More Gremlins in the “Joint”

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

People are often perceived — and laughed at — as being witless ninnies simply because they’re taken by surprise.

Take, for example, the recent report of Justice Scalia’s merciless quip at a lawyer who made the mistake of reading notes during oral arguments in the Supreme Court. The article notes the lawyer just stood there, “didn’t answer, simply standing silent for a lengthy embarrassed moment,” according SCOTUSBlog as reported in the ABAJournal.com.

The “Deer in the Headlights” syndrome.

But we’ve all been there and will be again: being exposed to something out of the context we know, and freezing. It’s a natural human response that takes practice coping with. And even that is no guarantee one will respond with aplomb on every such occasion. Even the most quick-witted occasionally get caught off — even Justice Scalia.

Formulating MBEs with words, phrases and circumstances out of the usual context is a favorite tactic of the MBE and practice test writers. It’s one thing to be exposed to something out of context on one’s home turf without pressure or risk of repercussion, and quite another to be on the spot and under fire when it happens.

Of course it’s different for everyone. Here’s one that caught me:

A mall leased one of its retail units to clothing store for a period of five years. The lease agreement provided that the clothing store would pay to the mall, as additional rent, $1,000 a month in maintenance fees for the upkeep of the common areas of the mall. The agreement also permitted assignments and subleases. For four years, the clothing store timely paid all rent and maintenance fees. At the end of the fourth year, the clothing store properly assigned the lease to a discount shoe outlet. At the time it assigned the lease, the clothing store owed $3,000 in maintenance fees for the last three months of its occupancy. The shoe outlet paid its rent, but did not pay any maintenance fees to the mall for the first six months. The shoe outlet then abandoned the property. The mall made reasonable efforts during the last six months of the term to re-let the unit, but was unable to do so. After applying the security deposit to satisfy the balance of the rent, the mall wishes to collect the unpaid maintenance fees for the last 15 months of the lease, totaling $15,000.

Who is liable for those fees and in what amount?

A. The clothing store and the shoe outlet are jointly and severally liable for the $15,000 in fees.

B. The clothing store is solely liable for $3,000 in fees, and the clothing store and the shoe outlet are jointly and severally liable for $12,000 in fees.

C. The clothing store is solely liable for $3,000 in fees, the shoe outlet is solely liable for $6,000 in fees, and the clothing store and the shoe outlet are jointly and severally liable for $6,000 in fees.

D. The clothing store is solely liable for $3,000 in fees, and the shoe outlet is solely liable for $12,000 in fees.

The correct answer is B: the tenant is still liable for the rent after assignment through privity of contract with the landlord if the party assigned fails to pay.

But “jointly and severally liable”?

Excuse me? This is a real property question after all.

My real property lectures never once mentioned the phrase “joint and several liability” in connection with any type of real property topic. Nor did my bar review course or supplemental reading include such a reference in that area.

Use of the phrase “jointly and serverally liable” in a property question was a sufficient shift in usual context to throw me off-balance. Would it throw you off, sitting cold and exposed on that convention center floor with thousands of fellow victims?

No doubt that was the objective of the authors of this review course practice question: Out of context causing "Deer in the Headlights" syndrome. (I like to call it, "Dilbert Paralysis.")

The MBE relishes catching deer in the headlights.

Of course it’s only reasonable that the concept embodied in the phrase “jointly and severally liable” would have wider applicability, but I just never had considered that possibility. It was that shift in the context I was used to that threw me: just never having encountered it in other areas of law or thought about its other uses.

The entry in Black’s under “joint and several liability” — this was the first occasion I felt I had the need to refer to this entry, not having previously encountered it outside of tort law — succinctly confirmed the acceptable use in creditor contexts.

But some brief mention during law school, perhaps? A 2 minute digression of the wider application of the phrase would probably have been enough to dispel any panic.

There is one other nit in this example, and that is an obvious logical contradiction that would have been remedied with careful copy editing: “For four years, the clothing store timely paid all rent and maintenance fees. At the end of the fourth year, the clothing store properly assigned the lease to a discount shoe outlet. At the time it assigned the lease, the clothing store owed $3,000 in maintenance fees.”

If the clothing store timely paid “all rent” for four years, then logically there’s nothing owing for that time. Granted it’s nitpicker’s nit, but it still bugged me.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE and bar prep courses, and further be advised that the state of current law may not be accurately reflected.

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