3 Felonies & a Misdemeanor

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.

This entry diverges from the standard Nit format of pointing out language tips and traps common on the MBE. This entry focuses on substantive issues and come from one of the major bar review courses from 2009.

Evidence: 3 Felonies & a Misdemeanor

The defendant is on trial for embezzlement. He does not take the stand. Which of the defendant’s previous convictions is most likely to be admitted into evidence against him?
A. A 7-year-old conviction for arson, a felony.
B. A 12-year-old conviction for embezzlement.
C. A 6-month-old conviction for disorderly conduct.
D. A 2-year-old conviction for felonious sexual assault.

It’s short, but it’s a killer: Keep in mind this is a notorious “most likely” question.

Convictions are usually used to impeach, but a defendant who doesn't take the stand is not open to impeachment. Test takers have to spot that critical point.

Once spotted, throw out all those impeachment-by-conviction-related rules covered in the FRE at 609, including the 10-year time limit, felony vs. misdemeanor, et al.

That leaves the introduction of crimes under relevancy, and specifically character evidence, covered in the FRE at 404. And as we all know, character evidence generally is not admissible for the purposes of proving action in conformity with that previous behavior.

FRE 404(b) prohibits evidence of other crimes to prove character and action in conformity with earlier criminal behavior. But — and of course there's a “but” — evidence of other crimes can be used for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” (FRE 404(b))

So, who can think of a way that arson, sexual assault or disorderly conduct could substantiate motive, opportunity, intent, etc. with respect to the present embezzlement charge? Any postulation would likely present a pretty thin stretch.

That leaves answer choice B: A 12-year-old conviction for embezzlement. And that was the correct answer choice.

Remember on this question it’s the answer that’s “most likely.”
Let’s hope in a real world court room, a timely objection would be made to exclude under the rule that any relevant evidence may be excluded where its probative value is substantially outweighed by the risk of unfair prejudice. (FRE 403)

Admitting the 12-year-old conviction for embezzlement in a current trial for embezzlement would be tantamount to adopting the doctrine of “once a thief, always a thief,” and therefore constitutes blatant prejudice.

There’s already plenty of that kind of prejudice going around in society at large, but let’s hope legal officers keep it out of the courtroom.
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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 further be advised that the state of current law may not be accurately reflected.

Malapropisms Everywhere

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.

“I think we agree, the past is over.”

“Justice ought to be fair.”

Two very memorable quotes from former President Georgia W. Bush on different occasions. These are examples of some of his more innocuous ones, in the course of a presidency notorious for his malapropisms.

Then there’s Sarah Palin, Joe Biden and Dan Quayle; and the list goes on.

Of course everyone makes the occasional language gaffe, or uses a term out of context from that to which the listeners are accustomed. In earlier postings, I’ve pointed out the fact that language really is as individual as each of us, and it’s a constant challenge to ensure there’s enough overlap among our languages that we can effectively communicate.

I was working in a newspaper newsroom in 2008-9 when the Tea Party movement burst into the headlines. Mostly, the editors noticed that movement’s eruption because they initially called themselves “Teabaggers.” 

They had apparently always intended to leverage reference to the Boston Tea Party to characterize their populist revolt against tax and spending, one of their signature issues, but alternative possible meanings seemed to have escaped their notice.

But to many segments of society, the term “teabagger” referenced an entirely different activity, that had nothing to do with a tax protest.

It was a prime example of how even “common language” can differ in meaning among different groups and in different contexts.

These days, it is even difficult to find a reference to that time, unless one happens to have been a member of the movement, or like myself, in the news media watching it unfold. After awareness of that gaffe surfaced: then zap! Rewind, revise and reinvent! I give the organizers credit, because in short order they had orchestrated one of the most effective media blitzes that all but eradicated that early gaffe.

I ran across an MBE practice question that reminded me of the “teabagger” affair. It even brought to mind one of Dan Quayle’s more memorable occasions: “Republicans understand the importance of bondage between a mother and child.” Ahem. (Well, I have lived in San Francisco!)

Here it is:

During a gang shootout in a city, a gangbanger looked for a rival among the combatants because he wanted to kill him. Believing a bystander to be the rival, the gangbanger shot at the bystander and missed. The bullet passed through a window and killed a homeowner who was asleep on her sofa.

[I hope everyone sees the “gangbanger” is guilty of attempted murder and murder.]

Maybe it’s my sordid past, and my sordid past  in journalism as well, or maybe I’ve just seen too many Jodie Foster movies, but I just immediately thought the crime of rape was also going to be on the . . . er . . . pinball machine, so to speak.

But nope.

I consulted a long-time police officer friend of mine: he said “gangbanger” is commonly accepted in law enforcement circles as being synonymous with “gang member.” (I was a bit nonplused that after a decades-long career in news media, that I had somehow missed that.)

Urban Dictionary

[http://www.urbandictionary.com/define.php?term=gangbanger]

and even Merrium Webster online

[http://www.merriam-webster.com/dictionary/gangbanger]

both concur with that.

Still, I think the editors here should have heard alarm bells go off and could have been a bit more thoughtful: I wasted 1.8 seconds looking for rape.

Substituting the less inflammatory, and less prurient, term “gang member” would not have affected the fact pattern and may have been just a tad more sensitive.

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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 further be advised that the state of current law may not be accurately reflected.

License or Profit?

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.

I agree with Mr. Emerson that “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

But when it comes to identifying and referring to legal principles, surely law students everywhere can agree that consistency of terms is not only not foolish, but vital to communicating accurately and effectively, not to mention success on the bar exam and the MBE.

A farmer asked his adjoining neighbor if he could build an irrigation ditch from the neighbor’s natural fresh-water spring to his property to provide water for his cattle. Because the spring supplied more than enough water to meet the neighbor’s needs, she agreed, provided that the farmer construct the ditch in such a manner that it would need the least maintenance possible, so that he did not need to continually enter her land. The farmer constructed a concrete irrigation ditch from the spring to the land at a cost of $25,000. The only maintenance required on the ditch was a semiannual cleaning. Three years later, the neighbor informed the farmer that her water needs had increased, and he could no longer take water from the spring. In addition, the neighbor did not allow the farmer onto her land to do the semiannual cleaning, resulting in the blocking of the ditch. The farmer wishes to keep water flowing through the irrigation ditch to his land.

Which of the following would be the farmer’s strongest argument?

A. The farmer owns a valid easement appurtenant to the neighbor’s property.

B. Because the neighbor has allowed the farmer to construct the irrigation ditch, the neighbor would be estopped from preventing the farmer from coming onto her land.

C. The farmer, although a licensee, has expended such a substantial sum of money in constructing the irrigation ditch that the neighbor may not terminate the farmer’s license now.

D. The farmer, although a licensee, may continue to enter the neighbor’s property to clean and maintain the ditch until he is able to acquire another source of water.

Note the italics that have been added to highlight the term “licensee” in choices C and D.

Use of that term seems to be confusing because there’s a permissive entry by farmer onto the land of neighbor for the purpose of taking something off. If left to that simple formulation, that sounds like the definition of a profit a prendre, or more simply called a profit.

Stoebuck and Whitman in their real property hornbook, the Third Edition of The Law of Property, state: “Profits allow some substance to be severed and removed.”

They further note that the removal of water not owned by the landowner is deemed an easement. That would fit into answer choice A.

Here, the water removed from a spring on the neighbor’s property is likely to be the neighbor’s property. So that seems to put it back into the category of a profit.

Except . . .

Except, one distinction between profit and license is that a profit, as an interest in land, is subject to the Statute of Frauds, while a license, as a mere privilege, isn’t. There are no facts as to that, and full performance removes the Statute of Frauds issue anyway. 

Another distinction is that a profit, as an interest in land is perpetual, terminated expressly by conditions in the writing, or by release from the profit holder; licenses are freely revocable (with some exceptions, of course).

It is said that the MBE is all about testing the fine-line distinctions and nuances in the law. But there are many areas of the law — this being one — where there just aren’t clear distinctions, either fine-line or bright-line.

Stoebuck and Whitman in their hornbook acknowledge the muddle in this area even as they incorporate a discussion of licenses made irrevocable by the licensee expending significant money or labor to make use of the license, and where the landowner should reasonably anticipate that expenditure by the licensee.

Basically, the authors seem to indicate that once a license is made irrevocable, it ceases to be a license and becomes something more: an actual interest in land in the form of a profit or an easement.

Therefore, the use of the term licensee is at best confusing and at worst misleading.

The answer key identifies C as the correct answer, apparently because of the farmer’s expenditure, duly anticipated (neighbor’s dictation of condition as to ditch construction) by the neighbor, to transform this into an irrevocable license. But that concept itself turns on a principle of estoppel.

So it seems that answer choice B is just as reasonable. It could be argued it might even be a more reasonable choice because it doesn’t attempt to name the interest as profit or license, which even as experts in this field acknowledge, is not so clear cut as to be easily testable on the MBE through a simplistic multiple choice question.

So the quandary is trying to find consistency of terms in a conceptual area so nebulous: consistency requires definitiveness, and definitiveness requires distinction. Where A could possibly equal C or B, or even A, consistency, Aristotle would have agreed, is simply not possible.

Given the amorphous nature of these concepts in the current law, acknowledged even by textbook authors, this topic needed to be saved for an essay.

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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 further be advised that the state of current law may not be accurately reflected.

Individuals Separated by a Common Language

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.

I’ll classify this real property question under “Tricky Diction,” but it could fit just as easily under “Confusion.”

A homeowner, just before going on an overseas trip, gave his brother a power of attorney to sell his house, which stated: “My brother is specifically empowered to sell and convey all or any part of the real property owned by me as of this date.” Several weeks later, the brother sold the homeowner’s house to a buyer and conveyed to her a customary deed containing convenants of title. A year later, when the homeowner returned from his trip, he was served with a complaint by the buyer, who was suing him for breach of covenant because it turned out that the homeowner’s ex-wife owns one-half interest of the house that the brother had sold on his behalf.

In this suit, the buyer should:

I added the italics, and before reviewing the answer choices, let me rant: What the heck is a “customary deed”?

I don’t know about other law school real property courses, but I was taught there are three types of deeds:

1. General Warranty Deed that includes all present and future covenants;
2. Special Warranty Deed that includes only present covenants;
3. Quitclaim Deed that is limited to whatever interest, if any, the grantor may have.

I did not ever learn about something called a “customary deed,” nor did I encounter that term in any of the cases that accompanied my real property course or bar review.

In the cosmic scheme of things, this illustrates an important aspect of the human condition: our vulnerability to the limitations of language as understood by each of us, and the fact that each of us really speaks our own individual language. Hopefully, that language is based on a common root language, and for the most part meanings among individual languages will overlap enough that so that we won’t blow ourselves up as a result of translation confusion — though wars, fisticuffs and verbal offence are common enough from simple language differences and misunderstandings.

Law, of course, depends on language, and understanding the inherent dangers of language limitations is one reason legal documents are so tediously detailed: they attempt to define all the terms so everyone understands the words to have one specific meaning in that specific context.

However, with respect to the MBE and test preparation, the translation confusion such as is presented in the above question is merely a means to muddle the test takers. Is this a serious, legitimate method of testing or is it just that somewhere, in some room, some formulator was having a bad day or is just normally sadistic and thought: “Let’s just rattle their cages by using nonstandard language in this subject area; some will panic and get it wrong.”

And yes, it gets more irritating, because here is the correct answer:

Not prevail, unless the power to “sell and convey” is construed to include the power to execute a usual form of deed used to convey real property.

Here we go again: intentional attempts to muddle our minds with meaningless doubletalk.

Each of the three type of deeds mentioned above ARE, as far as I know, a “usual form of deed,” depending on the circumstances and exactly what the grantor wants to convey. And by definition — assuming we all have the same or closely similar understanding of these words — “customary deed” is perforce a “usual form of deed.”

Also, prospective MBE takers are well acquainted with the negative form of answer, but it is still the most common device used to confuse. If your mind doesn’t automatically translate, and nagging doubts remain, then take the extra few seconds to rephrase into a positive, in this case: “Prevail because the power of the brother to sell and convey homeowner’s real property is valid.”

Too Simple

As long as we’re on real property, try this, though not really a nit:

A landowner gratuitously conveyed his interest in land to a friend by quitclaim deed. The friend promptly and properly recorded her deed. Six months later, the landowner conveyed his interest in the same land to an investor for $50,000 by warranty deed, which was promptly and properly recorded.

As between the friend and the investor, who has the superior right of title to the land?

A.   The friend, regardless of the type of recording statute.

B.   The friend, because she recorded prior to the investor recording.

C.   The investor, regardless of the type of recording statute.

D.   The investor, because it took by warranty deed rather than quitclaim deed.

If everyone is really “promptly and properly” with their quitclaim and warranty, respectively, who wins?

Correct choice: A. It harks back to a basic common law principle still often good law that first in time is first in right. But this is one of those answers where test takers might be tempted to think, “That’s so simple it must be wrong.” One had to remember that a properly recorded conveyance cannot be snatched away through use of recording statutes, and it makes no difference if the grantee was a donee or buyer. Recording provides notice and prevents anyone — in this case, the investor — from later becoming a bona fide purchaser for value or BFP.

One major clue here was that the fact pattern did not mention what type of recording statute, which by deduction indicates that was of no importance.

If the editor in me really wanted to pick nits: some sloppy construction that uses extraneous and unnecessary words, a strange use of a neuter pronoun, and an incorrect pronoun antecedent. But who’s keeping score?

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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 further be advised that the state of current law may not be accurately reflected.

Alliteration Overdose

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.

Alliteration Overdose

Obviously, I’m working my way through practice materials from 2009, and this one got under my skin. Maybe it’s just me.

A state’s commercial code provides, in part, that “the minimum price of cheese sold in this state shall be $2.50 per pound.”

As to which of the following persons would the state statute be most likely constitutionally applied?

a.     A resident of the state selling cheese in that state to a manufacturer of snack foods whose plant is located in a neighboring state.

b.    A resident of Canada selling cheese made in Canada to the citizens of the state.

c.     A resident of the state selling cheese to the Commissary at the United States Air Force Base in the state.

d.    A resident of the state selling cheese to the state Department of Education for its use in its school lunch program.

Now, I don’t know about you, but this question really discombobulated me. From the inarticulate call of the question — “… likely constitutionally…” — to the annoying alliteration overdose of “s,” this question just downright irritated me.

Of course, that made me want to get it right even more, but in a timed setting, such emotional responses run the risk of inducing test takers to spend too much time, overanalyzing and second-guessing themselves.

First, the call. Fortunately, this pattern is so short, it’s the exception to the rule and it’s really unnecessary to read the call first, because you’ll only be re-reading it in 15 seconds.

I struggled with the form: “most likely be constitutionally applied.” Maybe that's because students are taught — at least I was — to analyze from the opposite point of view: determine why it’s unconstitutional? So the reversal confused me. There goes a few precious seconds! 

“Which situations are unconstitutional?” is the question I asked myself to check off those circumstances and by process of elimination leave me with the sole remaining constitutional choice.

Remember, states cannot regulate interstate commerce, except where Congress has authorized them to do so, OR where Congress has not expressed an intention dominating a particular area of regulation AND where the state regulation in that area does not discriminate or unduly burden interstate commerce.

Let’s look at the answers and spot the tipoffs.

A.   State resident selling into a neighboring state. Tipoff: interstate commerce where a fixed price would be burdensome if higher than market price, even though the regulation, in applying to all cheese transactions, is nondiscriminatory.

B.   Foreigner selling cheese into the state. Tipoff: international commerce and that power exclusively belongs to Congress.

C.   State resident selling to the federal government. Tipoff: Nothing to do with interstate commerce — states simply cannot regulate the federal government.

And the winner is:

D.   State resident selling to state agency. Tipoff: intrastate and no apparent undue burden on interstate commerce.

Time to move on!

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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 further be advised that the state of current law may not be accurately reflected.

Confusion Challenges Confidence                                                                                                               

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.

Confusion Challenges Confidence

Here are a couple of types of MBEs I lump under the “Confusion and/or Supposition” category. Both come from a bar prep course of 2009.

One fact pattern concerns a contract for the sale of a fur coat. 

Upon delivery, a missing button prompts the buyer to reject the coat. The seller offers to have the button replaced at the earliest opportunity, the next regular work day. 

The call of the question asks for the buyer’s legal position. 

The salient point is that no matter how slight, this is an imperfect tender — a tender of nonconforming goods. So the test taker must resolve the perfect tender rule with the legal options available. 

The perfect tender rule allows a buyer to reject any nonconforming tender, even if, as here, the imperfection is not a material breach in the value of the contract goods. 

Complications to the perfect tender rule provide for allowing a seller to cure not just by time due for contract performance, but beyond that time, so long as the extension of time is within a reasonable time. What is a reasonable time extension is a contextual matter of the type and value of goods, among other factors.

The correct answer choice in this case states: “The customer may reject the coat, but she must give the salon owner an opportunity to cure.”

But the structure of this answer is inherently illogical, and therefore naturally confusing.

The concluding clause “she [buyer] must give the salon owner an opportunity to cure” logically implies that the buyer, in fact, has no immediate option to reject; rather she must provide the seller an opportunity to cure, and not just by the contractual time performance is due, but she must give seller a reasonable time beyond.

Law students have seen this often, where the rules of linguistic logic seem to muddle the principle: If the buyer must give the seller reasonable time to cure, then logically there is no immediate right for the buyer to reject the goods.

I, for one, would like to see the writers pay closer attention to their diction in both fact patterns and answer choices. Perhaps a better phrasing would have been to incorporate a qualifier, like “the customer may initially reject the goods . . . but also must give the seller time to cure.”

Try this example, also from the same bar prep course, and also another contracts fact pattern:

Farmer sent an “offer to sell to the bakery 100 bushels of wheat at $30 each.”

That was the “meat of the coconut” so to speak, and seems perfectly straightforward.

Yet, each of the answer choices introduces a novel aspect that somehow that offer was ambiguous. The reasoning in each of the answer choices presents new suppositions. In one answer choice, the farmer failed to state it was a single lot only. In another choice, “attempted formation is flawed by ambiguity so that the minds of the parties never met.” Yet another answer choice suggested that parol evidence is admissible on the question whether the offer contemplated sale of the wheat as a single lot or piecemeal.

This is not an uncommon ploy: The fact pattern is perfectly straightforward, yet new suppositions are insinuated into the answer choices, which, upon reading causes the test taker to doubt what he read to begin with.

We ask ourselves: “What did I miss?”

Basically, this style of question-answer format causes the test taker to question his own understanding of the fundamental principles involved.

This is an insidious format. It would be one thing if the language in the fact pattern had introduced some measure of ambiguity, such as “… offered to sell as many as 100 bushels” or “offered up to 100 bushels.” 

But to read a seemingly straightforward offer and then to have doubt thrust onto the test taker by the introduction of new suppositions in the answer choices is particularly confusing.

It’s a challenge not to let these types of questions chip away at one’s self-confidence. And that effect is cumulative. But self-confidence is a vital component of getting through the MBE: Be confident after having completed all the course work, and also, hopefully, either a third-party or comprehensive home-grown bar review course.

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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 further be advised that the state of current law may not be accurately reflected.

Smoke & Mirrors

Smoke & Mirrors

Let’s try this sample questions from one of the bar review course practice exam material from 2009: the dreaded subject of real property:

Thirty years ago, a power company constructed a power dam on a river. At the time the dam was constructed, the power company solicited easements from all of the landowners in the river valley, including a farmer. The power company paid fair value for the easements, which would allow the company to release water from the dam at certain times of the year, resulting in flooding of the land in the river valley.

In the 30 years since the dam was constructed, the farmer’s property has never been flooded, and the farmer has been using his land in the same way as he did 30 years ago. Now, however, the power company wants to substantially increase power production from the dam. All landowners in the valley were notified by the company that henceforth all 200,000 acres (including the farmer’s 200 acres) would be flooded in accordance with the company’s easement. The farmer reviewed the easement for his property and discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded. The state’s adverse possession statute requires hostile occupation for a period of 20 years.

May the power company properly flood the farmer’s land under the terms of the easements?

This is a prime example of many different principles of MBE preparation. First, note the multitude of issues raised by the language of this fact pattern:

— “solicited easements”; raising the issue of easements in general.

— “paid fair value”; raising the notorious bonafide-purchaser-for-value (BFP) specter.

— “farmer . . . using his land in the same way as he did 30 years ago” and coupled with the later phrase “state’s adverse possession statute”; raising the issue of termination of easement by prescription.

— “Now . . . power company wants to substantially increase power production”; raising the issue of surcharging the easement.

— “farmer reviewed the easement . . . discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded”; raising both a possible conveyancing signature issue and the statutory recordation issue.

And those issues with corresponding language are used in the answer choices.

This question illustrates why MBE takers should always read the call of the question first, as advised by review courses for both MBE and essay questions. By reading the question first, takers are alerted to the specific issue(s) involved and better able to focus. 

Failing to read the call first, an astute reader gradually becomes overloaded as he registers each of those distinct issues that could possibly be involved in the correct answer. If the test taker reads the call first, that narrows the correct answer choice as he reads to involving the validity of the easement. So armed, after reading first that there exists easements, the taker moves beyond issue No. 1, and quickly sees issue No. 2 of BFP as simply a gratuitous distractor. The taker does have to consider issues Nos. 3 and 4: whether the farmer terminated the easement sufficiently by prescription. But those issues only need to be considered if issue No. 5 is resolved positively; that is, if the easement was validly created in the first place.

So issues 1 through 5 are “smoke.” The “mirrors” come in on issues No. 1 and No. 5: and they're not simple mirrors, but ones more likely comparable to those in carnival funhouse, where appearance is distorted. And here, there’s not much fun in the distortion.

The only issue that matters, as indicated by the call of the question, is issue No. 5: the legal validity of the easement. The facts specifically state that Power Company “solicited easements” and “paid fair value,” so presumably, straightforward express easements in gross were created. Easements are an interest in land, so express easements must comply with the statute of frauds and be in writing and signed by the person to be charged — in the case of easement, the holder of the servient estate. So, to be valid, the easement granted to Power Company by the Farmer would have had to be signed by the Farmer.

But it’s important to note the fact that the indication that each landowner signed their respective grant of easement is perforce a supposition. The facts don’t indicate it specifically, which they might have done simply with language like “the easements were all properly executed” or similar. Such language would have definitively indicated that each landowner had signed the easement conveyance. So readers in this case don’t know definitively, but are left to suppose that the easements were validly executed by including the signatures of the grantors. 

This is a common tactic in MBE practice questions: readers are required to “fill in the blanks” through supposition. Make the wrong supposition, or fail to make any supposition, and the reader will quite understandably be led astray into choosing the wrong answer.

So, in this case, here comes that “funhouse” mirror distoring the appearance of the circumstances, and placed just before the question call: “The farmer reviewed the easement for his property and discovered that it lacked the requisite grantor’s acknowledgment and thus was improperly recorded.”

Where does that come from? What does “requisite grantor’s acknowledgment” mean? My Real Property course didn’t include any lectures on that requirement of a “grantor’s acknowledgment,” and I don’t remember any cases from the course work using that language. Could it be that “grantor’s acknowledgment” is a synonym for “signature”? As a matter of logic, common use and tradition, a person’s signature in a transaction is of course an acknowledgment that an agreement was made; an acknowledgment of the meeting of the minds, so to speak.

Ack! Confused? That, I regret, is the point.

The distortion is meant to confuse meanings, make test takers second-guess themselves and wonder what the words really mean, if anything.

The only clue here is that end phrase “improperly recorded.” Is there a recordation issue here such that the easement grant might be invalidated? Conveyances of interests in land do not have to be recorded to be legally valid. Recordation becomes an issue only when a party seeks the protection of the recordation statutes to prevail in ownership. Because the recordation issue is raised as part of this inexplicable “acknowledgment” issue, and there is no recordation issue, I surmise that this is a convoluted distractor, which is presented as an alluring answer choice.

Leveraging the recordation non-issue to eliminate that as a distractor, leaves the reader with the determination that the “solicited easements” were in fact validly executed, with the all necessary signatures. Therefore, the easement granted by Farmer is legally valid (mere nonuse insufficient to terminate), and the Power Company has the right to use the easement according its terms. It’s the simplest answer, and in this case was the first presented. 

But all that smoke, let alone the mirrors, made this a rather challenging example.

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 further be advised that the state of current law may not be accurately reflected.