Real Property
What the exam tests
Real Property tests estates and future interests, landlord-tenant law, conveyancing and recording, mortgages, easements, covenants, and adverse possession.
Core rules
- Estates. Fee simple absolute, life estate, fee tail (rare), and defeasible fees. Remainders are vested or contingent. The Rule Against Perpetuities invalidates contingent interests that may vest too remotely; it does not apply to vested interests or government grants.
- Landlord-tenant. The covenant of quiet enjoyment is implied; constructive eviction occurs when the landlord substantially interferes with use and the tenant vacates within a reasonable time. Security deposits are regulated by state statutes; Maine has specific rules, so consult the prompt.
- Conveyancing. A deed requires delivery, acceptance, and a description. Recording acts: race, notice, and race-notice. A bona fide purchaser takes free of prior unrecorded interests if the jurisdiction protects BFP status.
- Easements. Express, implied, necessity, and prescription. Easements can terminate by abandonment, merger, release, or prescription.
- Covenants and servitudes. Real covenants require writing, intent, touch and concern, notice, and privity. Equitable servitudes require intent, touch and concern, and notice.
Worked example
O conveys Blackacre to A, who does not record. O then conveys Blackacre to B, who pays value and has no actual, inquiry, or record notice of A. In a notice jurisdiction, B prevails as a bona fide purchaser. In a race-notice jurisdiction, B also prevails if B records before A. In a pure race jurisdiction, the first to record wins, regardless of notice.
Traps
Do not assume every jurisdiction is race-notice; read the prompt. Do not ignore inquiry notice from possession. Do not confuse a license with an easement. Do not forget the Rule Against Perpetuities for contingent remainders and executory interests.