MEE One SHeets Flashcards
Key principle #1: Be aware of what is required to have a valid deed. Be familiar with the different kinds of deeds
as well as the effects of equitable conversion and merger.
- Contract of sale: Before a deed is delivered, the contract of sale is signed. Under equitable conversion, as
soon as the contract is signed (but before closing), the buyer’s interest is real property (the land he
contracted to buy) and the seller’s interest is personal property (money he will get from the sale). Thus,
the risk of loss remains on the buyer under equitable conversion, even if the seller remains in possession
and control of the land.
1: Validity of a deed:
To be valid, a deed must identify the buyer and the seller, describe the land, contain
words denoting a present intent to convey, and be signed by the grantor. It must also be delivered.
Delivery is a question of intent to pass title presently.
1:Covenants in the deed: There are two kinds of deeds that you will see on the bar exam:
§ Quitclaim deed: The grantor gives no covenants (promises nothing) and the grantee gets
whatever the grantor has. The grantee takes the land subject to a defect in the title, an
undisclosed easement, or other problem, and has no recourse. (July 2013)
§ Warranty deed: The grantor gives six covenants—three present covenants and three future
covenants. The MEE tends to test present covenants rather than future covenants. The present
covenants include (mnemonic=PRESENT): the right to convey, the covenant of seisen (both of
these essentially meaning that the seller guarantees he owns the land he is selling), and the
covenant against encumbrances (“no encumbrances”—i.e., there are no existing easements, liens,
or encumbrances that are not stated in the deed). Future covenants include (mnemonic=FEW):
further assurances, quiet enjoyment, and warranty. Under common law, remote grantees can sue
only under future (not present) covenants. However, note in your answer that some
jurisdictions do not follow the common law rule.
1: Merger:
on the closing date, the contract for sale merges into the deed, so at that point, the buyer can
only sue on the deed
1: Breach of the implied warranty of fitness and habitability:
A builder of new homes impliedly warrants to
the buyer that the home is habitable and fit for its intended purposes. This warranty applies to defects
that are discovered within a reasonable time and are due to the builder’s negligence or failure to do work
in a workmanlike manner. (
Key principle #2: Be aware of the common law first-in-time first-in-right principle and how the recording acts
change that principle. Notice acts are tested frequently on the MEE.
- Start your essay with the common law rule. Under common law, a grantor can convey only those rights
that the grantor had at the time of the conveyance. Thus, common law follows the first-in-time first-in-right
principle. All states have recording statutes that change the results of the common law principle.
2: There are three kinds of recording statutes:
§ Notice statutes protect subsequent bona fide purchasers for value who take without notice of
the earlier transaction. (E.g., “A conveyance of interest in land is not valid against any
subsequent purchaser for value without notice unless it is recorded.”) (Feb 2021, July 2011, Feb
2010)
§ Race-notice statutes protect subsequent bona fide purchasers for value who take without
notice and are the first to record. (E.g., “No conveyance of an interest in land is valid against any
subsequent purchaser for value without notice unless it is first recorded.”)
§ Pure race statutes protect subsequent purchasers who are first to record. (These are rare!)
2: What is notice?
There are three types of notice (mnemonic=AIR):
§ Actual notice: the grantee actually knows about the conveyance.
§ Inquiry notice: examination of the land or reference in an instrument would lead a reasonable
person to inquire. (July 2011, Feb 2010)
§ Record notice: The interest is recorded in the chain of title. Deeds that are recorded too late or
too early are wild deeds. Wild deeds do not give notice. (July 2011, Feb 2009)
Key principle #3: be aware of who is liable on a mortgage when title to the property is transferred.
- General rule: A mortgagor (homeowner) can transfer title to the property. However, the mortgage will
remain on the property and the mortgagor is still personally liable on the note. Generally, a new
transferee who takes the land “subject to” the mortgage is not personally liable. However, if the
transferee “assumes” the mortgage, he is personally liable along with the original mortgagor. (Some
jurisdictions say that if the transferee pays the mortgage payments, he impliedly assumes the mortgage.
This view is brought up on the MEE, but it is considered the wrong answer on the MBE.) A novation occurs if the initial mortgagor, the new transferee, and the mortgagee all agree that the mortgagor is no
longer liable and the transferee assumes all of the mortgagor’s duties. (
Key principle #4: be familiar with leases, as well as rights and duties under leases.
* Term for years lease:
a term for years lease specifies both a beginning date and an end date.
4: Periodic tenancy:
A periodic tenancy has no fixed end date (e.g., month-to-month lease = periodic
tenancy). It simply repeats until one party gives valid notice to the other. It can be created by an express
agreement, implication (where the lease contains no end date), or operation of law (e.g., an oral lease
that violates the Statute of Frauds because the term is more than one year). Valid notice (i.e., notice
equal to the rent payment term) is required to terminate a periodic tenancy
4: Assignment: (
if the lease does not prohibit an assignment or sublease, a tenant can assign or sublease her
interest in the lease.
4: Eviction vs. the implied warranty of habitability:
A tenant can sue for constructive eviction (commercial
or residential) if the tenant can prove that the landlord breached a duty to the tenant (e.g., the duty to
repair) and this breach caused a loss of substantial use and enjoyment of the premises, and the tenant
vacated the premises within a reasonable time after giving the landlord adequate notice. This is different
than the implied warranty of habitability which is breached only in a residential lease if the premises are
uninhabitable. If this occurs, the tenant has several remedies including vacating the premises, suing for
damages, offsetting damages, etc.
4: Duties of a tenant:
The tenant must pay rent. If the tenant does not pay rent but has abandoned the
property, the landlord can sue the tenant for damages or treat it as a surrender (the latter excuses future
rent obligations
4: Duty to mitigate:
Under common law, the landlord has no duty to mitigate damages. Many states have
abandoned this approach and require that the landlord make a reasonable effort to mitigate damages
(e.g., by attempting to re-rent the premises if the tenant leaves).
