How to Approach an MEE Property Question

The goal of this lecture is to give you some advice on how to approach property questions on the MEE. If you haven't already listened to the lectures about general MEE advice, pause here and go do that first. Those lectures will give you a general toolkit for how to prepare for, read, and write MEE answers in a way that will score maximum points in minimum time.

Now, I've reviewed all the property MEE questions going back to 2008, along with the bar examiners' notes on grading them. And based on that, I've got some thoughts and pieces of advice on the topics you're most likely to see, the best way to read and prepare for a property MEE question, and the things to keep in mind as you're writing. So let's talk about those three things in order: topics, then reading and preparing, and finally, writing.

Topics

And let's start with the kinds of topics that the bar examiners like to test. That's actually an especially important thing to keep in mind for property, because one of the things that stands out most about property as a subject matter is that there are so many different topics covered.

If you look at the official outline for real property, you'll see five categories listed: (1) ownership of real property, which includes present estates and future interests as well as cotenancy and landlord-tenant; (2) rights in real property, which includes covenants and easements and zoning; (3) real estate contracts, which includes creation and construction issues like statute of frauds; (4) mortgages and security devices, which is just what it sounds like; (5) titles, which includes adverse possession, transfer by deed, and title systems.

Now, that sounds like a lot and it is, and on the MBE, the multiple-choice portion of the bar exam, you can expect the questions to be roughly evenly distributed across those five categories, so about 20% for each. But here's the good news: the MEE is not nearly so even-handed when it comes to topic selection. Unlike with the multiple choice, some issues get tested way more than others, at least in recent years, on the essay portion.

Of those five categories I just mentioned, the first and the last, that's ownership of real property, that's number (1), and titles, that was number (5), have been tested a lot more often than the others. And even within those categories, there are particular issues that seem to draw the examiners' attention repeatedly. One part of the ownership of real property section is cotenancy, things like tenancies in common and joint tenancies, and that gets tested a lot.

Even within cotenancy, landlord-tenant has been tested really often, both as the main focus of an essay and as a single prompt among multiple prompts. So if there's just one topic you want to review as you're getting ready for the property MEE, landlord-tenant's probably it, everything from creation of a tenancy to possession and rent termination.

Under the category of titles, that was the fifth one on our list, there are a few repeat topics there as well. Adverse possession is probably the biggest one, which I hope is good news. That's usually a topic that people get a kick out of studying. And since it's got a multi-multi-part rule, it's actually a good one to review and practice just in general, so that you're ready to handle other multi-part rules like the one for prescriptive easements.

And, actually, while I'm on it, easements are another subject that comes up reasonably often, so it'd be a good idea to review the basic elements of those, especially the implied easements. I have not seen many questions that are primarily focused on real estate contracts or on mortgages, at least not as the primary subject of an essay.

Sometimes you'll get a question that has one prompt about a mortgage, like a joint tenant is trying to mortgage his or her interest, but it's rarely going to be the main thrust of the essay. Of course, that doesn't mean that they won't have a whole test question devoted to mortgages next year.

But if you're looking to focus your energy, I'd zero in on ownership of real property and on titles. Those, at least in recent years, have been the topics that the examiners have tested the most. So that hopefully gives you a sense of what to expect on the MEE in terms of substantive doctrines and what you might want to study in order to be fully prepared.

Reading and Preparing

The next question is how you should attack the questions once you've got one in front of you. I think this is an especially important step on property questions because you're sometimes going to get questions that have a whole bunch of different prompts or a crazy and complex fact pattern, and it's just really helpful if you can start mentally organizing right from the get-go.

As I mentioned in the general MEE lecture, I prefer to glance at the prompts before I start work on any MEE question. On property questions in particular, there are a few advantages to doing that. One, of course, is that it just lets me know what I'm dealing with in terms of subject matter. So remember that MEE questions don't come labeled by subject matter and often it's nice to just get yourself oriented right away.

But the second thing, which I guess is related, is that reading the prompts first can really help you when it comes time to tackle the fact patterns. There's just no way around it. Property fact patterns can be detailed and lengthy. You might get very specific facts about dates or amounts of money or physical description of the land itself, like what it's next to, or what it's being used for, who's using it.

And if you've read the prompts first, then you might be able to tell right away which facts are going to be useful for which prompts, and you can annotate as you go, like by putting little numerals in the margin of the fact pattern as you go that correlate with the numbers of the prompts.

So, for example, if the second prompt of the essay is about an easement implied from prior use, and some of the facts have to do with a prior owner's use of a gravel road on a piece of property, you might scribble a little numeral 2 right next to that portion of the fact pattern. Of course, that's a trick you might end up using on any kind of MEE question, but here's another that's probably property-specific: draw.

I mean it. Sometimes, if you're dealing with a question about easements or nuisance or something else where the actual physical relationship of parcels is relevant, then you just need to take out your pencil and sketch what the fact pattern is describing. If it says that Parcel A is bordered on the west by a factory and on the east by a highway, and so on, those details are probably there for a reason, and you're probably going to have to come back to them when it's time to write.

And it's almost certainly way easier to just have a figure that you can refer to instead of calling up the mental image over and over, and then looking back at the fact pattern to make sure you remember it correctly. Just to be clear, we're not going for beautiful landscapes or detailed blueprints here. You're not going to turn in the pictures and the bar examiners are not going to score them, which is good news for those of us who are not artistically gifted.

The point is just to jot down whatever details can help you to visualize and remember the facts, especially, and this is the crucial part, how those facts relate to one another. Now, that drawing-things-out strategy can also come in handy if you've got an essay that has to do with the chain of title problem, like something involving a recording act, where you've got to keep the timeline straight in terms of who purchased what when, what was recorded when, and so on. You just draw that out.

Now, of course, not all the prompts are going to call for that kind of treatment. Some are much more the standard application of facts to rules that you'll encounter in other MEE questions. But one other thing to note about property is that, as compared to some other subjects, you can expect to see a lot more prompts.

It's not at all unusual to have four or five on a single essay, which is more than you'd expect to see on, say, constitutional law, where two or three prompts is the norm. Of course, you're still dealing with the same 30-minute time limit, which means that the more prompts you've got, the shorter the answers have to be, and the shorter they're designed to be.

So if you've got a half dozen prompts, then you can be sure your answers will need to be short and to the point. As with any other subject on the MEE, the prompts are going to be related to one another. I mean, obviously they're all drawing on the same set of facts, but sometimes they'll also be testing the same areas of property law, and that can happen in a few different ways when it comes to property prompts.

Some are what I might call layered. That's when you've got multiple prompts, each of which builds on the one before. So, for example, you might have a property question that's about landlord-tenant law and has three prompts. The first is about the creation of the lease, the second is about an attempt to terminate the lease, and the third is about the remedies available in case of breach.

Those are layered in the sense that each question arises from the answer to the prior one. Those kinds of questions are, in some sense, the simplest, because they're all coming from the same basic place. You know you're focused completely on landlord-tenant law. Or there could be one where prompt 1 is about a tenant's argument that the landlord must accept assignment of a lease, prompt 2 is about a tenant's argument that the landlord did accept surrender of the lease, and prompt 3 is about a tenant's argument that a landlord had to mitigate damages.

All of those are layered onto a tenant's efforts to get out of a lease, so you can guess what the facts are going to be about. The trick with these layered prompts, since they tend to be so closely related, is just to pay attention to the differences between them, even if those differences are subtle. Not all property prompts are going to be that tightly connected, though. In fact, some go right to the other extreme.

In property, maybe more so than in some other subjects, it's actually pretty easy for the bar examiners to mix and match subjects. Remember the big five categories of topics we discussed at the beginning: ownership of real property, rights and real property, real estate contracts, mortgages and security devices, and titles.

Now, you might have a question that starts out with a prompt about whether a person has established adverse possession, that's an issue of titles, number five on our list, then whether that person has validly mortgaged it, that's an issue of mortgages, number four on our list, and then another prompt about whether the person can convey that same property, and now we're dealing with real estate contracts.

In that kind of a question with prompts that are pointing in all different directions, there are a few things to keep in mind as you prepare. One is just to be ready for a big shift in focus partway through the question. You're going to swing from the multifactor test for adverse possession into some discussion of security devices, which can be a little bit of mental whiplash.

Second thing to keep in mind is that you're usually going to want to keep those prompts distinct from one another. But once you're done with adverse possession, that's it. Don't keep coming back to it on your second prompt on mortgages. And, in fact, on property questions, you'll often see prompts that tell you as much, like through language saying, "Assuming that Person A has established adverse possession," yada yada yada.

Don't question those assumptions. They're there to simplify things and they make your life easier. So, for example, you might get a cotenancy question that asks in the first prompt whether a joint tenant's creation of a mortgage severed the joint tenancy, and then two follow-up prompts that start off with, "Assuming the joint tenancy was severed," and "Assuming the joint tendency was not severed." Now, obviously, those second and third prompts are independent of the first. In fact, they're inconsistent with one another. So treat them distinctly and separately. Those "assume this" statements in the prompts are basically like an extension of the fact pattern for the purposes of that particular prompt.

One last thing as you're preparing to write your answers on an MEE property question. Property can be a kind of a clumpy subject, and by that I mean that you'll learn a bunch of concepts that are closely related, the various kinds of cotenancy, for example, or the different kinds of easements.

Mentally, those probably all live together in your head, and when it comes down to plan or write your answer to a property essay, it's easy to just download everything you know about an area. And that can be a distraction or a mistake because, typically, you're only being asked about one part of that clump or cluster of ideas.

So if the prompt specifically asks about tenancy in common, then you don't need to recite what you know about joint tenancy, even though that's a concept that tends to travel along with tenancy in common. It's another common form of cotenancy.

Likewise, if the prompt specifically asks about an implied easement from prior use, then you don't need to say anything about prescriptive easements, even though you might've learned those two concepts together. That kind of thing isn't going to cost you points directly, but it is going to take your focus away from picking up points, which, remember, is what this is all about.

Writing

There are a few tricks that can be useful to keep in mind as you're writing out your answers on property MEE questions. We're always going to start out with CRAC as our default. Again, that's conclusion, rule, application, conclusion, and on most property questions, you'll be able to do that without needing to employ any variations on CRAC. So let's walk through how CRAC looks on property essays, then talk about a few variations you might run into or things you might want to keep in mind.

Conclusions, and that's your first and your last C, look the same on property as on any other subject. If anything, you're probably going to end up with more definitive answers in property than in, say, constitutional law. There tend to be more yes and no answers here instead of maybes. But, of course, you'll have to take whatever the prompts give you, and if you get a zoning question that's in kind of a gray area, then you have to respect that and write your answer accordingly.

There's no real trick to writing your rule statements, that's your R in property essays. Lots of property rules are pretty short and they might not take you more than a sentence. If you do have a multi-part rule, like the rule for adverse possession, then it's best to number each part, that is, the acts must be (1) actual, (2) open and notorious, (3) exclusive, (4) continuous, and (5) hostile.

Numbering each part will make it easier for you to ensure that you address everything in the application section, and will also make it easier for your grader, which, of course, is always important.

Now, in some cases, the harder problem isn't writing the rule out, but remembering what it is in the first place. Property does, after all, have a lot of these very specific multi-part rules, sometimes with all kinds of weird terminology built into them. Whether it's adverse possession, or restrictive covenants, or prescriptive easements, or all the estates and land, you might run into one that you really just can't remember all the elements for.

What next? The main thing is to relax, and remember what we discussed in the general MEE advice lecture. First, trust your instinct. You might actually know the rule, so trust yourself and go with the flow. Or you might be able to analogize to a doctrine that applies in some other similar situation, like adverse possession is to ownership what a prescriptive easement is to use. The elements are analogous. They're actually nearly identical.

But if you really can't think of the rule or even anything to analogize it to, then make one up. And really, I mean it. Now, there's no points for imagination here, so don't make it something crazy. It should be something that both feels right, and again, don't dismiss your instincts, and is also simple enough to apply.

You might even be able to come up with a rule based just on what you remember about the operative underlying concepts in various areas of property law. So, for example, implied easements are often about filling in the party's expectations, so your made-up rule might have something to do with that. The main thing is just that you'll want some kind of rule so that you can do the application, so come up with a rule and move on.

One last note on rules in property. You'll have learned some areas of property where different jurisdictions apply different rules, like in California, a lease will not sever a joint tenancy so long as the lease ends before the joint tenant dies. But in most other states, such a lease will sever a joint tenancy. Well, here's some good news. You really don't have to go through all the alternative rules. It won't hurt, and if you happen to know those alternative rules, that's fine.

But especially if you're pressed for time, just pick one and go with that. Typically, it'll be easiest to go with the common law or the majority rule, but, and here's more good news, it seems from the bar examiners' guidance to graders that it's possible to get full credit so long as you apply a rule that some jurisdictions use. So don't get too caught up on which alternative you're going with or explaining which alternatives you're not going with.

When it comes to the application section, the main thing with property essays is to not get overwhelmed by all the details, because, of course, this is the part where you'll be making the most use of the fact pattern, applying those facts to the rules you've just stated. If you've got one of those multi-multi-prompt questions or a rule with multiple parts, you could end up with a series of very short application sections, like one sentence each, even.

That's totally fine. If you're addressing whether a particular act is open and notorious for purposes of adverse possession, and the act is the construction of a house, well, then it doesn't take much more than a sentence to say, "Here, the house was plainly visible from any point on the property, and therefore the 'open and notorious' requirement was satisfied." That's actually an A-C wrapped into one sentence, an application and a conclusion. And again, totally fine for those that are straightforward. Sometimes it just takes one fact to unlock your rule.

I mentioned this in the general MEE advice lecture, but if I have time, I like to look back through the fact pattern after I've written my essay, just to see if there's any facts that I haven't used, which might've been useful. On property exams, the facts to pay particular attention to are those that tend to relate to the rules themselves, so facts involving time, for example, which might be relevant to chain of title or to rules that themselves require possession or use for a specific period of time.

I mentioned a minute ago that you'll usually stick with CRAC on property, just as on the other subjects, and that's true. It's your default, and it's usually going to be the best tool. But as we discussed in the general MEE advice lecture, there are times when you'll need to be a little bit flexible and maybe consider some alternatives, especially when the rule has a long multifactor test.

Now, we've been talking about adverse possession a lot here, so let's just stick with that for one more minute. Again, there are five elements. A person seeking to establish adverse possession must show that her or his possession is (1) actual, (2) open and notorious, (3) exclusive, (4) hostile, and (5) continuous for the statutory time period. That's five distinct and necessary requirements. How should you apply CRAC to a rule like that?

You'll have heard me say this before in the general lecture, but your first conclusion will follow the usual formula: an answer to the prompt that includes a "because " which identifies your major premise. So, for example, "Anna has failed to establish adverse possession because her possession of the land has not been exclusive or continuous for the statutory time period," or whatever.

The rule statement will look the same as if there were just one element to the rule. It's just that you'll list all of the factors to the test together, and for simplicity's sake, for you and for the grader, I'd number these as you go. So (1) actual, (2) open and notorious, and so on.

So far, our C and R look the same as for any other question. But when we get to the application, we're going to change things up and do an application and conclusion for each element, one after the other. So "Here, Anna has established actual possession because she is living on the land. Therefore, the first element is satisfied. " You'll do that same thing on down the line, just repeating A-C, A-C, until you get through each element of the test. And your applications here will, of course, necessarily be short, especially if you're dealing with something like adverse possession that just has so many different factors and rule sub-parts to apply.

I said this already when we were talking about rules, but just to reiterate, it's fine if you did not get all of those factors, or if you messed some of them up, or if you mixed them up with the factors for prescriptive easement, which, again, is pretty similar. The trick really is just to break this thing down into component parts, like a series of short-answer questions instead of one long essay.

One final note: property prompts are not always evenly weighted. Sometimes you'll get one with three prompts, one of which is worth 70 points and the other two are worth 15 points each. I don't actually think there's much for you to do with that information because it's usually not going to be worth your time and effort to try to guess which one is worth more than the others.

Just remember that you should give each prompt as much time and attention as it demands. If you've got a big, complicated prompt on covenants and it takes you a bunch of paragraphs and 15 minutes of time to address, it probably is worth a lot of points, and the follow-up prompt on the recording act is probably going to be pretty simple.

And that's it. Going back to our earlier discussion of property fact patterns and the usefulness of drawing maps, what we've done here is basically create a map for writing high-scoring property MEE essays. Follow that map, keep up the practice, and you'll do great.