The Last Bar Examination (2008)


What struck me about the Property question in the most recent bar exam was its utter irrelevance to modern practice. It began with Ann, Betty, and Celia purchasing a condominium unit as joint tenants. Why it mattered that the property was a condominium was never shown, since nothing ever came of that fact—perhaps the questioner wanted to look modern, or instead hoped to confuse test-takers into thinking that that fact had something to do with some issue, although it did not. It would have been relevant to a real estate practice to ask whether an attorney should advise these three purchasers to take title as tenants in common rather than as joint tenants, given that they did not seem to be related, but joint tenancy was made a given in the question, eliminating any chance for giving advance legal advice about it. Examinees were asked to give judgments about completed legal facts rather than giving any advice to clients about structuring deals.

What happened next in the problem is that Ann and Celia both executed deeds of their respective interests to Ed, each of them reserving life estates in themselves. Ann delivered and recorded her deed, but Celia recorded her deed “solely to protect her life estate interest” and then put it in a sealed envelope with instructions to deliver it back to her on demand or to Ed if she died; whereupon Ann later improperly mailed a copy of the deed to Ed. Finally, Ann and Celia are killed (apparently simultaneously) in a car accident!

Facts of this sort would occur only in the worst of bad fiction—no such case could ever come across an attorney’s desk in the real world. Owners do not convey their property with reserved life estates, record them for special and illogical psychological reasons, place them in envelopes with peculiar instructions, and then have third parties copy and mail the copies contrary to those instructions. How does a student concoct an intelligent analysis of these facts that will reveal anything about his or her ability to handle actual problems of real people, i.e., to practice law?

The first question was what interests Betty and Ed had as a result of those foregoing antics. Some features were easy. Ann’s conveyance severed the joint tenancy (with or without the reservation of a life estate and with or without the recording, especially after her death), so that Ed acquired her one third as a tenant in common.

The disposition of Celia’s interest was more complicated; mainly, it depended on whether her deed was treated as delivered. The Daily Journal’s analysis concluded there was no delivery, so that Ed took nothing from it and Celia’s share went to Betty by survivorship. On the other hand, the Recorder’s answer opined that the delivery was effective—not because of the envelope but because of its recordation—so that Celia’s share did go to Ed. (Neither answer made anything out of the fact that Ed received only a copy of the deed in the mail.) Thus, one paper gave Ed one third while the other gave him two thirds. Should one of these positions be flunked? There was enough uncertainty about the Alice in Wonderland facts to make me hope that the graders take equally charitable views of both positions.

The second and third questions involved some additional facts: Betty had originally moved out of the unit, but then she moved back in after Ann and Celia died; she thereafter operated a computer business in one of the bedrooms, rented out the other bedroom to a tenant, and paid for some “necessary repairs.” The questions then asked whether Ed could share in the rents Betty collected from the tenant or charge her rent for the computer business (Part 2) and be charged for contribution to the necessary repairs (Part 3). I regret that these issues were split up into separate questions because that had the effect of making it difficult to discuss how either set of claims might have offset the other.

As far as Betty owing Ed (and ignoring how the original three owners ever expected to share a two-bedroom unit, or whether the condominium rules permitted doing business inside the unit), both model answers said that a cotenant could not be charged rent for personal occupancy and could be made to share rents collected from a third person—right answers, but hardly worth making into an essay question. (Who was entitled to the extra third of the tenant’s rent depended, of course, on how the earlier delivery question was resolved.)

As for Ed’s liability for the “necessary repairs,” the Recorder said that because Betty was occupying the unit, she was “obligated to pay the cost of maintenance up to the fair market rental value” but could get contribution if her costs exceeded that number. The Daily Journal started by saying that Betty could get contribution for payments in excess of her prorata share of the repairs, but only if she had notified Ed of the need for repairs. I cannot say that I absolutely agree with either opinion, but both were as good as the meager facts of question deserved. I wish the examinees had been told what those payments covered, because Betty’s rights and remedies might vary depending on whether those bills were for, e.g., property taxes, or shared mortgage obligations, or physical repairs (or replacements), and whether she was seeking a money judgment against Ed, an offset against any accounting she had to make for the rent that came from the tenant, an equitable lien on Ed’s share of the property, or off the top in a partition. (Partition is what Betty and Ed certainly ought to be advised about, but that issue was probably too sensible for the bar examiners to inquire about.)

At least a lot of students passed the previous bar, so the frivolity of the questions is not doing too much harm.


The Bar Exam (2007)

Real property occupied question number one on the last bar exam, but attorneys thinking about employing these new admittees should not expect the bar score on that question to give them much guidance. It was one of the sillier questions on record.

The question involved a lease of office space that lasted six months during which the premises were so frequently unusable as to force the tenant to quit. The landlord did nothing for two weeks after the tenant’s departure, but then, six weeks later, finally looked for a new tenant, who took over the premises two weeks later. The question only asked on what theory could the landlord assert a claim for rent for those two months—nothing else.

Right at the outset, a difficulty in writing an answer was created because the question provided that “Larry leased in writing to Tonya,” and gave a starting date, but said nothing about an ending date for the tenant. I think most of us use the word “lease” to designate a tenancy for a term, and I am more inclined to believe that the question was deficient in its description of the tenancy rather than that the examiners intended that a periodic or month-to-month tenancy of a four-room office suite be the factual foundation of the question.

The model answer in The Recorder, by Pearce’s Master Essay Method, does take the question at face value, calls it a month-to-month tenancy and answers it accordingly, whereas the answer in The Daily Journal by Pass takes a more cautious (and wiser) approach of saying that it is either a tenancy for a term or a periodic tenancy and correspondingly answers the question both ways. Since the major thrust of the question is the tenant’s right to terminate her estate, the most important fact to know is what kind of a tenancy she had; it is almost criminal that the bar examiners threw everyone off with the apparently careless recitation rather then either labeling the estate or giving test-takers enough facts to let them draw the proper conclusion. I have no idea how the bar graders were able to match up answers that covered both possibilities against those that dealt with only one.

The reason the underlying facts matter is because if this was a periodic tenancy, then the tenant could end her rent liability merely by giving proper notice: The letter she sent on December 12 announcing she would vacate on February 28 would certainly have been effective to accomplish that. If one takes the question literally—and finds a periodic tenancy with proper notice of termination having been sent properly in advance—then the tenant owes no rent after she left, and the whole question is over in one paragraph. (Pearce’s did add that the notice of termination was oral and that is an issue, although not a very important one. The other issues about the premises being untenantable and the landlord being inactive for six weeks after the tenant left were all rather irrelevant.)

If, taking the Pass approach, one assumes that there was a tenancy for a term (and that the term had some time to go), then the other issues the examiners probably wanted to raise do come up. Can a commercial tenant quit because the premises are uninhabitable? Yes, if the problems are serious enough and if there is a prompt departure. Ten weeks’ advance notice does not sound very prompt, but the question makes that possibility more attractive by having the tenant choose the departure date “to give herself ample opportunity to locate alternative office space.” This may not be the rule, but it certainly seems sensible. If the tenant has been properly constructively evicted, then, of course, her rent ended the day she left. It still makes sense, as Pass did, to then assume that this can be treated as an unjustified abandonment and follow that up with a discussion of the landlord’s remedies and his possible duty to mitigate. Indeed, that seems to have been the chief reason for asking the question, since he did nought for six weeks and then rented to a new tenant under a new arrangement to take effect in the eighth week—the sole question being his right to recover those lost eight weeks’ rent. The answer, of course, is he can recover that rent if he had no duty to mitigate; he probably cannot recover the rent if he did have a duty to mitigate; and there probably is no settled nationwide rule of law as to the duty to mitigate in a commercial lease. So, this aspect of the answer is a little longer, but still hardly very substantive.

After all the sturm and drang, this question could have been reduced to a one multiple-choice issue. It is distressing that we afflict our law students with so much struggle to prepare for a bar exam that asks so trivial a question.



Reflections on the Last Bar Exam (2007)

Roger Bernhardt


The Bar Examiners got rather lazy in their Property question on the last bar exam. Instead of asking a reasonably complex or difficult essay question, they took four little multiple choice hypotheticals and packaged them into one large but utterly unintegrated question, with no connection of any kind between the parts.

The overall plot involved four characters: the Builder of a shopping mall; the Owner who purchased it; Lois, a tenant in the mall; and Fast Food, her subtenant. (Why use names for only two of the four characters? And why name a tenant Lois rather than Tina?) Their activities follow.

The first part asked whether Tina violated a provision in her lease “not to assign” when she later sublet her space to Fast Food. Since every law student is taught that an assignment is different from a sublease, the simple answer is “No.” An examinee could pad the answer by adding that the transfer really was a sublease and not a disguised assignment (the 6th to 16th years of a 30-year term), although nothing in the question really invited discussion of that issue. The Writing Edge’s model answer in The Recorder added that the fact that Fast Food paid its rent directly to Owner gave it a waiver defense as well, which was a harmless additional point, even if unnecessary. Neither bar review model answer could find anything else to say about this shallow issue.

The second part asked whether Fast Food could sue Builder for trespass because he had taken over five of its designated parking spaces to sell sandwiches on Sundays in competition with it. Since the facts stated that Builder had reserved the right to do so when it conveyed the mall to Owner, the simple answer is again “No.” Lawful exercise of an easement is not a trespass, and Builder’s reservation was good against his grantee, and all who took under him, which meant Lois and Fast Food. (The Writing Edge went astray, I thought, in saying that Lois had no constructive notice of the deed restriction, even though it was recorded, because tenants do not have to search titles (I think they should), but it pretty much recovered by then opining that there was probably inquiry notice from Builder’s previous Sunday sales.) In this, like in the first part, I found no subtlety or complexity whatsoever. There might have been some interesting talk about whether trespass was an appropriate remedy for one-day-a-week sales in a parking lot (did the lease give Lois possession of those spaces?), but that became irrelevant once the reserved easement was put into the facts. Worsening the entire situation was the lack of any connection between the two parts: Fast Food’s nontrespass rights had nothing to do with whether it was an assignee or a subtenant.

The third part of the question asked if Owner had the right to change the locks on the store after Fast Food announced it would stop paying rent in protest. The answer, for the third time, is “No,” although I cannot claim this part is as superficial as the first two. Overall, self-help to regain possession of property is no longer allowed, even when legally justified, so that could be a complete answer. PASS Bar Review in The Daily Journal went on to ask whether there was an anticipatory breach in refusing to pay rent that may have been not yet due (the question didn’t give the essential dates), and both bar reviewers made a nod to the issue of privity between a landlord and subtenant, none of which was really necessary in light of our current uniform prohibition against self-help lockouts. As before, nothing in the first two parts had any impact on this third part: Assignment of a sublease, whether an easement or not, says nothing about forcible entries.

Finally, the fourth part asked whether residential neighbors could state a nuisance claim against Fast Food’s cooking odors wafting on warm days. At least this was not subject to the same one-word response that fit the previous parts of the question. While the issue was kept simple by assertions in the question that the tenant was using best available technology and complying with all local health codes, it nevertheless left open the academic possibility that the neighbors could show that it constituted an unreasonable interference with the use and enjoyment of their properties. Both model answers used the question as an occasion for little lectures on the elements of nuisance law (although The Writing Edge inexplicably covered only public, not private, nuisance); both had little difficulty in rejecting the claim.

The fact that so much of this question did not need to be in essay form reinforces my long-standing misgivings about the wisdom of using this technique to evaluate prospective lawyers. Essay grading is costly and subjective and not demonstrably superior to the (tested and retested) multiple choice questions that the multistate examiners employ; certainly, there is no justification to warrant the dreadful and inefficient three-month waiting period that it puts bar applicants through. I do not believe that the choice between a score of 70 or 65 on this particular essay question gives examiners or employers better insights into the likelihood of candidates being or not being competent attorneys than is currently available from looking at their scores on the 150 objective multistate questions they answered.

Essay bar exams ought to be sent the same way as their true forerunners—trials by ordeal and battle—have gone.



The Bar Exam (2006)

I was pleased to read the latest bar exam question on Property. It seemed to show that the bar examiners do have an interest in seeing that prospective lawyers know something about modern real estate.

The question had the master tenant of an office building (1) failing to renew a necessary parking easement next door and also (2) giving an improving subtenant a sublease that outlasted the master lease. The town’s zoning board then (3) discriminatorily refused to grant the lessor a parking variance to replace the lost parking easement.

I was somewhat concerned that the call of the first question was whether the lessor could sue the tenant for waste in not renewing the easement; it is an interesting question whether that kind of activity constitutes waste, but there are certainly other theories worth considering as well, and I feel sorry for examinees who had to decide whether to get into what was not asked in writing their answer. (Substantively, National Bar Review’s model answer said it was waste; Emerson’s Tutorial Bar Review said it wasn’t waste because there was no physical damage, but thought there was liability for breach of contract or negligence.)

On the second part of the question, the sublease clearly could not survive termination of the master lease (unless, as Emerson’s noted, the head lease had not been recorded), and both model answers agreed that the subtenant could take his trade fixtures with him when he left, but not the “wall treatments.”

It was gratifying to see that the third part involved zoning issues, since land use is not always covered in basic Property classes. Both bar reviews thought that the variance should have been granted, which is probably an appropriate conclusion to make to a bar exam question, even if that answer is not too likely in the real world.



The Bar Exam (2005)

Last fall’s bar exam question in Property involved a covenant running with the land, with many of the attendant complexities (e.g., touch and concern, privity of estate, implied reciprocal servitudes) that deter most law students from ever wanting to be real estate lawyers.

Both legal newspaper model answers—by Writing Edge in the Daily Journal and by Emerson’s Tutorial in the Recorder—were fine. (I might quibble with Writing Edge’s assertion that privity of estate still requires parties to a covenant to share a common interest in the property and with Emerson’s assertion that the lack of a grantee’s signature on a deed gives grantee a statute of frauds defense against the covenants in it, but both answers would certainly have gotten high scores on that exam.)

Running covenants (now more frequently referred to as a component of servitudes rather than as separated easements and covenants) is a topic that is probably covered in all Property courses, and so is fair game for a bar exam. However, I think that its extensive inclusion in our courses is more the result of the bar exam than a cause for the bar examining on it. A very similar question was asked in 2001 and, with this repeat four years later, it promises to continue as a staple in the course, even though many law schools are shrinking Property down from six to four units. If bar coverage were based on reported current decisions or on what real estate practice actually entails, covenants running with the land would be a very rare subject indeed. (The ABA’s Section on Real Property Probate and Trust Law has a task force looking at the real property law curriculum, and there is hope they can do something to bring both the course and the bar exam into the 21st century.)

On another front, a different question—labeled “Remedies”—dealt with breach of contract to sell a piece of real estate and its water rights, together with acreage issues and false promises regarding development. One of the performance questions asked about age restrictions in a residential community. If bar exam scores were ever released, law firms probably would be better off using the results on this type of question as a more reliable guide to job candidates’ potential for doing useful work.

Failing Grade: Our Irrelevant
Bar Exam (2003)

Roger Bernhardt

We should all take an interest in what the California bar exam covers, because one of the functions it serves is to inform bar applicants about what we expect future lawyers to know. The grueling effort in preparing for it and the severe scoring employed in judging examinees lose much of their justification if the exam itself gives candidates a false message of what is and is not important to the practice of law.

Sadly, the bar examiners’ coverage of Property in recent exam questions has generated a badly distorted image of what real estate practice is all about. For example, this year’s question involved a property owner, Olga, who took a deed made out to her niece Nan and handed it to her friend Bruce with the instruction, “Hold this deed and record it if Nan survives me.” She later told Bruce to destroy the deed, but he didn’t; then Olga died.

I do not recite these facts in order to force you to decide “Who owns Blackacre,” but rather to ask whether that is the kind of issue that we want law students to believe reflects the way that real estate lawyers spend their time. When has anyone represented a property owner who wanted to make (or made) a conditional delivery of property by way of a verbal escrow statement to a third party? When is the last time any of us were asked how to do that or were retained to litigate that kind of transaction? With all of the real and difficult problems that do confront real estate lawyers daily—as witnessed by the cases described in this Reporter—couldn’t the bar examiners come up with any situation more realistic or significant?

This is not a one-time complaint. Last year’s Property question concerned a “general warranty deed that contained all the typical covenants.” But one would have to go back over a hundred years to find that kind of document used in a California transaction. The bar examiners can hardly contend that knowledge of such instruments has some relevance to current practice.

(Worse still, the July 2000 bar question contained the following astounding statement: “There is no statute or decision by an appellate court either repudiating or affirming the common law doctrine of destructibility of contingent remainders.” Imagine bar candidates feeling that they must include both sides of that assumption in their bar essays if they want to get admitted! But henceforth, all the bar review courses will be sure to cover it.)

Law school property courses, as well as bar review programs, are sensitive to the bar exam. That means class time that I might productively spend on important landlord-tenant or real estate transaction or land use issues is reduced in order to allow me time to cover the issues forced on us by the above questions. As our courses are necessarily driven by the bar exam, it is tragic that the exam itself is not similarly driven by the reality of law practice.