NALA ACP Real Estate common mistakes
NALA ACP Real Estate · Understand the traps and how to avoid them.
Reads a grant such as 'to A so long as the parcel is used as a school, then to B' and calls A's estate a fee simple subject to condition subsequent while giving the grantor a right of entry.
The two defeasible fees sound alike and both involve a future interest, so candidates match on the condition rather than the exact enabling language and the automatic-versus-elective remedy.
What to do instead
Parse the granting clause word by word: 'so long as/while/until' creates a fee simple determinable and an automatic possibility of reverter; 'but if/provided that/upon condition that' creates a fee simple subject to condition subsequent and a right of entry that must be exercised. Then identify who holds the future interest and whether it is transferable under the jurisdiction's rules.
Sees a deed 'to A and B' and immediately labels it a joint tenancy with survivorship, then distributes A's share to B when A dies.
Candidates remember the four unities but forget that many jurisdictions require express survivorship language and presume tenancy in common; a conveyance by one joint tenant also severs the joint tenancy.
What to do instead
First apply the jurisdiction's presumption: absent express survivorship language, co-owners usually take as tenants in common. If joint tenancy is claimed, verify time, title, interest, and possession unities and check for severance by deed, mortgage, or partition. Distinguish tenancy by the entirety and community property where applicable.
Concludes that an oral land-sale agreement is enforceable because the buyer paid a deposit and moved in, without checking the jurisdiction's part-performance or estoppel requirements.
The statute of frauds is tested as a fact pattern, and candidates treat any payment or possession as sufficient part performance rather than applying the narrow equitable exception.
What to do instead
Start with the signed-writing requirement: parties, property description, price, and essential terms. Then analyze part performance under the forum's test, which often requires possession plus payment plus improvements or other unequivocal acts. Consider equitable estoppel separately and remember that an oral modification may fail even if the original contract was written.
Treats a financing contingency, inspection contingency, and 'time is of the essence' clause as automatic extensions, so the candidate misses the buyer's breach or the seller's termination right.
Contract timelines are read as a checklist instead of a sequence of conditions, notice deadlines, waivers, and remedies.
What to do instead
Build a dated performance calendar from acceptance: each contingency has a deadline, a notice method, and a consequence if not satisfied or waived. Identify whether time is expressly of the essence, whether a cure period applies, and whether the remedy is specific performance, damages, or liquidated damages. Check that a liquidated damages clause is a reasonable forecast, not a penalty.
Runs a title search only under the current seller's name for the years the seller owned the property and misses an earlier recorded deed or judgment lien in the chain.
Recording systems are indexed by name and date; a deed from a prior owner can be outside the current owner's name search, and a wild deed may not give constructive notice.
What to do instead
Trace the chain back to a reasonable root of title, searching grantor and grantee indexes under each owner and known name variations. Check judgments, tax liens, easements, and plats against the legal description. Then apply the jurisdiction's recording statute: race, notice, or race-notice, and determine whether the later purchaser had actual, inquiry, or record notice.
Validates a deed because the grantor signed it and the signature was notarized, even though the deed was never delivered to the grantee or the grantee never accepted it.
Candidates conflate execution and acknowledgment, which affect recordability, with delivery and acceptance, which are required for transfer.
What to do instead
Separate validity from recording: a valid deed needs a competent grantor, named grantee, words of grant, adequate legal description, signature, and delivery with present intent plus acceptance. Acknowledgment or witnesses go to recording eligibility, not necessarily validity. An unrecorded deed can bind the parties but may lose to a subsequent bona fide purchaser.
States that the lender must foreclose judicially and that the borrower can redeem for a fixed period after the sale in every state.
Candidates collapse mortgage and deed-of-trust foreclosure and forget that redemption rights are statutory and vary by state and by the instrument.
What to do instead
Identify the security instrument and the state's approach: judicial foreclosure, power of sale under a deed of trust, or strict foreclosure. Distinguish equitable redemption before the sale from statutory redemption after the sale, and state whether a deficiency judgment or anti-deficiency rule applies. Confirm notice, publication, and sale procedures from the statute and instrument.
Assumes the mortgage recorded first always has priority and ignores a purchase-money mortgage, a subordination agreement, or a judgment lien that attached before the mortgage was recorded.
Priority is not simple chronological order; it depends on recording statutes, lien type, and contractual subordination.
What to do instead
List every competing interest with its recording date and legal character. Apply the jurisdiction's race-notice or notice rule, give purchase-money mortgages their statutory priority where applicable, and check for subordination agreements, future-advance clauses, and fixture filings. Resolve liens against the same debtor before ranking the mortgage.
Calls a tenant's withholding of rent a constructive eviction without showing a substantial interference, notice to the landlord, and a reasonable time to cure, or misses the lease's notice requirement for termination.
Constructive eviction and breach of quiet enjoyment are equitable doctrines, but candidates treat any habitability defect as automatic termination.
What to do instead
For constructive eviction, identify the landlord's act or omission, substantial interference with use, notice and opportunity to cure, and the tenant's vacating within a reasonable time. Distinguish actual eviction, rent withholding statutes, and repair-and-deduct remedies. Check lease notice provisions and local law before terminating.
Treats a variance and a special exception as interchangeable and says a preexisting nonconforming use must stop immediately when the zoning ordinance changes.
Land-use terms are tested by definition, and candidates overlook that nonconforming uses are usually protected as continuations subject to amortization or abandonment rules.
What to do instead
Define variance as relief from a zoning standard based on hardship, and special exception or conditional use as a use the ordinance permits with approval. For nonconforming uses, check the ordinance for continuation, expansion, abandonment, and amortization. Distinguish area variances from use variances and verify the local board's authority and due-process notice.