LLM BAR EXAM Early Exposure Book – Real Property
Subject Matter Outline
Allocation of Questions
The Multistate Bar Examination (“MBE”) tests solely fundamental legal principles rather than
New York case law or statutory law. For purposes of the MBE, the common law rule is the
default source of law to apply unless the question specifically refers to another rule of law (e.g.,
the minority or majority rule) or provides you with a statute to apply in the fact pattern. Of the
190 live test questions on the MBE, 31 questions (or 16% of the live test questions) will be based
on Real Property. Topics that are not discussed in Early Exposure will be reviewed in detail in
the summer portion of the program.
I. PRESENT AND FUTURE ESTATES
A. Present Estates
DEFINITION: Under common law, present estates are presently possessory interests in land.
A possessory interest is the right to control a parcel of land and to exclude others from it.
Present estates are divided into the following groups: fees simple absolute, defeasible fees
simple, and life estates. Each present estate is discussed below.
1. Fee Simple Absolute
DEFINITION: Under common law, an estate in fee simple is an absolute ownership of an
estate of infinite duration.
a. Creation of Fee Simple Absolute
i.
At Common Law
At common law, “To A and his heirs…” was required. Although A’s heirs are
mentioned in the common law creation of an estate in fee simple, A’s heirs have
no interest in the property. A living person has no heirs; a living person only has
prospective heirs.
ii.
Today
Today, “To A…” is sufficient to create a fee simple absolute. On the Bar
Examination, “To A…” is all that is required to create a fee simple absolute.
b. Characteristics of Fee Simple Absolute
A fee simple absolute is the largest present possessory estate one can hold. A fee simple
absolute is freely devisable, descendible, and alienable.
i.
Devisable
A fee simple absolute can be inherited by will.
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LLM BAR EXAM Early Exposure Book – Real Property
Subject Matter Outline
ii.
Descendible
A fee simple absolute will pass without a will if its holder dies intestate (without
a will).
iii.
Alienable
A fee simple absolute can be transferred during the holder’s lifetime.
iv.
Future Interests (None)
There is no accompanying future interest because a fee simple absolute has an
infinite duration.
2. Defeasible Fee Simple
DEFINITION: Under common law, a defeasible fee simple is a fee simple estate that is
subject to termination by the happening of a specified event. Defeasible estates thus
terminate unnaturally.
a. General Rules for Defeasible Fee Simples
i.
Historically, the law has disfavored the creation of defeasible estates
because they interfere with the owner’s enjoyment of the property. As
such, words of mere desire, hope, or wish (i.e., precatory language) used
in an attempt to create a defeasible fee simple are insufficient. Unless a
defeasible estate is clearly intended, courts will construe the language
against this type of estate.
ii.
Absolute restraints on alienation are void, unless they are linked to a
reasonable time-limited purpose. If an absolute restraint on alienation
without a reasonable time-limited purpose is part of the grant, it is
treated as if the restraint on alienation was never written. For example,
“to A, but never to be sold” will be interpreted merely as “to A.”
iii.
There are three types of defeasible fees simple: fees simple determinable,
fees simple subject to condition subsequent, and fees simple subject to
executory interest; each is discussed in this section.
b. Fee Simple Determinable (and Possibility of Reverter)
DEFINITION: Under common law, a fee simple determinable is an estate that
automatically terminates and reverts to the grantor on the happening of a specific
event.
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