Good Essay Example 1 (February 2020 Real Property)
This lesson presents a real, good response to the February 2020 MEE Real Property question. First, read the essay, then listen to the analysis below.
Good Essay 1
The initial issue is whether the husband and wife originally had a valid joint tenancy with right of survivorship. A joint tenancy with right of survivorship requires the four unities of time (joint interested created at same time), title (created under the same instrument), interest (each JT has equal interest in the property), and possession (each JT has a right to undivided possession of the property). The right of survivorship just be unambiguous. Here there is a joint tenancy since they purchased the property at the same time, with the same instrument, with clear survivorship language, and each had an undivided interest of the property and were entitled to possession. Thus, there was a joint tenancy.
Another issue is which state's law should be applied in this case. The rule is that the law of the situs (where real property is located) is the law that should be used for property disputes. Here, the law of state A should be applied.
1. The issue is whether the Husband's execution of a mortgage severed the joint tenancy when he granted the mortgage to his friend.
The rule is that in a lien theory state, a mortgage does not sever a joint tenancy (JT); however, in a title approach theory jurisdiction, a mortgage does sever a JT. If severed the two joint tenants now each possess a tenancy in common.
Here, because they're in a title theory state, the mortgage did sever the joint tenancy because the unity of interest no longer existed upon mortgaging the property. At that point, the husband and wife now each possessed their interest as tenants in common.
2(a). Assuming the mortgage did not sever the JT, did the husband's execution of a lease sever the JT?
The rule is that it depends on the jurisdiction. The common law approach is that creating a lease would sever the joint tenancy, whereas the modern approach is that it would not.
Here, if the jurisdiction of state A applies the common law, then the lease did sever the JT, but if it follows the modern approach, it did not. Since the facts state that the courts "strictly apply the common law four-unities test", it's likely that the lease would sever the joint tenancy, giving the husband and wife a tenancy in common for their respective interests.
2(b). The issue is that assuming that the lease severed the JT, then what rights did the tenant have in the building.
The rule is that lease grants a tenant a present possessory interest in the property. Because it's a contractual obligation, it can survive the death of lease grantor. Here, the tenant still has a present possessory interest in the building until the termination of the lease.
3(a). The issue is that assuming that neither the mortgage nor lease sever the JT, during the spouse's lifetimes, was the woman entitled to half of the rental income payable to her husband under the lease as a joint tenant owner of the property.
The rule is that when a joint tenancy exists and the property is rented to a third party, the rent received should be split evenly among joint tenants after repairs/operating expenses of the property are paid. Here, the wife was entitled to half of the annual $9K in rent, less her 1/2 share of the expenses associated with managing the property.
3(b) Assuming that the JT was not severed, the issue is at the husband's death, what rights, if any, do the woman and the tenant have in the building.
The rule is that when one Joint tenant dies, its share goes to the other joint tenant. When the husband dies, the wife will acquire her husband's interest in the property through her right of survivorship and she will own the property clear of any mortgages or other obligations she did not join. She will properly be allowed to eject the tenant as the tenant will no longer have any possessory rights in the building.
Analysis of the Sample Essay
Transcript
Now we're going to look at two representative good answers. One's from New York and one's from Minnesota, and like we did with the analysis above, we're going to go prompt by prompt, noting what these answers do well and what they could have done better. Now, again, these are both good answers, really good answers, but they take very different approaches to answering the essays, which is a good illustration of the fact that there are multiple ways to write a high-scoring MEE essay.
Let's start with representative answer number 1, which comes to us from Minnesota. Now, two overall things jump out just by glancing at the page before we start looking at it prompt by prompt. First, this is not an essay that's leading off its answers with strong, bolded conclusions. Remember, we want the first part of our written answer to be a conclusion. That's the first C in our CRAC.
And, ideally, we want it to include a reason as well. Something with a "because" in it. Now, for all five of the prompts, this test taker has instead put a number and either restated the prompt or stated it as an issue. And that's not going to score any points because it doesn't convey anything useful to the grader.
In a perfect world, we want that first bolded sentence to have a lot packed into it, our answer, and a reason. If we can do that, then we've really hit the ground running in terms of picking up points, and we've probably put our grader into a good frame of mind as well. That grader knows we're going to be clear and decisive.
Now, having said that, it's not always easy to write out a conclusion like that, especially on an essay like this one with so many prompts, and it's entirely possible that this test taker just used these headers as a way to stay focused and organized while writing. If so, that's good. There's certainly nothing wrong with it, and you won't lose points for this kind of thing. It just won't directly score points either.
The second thing that stands out is that this essay starts off with a kind of introductory set of paragraphs, addressing what it calls "two initial issues," whether the husband and the woman had a valid joint tendency to begin with, and which state's law should be applied in this case.
And I don't mean to be harsh on the test taker here, again, this is a really good answer, but this is wasted effort. We already have five prompts to cover in this essay, and essentially this poor test taker's just added two more. And the analysis is just fine. Yes, there is a joint tenancy, and yes, State A's law applies, but we weren't asked about either of those things.
In fact, the prompts specifically refer to the joint tenancies, so it's a pretty safe bet that it was valid. Now, if you're ever wondering about whether you need to include brush clearing analysis like this, the answer is almost always no. I can't think of a good representative answer I've seen where this kind of thing was important.
You're going to be really pressed for time already, and you want to start with the first prompt right away. That's where you can pick up points. In fact, if you look at the analysis provided by the bar examiners for MEE questions, you'll sometimes see a summary or an introductory paragraph at the beginning before the answers to the prompts.
But, and this is the really crucial thing, note that there are no points associated with that paragraph. The percentages start with the answers to the prompts, so that's where we want to focus our energy. That's where we can pick up points. Okay. So those are two broad things that this essay could have done better, and by done better, I mean, really just made easier on itself.
When it comes to the individual prompts, the essay actually really settles into a nice rhythm. It's the same basic elements over and over. After that issue statement, which, again, I'd prefer to be a conclusion, a C instead of an I, we get a nice rule application, RA, for all five prompts. Each of them has a sentence starting, "This rule is," which is a nice way to draw the grader's attention to the fact that you're stating a rule. And all but one of the prompts follow that up with an application sentence or two, starting with the word "Here." So that's some really nice work on the RA part of CRAC.
Not many of the prompts include a final C, that's the "therefore" sentence, but in this particular case, for this essay, I think that's not so bad because there are so many prompts and each of them is so straightforward. And, in fact, if this essay had led off each prompt with a good C, then I'd be totally fine with a CRA approach throughout.
As for specifics, I think that the answer on prompt 1 is really nicely done. It's probably not even necessary to explain the lien theory, actually, since we know we're in a title theory state, but that's great work.
Prompt 2(a) is really nicely done. In fact, note that the test taker here acknowledges both the common law rule, which is that a lease does sever the joint tenancy, and an alternative, which is that the lease does not sever the joint tenancy. Now, we know from the bar examiners' own notes, their own analysis, that either one of those would have been perfectly acceptable, and so noting them both is really especially good.
Prompt 2(b) is also well done. Might've been good here just to mention that the woman and her husband, who is the lease grantor, as the test taker puts it here, became tenants in common after severance, which is why the commercial tenant can maintain its possessory interest even after he dies. If they were still joint tenants, that is, if the woman and her husband were still joint tenants, then the commercial tenant's lease would just disappear, as we'll see in a minute.
Prompt 3(a) is perfectly done for rule and application. I have no notes there. And likewise, prompt 3(b) is superb as well.
So what we've got with this representative model answer is some really excellent, clear formulaic answers to the prompts, which more than makes up for those two broad things that could have been done better, which is the wasted effort at the beginning and the failure to clearly state conclusions. Still, this is clearly an excellent answer. I'm just pointing out how it could have been even better.
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