NextGen Bar Exam: Property Law

Examinees may expect that some questions will be presented with legal resources. When legal resources are provided within the test, the examinee will be expected to demonstrate their ability to efficiently analyze and apply the legal resources to answer the question or questions.

Within this outline, there are two types of topics:

Topics with a star symbol* Topics followed by a star symbol require an examinee to rely solely on recalled knowledge and understanding of the topic; they will be tested without provision of legal resources. 

Topics without a star symbol Topics without a star symbol may be tested with or without provision of legal resources. When these topics are tested without legal resources, the examinee is expected to rely on recalled knowledge and understanding that will enable the examinee to demonstrate recognition that the topic is at issue in the fact scenario.

If a particular topic’s scope is described in this outline, that does not indicate greater importance or testing frequency of the topic.

I. Ownership of real property

A. Present estates

1. Fee simple*

This topic includes the language used in conveyance and the basic attributes of the fee simple absolute.

2. Defeasible fee

This topic includes the language used in conveyance and the basic attributes of the fee simple determinable, the fee simple subject to condition subsequent, and the fee simple subject to an executory interest.

3. Life estate and life estate pur autre vie

 This topic includes the language used in conveyance, the rights and duties of life tenants, and the basic attributes of the life estate (for the life of the life tenant) and the life estate pur autre vie.

B. Future interests

1. Reversion

 This topic includes the language used in conveyance and the basic attributes of reversion.

2. Remainder, vested and contingent

 This topic includes the language used in conveyance and the basic attributes of an indefeasibly vested remainder, a vested remainder subject to open, a vested remainder subject to total divestment, and a contingent remainder (subject to condition precedent, or unborn or unascertained person). This topic also includes the effect of remainders on the marketability of title and the transferability of remainders.

3. Executory interest

 This topic includes the language used in conveyance, the effect of executory interests on the marketability of title, and the transferability of executory interests.

4. Possibility of reverter, right of entry, and power of termination

 This topic includes the basic attributes of the future interests that can result when a defeasible fee fails: possibility of reverter, right of entry, and power of termination.

5. Rules affecting future interests: survivorship, class gifts, and waste

 This topic includes the language used in conveyance (children, heirs, issue); class members not yet born; when the class closes; conditions on disposition; contingency of survival (express and implied); and affirmative waste, permissive waste, and ameliorative waste (e.g., obligations to pay taxes and make repairs, apportionment of costs for special assessments).

C. Cotenancy

1. Tenancy in common, joint tenancy (the four unities), and tenancy by the entirety (the five unities)*

 This topic includes the language used in the creation of cotenancies, the unities required to create the various types of cotenancies, and distinctions among them.

2. Partition*

 This topic includes the remedy of partition, limitations on partition, and methods of partition.

3. Severance*

 This topic includes aspects of severance related to conveyance, judgment liens, mortgages, and leases.

4. Relations among cotenants

This topic includes possession, rent and profits, cotenant’s encumbrance, ouster, and contribution for expenses.

D. Landlord-tenant law

1. Tenancy for years, periodic tenancy, tenancy at will, and tenancy at sufferance*

 This topic includes distinctions among the various types of tenancies, breach of covenants, and creation of leasehold (e.g., express or implied, by operation of law, tenant holdover, invalid lease).

2. Possession, rent, and actual and constructive eviction*

 This topic includes failure to pay rent, when rent accrues, rent deposits, landlord’s duty to deliver possession, quiet enjoyment, and landlord and tenant remedies pursuant to a lease.

3. Statutory remedies

 This topic includes forcible entry statutes.

4. Assignment and sublease*

 This topic includes assignment by landlord and tenant, covenants that run with the land, reassignment by assignee, original tenant’s liability, sublessee’s liability for covenants, sublessee’s assumption of the lease, sublessee’s rights, covenant against assignment and sublease, waiver of covenant against assignment and sublease, and transfer in violation of a covenant.

5. Termination of lease*

 This topic includes surrender, acceptance of surrender, mitigation of damages, anticipatory breach, security deposit, and abandonment/repossession.

6. Habitability and suitability*

 This topic includes independent and dependent lease covenants; tenant’s duty to repair; ordinary wear and tear; affirmative, permissive, and ameliorative waste; destruction of premises; implied warranty of habitability; and concealed dangerous conditions.

E. Alienability, descendibility, and devisability of present and future interests

This topic includes total vs. partial restraints, reasonableness of restraints, restraints on future interests, restrictions in commercial transactions, restraints on transfer of a lease, and options and rights of first refusal. This topic does not include the rule against perpetuities.

F. Fair housing/discrimination*

This topic includes discriminatory restraints in sales and leases (Fourteenth Amendment, Fair Housing Act), retaliatory eviction, discrimination in leasing, racially restrictive covenants, and a basic understanding of reasonable accommodations for tenants with disabilities.

II. Rights in real property

A. Easements and licenses

1. Nature and type of easements and licenses*

 This topic includes affirmative easement, negative easement, easement appurtenant (and judicial preference for this type), easement in gross, and the differences between an easement and a license.

2. Creation of easements and licenses*

 This topic includes easement expressly granted or reserved; easement implied from existing use (reasonable necessity arising in an implied grant or reservation) or by strict necessity; easement implied from subdivision plat; prescriptive easement; and easement arising by estoppel. This topic also includes license expressly created and license created by failing to create an easement.

3. Scope and apportionment*

 This topic includes rules of construction, the consequences flowing from a change in use or use outside the scope of an easement, duties to repair, and the effect of subdivision of the dominant estate.

4. Effect of transfer of the dominant or servient estate and the assignability of easements and licenses*

5. Termination of easements and licenses*

This topic includes termination of easement by stated conditions, unity of ownership, release (and statute-of-frauds requirement), abandonment, estoppel, prescription, necessity, condemnation, and destruction of the servient estate. This topic also includes termination of license by revocation (e.g., public amusement cases, breach of contract), and license that becomes irrevocable (e.g., estoppel, license coupled with an interest).

B. Restrictive covenants

1. Nature and type of restrictive covenants*

 This topic includes affirmative covenant, negative covenant, and equitable servitude.

2. Creation and enforceability of restrictive covenants and equitable servitudes

 This topic includes the requirements for covenants and servitudes to be enforceable between the original parties (statute of frauds) and the requirements for the benefit/burden to run with the land (e.g., intent, notice, “touch and concern” requirement, horizontal and vertical privity for covenant but not servitude). This topic also includes servitude implied from a common scheme.

3. Transfer of restrictive covenants and equitable servitudes

4. Termination of restrictive covenants and equitable servitudes*

 This topic includes termination of covenants and equitable servitudes, as well as remedies for breach. For equitable servitude, this topic also includes the defenses of unclean hands, acquiescence, estoppel, and changed neighborhood conditions.

III. Real estate contracts

A. Creation and construction of real estate contracts

1. Statute of frauds and exceptions*

2. Essential terms*

3. Time for performance*

 This topic includes the presumption that time is not of the essence (and how the presumption can be overcome), as well as liability issues related to when time is/is not of the essence.

4. Remedies for breach*

 This topic includes specific performance as a remedy for breach; the doctrine of part performance; when tender of performance is excused; liability for defects; damages (including liquidated damages); distinctions between negligence of builders and sellers of existing property as to misrepresentation, fraud, active concealment, and failure to disclose; and disclaimers of liability.

B. Marketability of title*

This topic includes when a title is “reasonably free from doubt,” defects in the record chain of title, encumbrances, waiver, timing of marketability requirement, merger, and remedies (e.g., rescission, damages, specific performance).

IV. Mortgages and foreclosure

A. Mortgages and deeds of trust

1. Definition of mortgage and deed of trust

2. Purchase money

3. Future advance

B. Mortgage theories: title, lien, and intermediate*

C. Foreclosure

1. Judicial and nonjudicial

 This topic includes defenses to foreclosure and possession before foreclosure.

2. Acceleration

3. Parties to the process

4. Deficiency and surplus

 This topic includes priorities of senior and junior interests, the effect of foreclosure on junior interests, modification of priorities (e.g., for failure to record, by subordination agreement), distribution of the proceeds of sale, and deficiency judgments.

5. Redemption after foreclosure

V. Titles

A. Adverse possession

This topic includes the elements of adverse possession, issues affecting the running of the statutory period, and tacking.

B. Transfer by deed

1. Requirements for deed*

This topic includes the rules of construction related to deeds, the statute-of-frauds requirement, the use of parol evidence (e.g., to resolve an ambiguity, to prove grantor’s intent, but not to show conditional delivery), proper description of the land and parties, words of intent, the signature requirement, the fact that consideration is not required, distinctions between void and voidable deeds, and delivery and acceptance issues (including conditional delivery and relation back of acceptance).

2. Types of deeds*

This topic includes general warranty deed, covenants of title (i.e., seisin, right to convey, against encumbrances, warranty, quiet enjoyment, and further assurances), breach of covenant (and damages), statutory special warranty deed, and quitclaim deed.

C. Recording acts

1. Types of recording acts

This topic includes notice statutes, race statutes, race-notice statutes, and who is protected (e.g., purchaser for value).

2. Indexes

This topic includes title searches, grantor and grantee indexes, the effect of recordation, issues related to mistakes by the recorder, and issues related to recording an unacknowledged instrument.

3. Chain of title

4. Undelivered and forged deeds