Real Property Essentials — Bar Exam

MBE fact patterns hand you a use of a neighbor’s land and force a choice: is it a valid easement, or a mere license (revocable, personal, no writing required)? The “tell” is permanence and the Statute of Frauds—an oral permission is a license unless estoppel (detrimental reliance on the owner’s promise) or part performance locks it in (many courts then call the result an easement by estoppel). Watch the implication-versus-necessity split: an easement by implication needs prior apparent, continuous use plus reasonable necessity before severance, while an easement by necessity demands strict necessity (true landlocking) and ends when an alternative access opens.

Don’t confuse an easement (an affirmative right to use) with a covenant, which restricts the servient owner’s own use and runs to successors only if it touches and concerns the land. The classic trap: students grant prescriptive easements on facts showing permissive use—prescription, like adverse possession, requires hostility, so permission defeats it. And every easement is an encumbrance, breaching the grantor’s covenant against encumbrances even if the buyer can see the worn path (a minority of courts excuse open, visible easements—the MBE follows the majority that notice is immaterial).

The MBE loves the purchase-money mortgage (PMM) super-priority trap: a PMM (securing the buyer’s acquisition, from seller or third-party lender) takes priority over earlier-recorded judgment liens and other prior claims against the buyer. Between two PMMs, the seller-financed (vendor) PMM generally beats a third-party-lender PMM under the Restatement (Third) default (a real split exists; lenders often contract around it). The other reliable pattern tests theory of title: in lien-theory states (the majority) the lender holds only a security interest, so a co-tenant’s solo mortgage does not sever a joint tenancy, whereas in a title-theory state it may.

The classic error is confusing the priority question with the liability question (assume vs. subject-to). Another trap: a junior lienholder omitted from the foreclosure action keeps its interest, because foreclosure wipes out only juniors joined as parties; seniors survive regardless. Don’t conflate a mortgage with a bare encumbrance — every mortgage is an encumbrance, but it carries a foreclosure remedy a mere title restriction lacks. Memory hook: “Purchase-Money jumps the line.”

The MBE’s favorite move is to make the remedy the tell: if the plaintiff sues for damages, run the strict at-law analysis, but if she wants an injunction, jump to equitable servitude and stop worrying about privity — testing whether you’ll wrongly deny relief for a missing horizontal-privity link. The hardest pattern attacks horizontal privity (the original promising parties must share a grantor-grantee or landlord-tenant relationship connected to the promise) — a covenant in a stand-alone “neighbor agreement” between two existing owners fails to run at law for want of it (note the Restatement (Third) abandons horizontal privity, but the MBE still tests the traditional rule).

Don’t confuse a covenant with an easement: an easement grants an affirmative right to use the servient land (creation by PING), whereas a covenant restricts how an owner uses his own land. And note the overlap with encumbrance — a recorded restrictive covenant is an encumbrance, so an undisclosed one breaches the deed’s covenant against encumbrances. Hook: covenants run on WITHN (Writing, Intent, Touch-and-concern, Horizontal/vertical privity, Notice); drop privity and you have a servitude.

The MBE signals a fixture problem when a deed or mortgage is silent and someone removes an item—then asks who owns the furnace, the chandelier, or the bolted-down machinery. Much turns on the annexor’s relationship to the land: an owner who installs an item is presumed to intend it to stay (it conveys), but a tenant gets the trade-fixture exception and may remove items installed for business—provided removal happens before surrendering possession (commonly framed as before the lease ends) and the tenant repairs the damage. A land mortgage reaches fixtures, including after-annexed ones, so the lender’s lien attaches as they become realty.

The classic trap is confusing this with the estate itself: fixtures are an attached-personalty question, not the duration-of-interest question estates answer. Don’t reflexively say “buyer wins”—a buyer takes fixtures, but a tenant’s trade fixtures stay the tenant’s. Once an item qualifies as a fixture, UCC Article 9’s fixture filing (§ 9-334) governs a secured lender’s priority versus the mortgagee, with a purchase-money superpriority if perfected before annexation or within 20 days.

The classic concurrent-estate question hands you a conveyance “to A and B as joint tenants with right of survivorship,” then has one tenant mortgage, lease, or secretly deed away their share — and asks who owns what when that tenant dies. The answer hinges on severance: under the majority lien theory a mortgage by one tenant does not sever (survivorship survives), but in a title-theory minority it does. A unilateral lifetime conveyance severs; a will never severs, because survivorship vests at the instant of death before the will operates — the devise simply fails.

Don’t confuse a tenancy (concurrent ownership) with the duration concept tested under estate: co-tenants can hold their shared interest in fee or for life. The trap with tenancy by the entirety is that, on the majority rule, one spouse’s individual creditor cannot reach the property, and neither spouse can unilaterally partition it. Memory hook: a joint tenant who tries to defeat survivorship by will is “too late” — death wins the race.

The MBE rarely asks “what is an estate” outright; it hands you a granting clause and makes you classify the present estate and name what follows it, then layers a second issue on top — usually a waste claim or a Rule Against Perpetuities strike. The tell is the language: “to A for life” signals a life estate (watch for waste — a life tenant who commits affirmative or permissive waste, or fails to pay taxes and mortgage interest, is liable to the remainderman, though that carrying-cost duty is capped at the property’s income or fair rental value). “So long as,” “until,” or “while” creates a fee simple determinable; “but if” or “provided that” creates a fee simple subject to condition subsequent.

A classic trap is confusing an estate (one owner’s interest over time) with a tenancy (how co-owners share a single estate) — survivorship and the four unities are tenancy doctrine. Don’t conflate a defeasible fee’s forfeiture with a covenant, which yields only damages or an injunction, never loss of title. And unlike a removable trade fixture, an estate is the land itself — it conveys, it doesn’t detach.

Examiners build the fact pattern so one element fails, and the wrong answers ignore it. The classic tell is a sentence granting permission (“the owner let her cross”): permissive use is licensed, not hostile, so the clock never starts. Watch the disability tolling trick — minority, insanity, or imprisonment tolls only if it existed when the cause of action accrued; a disability arising later never tolls, and disabilities don’t stack. Under color of title (a defective deed), constructive adverse possession reaches the whole described parcel even if she occupied only part — but never land another party actually holds.

The sharpest trap confuses this with a prescriptive easement: prescription drops the exclusivity element and yields only a non-possessory right to use, never title, so a shared driveway gives an easement, not ownership. Distinguish the possessor’s resulting fee simple (full possessory title) from that limited interest. Tacking demands privity — a voluntary transfer (deed, will, descent); an ouster is hostile, not voluntary, so it gives nothing to tack.

The classic fact pattern is O conveys to A, A fails to record, then O conveys the same land to B — your job is to decide whether A or B owns. First classify the statute from its wording: “good faith” or “without notice” signals a notice act; “first recorded” with no notice language signals a race act; both phrases together mean race-notice. Then ask whether B is a bona-fide purchaser for value — a donee, heir, or devisee who paid nothing is no purchaser, so B loses to the prior grantee. Watch the shelter rule: a taker from a BFP inherits that protection even with notice.

The trap is treating recording as proof of ownership; it merely fixes priority, which is why a wild deed (recorded outside the chain of title) gives no constructive notice. Don’t confuse this with mortgage priority (foreclosure of a senior lien wipes out junior liens) or with the encumbrance covenant, which governs warranty-deed liability, not who prevails between buyers.

The MBE rarely tests “encumbrance” as a vocabulary word; it hides inside marketable-title and warranty-deed fact patterns. The classic tell is a buyer who discovers an easement, lien, or zoning-violating encroachment and wants out before closing — the answer turns on whether an outstanding encumbrance renders title unmarketable, letting the buyer rescind. Watch the trap: zoning restrictions alone do not encumber title, but an existing violation of a zoning ordinance does render title unmarketable. Easements split the rule: a visible, beneficial easement the buyer knew of (a utility line, a road) usually does not render title unmarketable, while a hidden or burdensome one does.

Distinguish the related terms. A mortgage is one species of encumbrance (a lien), but foreclosure priority turns on recording, not on labeling it an encumbrance. A covenant burdens use; whether it “runs” depends on touch-and-concern, intent, and notice — separate from whether it clouds marketable title. Memory hook: an encumbrance is anything that “weighs down” the title without divesting ownership.

The MBE fact pattern almost always hands you an oral or informal permission and then asks whether the user can be ejected. The tell: a grantor says “sure, run your pipe across my lot,” nothing is written, and the user later spends money. Your job is to choose between a freely revocable license and an irrevocable one by estoppel — the answer turns on whether the licensee made substantial expenditures in reasonable, foreseeable reliance. Watch the coupled-with-an-interest twist (e.g., permission to enter and remove timber or goods you own): that license is irrevocable for a reasonable time to remove the property.

The classic trap is upgrading a license into an easement. An ordinary license needs no Statute of Frauds writing, does not run with the land, and binds no successor — so a buyer of the burdened parcel can revoke at will, unlike a recorded easement or covenant. Note the split: estoppel often yields only an irrevocable license measured by the reliance (terminating once the investment is recouped), though many courts treat it as an easement by estoppel that does bind successors (Holbrook line) — so read the call carefully.