MBE Tip of the Day: Real Property

Answer to the Real Property MBE Question

Subject: Real Property

Legal Issue: Present and future interests in estates

Legal Rule and Analysis: A fee simple subject to a condition subsequent is a present interest in land that is subject to a condition occurring.  If the condition occurs, then the grantor has the power to retake the estate by entering.  This is called the right of entry.  A fee simple subject to a condition subsequent will always be combined with a right of entry. The present estate will end only when the grantor actually enters the property to retake it.  A fee simple determinable is similar, but it requires specific language used in the conveyance.  These phrases of durational language include “for so long as” or “so long as,” “until,” “while,” or “during.”  The grantor retains a possibility of reverter.  Sometimes a grant will include a fee simple determinable phrase combined with language reserving a right of entry (as is the case here).  In this case, courts will construe this grant as a fee simple subject to a condition subsequent.

In this case, the grant contains fee simple determinable language (“for so long as”), but we also have a right of entry reserved by the grantor, O.  As stated above, courts will construe this grant as a fee simple subject to a condition subsequent in A with O having a right of entry.  Now we have to consider what effect A’s removal of a tree has on the ownership interests.  The facts ask who owns what at the moment the tree is removed – there is no indication that O has entered to retake the property.  Therefore, A’s fee simple subject to a condition subsequent has not ended and O still has the right of entry.

Conclusion: O possesses a right of entry and A holds a fee simple subject to a condition subsequent.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. 

The answer choice (D) is therefore correct. (A) is incorrect because while O does hold a right of entry and the grant contains fee simple determinable language, the O’s grant also reserves O the right to reenter and take the property.  When language is mixed like this, courts will construe the grant to convey a fee simple subject to a condition subsequent. (B) is incorrect because O has not reentered the property yet to exercise the right of entry.  While O can now exercise its right, the current estate will not end until O does so.  (C) is incorrect because while O does hold a right of entry, A does not lose her present interest in the estate until O actually reenters.  Just because A has violated the condition, the property does not automatically revert as it would if it were a fee simple determinable.

MBE Tip: Pay close attention to the wording and punctuation in real property questions!  This subject is all about form, and the wording that the question uses can make all the difference.  For example, to create a joint tenancy, the words “joint tenancy with rights of survivorship” must be used.  If a conveyance or deed merely says “jointly,” or “as joint owners,” this will not be sufficient and a tenancy in common will be created.

Similarly, phrasing and punctuation matter when considering future interests.  The following two conveyances say essentially the same thing, but give totally different future interests: (1) O gives “to A for life, and then to B, unless B does not outlive A, in which case it goes to C;” and (2) O gives “to A for life, and then to B if B survives A, otherwise to C.”  Recognize where the punctuation falls! For (1): O –> To A for life, (pause at the comma – A has a life estate) and then to B, (pause at the comma – V has a vested remainder) unless B does not outlive A, in which case it goes to C (C has an executory interest, and now we can further elaborate on B’s vested remainder and say it is “subject to total divestment” — Basically B might never get it).  For (2): O –> to A for life, (again A has a life estate), and then to B if B survives A, (if we pause at the comma here, this is a contingent remainder because B must survive A!!) otherwise to C (this is a contingent remainder as well).  Real Property often values form over substance and the words and punctuation matter greatly!