Law Outlines > Michigan State University College Of Law Law Outlines > Michigan Bar Exam Outlines

Michigan Bar Exam Outline

This is a sample of our (approximately) 131 page long Michigan Bar Exam Outline notes, which we sell as part of the Michigan Bar Exam Outlines collection, a Pass package written at Michigan State University College Of Law in 2015 that contains (approximately) 131 pages of notes across 1 different document.

Learn more about our Michigan Bar Exam Outlines

The original file is a 'Word (Docx)' whilst this sample is a 'PDF' representation of said file. This means that the formatting here may have errors. The original document you'll receive on purchase should have more polished formatting.

Michigan Bar Exam Outline Revision

The following is a plain text extract of the PDF sample above, taken from our Michigan Bar Exam Outlines. This text version has had its formatting removed so pay attention to its contents alone rather than its presentation. The version you download will have its original formatting intact and so will be much prettier to look at.

Real Property BAR EXAM OUTLINE

REAL PROPERTY OUTLINE ESTATES AND FUTURE INTERESTS PRESENT ESTATES

Freehold estates - gives possession under some legal title or right to hold o Fee simple absolute - "To A"
 Absolute ownership of potentially infinite duration
 Freely devisable, descendible, and fully alienable
 Any direct restraint on alienation is void (except right of first refusal)
 Conditions on use are permissible o Fee tail - "To A and the heirs of his body"
 Passes directly to grantee's lineal blood descendants
 MI - abolished and treated as a fee simple o Fee simple defeasible - fee simple + condition (not words of desire, hope, or intention)
 Types:
 Fee simple determinable - automatically ends when a certain condition occurs, giving the right of possession back to the transferor o "As long as," "while," "until," "during" o Transferor has "possibility of reverter" (30 year limit)
 MI - freely transferable
 Fee simple subject to a condition subsequent - may be terminated by the transferor when a certain condition occurs (default over FSD) o "Provided however," "but if," "on the condition" o Transferor has "right of entry" if expressly reserved (30 year limit)
 Must declare forfeiture within a reasonable period of time after the condition occurs
 Cannot be transferred inter vivos
 MI - freely transferable
 Fee simple subject to an executory limitation - followed by a future interest in another transferee o The future interest has an "executory interest" o Estate automatically ends upon the occurrence of the condition o Life estate - "O to the life of A"
 Measured by the lifetime of a particular person (or pur autre vie if another)
 Freely devisable, descendible, and fully alienable
 Restrictions on transfer are permissible
 Future interest:
 Grantor has "reversion"
 Grantee has a "remainder"
 Doctrine of waste - life tenant must not commit waste (merely maintain)
 Voluntary waste - any affirmative act that reduces the value of the property o Exceptions: (PURGE)
 Prior use - if prior use was to deplete natural resources, may continue as to already open sources

1

Real Property Reasonable repairs - may consume natural resources for reasonable repairs and maintenance
 Grant - may exploit if grantor grants right to do so
 Exploitation - if only suitable for exploitation Permissive waste - failure to take reasonable care to maintain o Duties:
 Reasonable repairs (excluding ordinary wear and tear), not replacement
 Pay all taxes on the property
 Pay all interest on any mortgage (holder of future interest pays principal)
 Life tenant does not have to insure the property Ameliorative waste - affirmative act that leads to a substantial increase in value o Exceptions:
 Life tenant is permitted to enhance property if all holders of future interest are known and consent
 If changed conditions have made the property relatively worthless, the life tenant can tear it down

FUTURE INTERESTS

Remainders - a future interest in a transferee o Elements:
 Capable of becoming possessory immediately upon expiration of the prior estate
 Does not divest (cut short) any interest in a prior transferee (follows life estates) o Types:
 Indefeasibly vested remainder
 It is created in an ascertainable person
 No condition to taking
 Vested remainder subject to open (partial divestment)
Remainder is a group or class that may be enlarged in the future o Members who predecease the transferor are eliminated (lapse) o The class is closed when the testator dies and the class is entitled to distribution
At least one person must be vested o Ascertained or alive and identifiable; and, o No condition precedent that must be satisfied before they take
 Vested remainder subject to complete divestment (executory interest)
 Remainder is subject to being cut short due to a condition subsequent
 Contingent remainder - a remainder is contingent if:
 Grantee is not an ascertainable person; or
 A condition must be met before the remainder can become possessory
Executory interests - a future interest in a transferee that divests (cut short) another estate o Shifting - executory estate from one grantee to another grantee o Springing - executory estate from the grantor to a grantee
Rule against perpetuities - if there is any chance that an interest might vest (become possessory) outside of the life-in-being + 21 years, that interest is void o Applies to: contingent remainders, executory interests, vested remainder subject to open o Test:
 Identify the future interest
 Identify the condition precedent

2

Real Property Find the measuring life With absolute certainty, the interest not vest after the life-in-being + 21 years
 If yes, future interest is good
 If no, RAP kills the future interest Wait and see approach - whether the interest will actually vest with time period of RAP
 MBE - does not apply
 MI - applies within 90 years Perpetuity saving clause - ensures vesting will occur within the time period of the RAP Special circumstances:
 First refusal - reasonable options and rights of first refusal do not violate RAP
 Charities - gifts from one charity to another charity do not violate RAP
 Fertile octogenarians - anyone regardless of age is capable of having children
 Bad as to one, bad as to all - if one member of the class is voided, all are void

o

o o

CONCURRENT OWNERSHIP FORMS OF CONCURRENT OWNERSHIPS

Joint tenancies: o Elements:
 Right of survivorship - the surviving JT takes automatically upon death of a JT
 Must be expressly stated
 Right to partition - lines are drawn and the party is no longer a JT by:
 Agreement of the parties; or
 Courts can draw the line or sell if lines can't be drawn o Created by 4 unities: (TTIP)
 Time - all interests must have vested at the same time
 Title - the grant to all JTs must be by the same instrument
 Interest - all JTs must take the same kind and same amount of interest
 Possession - all must have equal rights of possession o Destruction:
 Partition - voluntary destruction
 Severance - involuntary destruction occurs when one of the unities is disturbed
 4 ways: o A conveyance by a JT creates a TIC as to that JT o A mortgage in a title theory state
 Lien theory (default) = no severance (MI)
 Mortgage is extinguished as to other JTs
 Title theory = severance o A signed contract of sale o A creditor's sale
 Tenancy in common: (default) o Elements:
 No right of survivorship
 Right to partition o Created by 1 unity:
 Possession - all tenants in common must have equal rights of possession
Joint tenancy with indestructible survivorship (only in MI) o If a JT is created, the right of survivorship is indestructible
Tenancy by entirety - when property is deeded to husband and wife o Elements:
 Right of survivorship 3

Real Property

No right to partition RIGHTS AND DUTIES AMONG CO-TENANTS

Rights and duties: o Possession - no co-tenant has the right to exclusive possession o Accountability - one co-tenant need not account to another for share of the profits/rent
 Exceptions:
 Ouster - one co-tenant is either keeping a co-tenant off the property or claiming a right of exclusive possession
 Agreement to share
 Lease of the property by one co-tenant to a 3rd party
 Depletion of natural resources o Contribution - a co-tenant has the right to force other co-tenants to pay their share for:
 Necessary repairs (not improvements)
 Any mortgage on property (signed by all co-tenants)
 Taxes or any government imposed obligation LEASING REAL PROPERTY

Non-freehold estates - gives only possession, not title o Term for years - "O to A for [#] years"
 Measured by a specified period of time, no matter how short
 Reversion or remainder
 Subject to the SOF if over 1 year (must be in writing and signed) o Periodic tenancy - an ongoing, repetitive estate, until one party gives valid notice
 Creation:
 Express agreement - clearly stated
 Implication - if the lease is silent, it is presumed and measured by when the payment of rent occurs
 Operation of law: o Oral lease violating the SOF o Holdover - tenant stays lease expires and landlord accepts rent
 MI - a holdover lease stops after 1 year
 Notice of termination:
 Time must be equal to the full period in advance o If year to year, 6 months notice o MI - if tenancy is year to year, 1 year notice o MI - if rent period is less than 3 months, notice is that of the rent period
 The right effective day of termination is the last day of the period o MI - notice is not void if it states a different day o Tenancy at will - both the landlord and tenant have the right to terminate at any time
 Notice of termination:
 Either party can terminate at any time without notice
 MI - 1 month notice o If tenant fails to pay rent, landlord may terminate by providing 7 day notice in writing
 Other ways to terminate:
 Death of either party
 Waste by the tenant
 Assignment by the tenant 4

Real Property

o

 Transfer of title by the landlord
 Lease by the landlord to someone else Tenancy at sufferance - when a tenant wrongfully remains in possession (more than a few hours) after the date of termination
 Landlord options:
 Treat tenant as a trespasser and evict him o MI - self help is not available, use the judicial process
 Renew tenancy o For residential property, the new period is month to month o For commercial property:
 If expired tenancy was for a year or more, new tenancy is year to year
 If expired tenancy was for less than a year, new tenancy is the same as that of the expired tenancy DUTIES OF LANDLORD AND TENANT

Tenant's duties: o Pay rent o Not commit waste o If lease states covenant to repair:
 Residential lease - tenant is liable for all property damage caused by the tenant
 Commercial lease - tenant's covenant to repair is enforceable by landlord
 Exception - tenant is not usually required to rebuild structural damage due to forces outside of his control, unless the covenant expressly states otherwise
 Tenant may terminate lease if the premises are destroyed without tenant's fault
 MI - tenant may terminate if the premises is unfit for occupancy, unless expressly stated otherwise Landlord's remedies: o If tenant fails to pay rent, landlord can:
 Sue for damages;
 Evict; or
 Deduct the unpaid rent from the tenant's security deposit o If tenant unjustifiably abandons the lease, landlord can:
 Re-rent the premises and hold tenant liable for any deficiency; or
 Treat abandonment as an offer of surrender and accept by retaking the premises Landlord's duties: o Give tenant possession of the premises when the lease begins o Deliver residential premises in a habitable condition
 Implied warranty of habitability - in a residential property, landlord must provide property that is reasonably suited for residential use
 If breached, tenant may: o Terminate lease; o Make repairs and offset the cost of future rent; o Pay only the fair market value; or o Stay, pay full rent, and sue for damages
 Implied covenant of quiet enjoyment - landlord makes an implied promise that he will not breach by:
 Total eviction - terminates lease and ends tenant's obligation to pay
 Partial eviction - does not end lease and tenant can stay without paying

5

Real Property If partially evicted by one with better title than the landlord, tenant's rent is apportioned by the amount taken
 Constructive eviction - where landlord fails to provide a service making the premise uninhabitable, tenant may terminate lease and sue o Elements:
 Landlord breached a duty to the tenant
 Substantial interference with the covenant of quiet enjoyment
 Tenant gave landlord notice and reasonable time to repair
 Tenant must have abandoned the premises within a reasonable time after the breach MI - property must comply with applicable health and safety laws
 If breached, tenant may withhold rent until the repairs are done o

ASSIGNMENTS AND SUBLEASES

Assignment - when tenant transfers all of the lease period o Grounds of liability:
 Liability on the conveyance - privity of estate based on possession
 Exists between the present landlord and present tenant in possession
 Liability on the contract - privity of contract based on agreement
 Exists where there is an agreement between parties Sublease - when tenant transfers a portion of the lease period o Subleasee is not liable to landlord because sublessor is deemed to have kept the estate
 No privity of contract estate between landlord and present tenant in possession EMINENT DOMAIN

Eminent domain - when the state takes property under a lease by its power of condemnation o Partial taking - does not release tenant from obligation to pay full rent
 Tenant gets an amount of the condemnation award equal to the rent that would have to be paid over the remainder of the lease for the property taken o Full taking - lease is terminated and tenant is excused from paying rent
 Tenant shares in the condemnation award, but only to the extent that the fair rental value of the lease exceeds the rent due under the lease LANDLORD'S TORT LIABILITY

Rule - no duty by landlord to tenant or his invitees for injuries on the premises during the lease o Exceptions: (CARPULS)
 Common areas under landlord's control - landlord has a duty of reasonable care in maintaining common areas
 Negligent repairs - landlord is liable for injuries resulting from landlord's repair of a defect, even if landlord used due care in the repair
 Public use exception - landlord is liable for injury from defects if:
 Landlord knows or should know of a major defect;
 Landlord knows or should know the tenant will not fix the defect; and
 Landlord knows or should know the public will be using the premises
 Latent defects - landlord is under a duty to disclose defects if:
 The landlord either knows or has reason to know of the defect;
 Tenant does not know of the defect; and

6

Real Property

 A reasonable person in the tenant's position would not discover it Short term lease of a furnished dwelling - landlord is liable for defects even if landlord neither knew nor had reason to know of them
 "Short term" - 3 months or less TENANT'S TORT LIABILITY

Rule - tenant is liable to invitees for negligent failure to correct dangerous conditions o May be able to sue landlord if contractually liable FIXTURES

Fixtures - cannot be removed by either seller or tenant o Look to intent o Agreements control o Tenant must remove chattels before the termination of the tenancy o Factors:
 Degree of attachment - the more that has to be done to attach it to the property, the more likely the intent was that it stay
 General custom - whether it is the type of thing that sellers or tenants normally take when they leave
 Degree of harm - tenants are favored if tenant can remove the item without substantial damage to the premises
 Trade fixtures - chattels used in a trade or business that are not fixtures and can always be removed (only applies to landlord-tenant relationships) EASEMENTS

Easement - a non-possessory interest in land involving a right of use o Types:
 Easement appurtenant - when the easement directly benefits the use and enjoyment of a specific piece of land
Servient estate - the burdened property
Dominant estate - the benefited property
 Easement in gross - where there is no dominant estate, only a servient estate
The holder of the easement acquires a right of special use in the servient estate (power lines, railroad tracks) o Creation:
 Express easement - voluntarily created by the servient owner
 Must be created in writing and satisfy the statute of frauds: o Identify the parties o Describe the dominant/servient land o Describe exact location of the easement o State the purposes for which the easement is used
 Easement by implication: (PUCCAN)
 An easement may be implied if: o Prior use by a common owner; o Continuous; o Apparent; and o Reasonably necessary
 Easement by necessity - lack of reasonably practical access to estate
 Prescriptive easements - rewards people using a particular parcel for a particular use: (similar to adverse possession) 7

****************************End Of Sample*****************************

Buy the full version of these notes or essay plans and more in our Michigan Bar Exam Outlines.

Related Michigan Bar Exam Samples: