MBE Strategies Tip #5 – Real Property

Answer to Real Property MBE Question:

Common Mistake: Students forget that in Real Property, anything can happen! 70-year-old widowers can have children!

Subject: Real Property

Legal Issue: What is the gift given to the children?

Legal Rule and Analysis: The life estate to the son is a present interest. The gift to the son’s children is a future interest. The gift to the son’s children is a remainder because it follows a life estate. (Remember that remainders virtually always follow a life estate on the MBE!)  Note that the children are not named so the gift is a class gift – and so long as the son is alive (plus nine months) the class is still open.  The question is whether the remainder to the children is vested or contingent.

A remainder is “vested” if the grantee is ascertained and the remainder is certain to become possessory.  A remainder is “vested subject to partial divestment” if it is a class gift where one or more grantees are certain to take the gift but may have to share it with others. A remainder is “contingent” if the person to whom the remainder is given is (mnemonic = “UUU”) unborn, unascertained or if they are uncertain to take due to a condition precedent.

In this case, the son’s children are alive, ascertained, and there is no condition upon their taking the gift. Thus, it is a vested interest. Is it subject to divestment? Yes, because, in theory, even though the son is 70 years old and unmarried, he could still have more children. The son’s son and daughter will take a portion of the interest but a future child could partially divest them of their interest. That is, it could affect the amount that the son and daughter get.

Conclusion: The remainder is vested subject to partial divestment (perhaps by a later-born child).

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:(C) is correct. (A) is incorrect. The children may have to share their estate with potential future children. Thus, it is not indefeasibly vested. (B) is incorrect. The children are ascertained and there is no condition to their taking. Thus, this is not a contingent remainder. (D) is incorrect. A future child would not take the entire gift away from the son’s son and daughter (as “subject to total divestment” signifies); the future child would simply share in their gift.

MBE Tip:  Spend time on the highly-tested areas: Not all of MBE topics are tested equally. If you didn’t answer this question correctly and you hate present and future interests, that is okay! Remember that the MBE is broken into seven subjects: Criminal Law, Constitutional Law, Contracts and Sales, Civil Procedure, Evidence, Real Property, and Torts. There are 25 scored questions on each subject. The subjects themselves are thus weighted equally. The topics, however, are not.

Below is the breakdown of the multiple-choice questions. We’ve written the approximate number of questions you can expect to see on each topic and we’ve highlighted the highly tested topics in blue font.

Check out our post on highly tested MBE topics here.

TORTS: (25 QUESTIONS)

• Negligence – 12-13 questions
• Strict Liability and Products Liability – 3-5 questions
• Intentional Torts – 3-5 questions
• Other Torts – 3-5 questions

EVIDENCE: (25 QUESTIONS)

• Relevancy and Reasons for Excluding Relevant Evidence – 8-9 questions
• Hearsay and Circumstances of its Admissibility – 6-7 questions
• Presentation of Evidence – 6-7 questions
• Privileges and Other Policy Exclusions – approx. 2 questions
• Writings, Recordings, and Photographs – approx. 2 questions

REAL PROPERTY: (25 QUESTIONS)

• Real Estate Contracts – approx. 5 questions
• Mortgages/Security Devices – approx. 5 questions
• Ownership of Property – approx. 5 questions
• Rights in Land – approx. 5 questions
• Title to Property – approx. 5 questions

CONTRACTS AND SALES: (25 QUESTIONS)

• Formation of Contracts – 6-7 questions
• Performance, Breach, and Discharge – 6-7 questions 
• Defenses to Contract Enforceability – 3-4 questions
• Parol Evidence and Interpretation – 3-4 questions
• Contract Remedies – 3-4 questions
• Third-Party Rights – 3-4 questions

(About 6-7 of the questions will be on UCC Article 2 and revised Article 1)

CIVIL PROCEDURE (25 QUESTIONS)

• Jurisdiction and Venue – 5-6 questions
• Pretrial Procedures – 5-6 questions
• Motions – 5-6 questions
• Law Applied by Federal Courts – 2-3 questions
• Jury Trials – 2-3 questions
• Verdicts and Judgments 2-3 questions
• Appealability and Review – 2-3 questions

CRIMINAL LAW AND CRIMINAL PROCEDURE: (25 QUESTIONS)

• Constitutional Protections of Accused Persons (Criminal Procedure) – 12-13 questions
• Homicide – 3-4 questions
• Other Crimes – 3-4 questions
• Inchoate Crimes, Parties – 3-4 questions
• General Principles of Criminal Law – 3-4 questions

CONSTITUTIONAL LAW: (25 QUESTIONS)

• Individual Rights – 12-13 questions
• The Nature of Judicial Review – 3-5 questions
• Separation of Powers – 3-5 questions
• The Relation of Nation and States (Federalism) – 3-5 questions

You can see that not all topics are treated equally on the MBE. This has significant implications for how you should approach it.  For Torts, there are 12-13 questions on negligence (this makes up half of the Torts questions, and 6-7% of the entire MBE).  So negligence should be your focus when you study Torts. Similarly, when you study Evidence, focus on relevancy, hearsay and the presentation of evidence as these three topics alone will make up a subtantial amount of MBE questions.

You will see that some subjects, like Real Property, are divided somewhat equally in terms of what is tested. This means that if you are really struggling with, say, present and future interests when you answer Real Property MBE questions (like the above question!), that will likely not significantly change your score as it is not heavily tested on the multistate bar exam (only being 2-3% of the questions, if that).  Further, present and future interests are not heavily tested on the essay portion of many state bar exams (including the UBE).