How the MBE Approaches Property
The MBE rarely takes a straightforward approach to property law. It often tests the fiddly rules that you may not have covered in law school, especially if you only had a one-semester class. It structures many questions as real estate sales and requires you to know both the rules of sale and at least one other doctrine to find the right answer. It also uses the rules of mortgages to test other areas of the law. Be prepared for obscure topics and multistep analyses.
How You Should Approach Property on the MBE
Spotting a Property Problem
The first time you read a problem, you may see elements of real property mixed in with other areas, like torts or contracts. To figure out which body of law to apply, pay close attention to the actual question you’re being asked to solve. Usually, you’ll find that question in the stem or in the last sentence or two of the stimulus. Sometimes it’s helpful to skip ahead to the stem and identify the real issue before plowing through all the facts.
Organizing the Facts
Once you know you’re in a property problem, make a timeline of the events in the fact pattern. This step is critical because so many property rules depend on which party is first in time to take certain actions. Next, narrow your focus by identifying which events are essential to answer the question.
If one of the events is a complicated grant, make sure you analyze each component of the grant as you read from left to right. You may be tempted to tackle the easy components first, but you are likely to miss issues if you do so.
When to Use the Common Law
You may have learned in law school that few, if any, states have preserved the old common law rules. On the MBE, however, the common law is alive and well, especially for questions involving the Rule against Perpetuities, landlord-tenant issues, or warranties. Whenever an MBE question tells you that there are “no applicable statutes” in your jurisdiction, that means you should use common law doctrine to analyze the issue.
What’s in a Name?
Don’t worry if you haven’t memorized the names of all the estates in land. Very few, if any, modern MBE problems test nomenclature. Instead, they test your ability to figure out which party has which right to a parcel of land at the end of the fact pattern. To answer these questions, it’s more important to know how different transactions work than to remember the exact name of each estate those transactions create.
Merger after Closing
Don’t forget that promises made in real estate contracts are mostly irrelevant after closing because the contract merges into the deed. If the buyer has a problem after closing, she has to find a remedy in a different property doctrine.
It’s Probably Not the RAP.
On the MBE, the Rule against Perpetuities is a favorite wrong answer. To avoid this potential pitfall, memorize the situations in which the RAP definitely does not apply, like when there’s a reversion to the grantor, a grant to a charity, or an issue about the obligations of a life tenant. When you encounter questions on these topics, you can simply cross off any answer choices that involve the RAP.
No Clue? No Worries.
The MBE may test property concepts that you don’t know, and that’s okay. If you read through a question and realize you aren’t familiar with the rule, don’t panic. See if there are any answer choices you can eliminate based on other principles to improve your odds before you guess. Then pick one of the remaining options (remember there’s no penalty for guessing!), move on to another problem, and circle back if you finish early. You don’t need to get every question correct to pass the bar. Don’t let any one question stress you out or consume too much of your time.