Real Property on the MEE: What to Know and How to Practice

Estates in land and future interests are the foundation of MEE Property questions. You need to classify present estates (fee simple absolute, fee simple determinable, fee simple subject to condition subsequent, life estate) and their corresponding future interests (possibility of reverter, right of entry, remainder, executory interest). The Rule Against Perpetuities occasionally appears as well.

Landlord-tenant law is the second major testing area. MEE questions test the duties of landlords (implied warranty of habitability, duty to deliver possession) and tenants (duty to pay rent, duty not to commit waste), as well as the rules governing assignment and sublease. Know the difference between a lease assignment and a sublease and the privity rules that determine who can sue whom.

Recording acts and easements round out the typical Property essay. Recording act questions require you to identify the type of statute (notice, race-notice, or race) and determine who prevails in a priority dispute. Under a notice statute, a subsequent bona fide purchaser for value without notice prevails regardless of recording order. Under a race-notice statute, that purchaser must also record first. Easement questions test creation methods (express grant, implication, necessity, prescription), scope, and termination. Covenants running with the land and equitable servitudes, which require analysis of the touch-and-concern and privity elements, also appear. Adverse possession, while less frequent, occasionally shows up as a secondary issue.

Property essays reward precise classification. When the question involves an estate, start by identifying the exact type of estate and its corresponding future interest using the language of the grant. The words of the conveyance matter: "so long as" signals a fee simple determinable; "but if" or "on condition that" signals a fee simple subject to condition subsequent. State the classification and explain why the language creates that particular estate.

For recording act questions, establish the type of recording statute, then trace each subsequent purchaser's status (bona fide purchaser for value without notice, or not). For easement questions, identify the creation method first, then address scope or termination as the facts require. In all Property essays, the facts tend to be dense with names, dates, and conveyances. Read carefully and track the chain of title before writing.

Misclassifying the estate from the grant language. The words of the conveyance determine the estate type. "To A so long as the property is used for educational purposes" creates a fee simple determinable with a possibility of reverter (automatic forfeiture). "To A, but if the property is not used for educational purposes, then to B" creates a fee simple subject to an executory limitation. Many examinees confuse these classifications. Pay close attention to whether the forfeiture is automatic ("so long as," "during," "while," "until") or requires the grantor to take action ("but if," "on condition that," "provided that").

Not tracing the chain of title before writing. Property fact patterns are dense with names, dates, and conveyances. If you start writing before you have mapped out who conveyed what to whom and when, you will get confused halfway through your answer. Before writing, sketch a quick timeline of the conveyances on scratch paper. This takes two minutes and prevents serious errors.

Confusing assignment with sublease. An assignment transfers the tenant's entire remaining interest. A sublease transfers less than the entire remaining interest. The distinction matters because it determines whether the third party is in privity of estate with the landlord. If the original tenant retains any reversionary interest (even one day), it is a sublease.

Forgetting to analyze notice in recording act questions. In a notice or race-notice jurisdiction, you must analyze whether the subsequent purchaser had actual, constructive, or inquiry notice of the prior conveyance. Constructive notice means the prior deed was properly recorded. Inquiry notice means the purchaser had facts that would lead a reasonable person to investigate. Many examinees state the recording statute type but never analyze whether the purchaser actually lacked notice.

Classify with precision. When you identify an estate or future interest, use the exact legal term: "fee simple determinable with a possibility of reverter," not "a conditional fee." Precise classification signals competence to the grader and is often worth several points on its own.

Know the landlord-tenant duties cold. The implied warranty of habitability (residential leases) and the covenant of quiet enjoyment are the most tested landlord duties. Know the tenant's remedies for breach (withhold rent, repair and deduct, or terminate). For tenant duties, know the rules on waste (voluntary, permissive, ameliorative) and the obligation to pay rent.

For easements, state the creation method first. There are four main ways to create an easement: express grant, implication (prior use), necessity, and prescription. Identify which method the facts support before analyzing scope or termination. Each method has specific elements. For prescription, the use must be open, notorious, continuous, hostile, and for the statutory period. State each element and apply the facts.

Address covenants vs. equitable servitudes when the facts raise a land use restriction. If the restriction is at law, analyze the elements for a covenant running with the land (intent, touch and concern, horizontal and vertical privity, notice). If the restriction is in equity, analyze equitable servitude elements (intent, touch and concern, notice). The privity requirements differ, and the remedies differ (damages for covenants, injunction for servitudes). Address both when the facts are ambiguous.