MBE Real Property Questions to Study

In this post, we’re going to be taking a look at a few property questions, lovingly shaped and crafted by yours truly. The property section of the bar exam is one of the more extensive, due to the sheer amount of law that property encompasses. Real estate contracts, mortgages, landlord/tenant issues, present and future interests….there’s a lot of testable material. Still, it’s material that most of us have read and studied in the past.

Disclaimer – these are not actual MBE Property questions. However, I can say with confidence that they are fairly representative of the types of questions you will see, and cover concepts you will need to know. Alright, let’s dive in!

MBE Real Property Questions

Question 1:

Emerson and Thoreau, longtime admirers of nature, purchased two lots adjacent and bordered by each other. In keeping with their love of nature, both were purchased in an unimproved, natural state. Emerson, a fan of pine trees, planted a line of pines on his land along the boundary next to Thoreau. A little later Thoreau, after writing plans for a log cabin, began carefully excavating six feet into the earth for a foundation near the boundary line. Despite exercising care, a portion of the excavation collapsed, taking with it a section of Emerson’s pine trees.

Emerson wants to bring a cause of action against Thoreau for damage to his land. Who is likely to win?

A) Emerson, because he is entitled to lateral and subjacent support of his property while in its natural condition.

B) Emerson, because he is entitled to lateral and subjacent support of his property as an absolute right.

C) Thoreau, because he exercised care while excavating for his log cabin foundation.

D) Thoreau, because he is under no duty to provide lateral or subjacent support to Emerson’s land.

Question 2:

Han and Leia leased a tasteful condo in the State of Alderaan. Han worked as a cashier for Smugglers R Us, a shady equipment vendor, and Leia worked as an image consultant at Diplomatica, a consulting firm in a trendy part of town. They were unmarried, but signed the lease document for the condo as a married couple because their landlord, Jabba, did not allow unmarried cohabitation in his properties. The State of Alderaan does not recognize common law marriage. Later Lando, the owner of Diplomatica, decided to retire and devised the Diplomatica building to Leia and Han “as husband and wife, tenants by the entirety.” Shortly after Lando’s retirement, Han left Leia for a life on the road.

If Leia seeks a court-ordered partition of the property, is she likely to get it?

A) Yes, because the moment Han left Leia for a life on the road the tenancy by the entirety was severed.

B) Yes, because the grant from Lando did not create a tenancy by the entirety.

C) No, because Leia already holds full title to Diplomatica, making a court-ordered partition unnecessary.

D) No, because neither Han nor Leia can seek a court-ordered partition of the tenancy by the entirety.

Question 3:

Elrond takes out a mortgage on his home in Rivendell with the Bank of Middle-Earth. Soon after he falls on rough financial times, and tells his woes (in the form of a song) to his friend, Galadriel. Galadriel has always wanted a home in Rivendell, and offers to purchase the home. Elrond accepts, and without any notice to the Bank of Middle-Earth sells his home to Galadriel, who agrees to pay the mortgage. Soon after Galadriel falls on rough financial times as well, and she fails to make payments.

Can the Bank of Middle-Earth find Galadriel liable for the mortgage?

A) Yes, because by failing to make timely payments Galadriel has breached the mortgage.

B) Yes, because Elrond had given Galadriel notice of the mortgage and she agreed to make payments.

C) No, if Galadriel agreed to take Elrond’s property subject to the mortgage.

D) No, because the Bank of Middle-Earth is not permitted to seek action against a party it has not contracted directly with.

mbe real property questions

Answers

Question 1 Answer: A.

This is one question that, for some reason, has a tendency to pop up on bar exams with some frequency. The relevant rule to know is that landowners have a common law right to lateral and subjacent support of the land while it is natural state. “Natural state” is an analysis that mainly looks for man-made structures added to the property – the inclusion of additional plants or trees alone is not enough to alter the land from being in a substantially “natural state.” Here Thoreau would be liable for the damages to Emerson’s land.

B is incorrect because it is too powerful a rule statement. Thoreau may not be liable for damages, for instance, if Emerson had an artificial structure on his land that had been damaged. Here the key is that the land was still in its natural state. It is true that Emerson has an absolute right to support, but only to the condition of the land in its natural state.

C is incorrect because the amount of care exercised by Thoreau is irrelevant in this case. Because Emerson has kept the land in its natural state, Thoreau will be held strictly liable for damages to Emerson’s land. Negligence would be relevant if there had been damage to a structure, but such is not the case here.

D is incorrect because it fails to consider the duty of a landowner to provide support of adjacent land in its natural state.

Question 2 Answer: B

This question features a moderately convoluted fact pattern by design, with multiple different properties and potential factors for analysis, though it isn’t too thorny to navigate. Here we provide in the midst of the facts that the State of Alderaan does not recognize common law marriage. A tenancy by the entirety can only be held by a married couple at common law. Here, Leia would be entitled to her partition.

A is incorrect because they were never married, therefore a tenancy by the entirety was never formed. Even if one had formed, the only methods of severing a common law tenancy by the entirety would be death, divorce, creditor action (such as default on a jointly-executed mortgage), or both agreeing to the severance.

C is incorrect because Han was still granted an interest in the Diplomatica property, just not as a tenant by the entirety. Either a joint tenancy or a tenancy in common was likely created by the deed from Lando, but either way Han would have some interest.

D is incorrect. Although it is a correct statement of law, it is one that does not apply to these facts. It is true that a common law tenancy by the entirety does not have a right to a partition of property, but here we don’t have a tenancy by the entirety because Han and Leia were not married.

Question 3 Answer: C

The main point of this question is the distinction between taking property “subject to” a mortgage, and “assuming” a mortgage. Assuming the mortgage would make Galadriel personally liable for the payments, but if the property was taken subject to the mortgage, Elrond will still be liable for payments. Note that a foreclosure could still be possible, but Galadriel will not be personally responsible to the mortgagee if she took the property subject to it.

A is incorrect because the question doesn’t indicate whether Galadriel assumed the mortgage, or took the property subject to the mortgage. Galadriel would only be capable of a breach, and personal liability, if she had assumed the mortgage.

B is incorrect because the question doesn’t indicate whether Galadriel assumed the mortgage, or took the property subject to the mortgage. This answer choice doesn’t clarify that point, or make itself contingent on either, and can’t be right from the facts given. The only way personal liability could be reached would be if Galadriel had assumed the mortgage.

D is incorrect, because whether Galadriel assumed the mortgage or took subject to the mortgage, the Bank of Middle-Earth would still seek action in foreclosure.

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