MBE: Property 2023
STUDY SMART OUTLINE OF WRONG ANSWERS
I. Estates:
a. “Fee Simple Determinable” is an estate that automatically terminates on the happening of a stated event.
i. Possibility of reverted is retained by the landowner – automatic right.
ii. Language:
1. “So long as”
2. “While”
3. “During”
4. “Until”
b. “Fee Simple Determinable Subject to an Executory Interest” is an estate that, on the happening of a stated
event, is automatically divested in favor of a third person, who holds the executory interest.
i. The executory interest is subject to the Rule Against Perpetuities, if it might vest beyond lives in
being + 21 years it is void!
1. If the executory interest is void, left with a Fee Simple Determinable with a Possibility of
Reverter.
c. “Fee Simple on a Condition Subsequent”
i. Right of Entry kept by the grantor
ii. Language:
1. “But, if”
2. “Upon condition that”
3. Plus reentry language
d. “Indefeasibly Vested Remainder” is one created in an ascertained company, is certain to become
possessory, and isn’t subject to being defeated, divested, or diminished in size
i. Not capable of taking on the natural termination of the preceding estate
ii. Characterized as a springing executory interest.
e. “Vested Remainder Subject to Open and Subject to Complete Divestment”
i. Vested remainders may be subject to total divestment if possession is subject to being defeated by
the happening of a condition subsequent.
1. Vested : not subject to a condition precedent, beneficiaries in existence, and ascertained
f. “Executory Interests”
i. Rights of First Refusal created in the instrument executed by the landowner violates the Rule
Against Perpetuities
1. No interest in property is valid unless it must vest, if at all, within 21 years after a life in
being at the time the interest is created.
2. Treated as if they are executory interests.
g. Rule Against Perpetuities
II. Tenancies:
a. ** A joint tenant or a tenant in common may encumber her own interest, but may not encumber the other
co-tenant’s interest.
i. Thus, a lien attaches only to landowner’s portion of ownership, not to the co-tenant’s interest.
b. Tenants in Common: default tenancy
i. Each co-tenant has a right to possess all portions of the property;
ii. No co-tenant has the right to exclusive possession of any part.
c. Joint Tenants:
, MBE: Property 2023
i. Inter vivos conveyance by one joint tenant of his undivided interest severs the joint tenancy, so
that the transferee takes the interest as a tenant in common and not as a joint tenant.
d. Tenancy by the Entirety: special joint tenancy held by a married couple.
i. Carries a right of survivorship
ii. Can be terminated only by death of spouse, divorce of the spouses, mutual agreement, or
execution of a joint creditor of both spouses.
III. Easements:
a. Express Easement: must be in writing signed by the grantor. If validly created, an easement is presumed
to be of perpetual duration.
i. Recorded easement by grantor, the landowner, gives constructive notice to all purchaser’s interest
[legal interest in the servient land’s chain of title]
b. Easement by Necessity: arises when the owner of a tract of land sells a part of the tract and by this
division deprives one lot of access to a public road or utility line.
i. Holder of the servient estate has the right to choose the location of an easement by necessity.
c. Profits
i. Profits enable the holder of the benefit to take some resources (e.g., soil, timber, materials, fish)
from the servient estate. Implied in every profit is an easement entitling the benefit holder to enter
the servient estate to remove the resources. All of the rules governing creation, alienation, and
termination of easements are applicable to profits. In addition, a profit may be extinguished
through surcharge (misuse that overly burdens the servient estate)
d. Covenants:
i. Implied covenant in every land sale contract that, at closing, the seller will provide the buyer with
marketable title.
1. “Marketable Title” is title reasonable free from doubt, which generally means free from
encumbrances and with good record title.
ii. Easements are generally considered encumbrances that render title unmarketable
1. If an easement is not provided for in the contract, it usually renders the seller’s title
unmarketable.
2. EXCEPTION: a beneficial easement that was visibly known to the buyer does not
constitute an encumbrance.
e. Land involved: Remedy Specific Performance
f. Termination:
i. Termination by Estoppel:
1. Oral release that would be ineffective because of the statute of frauds
2. Elements:
a. Come conduct or assertion by the owner of the easement
b. A reasonable reliance by the owner of the servient tenement, coupled with
c. A change of position
ii. Merger:
1. Easement is extinguished then the land is conveyed to the owner of the servient tenement.
a. The ownership of the easement and the servient tenement must be in different
persons.
g. Compare – Licenses
i. Licenses privilege their holders to go upon the land of another. But unlike an easement, a license
is not an interest in land; it is merely a privilege, revocable at will of the licensor. A license is
STUDY SMART OUTLINE OF WRONG ANSWERS
I. Estates:
a. “Fee Simple Determinable” is an estate that automatically terminates on the happening of a stated event.
i. Possibility of reverted is retained by the landowner – automatic right.
ii. Language:
1. “So long as”
2. “While”
3. “During”
4. “Until”
b. “Fee Simple Determinable Subject to an Executory Interest” is an estate that, on the happening of a stated
event, is automatically divested in favor of a third person, who holds the executory interest.
i. The executory interest is subject to the Rule Against Perpetuities, if it might vest beyond lives in
being + 21 years it is void!
1. If the executory interest is void, left with a Fee Simple Determinable with a Possibility of
Reverter.
c. “Fee Simple on a Condition Subsequent”
i. Right of Entry kept by the grantor
ii. Language:
1. “But, if”
2. “Upon condition that”
3. Plus reentry language
d. “Indefeasibly Vested Remainder” is one created in an ascertained company, is certain to become
possessory, and isn’t subject to being defeated, divested, or diminished in size
i. Not capable of taking on the natural termination of the preceding estate
ii. Characterized as a springing executory interest.
e. “Vested Remainder Subject to Open and Subject to Complete Divestment”
i. Vested remainders may be subject to total divestment if possession is subject to being defeated by
the happening of a condition subsequent.
1. Vested : not subject to a condition precedent, beneficiaries in existence, and ascertained
f. “Executory Interests”
i. Rights of First Refusal created in the instrument executed by the landowner violates the Rule
Against Perpetuities
1. No interest in property is valid unless it must vest, if at all, within 21 years after a life in
being at the time the interest is created.
2. Treated as if they are executory interests.
g. Rule Against Perpetuities
II. Tenancies:
a. ** A joint tenant or a tenant in common may encumber her own interest, but may not encumber the other
co-tenant’s interest.
i. Thus, a lien attaches only to landowner’s portion of ownership, not to the co-tenant’s interest.
b. Tenants in Common: default tenancy
i. Each co-tenant has a right to possess all portions of the property;
ii. No co-tenant has the right to exclusive possession of any part.
c. Joint Tenants:
, MBE: Property 2023
i. Inter vivos conveyance by one joint tenant of his undivided interest severs the joint tenancy, so
that the transferee takes the interest as a tenant in common and not as a joint tenant.
d. Tenancy by the Entirety: special joint tenancy held by a married couple.
i. Carries a right of survivorship
ii. Can be terminated only by death of spouse, divorce of the spouses, mutual agreement, or
execution of a joint creditor of both spouses.
III. Easements:
a. Express Easement: must be in writing signed by the grantor. If validly created, an easement is presumed
to be of perpetual duration.
i. Recorded easement by grantor, the landowner, gives constructive notice to all purchaser’s interest
[legal interest in the servient land’s chain of title]
b. Easement by Necessity: arises when the owner of a tract of land sells a part of the tract and by this
division deprives one lot of access to a public road or utility line.
i. Holder of the servient estate has the right to choose the location of an easement by necessity.
c. Profits
i. Profits enable the holder of the benefit to take some resources (e.g., soil, timber, materials, fish)
from the servient estate. Implied in every profit is an easement entitling the benefit holder to enter
the servient estate to remove the resources. All of the rules governing creation, alienation, and
termination of easements are applicable to profits. In addition, a profit may be extinguished
through surcharge (misuse that overly burdens the servient estate)
d. Covenants:
i. Implied covenant in every land sale contract that, at closing, the seller will provide the buyer with
marketable title.
1. “Marketable Title” is title reasonable free from doubt, which generally means free from
encumbrances and with good record title.
ii. Easements are generally considered encumbrances that render title unmarketable
1. If an easement is not provided for in the contract, it usually renders the seller’s title
unmarketable.
2. EXCEPTION: a beneficial easement that was visibly known to the buyer does not
constitute an encumbrance.
e. Land involved: Remedy Specific Performance
f. Termination:
i. Termination by Estoppel:
1. Oral release that would be ineffective because of the statute of frauds
2. Elements:
a. Come conduct or assertion by the owner of the easement
b. A reasonable reliance by the owner of the servient tenement, coupled with
c. A change of position
ii. Merger:
1. Easement is extinguished then the land is conveyed to the owner of the servient tenement.
a. The ownership of the easement and the servient tenement must be in different
persons.
g. Compare – Licenses
i. Licenses privilege their holders to go upon the land of another. But unlike an easement, a license
is not an interest in land; it is merely a privilege, revocable at will of the licensor. A license is
