Lesson 5: Real Property and Torts: Estates and Liabilities

Master the complexities of real property and tort law with free flashcards and targeted MBE practice. This lesson covers estates in land, future interests, landlord-tenant relationships, intentional torts, negligence, and strict liability—foundational subjects that comprise approximately 25% of the MBE and frequently overlap with other tested areas.

Welcome 🏛️

Real Property and Torts represent two substantial pillars of the MBE, each accounting for 25 questions on the exam. These subjects test your ability to apply black-letter law to complex fact patterns involving property rights and civil wrongs. Understanding the nuances of possessory estates, the mechanics of recording statutes, and the elements of tort liability will prepare you for the analytical rigor the MBE demands.

Why These Topics Matter for the MBE:

• Real Property questions often involve conveyancing issues, title disputes, landlord-tenant conflicts, and easement problems
• Torts questions test your grasp of duty, causation, damages, and the subtle distinctions between intentional torts, negligence, and strict liability
• Both subjects require you to recognize trap answers that sound plausible but misstate crucial elements

💡 Pro Tip: The MBE loves testing the interplay between different doctrines. For example, a question might combine adverse possession with recording act principles, or negligence with joint and several liability.

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Core Concepts: Real Property 🏠

Estates in Land

Possessory estates determine the duration and quality of ownership. Understanding estates is foundational because they govern everything from inheritance to landlord-tenant relationships.

Fee Simple Defeasible: Three Variations

These estates are critical MBE favorites because they test your ability to distinguish subtle language differences:

1. Fee Simple Determinable (FSD)

• Language: "so long as," "while," "during," "until"
• Example: "To School Board so long as used for school purposes"
• Future Interest: Possibility of reverter (in grantor)
• Termination: Automatic when condition violated

2. Fee Simple Subject to Condition Subsequent (FSSCS)

• Language: "but if," "provided that," "on condition that," plus right of entry language
• Example: "To School Board, but if alcohol is served, Grantor may re-enter"
• Future Interest: Right of entry/power of termination (in grantor)
• Termination: Grantor must take affirmative action

3. Fee Simple Subject to Executory Limitation (FSSEL)

• Language: Similar to above, but future interest in third party
• Example: "To School Board, but if used for non-school purposes, then to Library"
• Future Interest: Executory interest (in third party)
• Termination: Automatic, shifting to third party

🧠 Memory Device - The "D" Words:

• Determinable → Duration language ("so long as") → Automatic → Possibility of Reverter
• Condition Subsequent → Conditional language ("but if") → Choice to re-enter → Right of Entry
• Executory → Elsewhere (third party gets it)

Future Interests

Future interests are non-possessory interests that may become possessory in the future. The MBE tests whether you can identify who holds what interest.

Future Interest	Held By	Following What Estate
Reversion	Grantor	Life estate, lease, or any estate of lesser duration than grantor had
Possibility of Reverter	Grantor	Fee simple determinable
Right of Entry	Grantor	Fee simple subject to condition subsequent
Remainder	Third party	Life estate or term of years (must wait naturally, not cut short)
Executory Interest	Third party	Any estate (divests someone or follows a gap)

Remainders: Vested vs. Contingent

This distinction appears frequently on the MBE:

• Vested Remainder: Created in ascertained person with no condition precedent

  • Example: "To A for life, then to B" (B has vested remainder)

• Contingent Remainder: Subject to condition precedent OR unascertained person

  • Example: "To A for life, then to B if B graduates college" (condition precedent)
  • Example: "To A for life, then to A's children" (if A has no children yet, unascertained)

💡 Key MBE Point: At common law, contingent remainders were destroyed if they didn't vest by the time the preceding estate ended. Modern law in most states preserves them as executory interests or reversions.

Rule Against Perpetuities (RAP) ⏰

The RAP is the most tested future interest concept on the MBE. Many students panic, but it follows a clear formula:

The Rule: "An interest is void if there is any possibility, however remote, that it will vest more than 21 years after the death of a life in being at the creation of the interest."

Step-by-Step RAP Analysis:

Step	Question to Ask	Action
1	What interest is at issue?	Identify contingent remainders, executory interests, class gifts
2	When was the interest created?	Will = death of testator; Deed = delivery
3	Who are the lives in being?	People alive at creation who affect vesting
4	Will it definitely vest or fail within 21 years of all lives in being dying?	If YES → Valid. If NO (any possibility of remote vesting) → VOID

Classic RAP Trap - "Fertile Octogenarian": "To A for life, then to A's children who reach age 25."

• If A is alive and 80 years old, the law conclusively presumes A could have another child
• That hypothetical child might reach 25 more than 21 years after A (the life in being) dies
• The gift to A's children is VOID under RAP

⚠️ Common Mistake: Students often try to use "common sense" ("an 80-year-old can't have kids!"). The RAP uses legal fictions, not biological reality.

🧠 Memory Device - "RAVE":

• Reversions → Exempt from RAP
• All vested interests → Exempt from RAP
• Vested remainders subject to open → Subject to RAP ("bad as to one, bad as to all")
• Executory interests and contingent remainders → Subject to RAP

Concurrent Ownership 👥

Tenancy in Common (TIC)

• Default form of co-ownership
• No right of survivorship
• Each tenant has separate, transferable interest
• Each owns an undivided fractional share (can be unequal)

Joint Tenancy (JT)

• Requires four unities: Time, Title, Interest, Possession ("T-TIP")
• Right of survivorship: When one dies, others automatically take
• Severable: Any joint tenant can unilaterally convey, destroying JT as to that share
• Creation: Requires clear intent ("as joint tenants with right of survivorship")

Tenancy by the Entirety (TBE)

• Only between married spouses
• Right of survivorship
• Neither spouse can unilaterally sever or convey
• Creditors of one spouse cannot attach
• Recognized in about half of U.S. states

💡 MBE Trap: If a joint tenant conveys their interest to a third party, that third party becomes a tenant in common with the remaining joint tenants (who remain joint tenants with each other).

Landlord-Tenant Law 🔑

Types of Tenancies

Tenancy Type	Duration	Termination
Term of Years	Fixed period	Automatic at end; no notice required
Periodic Tenancy	Continues for periods (month-to-month)	Notice required (usually one full period)
Tenancy at Will	No fixed duration	Terminable by either party, reasonable notice
Tenancy at Sufferance	Wrongful holdover	Landlord may evict or hold for another term

Tenant Duties and Landlord Remedies

Tenant's Duty to Pay Rent:

• Common law: Independent covenant (tenant pays even if premises destroyed)
• Modern: Dependent on habitability in residential leases

Tenant's Duty to Avoid Waste:

• Voluntary waste: Affirmative harmful acts
• Permissive waste: Neglect, failure to maintain
• Ameliorative waste: Changes that increase value (tenant generally liable unless economic conditions drastically changed)

Landlord's Duty: Implied Warranty of Habitability

• Applies to residential leases only
• Non-waivable
• Breach: Tenant may: (1) move out and terminate; (2) repair and deduct; (3) reduce rent; (4) remain and sue for damages

Assignment vs. Sublease

This distinction is heavily tested on the MBE:

💡 Exam Tip: If T has 10 months left and transfers for 10 months = assignment. If T transfers for 9 months = sublease. If T transfers for 10 months but reserves a right of re-entry = sublease (retained interest).

Recording Acts 📝

Recording acts determine priority when the same property is conveyed to multiple parties. There are three types:

1. Race Statute

• "First to record wins" regardless of notice
• Rare (only North Carolina and Louisiana)
• Language: "First recorded"

2. Notice Statute

• Subsequent bona fide purchaser (BFP) wins if no notice of prior interest
• BFP = purchased for value + without notice
• Recording by BFP not required to defeat prior grantee
• Language: "A conveyance is invalid against a subsequent purchaser without notice"

3. Race-Notice Statute

• Subsequent BFP must: (1) take without notice AND (2) record first
• Most common type
• Language: "A conveyance is invalid against a subsequent purchaser without notice who records first"

Three Types of Notice:

• Actual notice: Direct knowledge
• Record notice: Prior deed properly recorded in chain of title
• Inquiry notice: Circumstances that would prompt reasonable investigation (e.g., possession by third party)

🧠 Memory Device: Race-Notice = BFP must win both races (notice race AND recording race)

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Core Concepts: Torts ⚖️

Intentional Torts

Intentional torts require that defendant intended the act and either intended the consequence or knew it was substantially certain to occur. Motive is irrelevant.

Battery 👊

Elements:

1. Intent to cause harmful or offensive contact
2. Harmful or offensive contact
3. With plaintiff's person

Key Points:

• Contact need not cause injury (offensive is enough)
• "Person" includes anything connected to plaintiff (e.g., cane, purse, car plaintiff is sitting in)
• Transferred intent applies

Assault 😨

Elements:

1. Intent to cause apprehension of imminent harmful or offensive contact
2. Reasonable apprehension created
3. Of imminent contact

Key Points:

• No contact required (that's battery)
• Words alone generally insufficient (need overt act)
• "Imminent" = immediate, not future threat
• Apparent ability to carry out threat is sufficient

⚠️ Common Mistake: Students confuse criminal assault (which includes battery) with civil assault (apprehension only).

False Imprisonment 🔒

Elements:

1. Intent to confine
2. Actual confinement
3. Plaintiff aware of confinement OR harmed by it

Confinement Methods:

• Physical barriers
• Physical force or threat of immediate force
• Omission where defendant has duty to release
• Invalid assertion of legal authority

Not Confinement:

• Moral pressure
• Future threats
• Confinement with reasonable means of escape plaintiff is aware of

Intentional Infliction of Emotional Distress (IIED) 😢

Elements:

1. Extreme and outrageous conduct
2. Intent to cause severe emotional distress OR recklessness
3. Causation
4. Severe emotional distress

"Extreme and Outrageous":

• Beyond all bounds of decency
• Conduct that would cause average community member to exclaim "Outrageous!"
• Special contexts: Common carriers, innkeepers, creditors (lower threshold)

💡 MBE Tip: Mere insults, indignities, or annoyances are insufficient. Look for conduct involving abuse of power, vulnerable plaintiffs, or prolonged campaigns.

Trespass to Land 🏡

Elements:

1. Physical invasion
2. Of plaintiff's real property
3. Intent to enter (need not intend to trespass)

Key Points:

• Entering, remaining after permission expires, or causing object/third person to enter
• Mistake is no defense (e.g., wrong property)
• Nominal damages available without proof of harm

Conversion 💼

Elements:

1. Intentional interference
2. With plaintiff's chattel (personal property)
3. So serious as to warrant requiring defendant to pay full value

Factors Determining Seriousness:

• Duration and extent of control
• Defendant's good or bad faith
• Harm to property
• Inconvenience to plaintiff

Remedy: Forced sale—defendant pays fair market value and gets to keep chattel

Trespass to Chattels: Lesser interference not warranting forced sale (remedy = actual damages)

Negligence 🚗

Negligence is the most tested tort on the MBE. Master the elements and their interrelationships.

┌────────────────────────────────────────────┐
│      NEGLIGENCE PRIMA FACIE CASE          │
├────────────────────────────────────────────┤
│                                            │
│  1. DUTY ─────→ 2. BREACH ─────→          │
│                                            │
│  3. ACTUAL CAUSE ────→ 4. PROXIMATE CAUSE │
│                                            │
│  ─────────→ 5. DAMAGES                    │
│                                            │
└────────────────────────────────────────────┘
All five elements required; plaintiff has burden

Duty 📋

General Rule: Duty of reasonable care owed to all foreseeable plaintiffs within the zone of danger.

Cardozo (Majority) vs. Andrews (Dissent) in Palsgraf:

• Cardozo: Duty runs only to foreseeable plaintiffs (zone of danger test)
• Andrews: Duty runs to everyone; foreseeability is proximate cause issue
• MBE uses Cardozo approach

Special Duty Rules:

Situation	Duty Rule
Failure to Act	No general duty to rescue/assist strangers
Special Relationship	Duty to act (common carrier-passenger, innkeeper-guest, parent-child, etc.)
Defendant Created Risk	Duty to exercise reasonable care
Undertaking to Help	Duty to not make situation worse
Landowner Duty	Varies by entrant status (see below)

Landowner Duty by Entrant Status:

• Trespasser: Duty not to willfully/wantonly injure

  • Known/anticipated trespassers: Warn of known, hidden, deadly conditions

• Licensee: Social guests; duty to warn of known, hidden dangers

  • No duty to inspect

• Invitee: Business visitors or public invitees; duty to inspect and warn/repair

  • Highest duty owed

💡 Trend: Many states have abolished categories and use reasonable care standard for all lawful entrants.

Breach ⚠️

Standard: Did defendant's conduct fall below what a reasonably prudent person would do under the circumstances?

Objective Standard:

• Physical characteristics considered (blind, wheelchair-bound)
• Mental deficiencies ignored (low IQ, inexperience)
• Intoxication no excuse

Exceptions to Reasonable Person Standard:

• Children: Reasonable child of same age, intelligence, experience (except engaged in adult activity)
• Professionals: Reasonable professional with same specialty in same community (national standard for medical specialists)
• Common carriers/innkeepers: Highest duty of care

Negligence Per Se: If defendant violated a statute, the violation may establish breach:

Step	Requirement
1	Statute designed to prevent the type of harm that occurred
2	Plaintiff in the class of persons statute was designed to protect
3	No excuse for violation (incapacity, attempt at compliance, emergency)

If all met: Violation conclusively establishes duty and breach (plaintiff still must prove causation and damages)

Res Ipsa Loquitur ("the thing speaks for itself"): Circumstantial evidence of negligence when:

1. Accident normally doesn't occur without negligence
2. Instrumentality was in defendant's exclusive control
3. Plaintiff did not contribute to accident

Effect: Inference of negligence (defendant may still rebut)

Causation 🔗

Actual Cause ("But-For" Causation): "But for defendant's breach, would plaintiff have been injured?"

Alternative Test - Substantial Factor: Used when multiple forces combine:

• Each force alone would have been sufficient
• Both forces acted simultaneously
• Each defendant's conduct was a substantial factor

Result: Both defendants liable

Special Rule - Alternative Liability (Summers v. Tice): When:

• Two defendants act negligently
• Only one caused harm
• Impossible to tell which one

Result: Burden shifts to defendants to exculpate themselves

Proximate Cause (Legal Cause): Was plaintiff's injury a foreseeable result of defendant's breach?

Foreseeability Test:

• Type of harm must be foreseeable
• Exact manner need not be foreseeable
• Extent of harm need not be foreseeable ("thin skull" plaintiff rule)

Intervening Causes:

💡 MBE Tip: Medical malpractice in treating injuries caused by defendant is almost always foreseeable and does not cut off defendant's liability.

Damages 💰

Rule: Plaintiff must prove actual damages. No nominal damages in negligence (unlike intentional torts).

Types of Damages:

• Compensatory: Economic (medical, lost wages) + Non-economic (pain and suffering)
• Punitive: Rare in negligence; requires willful/wanton conduct

Mitigation: Plaintiff must take reasonable steps to minimize damages ("avoidable consequences")

Collateral Source Rule: Payments from third parties (insurance, charity) do not reduce defendant's liability

Defenses to Negligence 🛡️

Contributory Negligence (Pure Bar):

• Traditional rule (minority of states)
• Any negligence by plaintiff = complete bar to recovery

Comparative Negligence:

Type	Effect	Recovery When
Pure	Damages reduced by plaintiff's % fault	Always (even if P 99% at fault)
Modified (50%)	Damages reduced by plaintiff's % fault	Only if P ≤ 50% at fault
Modified (51%)	Damages reduced by plaintiff's % fault	Only if P < 50% at fault

Assumption of Risk:

Two types:

1. Express: Written/oral agreement to assume risk (valid if clear and not against public policy)

2. Implied: Plaintiff knew of risk and voluntarily proceeded

   • Primary: No duty owed (e.g., spectator hit by ball at baseball game in normal seating)
   • Secondary: Merged into comparative fault in most jurisdictions

⚠️ Common Mistake: Students think any time plaintiff encounters a risk they've "assumed" it. Risk must be known and appreciated, and plaintiff must voluntarily choose to encounter it.

Strict Liability 🐾

Liability without fault—plaintiff need not prove negligence, only causation and damages.

Three Categories:

1. Abnormally Dangerous Activities

Factors (from Restatement):

• High degree of risk of harm
• Likelihood of serious harm
• Inability to eliminate risk through reasonable care
• Activity not common in the area
• Inappropriate to location
• Value to community outweighed by danger

Classic Examples: Blasting, storing explosives, toxic chemicals

Limitation: Strict liability only for harm that results from the dangerous propensity that made the activity abnormally dangerous.

2. Wild Animals

Owner strictly liable for injuries caused by wild animals, even if animal seemed tame.

3. Domestic Animals

No strict liability unless owner knows or has reason to know of animal's dangerous propensities ("one free bite" rule in some states—misnomer, as actual bite not required).

Products Liability 🏭

Three theories of recovery:

1. Strict Liability in Tort

Prima Facie Case:

1. Defendant is commercial supplier
2. Product defective when it left defendant's control
3. Plaintiff was foreseeable user
4. Plaintiff suffered harm
5. Defect was actual and proximate cause

Types of Defects:

Defect Type	Test	Example
Manufacturing	Deviates from intended design	One contaminated can in otherwise safe batch
Design	Risk-utility or consumer expectation test	SUV that tips too easily
Warning/Instruction	Failure to warn of non-obvious risk	Medication without side effect warnings

Design Defect Tests:

• Risk-Utility: Would reasonable manufacturer have adopted safer design given costs and benefits?
• Consumer Expectation: Did product perform as safely as ordinary consumer would expect?

Defenses:

• Product misuse/alteration (if unforeseeable)
• Comparative fault (in comparative negligence jurisdictions)
• NOT defenses: Contributory negligence, assumption of risk (in most states), state-of-the-art, industry custom

2. Negligence Must prove breach of duty (often using res ipsa loquitur)

3. Breach of Warranty Based on contract law; requires privity in some states

Defamation 📰

False statement that harms plaintiff's reputation.

Elements:

1. Defamatory statement
2. "Of and concerning" plaintiff
3. Publication to third party
4. Damage to reputation
5. Falsity (if matter of public concern)
6. Fault (at least negligence; malice if public figure)

Libel vs. Slander:

• Libel: Written, broadcast (damages presumed in some cases)
• Slander: Spoken (general damages require proof of special damages unless slander per se)

Slander Per Se (no special damages required):

• Crime of moral turpitude
• Loathsome disease
• Business/profession incompetence
• Sexual misconduct (unchastity of woman in some states)

Constitutional Requirements (NY Times v. Sullivan):

Plaintiff Type	Fault Required	Must Prove Falsity?
Public Official/Figure	Actual malice (knowledge of falsity or reckless disregard)	Yes
Private Figure, Public Concern	At least negligence	Yes
Private Figure, Private Matter	State decides (often negligence)	Depends on state

Defenses:

• Truth: Complete defense
• Absolute privilege: Judicial proceedings, legislative proceedings, between spouses
• Qualified privilege: Fair comment on matters of public concern (lost if actual malice)

Vicarious Liability 👔

Respondeat Superior: Employer liable for torts of employee committed within the scope of employment.

Scope of Employment:

• Conduct of the kind employee was hired to perform
• Occurs substantially within authorized time and space
• Actuated, at least in part, by purpose to serve employer

Frolic vs. Detour:

• Frolic: Major departure from employment duties (outside scope)
• Detour: Minor departure (within scope)

Independent Contractors: Hiring party generally not liable for torts of independent contractor.

Exceptions:

• Non-delegable duties (safety)
• Inherently dangerous activities
• Apparent agency/estoppel

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Examples 📚

Example 1: Future Interests and RAP

Fact Pattern: O conveys Blackacre "to A for life, then to B if B reaches age 25." At the time of the conveyance, A is 30 years old, and B is 20 years old.

Analysis:

• A has: Life estate (possessory)
• B has: Contingent remainder (contingent on reaching 25; B is alive but hasn't satisfied condition)
• O has: Reversion (will take if B doesn't reach 25 before A dies)

RAP Analysis:

• Interest at issue: B's contingent remainder
• Lives in being: A and B
• Will B's interest vest or fail within 21 years of A and B dying?
  • YES! If B reaches 25, the remainder vests. If B dies before 25, it fails. Both will happen during B's life (while B is still a life in being).
• Valid under RAP ✓

Variation - RAP Violation: If the conveyance were "to A for life, then to A's children who reach age 25":

• A could have another child after the conveyance
• That after-born child is not a life in being
• That child could reach 25 more than 21 years after A dies
• VOID under RAP ✗

Example 2: Recording Act Problem

Fact Pattern: O conveys Blackacre to A on January 1. A does not record. On February 1, O conveys Blackacre to B, who has no knowledge of the prior conveyance to A. B records immediately. On March 1, A records. Who owns Blackacre? (Assume a race-notice jurisdiction)

Analysis:

Date	Event	Recording Status
Jan 1	O → A	A unrecorded
Feb 1	O → B (no notice)	A unrecorded; B records immediately
Mar 1	A records	Both recorded; B recorded first

Race-Notice Requirements for B to Prevail:

1. ✓ Purchased for value (yes, assumed consideration)
2. ✓ Without notice of A's interest (no actual, record, or inquiry notice)
3. ✓ Recorded first (B recorded Feb 1, A recorded Mar 1)

Result: B owns Blackacre. B is a BFP who recorded first.

Variation - Notice Jurisdiction: In a notice jurisdiction, B would still win, but B's recording is irrelevant. B wins simply by being a BFP without notice. Even if B never recorded, B would defeat A.

Example 3: Negligence with Multiple Issues

Fact Pattern: D, driving 50 mph in a 35 mph zone, strikes P, a pedestrian crossing at an intersection. P suffers a broken leg. At the hospital, Dr. X negligently sets the bone, causing permanent damage. P sues D for all injuries.

Analysis:

Duty: D owes P, a foreseeable plaintiff, a duty of reasonable care ✓

Breach:

• Speeding violates statute
• Negligence per se: (1) Statute designed to prevent accidents ✓; (2) P is pedestrian, in class statute protects ✓; (3) No excuse shown ✓
• Breach established ✓

Actual Cause: But for D's speeding, would P have been hit?

• Assume speeding caused D to be at intersection at moment P was crossing
• "But for" test satisfied ✓

Proximate Cause:

• Injury to pedestrian from car accident = foreseeable ✓
• Medical malpractice treating injury = dependent intervening cause (foreseeable) ✓
• Does not cut off D's liability

Damages: P suffered actual harm (broken leg + complications) ✓

Result: D is liable for all of P's injuries, including those caused by Dr. X's negligence. Medical malpractice in treating injuries caused by defendant's negligence is foreseeable and does not break the chain of causation.

💡 Note: Dr. X is also liable (joint and several liability). P can recover full amount from either D or Dr. X, who may then seek contribution from each other.

Example 4: Intentional Torts - IIED

Fact Pattern: Boss repeatedly calls Employee into office, yells at her, calls her "worthless" and "incompetent," threatens to fire her daily for two months, though Employee is performing adequately. Employee suffers anxiety and depression requiring therapy. Employee sues Boss for IIED.

Analysis:

Elements:

1. Extreme and outrageous conduct:

   • Repeated over time ✓
   • Abuse of power (employer-employee) ✓
   • But: Harsh criticism and threats might not be "outrageous" in ordinary workplace
   • Close call; fact-dependent

2. Intent or recklessness: Boss intended to cause distress or was reckless ✓

3. Causation: Boss's conduct caused Employee's distress ✓

4. Severe emotional distress: Requiring therapy suggests severity ✓

Likely Result: Could go either way. Courts are reluctant to find IIED in employment contexts absent truly outrageous conduct (racial slurs, sexual harassment, physical threats). Mere "workplace bullying," while reprehensible, often doesn't meet the "extreme and outrageous" threshold.

Stronger IIED Case Would Include:

• Conduct directed at known vulnerability (employee with known anxiety disorder)
• Racial/sexual/discriminatory harassment
• Physical threats or actions
• Public humiliation

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Common Mistakes ⚠️

Real Property Mistakes

1. Confusing Defeasible Fees

   • Mistake: Using language clues but ignoring who holds the future interest
   • Fix: Fee simple determinable and condition subsequent both can use "if" language; look at whether automatic termination or need for grantor action

2. Applying Common Sense to RAP

   • Mistake: "An 80-year-old can't have kids, so that interest is fine"
   • Fix: RAP uses legal fictions. Assume anyone alive can have children, regardless of age or gender

3. Forgetting Notice Types

   • Mistake: Thinking BFP only needs to check records
   • Fix: BFP must have no actual, record, OR inquiry notice. Possession by another creates inquiry notice even if deed not recorded

4. Misidentifying Assignment vs. Sublease

   • Mistake: Focusing on what parties called it
   • Fix: Look at substance: Did tenant transfer entire remaining term with no retained interest? = Assignment. Anything less = Sublease

Torts Mistakes

5. Confusing Assault and Battery

   • Mistake: Calling harmful contact "assault"
   • Fix: Battery = contact. Assault = apprehension of contact. They're separate torts.

6. Requiring Physical Harm for Battery

   • Mistake: "No injury, so no battery"
   • Fix: Battery requires harmful OR offensive contact. Unwanted touching is battery even without physical damage

7. Missing "Actual Damages" Requirement in Negligence

   • Mistake: Thinking plaintiff can recover for negligence without proving actual harm
   • Fix: Unlike intentional torts, negligence requires proof of actual damages (no nominal damages)

8. Assuming Any Violation of Statute = Negligence Per Se

   • Mistake: Defendant violated statute, so automatically negligent
   • Fix: Check: (1) statute designed to prevent this harm? (2) plaintiff in protected class? (3) any excuse?

9. Forgetting Medical Malpractice Exception

   • Mistake: Thinking medical malpractice breaks chain of causation
   • Fix: Medical malpractice treating injury caused by defendant's negligence is almost always foreseeable and doesn't cut off liability

10. Confusing Proximate Cause and Duty

    • Mistake: Saying "no proximate cause" when plaintiff is unforeseeable
    • Fix: Unforeseeable plaintiff = no duty (Cardozo in Palsgraf). Duty comes first; don't reach proximate cause if no duty

11. Over-Applying Assumption of Risk

    • Mistake: "Plaintiff knew the job was dangerous, so assumed the risk"
    • Fix: Assumption of risk requires knowing and appreciating the specific risk and voluntarily choosing to encounter it. General awareness of danger ≠ assumption of risk

12. Misunderstanding Strict Liability Scope

    • Mistake: Thinking strict liability means liable for ALL harm once activity is abnormally dangerous
    • Fix: Strict liability only for harms that result from the dangerous propensity that made the activity abnormally dangerous

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Key Takeaways 🎯

Real Property Essentials

✅ Estates and Future Interests:

• Master the language triggers for defeasible fees ("so long as" vs. "but if")
• Know who holds what future interest (grantor vs. third party)
• RAP applies to contingent remainders, executory interests, and vested remainders subject to open—use lives in being analysis

✅ Landlord-Tenant:

• Assignment = entire term; sublease = less than entire term or retained interest
• Assignee in privity of estate with landlord; sublessee has no privity
• Implied warranty of habitability applies to residential leases only and is non-waivable

✅ Recording Acts:

• Race = first to record wins (rare)
• Notice = subsequent BFP wins (no recording required by BFP)
• Race-Notice = subsequent BFP must record first (most common)
• BFP = value + no notice (actual, record, or inquiry)

Torts Essentials

✅ Intentional Torts:

• Intent to act + intent/substantial certainty of result (motive irrelevant)
• Battery = contact; assault = apprehension of imminent contact
• IIED requires truly outrageous conduct (high bar)
• False imprisonment requires awareness of confinement or harm from it

✅ Negligence:

• Five elements: duty, breach, actual cause, proximate cause, damages
• Negligence per se: statute violation may establish breach if designed to prevent this harm and protect this class
• Res ipsa loquitur: inference of negligence from circumstantial evidence
• Medical malpractice treating defendant's injury is foreseeable (doesn't break causation)
• Comparative negligence is majority rule; reduces damages by plaintiff's percentage fault

✅ Strict Liability:

• No fault required, just causation and damages
• Abnormally dangerous activities, wild animals, products liability
• Products liability: manufacturing defects (deviation), design defects (risk-utility), warning defects (failure to warn)

✅ Defenses:

• Comparative fault is modern trend (pure or modified)
• Assumption of risk requires knowing, appreciating, and voluntarily encountering specific risk
• Contributory negligence is complete bar (minority rule)

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📚 Further Study

For deeper preparation on these MBE subjects, consult:

1. Barbri or Themis MBE Outlines - Comprehensive black-letter law summaries with practice questions organized by subject https://www.barbri.com

2. National Conference of Bar Examiners (NCBE) - Subject Matter Outlines - Official MBE subject outlines showing testable topics and relative weight https://www.ncbex.org/exams/mbe/preparing/

3. Emanuel Law Outlines: Property and Torts - Detailed outlines with extensive examples and practice questions mimicking MBE style https://www.emanuelpublishing.com

Good luck with your MBE preparation! Master these foundational principles, practice spotting issue patterns, and always read fact patterns carefully for subtle distinctions. The MBE rewards precision and thorough analysis. 🎓