems.

Rights in Real Property

The second category is called rights in real property. This category includes things like
covenants, easements, fixtures, and zoning. Fixtures, in particular, are a favorite of the bar
examiners.

Real Estate Contracts

The third category is real estate contracts. This covers the basics of sale and closing. Topics here
include things like the statute of frauds and marketable title, both of which almost always appear
on the bar.

Mortgages and Security Devices

The fourth category is mortgages and security devices. Security devices are the subject of at least
one and sometimes two whole semesters of coursework in law school. What you need to know
for the bar is just a teeny-tiny subset of the law of security devices. You should expect to see lots
of questions about who has to pay what on a mortgage, given different ownership arrangements,
for example, life estates, co-tenants. This is a great way for the bar to test both your knowledge
of the first category, all of those estates, and your knowledge of how mortgages work.

Titles
The final category is called titles. Titles includes adverse possession, transfers by will and by
deed. We will have talked about transfers by deed really up in the third category, real estate
contracts, but that same information is included down in this fifth category here. The fifth
category also includes recording systems and title insurance.

Those are the five categories that appear on the bar.

Test-Taking Tips
Let's talk about some tips for analyzing real property problems.

Read Slowly
The first one is just to read slowly, because if you misread the question, you're unlikely to get it
correct. You should know that there are lots of things that sound similar, but are in fact different
in real property. This is particularly true of the estates in land. You want to make sure that you're
reading slowly and reading carefully.

Left to Right, Step by Step

When you do see a complex grant, I want you to read it from left to right. Sometimes on the bar,
because these are longer word problems, even though they're ultimately styled as a multiple-
choice question, the grants just contain a lot of words and this can be overwhelming. But you
want to start with the true owner and just work through each step that the true owner takes in the
order in which he or she takes it. This is almost always going to be presented from left to right,
with the first step presented first, then the second step, and so forth. You want to work through
all of the steps of a grant in the order in which they occur.

Watch Out for Dates

The third tip I have for you is to watch out for dates. Dates are going to be especially important
with problems that are testing your knowledge of recording systems and of priority and security
devices. You want to make sure that you have an idea of the timeline of a problem, even if no
specific date is given. If you have a grant and then the problem says five years later, make sure
that you have an idea of how long the whole problem takes.

Problem with Perpetuities

Then anytime you see a problem that takes longer than 21 years, you need to go back and check
and make sure there's not a perpetuities problem. Do not be confused. There are plenty of grants
and property problems that are completely valid, even though they go on for longer than 21
years. This is just a tip to help you find violations of the rule against perpetuities that might be
lurking in problems that seem like they're about something else.

Statute of Frauds
Finally, I want you to make sure that whenever you have a real property transaction, the problem
tells you that the documents are in writing. If you see an oral grant or some oral addendum to a
problem that's otherwise in writing, you might be looking at a statute of frauds problem. The
property problems on the bar often turn on whether or not they comply with the statute of frauds.
This might seem like a contracts concept, and it is, but it also appears over here in real property.

You want to also make sure that you do not get distracted by statute of frauds problems. Statute
of frauds problems are often incorrect answers. They're there to distract you from what's really
going on in the problem. There will be enough actual statute of frauds problems to keep you on
your toes, but you should know that this is a common trick.

With that, let's dive in.

Assessment Questions
Question 1
Which of the following is not a favorite property law topic of the bar examiners?
A
The common-law rule against perpetuities
B
Fixtures
C
The statute of frauds
D
Personal property
Explanation
Some 1L classes cover certain aspects of personal property, but the bar exam focuses exclusively
on real property. Each of the other topics in this list appears frequently on the MBE. Make sure
you know all of them backward and forward on test day!
Question 2
Which of the following is not an important tip for approaching property problems on the MBE?
A
Read complex grants from left to right chronologically, moving from the true owner through
each step.
B
Watch out for dates, especially when questions involve priority and security devices or recording
systems.
C
If more than 21 years pass in the problem, look for a rule against perpetuities issue.
D
Don’t worry about the statute of frauds because it’s always a red herring in property questions.
Explanation
The statute of frauds is sometimes a red herring on the MBE, but it’s also a favorite correct
answer since all real property conveyances have to be in writing. Pay attention to whether the
parties have complied with the statute of frauds, but be aware that the bar examiners like to use
this issue as a distraction. If you see an oral contract or an oral modification, you should be on
high alert for a statute of frauds violation; otherwise, you can usually dismiss this answer choice
and assume something else is going on.
Notes
FIVE CATEGORIES, FIVE QUESTIONS EACH
Ownership of real property
Estates
Future interests
Rule against Perpetuities (RAP)
The bar loves to test the common-law form!
Cotenancy
Landlord-tenant law
Real estate contracts
Basics of sale and closing
Two common topics on the bar
Statute of frauds
Marketable title
Mortgages and security devices
Who pays what on a mortgage
Holders of life estates v. remaindermen
Cotenants
Titles
Adverse possession
Transfers by will
Transfers by deed
Recording systems
Title insurance
HOW TO ANALYZE REAL PROPERTY QUESTIONS ON THE BAR
Read slowly, especially with questions about estates.
Read left to right when you see a complex grant.
Work through each step in order.
Pay attention to dates, especially in questions about recording systems and priority.
CHECK FOR RAP PROBLEMS.
Any time you see a problem taking longer than 21 years
WATCH OUT FOR THE STATUTE OF FRAUDS IN REAL PROPERTY TRANSACTIONS.
It appears frequently in property questions on the bar!
Often as a distractor . . .