Which issues appear most often, and where does your course vary?
Across most 1L Property courses and the MBE, the same seven blocks recur: (1) estates and future interests, including the Rule Against Perpetuities; (2) concurrent estates; (3) landlord-tenant; (4) easements, covenants, and equitable servitudes; (5) the land sale contract, deeds, and recording acts; (6) adverse possession; and (7) regulatory takings and zoning. On the MBE, the National Conference of Bar Examiners publishes roughly equal weighting across ownership, rights in land, real estate contracts, and mortgages/security devices — meaning conveyancing and finance carry far more MBE weight than most 1L courses give them.
Variation is real and it is driven by your professor's casebook and orientation. A course built around Dukeminier & Krier front-loads acquisition (Pierson v. Post, Johnson v. M'Intosh), estates, and servitudes. A course taught by a land-use or regulatory scholar will spend weeks on Euclid, Penn Central, and exactions and may skip mortgages entirely. A law-and-economics-oriented course tests Coase, the property rule/liability rule distinction, and Boomer v. Atlantic Cement more heavily than doctrinal mechanics. Before you build a study plan, count the class sessions per topic in the syllabus and weight your outline accordingly — that count predicts the exam better than any commercial outline.
How are estates, future interests, and RAP tested?
Nearly every property exam contains at least one conveyance you must parse word by word. The drill: identify the present estate, identify the future interest, name the holder, and state whether the interest is vested, vested subject to open, vested subject to divestment, or contingent. Precision matters — a possibility of reverter follows a fee simple determinable ('so long as,' 'until,' 'while'), while a right of entry follows a fee simple subject to condition subsequent ('but if,' 'provided that,' with an express re-entry clause). Courts construe ambiguous language against forfeiture and in favor of the condition subsequent, which requires affirmative action to terminate.
The Rule Against Perpetuities is tested for measuring-life analysis, not for memorized magic words. Ask: is the interest subject to RAP at all? Only contingent remainders, executory interests, and vested remainders subject to open are; reversions, possibilities of reverter, and rights of entry are exempt. Then find a validating life and ask whether the interest must vest or fail within 21 years of that person's death. Know the classic traps: the fertile octogenarian, the unborn widow, and the slothful executor. Know your jurisdiction's reform posture — many states have adopted wait-and-see or the Uniform Statutory Rule Against Perpetuities' 90-year alternative, and a good answer flags common-law invalidity plus the reform outcome.
Waste doctrine (voluntary, permissive, ameliorative) pairs with life estates and is a cheap point most students miss. Shelley v. Kraemer surfaces when a conveyance carries a racial restriction: the covenant is not void, but judicial enforcement is state action barred by the Fourteenth Amendment.
What do co-ownership and landlord-tenant questions test?
Concurrent estate questions almost always turn on severance. The four unities (time, title, interest, possession) create a joint tenancy; a unilateral conveyance by one joint tenant destroys the unity of title as to that share and creates a tenancy in common. Test whether a mortgage severs — lien-theory states say no, title-theory states say yes — and whether a lease severs, which splits authority. Then move to the accounting rules: a cotenant in sole possession owes nothing for use absent ouster, but must share net rents from third parties, and may seek contribution for taxes, mortgage payments, and necessary repairs but generally not improvements. Partition in kind is preferred; partition by sale requires a showing that division is impracticable or prejudicial.
Landlord-tenant issues repeat in a predictable order: classify the tenancy (term of years, periodic, at will, at sufferance); test notice and holdover consequences; then run transfer and habitability. Distinguish assignment (entire remaining term, privity of estate with landlord) from sublease (privity only with the original tenant), and remember that the original tenant remains liable in privity of contract absent a novation. Ernst v. Conditt is the standard case. On conditions, know constructive eviction (substantial interference, notice, and the tenant must actually vacate within a reasonable time) versus the implied warranty of habitability from Javins v. First National Realty Corp., which is nonwaivable, applies to residential leases, and allows the tenant to stay and withhold or repair-and-deduct. Sommer v. Kridel is the standard citation for the modern duty to mitigate on abandonment, and Berg v. Wiley for the majority ban on self-help eviction.
How do servitudes questions work?
Servitudes are the highest-yield essay topic because the analysis is long and every step scores. For easements, first classify: express, implied by prior use (prior apparent, continuous use, severance, reasonable necessity), implied by necessity (common ownership plus strict necessity at severance), by prescription (adverse possession elements minus exclusivity), or estoppel/irrevocable license (Holbrook v. Taylor). Then test scope, whether the burden runs (an easement appurtenant runs automatically with the servient land; a bona fide purchaser without notice may take free), and termination by merger, release, abandonment, prescription, or estoppel.
For covenants, the essential move is to identify the remedy sought. Damages require a real covenant — writing, intent, touch and concern, notice, and both horizontal and vertical privity for the burden to run. Injunctive relief requires only an equitable servitude — writing (or the implied reciprocal negative servitude of Sanborn v. McLean), intent, touch and concern, and notice, with no privity requirement (Tulk v. Moxhay). Notice includes actual, record, and inquiry notice. Finish with defenses: changed conditions, acquiescence, unclean hands, and laches. The Restatement (Third) of Property: Servitudes abolishes touch and concern and privity in favor of a unified analysis; say so if your professor assigned it.
What land-transaction issues recur?
Sequence the transaction. Before closing: the contract must satisfy the Statute of Frauds (writing, parties, description, price, signature) unless part performance or estoppel applies; the seller owes marketable title as of closing, not before; equitable conversion allocates risk of loss to the buyer in most states, though the Uniform Vendor and Purchaser Risk Act reverses this in a minority. At closing: the deed must be delivered with present donative intent — conditional delivery to the grantee and 'delivery' of a deed found in a drawer are perennial fact patterns — and the doctrine of merger extinguishes contract promises except collateral ones. After closing: present covenants (seisin, right to convey, against encumbrances) are breached at delivery if at all; future covenants (warranty, quiet enjoyment, further assurances) require actual or constructive eviction and run with the land.
Recording acts are the single most testable rule set because the outcome flips on statutory wording. Read the statute given in the problem and classify it:
- Race: first to record wins, notice is irrelevant.
- Notice: a subsequent bona fide purchaser for value without notice wins even if she never records.
- Race-notice: the subsequent BFP must take without notice AND record first.
- Shelter rule: a grantee from a protected purchaser takes that protection, even with notice.
- Wild deeds and estoppel by deed (after-acquired title) are the two standard chain-of-title traps.
How are adverse possession, takings, and zoning tested?
Adverse possession is elements plus tacking. Run actual, open and notorious, exclusive, hostile, and continuous for the statutory period, and check whether your jurisdiction uses the objective (state of mind irrelevant), good-faith, or aggressive-trespasser standard for hostility. Van Valkenburgh v. Lutz illustrates strict application of actual possession; Howard v. Kunto establishes that seasonal use can satisfy continuity and that tacking requires privity. Note disabilities tolling statutes and the general rule that adverse possession does not run against government land.
For takings, first ask whether the government physically invaded. A permanent physical occupation is a per se taking regardless of size (Loretto v. Teleprompter Manhattan CATV Corp.), and Cedar Point Nursery v. Hassid extended per se treatment to a regulation granting third parties a right to enter. Second, ask whether regulation destroyed all economically beneficial use (Lucas v. South Carolina Coastal Council), subject to the background-principles exception. Otherwise apply the Penn Central Transportation Co. v. New York City factors: economic impact, interference with distinct investment-backed expectations, and the character of the government action. Murr v. Wisconsin governs the denominator problem. For exactions, apply the essential-nexus test of Nollan v. California Coastal Commission and the rough-proportionality test of Dolan v. City of Tigard, extended to monetary exactions in Koontz. On public use, Kelo v. City of New London permits transfer to private parties for economic development; note that many states responded with statutory limits. For zoning, know Euclid's rational-basis validity, nonconforming uses, variances (undue hardship, no substantial detriment), and special exceptions.
What writing traps cost the most points?
Three errors dominate. First, students state a rule and jump to a conclusion without applying the given facts — on a servitudes question, say exactly which fact establishes touch and concern or inquiry notice. Second, students pick a side on a split of authority instead of arguing both; when a jurisdiction is unspecified, state the majority rule, apply it, then state the minority or Restatement (Third) position and apply it too. Third, students misallocate time to the issue they know best. Budget minutes by point allocation printed on the exam, not by comfort.
Build a one-page attack sheet organized by fact trigger rather than by casebook chapter: a fence or driveway on a neighbor's land triggers both adverse possession and prescriptive easement; a subdivision plat triggers implied reciprocal negative servitudes; two deeds from one grantor triggers the recording act; 'to A for life, then to A's children' triggers class gifts, the rule of convenience, and RAP. Practicing that mapping is what converts memorized doctrine into exam points.