NAILING
THE BAR
HOW TO WRITE ESSAYS FOR
REAL PROPERTY
LAW SCHOOL AND BAR EXAMS
WHAT to Say and HOW to Say It!
Tim Tyler Ph.D.
Attorney at Law
NAILING THE BAR – How to Write Essays for Real Property Law School and Bar Exams
Table of Contents
CHAPTER 1: THE IRAC APPROACH ..................................................................................................................... 1
CHAPTER 2: SPOT AND OUTLINE THE ISSUES!................................................................................................ 2
CHAPTER 3: ISSUE SPOTTING ............................................................................................................................... 5
CHAPTER 4: AVOID NON-ISSUES, RED HERRINGS AND SPLITS.................................................................. 8
CHAPTER 5: ORGANIZING THE ANSWER .......................................................................................................... 9
CHAPTER 6: ISSUE STATEMENT STRUCTURE................................................................................................ 11
CHAPTER 7: BUDGETING TIME........................................................................................................................... 12
CHAPTER 8: PREFACE RULES WITH CITATION TO AUTHORITY ............................................................ 14
CHAPTER 9: NAILING THE ELEMENTS -- THE HEART OF THE ESSAY................................................... 15
CHAPTER 10: DON'T GIVE "CONCLUSIONARY" ANALYSIS....................................................................... 19
CHAPTER 11: DON'T "RESTATE FACTS".......................................................................................................... 20
CHAPTER 12: AVOID “PADDLING” ..................................................................................................................... 21
CHAPTER 13: TEST TAKING MECHANICS........................................................................................................ 22
CHAPTER 14: ESSAY ANSWER FORMATS – ..................................................................................................... 24
WHAT TO SAY AND HOW TO SAY IT ................................................................................................................. 24
FOUR PLOYS TO SAVE YOU ON AN EXAM: .............................................................................................................. 25
CHAPTER 15: ANSWERING REAL PROPERTY QUESTIONS......................................................................... 26
Practice Question 15-1 ......................................................................................................................................... 38
Practice Question 15-2 ......................................................................................................................................... 39
Practice Question 15-3 ......................................................................................................................................... 40
Practice Question 15-4 ......................................................................................................................................... 41
Practice Question 15-5 ......................................................................................................................................... 42
CHAPTER 16: CONCLUSION.................................................................................................................................. 43
APPENDIX A: RULES AND DEFINITIONS .......................................................................................................... 44
APPENDIX B: SAMPLE ANSWERS ....................................................................................................................... 57
Sample Answer 15-1: Class Gifts, Rule against Perpetuities, Adverse Possession.............................................. 57
Sample Answer 15-2: Joint Tenancy, Waste, Implied Covenant of Habitability, Surrender & Acceptance........ 60
Sample Answer 15-3: Recording Statutes............................................................................................................ 62
Sample Answer 15-4: Delivery of Deed, Easements, Accretion, Riparian Rights, Equitable Conversion,
Marketable Title ................................................................................................................................................... 64
Sample Answer 15-5: Servitudes, Implied Reciprocal Servitude, Covenants, Marketable Title ......................... 67
INDEX .......................................................................................................................................................................... 70
iv
Chapter 3: Issue Spotting
Chapter 3: Issue Spotting
Since you lose points for every “required” issue you fail to discuss, it is CRITICAL TO SPOT all
of the “required” issues. BUT DON'T waste time discussing issues that do not really exist. This is
easier said than done and introduces a certain level of sadism peculiar to law school.
The Reader (the person who will grade your essay) always expects you to discuss certain required
issues. But Readers (and question writers) fall into two basic schools. The first, rational school,
simply states the issues to be discussed in certain terms. The second, less rational and often
sadistic school of Readers uses only hints about the intended issues. Sometimes the "hints" are
obvious. Other times they are so subtle the student has to be a psychic. At this extreme this
approach is called HIDING THE BALL, and it is the stuff of law school horror stories.
The HIDE THE BALL question utilizes words and fact patterns that only vaguely suggest issues.
This is like a code language known only to law school professors. The following is a list of "code"
words and facts that are often used to indicate intended issues.
Issue Spotting Hints
REAL PROPERTY:
Issue Area and Coded Hint:
Intended Issue:
INTERESTS
1. "to A ":
2. "and his heirs":
3. "to A for life":
4. "and then to…":
5. "and then if …":
6. "as long as":
7. "unless…", "but if…"
8. Life Estate:
9. Condition precedent:
10. Transfer of title to "heirs":
Is Fee Simple presumed?
Is it Fee Simple?
Is it Life Estate? With a Remainder?
Is it Life Estate? Contingent Remainder?
Contingent Remainder? RAP?
Condition precedent? Reverter? Exec. Interest?
Condition subsequent? Entry?
Reversion or Remainder?
Reverter? Executory Interest?
Rule of Shelly's Case, Worthier title, Merger?
RULE AGAINST PERPETUITIES
11. Executory Interest:
12. Contingent Remainder:
13. "grandchildren"
14. Survival, age, when, if:
15. Class Gift:
16. Gift to empty class:
17. Condition subsequent:
Rule Against Perpetuities?
Rule Against Perpetuities?
Class, Rule Against Perpetuities?
Rule Against Perpetuities?
Subject to open? Vesting? RAP?
When does class close? RAP?
Statutory limits? Waiver of entry?
TITLE TRANSFER
18. "kept deed":
19. Recording statute:
20. "Agreed", "said", "promised":
21. Improvements to land:
22. Zoning:
Failure to deliver title? Held in trust? Recorded?
Race, Notice or Race-Notice?
Statute of Frauds? Part performance?
Statute of Frauds? Part performance?
Marketable title? Taking?
5
Chapter 5: Organizing the Answer
Chapter 5: Organizing the Answer
ORGANIZE the essay answer based on the CALL of the question and the AREA of law.
First, Organize by Call. If the call of the question indicates the organization of the answer, your
answer must reflect that structure EXACTLY because the Grading Key will be in that form.
For example, if the question asks,
"Discuss:
a. What interest did Bob receive?
b. Did Dan take by adverse possession?
c. Did Mary receive George's interest by right of survivorship?"
Then, this is the structure your answer must reflect. DO NOT ALTER THE DISCUSSION
ORDER OR DISCUSS ANYTHING ELSE. But within this structure you have some discretion
over what “issues” to discuss.
Organization of a REAL PROPERTY Answer Otherwise. If the question involves REAL
PROPERTY, and the call just says, "discuss", the structure of your answer depends on the type of
question:
•
“Title” Questions: A “title question” gives you a series of events (conveyances, deaths,
entry of trespassers) and asks you “who owns Blackacre” at the end. For this type of
question your answer should trace the effect of each event on land title in chronological
order as follows:
1) What interest did Able have in Blackacre at his death in 1970?
2) What interest did Bob have in Blackacre when Able died in 1970?
3) What interest did Bob and Wanda have when Bob recorded the deed as joint tenants in
1975?
4) Did Carl perfect his claim by adverse possession in 1980?
5) Did Gertie obtain title by Bob's Will in 1990?
•
“Assignment and sublease” questions: Assignment and sublease questions tell you
someone (L) has leased land to someone (T) and the tenant subsequently conveyed
possession to someone else (T2). Often the original landlord (L) also conveys ownership to
a new owner (L2). For this type of question your answer should usually analyze whether
the lease was assigned or sublet, and lay out the rights and liabilities of each party vis-à-vis
each other party (L v. T, L v. T2, T v. L2, and T2 v. L2) as follows:
1)
2)
3)
4)
5)
•
Did T violate the “no assignment” clause of the lease?
Is T2 liable to L for the rent?
Is L liable to T2 for failing to maintain the property?
Is T2 liable to L2?
Is L2 liable to T?
“Implied covenant” questions: Implied covenant questions involve breach of either the
implied covenant of quiet enjoyment or the implied covenant of habitability and the
9
NAILING THE BAR – How to Write Essays for Real Property Law School and Bar Exams
Chapter 15: Answering Real Property Questions
Interests in land can be 1) estates, 2) easements, 3) covenants, 4) equitable servitudes, 5) options
or 6) security interests.
Real Property Questions usually involve one of the following four fact patterns:
1) Title Questions. An estate (often "Blackacre") was conveyed to someone, and a series of
events has created uncertainty about who holds the title. The question raised is, "Who now
holds title to an estate?" This is the most common real property question.
2) Covenants and Servitudes. Land subject to obligations or use restrictions is conveyed and
the question raised is, "Does a covenant or equitable servitude now restrict land use?"
3) Easement Questions. An easement is claimed or suggested. The question raised is, "Was
an easement created, and does it still exist?"
4) Landlord-Tenant Disputes. A dispute arises between a landlord and tenants and the
question is, "What are the rights and duties of the parties?"
5) Liability Claims. Claims for payment or damages to land raise the question of, "What are
the legal liabilities of the parties?"
But some other issues are possible and they may be mixed in with the above basic question
formats. For example you may have assignment of a lease or subleasing combined with a
landlord-tenant dispute, and there may be some issues of implied covenant of quiet enjoyment
and/or habitability.
Types of Estates. Estates are the right to exclusive possession of land by one or more parties
jointly, and are classified by
1) The immediacy with which possession begins and
2) The means by which possession terminates.
Immediacy of Possession. If an estate allows immediate possession at the time of creation it is a
possessory estate. If possession is to be conveyed in the future from the current time the estate is a
future estate.
Means of Termination of Possession. An estate is a freehold estate if possession is granted in
perpetuity or is terminable only by occurrence of a natural event. This includes some act by the
party in possession that violates a condition. If possession terminates after a fixed period of time
or is terminable at will (of the grantor) the estate is a non-freehold estate (often a leasehold
estate.) Typical leasehold estates are an estate for years and the periodic estate (e.g. month to
month.)
Freehold Estates. There are 10 types of freehold estates. Three are possessory freehold estates
and seven are future freehold estates.
POSSESSORY ESTATES:
1) FEE SIMPLE to B (terminable by condition only; otherwise perpetual)
A Æ B and his HEIRS
2) FEE TAIL to B (terminates if fee holder has no issue; or by condition)
A Æ B and his ISSUE
26
NAILING THE BAR – How to Write Essays for Real Property Law School and Bar Exams
3. Does the RULE AGAINST PERPETUITIES invalidate A’s interest?
Under REAL PROPERTY law, the RULE AGAINST PERPETUITIES states that “ No interest is
good unless it must vest, if at all, within 21 years after a life in being at the creation of the
interest”. Important!
The Rule applies to 1) Contingent Remainders, 2) Executory Interests and 3) Vested Remainders
Subject to Open.
Here the interest is a contingent remainder because…
Here X was a life in being because he was identified by name in the Deed/Will.
Here the grantee's interest (did not have) had to vest within 21 years of X's death because…
Therefore the RULE AGAINST PERPETUITIES is (not) satisfied.
4. What type of JOINT INTEREST does A have in Blackacre?
Under REAL PROPERTY law, [pick one]
a) A TENANCY IN COMMON is the default form of joint ownership. The parties may have
interests unequal in size, but each has an undivided right to possession. Each interest is
freely alienable.
b) A JOINT TENANCY between two or more people may be EXPRESSLY created if the
FOUR UNITIES are satisfied. This means that 1) equal interests in the land are created 2)
at the same time 3) out of the same Deed or Will with 4) equal possession rights. Each
party has an equal interest and undivided right to possession. Each interest is freely
alienable, but each joint tenant has a RIGHT OF SURVIVORSHIP. Important!
A joint tenancy is automatically converted to a tenancy in common by alienation, death,
partition, or mortgage in a “title theory” state.
c) A TENANCY BY THE ENTIRETIES may be created by IMPLICATION between
husband and wife in some states with a right of SURVIVORSHIP. Each party has an equal
and inalienable interest and undivided right to possession. California does not recognize
Tenancy by the Entireties.
Here the joint interests are … because…
5. Was there an EFFECTIVE TRANSFER OF TITLE to A?
Under REAL PROPERTY law an effective transfer of title to land requires a manifestation of
present intent to transfer that satisfies the Statute of Frauds. Intent may be manifested by delivery,
recording or acknowledging the deed to the land. Conditional delivery of a deed as a "will
substitute" is not effective, but the Court may reinterpret delivery of a deed between family
members to be delivery with retention of a life estate or the conveyance of an executory interest.
30
Appendix B: Sample Answers
Appendix B: Sample Answers
The sample answers are presented in italics. Comments are in [square brackets and plain text]. An
explanation follows each answer.
Sample Answer 15-1: Class Gifts, Rule against Perpetuities, Adverse Possession
1. Did Bill get a LIFE ESTATE in Blackacre in 1979?
Under real property law a LIFE ESTATE is a possessory interest measured by the life of a person.
Here Bill got a possessory interest in Blackacre because it was given to him immediately, and it
was measured by a life because it was for “life”.
Therefore, Bill got a life estate in 1979.
2. Did Bobby get a VESTED REMAINDER SUBJECT TO OPEN in Blackacre in 1979?
Under real property law a VESTED REMAINDER SUBJECT TO OPEN is a future interest to an
identifiable grantee as a member of a class following the natural termination of a life estate.
Since the grantee has an uncertain interest, it is subject to the RULE AGAINST PERPETUITIES.
Here there was a future gift because Bobby did not get possession until after Bill died since he got
possession of Blackacre "for life". And this was a gift to a member of a class because it was to
Bobby as one of "Bill's children". And it followed a life estate because Bill got Blackacre "for
life".
Therefore Bobby received a VESTED REMAINDER SUBJECT TO OPEN.
3. Did gift of future interest in Blackacre to Bill's "children" satisfy RAP?
Under the RULE AGAINST PERPETUITIES "no gift is good unless it must vest, if at all, within 21
years of a life in being (plus a gestation period) at the creation of the interest."
Here there was a life in being in the form of Bill's life. And the gift vested after Bill died when his
children reached "age 21". None of Bill's children could reach the age of 21 more than 21 years
(plus a gestation period) after Bill died because they could not be born after Bill's death.
Therefore, the Rule Against Perpetuities is not violated by the gift to Bobby.
4. Did the class of "Bill's children" CLOSE when Bobby reached 21 in 1980?
Under the RULE OF CONVENIENCE a class for a class gift closes, if the class is not empty when
created, if 1) someone qualifies to take the interest and 2) the interest is free to be taken.
Here Bobby was qualified to take because he was "Bill's child" and he was "21." But the interest
was not free because Bill was still alive and he had possession "for life."
Therefore, the class of "Bill's children" did not close when Bobby reached 21.
57
Index
Life estates per autre vie, 50, 52
Liquidated damage clauses, land contracts, 36, 51
Reverter, possibility of, 5, 27, 29, 36, 45, 47, 48, 51, 52, 66,
68
Right of entry, 27, 29, 45, 48, 53
Riparian rights, water rights, 11, 36, 53, 65
River boundaries, accretion, 31, 44, 53, 65
River boundaries, avulsion, 31, 44, 53, 65
Rule Against Perpetuities, iv, 5, 7, 8, 11, 16, 17, 18, 24, 27,
38, 43, 57, 59
Rule of Convenience, 53, 57, 58
Run with the land, 10, 11, 28, 33, 34, 46, 67, 68
M
Marketable title, 36, 45, 50, 51, 65, 68
Marketable title, duty to deliver, 7, 36, 41, 42, 45, 50, 51,
65, 66, 68
Measuring life, 50, 52
Merger Doctrine, estates, 32, 51
Mitigation, duty of landlord, 51, 54
Mortgages, 35, 50, 51, 55, 60
Mortgages, liability for, 51
S
Security interests, 47, 49, 53
Servient estates, 44, 46, 49, 54, 55
Servitudes running with the land, iv, 10, 26, 36, 51, 66, 67,
68, 69
Split, 7, 8, 10, 25, 48, 49
Statute of Frauds, 5, 8, 10, 16, 24, 30, 46, 64, 67
Subleases, 35, 54
Sufferance, tenancy at, 44, 48, 54
Superior estates, 47, 54
Surface water, Common Enemy Doctrine, 37, 45, 54
Surrender and acceptance, 35, 54, 61
N
Nailing the elements, 21, 43
Non-freehold estates, 26, 47, 50, 51
Non-issue, 8
Notice statutes, recording, 31, 51, 52, 62
O
Option contracts, land, 49, 52
T
P
th
Takings, 5 Amendment, 44, 54
Tenancies, at-will, 26, 44, 47, 51
Tenancy at sufferance, 44, 48, 54
Title theory States, 50, 51, 55
Paddling, iv, 21
Partition actions, land, 50, 52
Possessory estates, 26, 29, 47, 50, 52, 57, 58, 59
Possibility of reverter, 27, 29, 45, 47, 48, 52
Prescriptive easements, 46, 52
Privity of estate, 6, 28, 33, 35, 46, 54, 67, 68
V
Vesting, 27, 29, 45, 48, 55, 57, 58
Vesting, vested remainders subject to open, 27, 29, 48, 55,
57, 58
Vesting, vested subject to complete divestment, 29, 45, 55
Vesting, vested subject to open, 29, 45, 55
R
Race-Notice statutes, recording, 31, 52, 62
Recording statutes, ii, 10, 14, 16, 30, 31, 51, 52, 62, 63, 64,
66
Recording, notice statutes, 31, 51, 52, 62
Recording, race statutes, 31, 52, 62
Recording, race-notice statutes, 31, 52, 62
Release of easements, 46, 52
Remainders, 5, 27, 29, 32, 45, 46, 48, 50, 53, 55, 58
Remainders subject to open, 27, 55
Remainders, contingent, 27, 29, 45, 48
Reservation, easements, 46, 53
Restating facts, 20
Reversions, 5, 17, 27, 29, 32, 48, 53
W
Waste, duties of tenants, 55, 60
Water rights, 11, 36, 53, 56, 65
Worthier Title, Doctrine of, 14, 32, 46
Y
Yellow brick road exam approach, 20
71
WHAT to Say and HOW to Say it on
REAL PROPERTY Law School and Bar Exams —
* The MOST COMMONLY TESTED ISSUES and
RULES AND DEFINITIONS to Help Answer Them!
* How to SPOT ISSUES!
* How to BUDGET TIME on Exams!
* CONCLUSIONARY Answers and How to Avoid Them!
* 5 PRACTICE QUESTIONS with SAMPLE ANSWERS!
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