mbe study advice needed

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scard

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mbe study advice needed

Postby scard » Thu Jun 14, 2018 11:58 pm

so I'm about 1300 MBES in and I still can't figure out how to assume what a court would think for questions asking if D wins it will be because when D is by law the person who would not normally win.

for example In a question where all the laws would obviously make P win, the question asks " if the court decided for D, it will be because..."

then proceeds to give 4 answers of possible reasons.

I just can't seem to get on par with what the best wrong answer would be and I have trouble assuming why a court would decide for the worst answer. what tips or tricks do you have that could help me think they same way.

I had one question where the right answer would require the court to decide for D based on not applying the law at all and going completely against it rather than interpreting the actions to be consistent with following the law.

here was the question (it was released by NCBE)

Five years ago, Sally acquired Blackacre, improved with a 15-year-old dwelling. This year Sally listed Blackacre for sale with Bill, a licensed real estate broker. Sally informed Bill of several defects in the house that were not readily discoverable by a reasonable inspection, including a leaky basement, an inadequate water supply, and a roof that leaked. Paul responded to Bill's advertisement, was taken by Bill to view Blackacre, and decided to buy it. Bill saw to it that the contract specified the property to be "as is" but neither Bill nor Sally pointed out the defects to Paul, who did not ask about the condition of the dwelling. After closing and taking possession, Paul discovered the defects, had them repaired, and demanded that Sally reimburse him for the cost of the repairs. Sally refused and Paul brought an appropriate action against Sally for damages.

If Sally wins, it will be because

A. Sally fulfilled the duty to disclose defects by disclosure to Bill.

B. the contract's "as is" provision controls the rights of the parties.

C. Bill became the agent of both Paul and Sally and thus knowledge of the defects was imputed to Paul.

D. the seller of a used dwelling that has been viewed by the buyer has no responsibility toward the buyer.




I chose C thinking the court would interpret the actions to be within the laws of legal disclosure but the correct answer was B. From my understanding as-is clauses never relieve the duty to disclose latent defects. so how am I to assume that the court would rule for Sally based on violating all caselaw rather than simply interpreting that Sally fulfilled her obligations of disclosure by Bill becoming the buyers agent and disclosing the defect to a buyers agent is sufficient.

I understand that notice has to be given to the buyer but my question is how do I know which way a court will go when they are applying wrong law? what can I do to start thinking the same way a court would on the MBE for which wrong law would be applied questions?

FinallyPassedTheBar

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Re: mbe study advice needed

Postby FinallyPassedTheBar » Fri Jun 15, 2018 4:24 am

scard wrote:so I'm about 1300 MBES in and I still can't figure out how to assume what a court would think for questions asking if D wins it will be because when D is by law the person who would not normally win.

for example In a question where all the laws would obviously make P win, the question asks " if the court decided for D, it will be because..."

then proceeds to give 4 answers of possible reasons.

I just can't seem to get on par with what the best wrong answer would be and I have trouble assuming why a court would decide for the worst answer. what tips or tricks do you have that could help me think they same way.

I had one question where the right answer would require the court to decide for D based on not applying the law at all and going completely against it rather than interpreting the actions to be consistent with following the law.

here was the question (it was released by NCBE)

Five years ago, Sally acquired Blackacre, improved with a 15-year-old dwelling. This year Sally listed Blackacre for sale with Bill, a licensed real estate broker. Sally informed Bill of several defects in the house that were not readily discoverable by a reasonable inspection, including a leaky basement, an inadequate water supply, and a roof that leaked. Paul responded to Bill's advertisement, was taken by Bill to view Blackacre, and decided to buy it. Bill saw to it that the contract specified the property to be "as is" but neither Bill nor Sally pointed out the defects to Paul, who did not ask about the condition of the dwelling. After closing and taking possession, Paul discovered the defects, had them repaired, and demanded that Sally reimburse him for the cost of the repairs. Sally refused and Paul brought an appropriate action against Sally for damages.

If Sally wins, it will be because

A. Sally fulfilled the duty to disclose defects by disclosure to Bill.

B. the contract's "as is" provision controls the rights of the parties.

C. Bill became the agent of both Paul and Sally and thus knowledge of the defects was imputed to Paul.

D. the seller of a used dwelling that has been viewed by the buyer has no responsibility toward the buyer.




I chose C thinking the court would interpret the actions to be within the laws of legal disclosure but the correct answer was B. From my understanding as-is clauses never relieve the duty to disclose latent defects. so how am I to assume that the court would rule for Sally based on violating all caselaw rather than simply interpreting that Sally fulfilled her obligations of disclosure by Bill becoming the buyers agent and disclosing the defect to a buyers agent is sufficient.

I understand that notice has to be given to the buyer but my question is how do I know which way a court will go when they are applying wrong law? what can I do to start thinking the same way a court would on the MBE for which wrong law would be applied questions?



Here's my real quick analysis of the answer choice that you can use to solve this question in under one minute:

A:
This is a wrong choice because Sally does not have a duty to disclose to Bill (agent). The seller has a duty to disclose to buyer, not to the agent. (Don't get tripped up thinking about state law here. In real life, the seller probably does have some sort of duty to disclose to the agent depending on each state's real property laws. But on the MBE universe, the duty is between seller and buyer, not seller and agent.)

B:
I'm not not totally comfortable with this answer because it seems "absolute", and most absolute answers are wrong on the MBE. But the "as-is" clause seems like it could have some weight, even though I don't really like it, so let me check the other answers first before I decide.

C:
The facts do not suggest that Bill is the agent of Paul. So this answer does not make sense.

D:
This answer is obviously wrong because it ignores the issue of hidden defects. The whole reason for the hidden defect term is to protect the buyer who cannot discover the defect simply by viewing it.


So given these choices, only B can possibly survive. Of the given answers, the only way for Sally to win is for the court to rule that the term "as-is" controls the sale agreement and extinguishes the hidden defect issue. B not a great answer, but all the others are worse answers.

I believe this is one of those questions that should be answered in under 1 minute 25 seconds in order to save time for more difficult/lengthy questions and bathroom breaks.
Last edited by FinallyPassedTheBar on Fri Jun 15, 2018 4:29 am, edited 1 time in total.

FinallyPassedTheBar

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Re: mbe study advice needed

Postby FinallyPassedTheBar » Fri Jun 15, 2018 4:27 am

woops double post

FinallyPassedTheBar

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Re: mbe study advice needed

Postby FinallyPassedTheBar » Fri Jun 15, 2018 4:37 am

BTW , I would not characterize answer B definitively as "wrong law". IMHO, given the facts, the answer is murky at best. But the other answer choices are "more wrong".

scard

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Re: mbe study advice needed

Postby scard » Fri Jun 15, 2018 3:06 pm

FinallyPassedTheBar wrote:BTW , I would not characterize answer B definitively as "wrong law". IMHO, given the facts, the answer is murky at best. But the other answer choices are "more wrong".


I say B is the wrong law because that law is that As-is clauses do not relieve a duty to disclose and never has. so to rule that it would control would be to rule against that statement of law.

but I still don't understand how to figure out which way a court would apply the wrong way of conducting court business.. would they go against one statute or interpret something differently? there should be some way to be able to learn to make these decisions as the court would.

pfunkera

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Re: mbe study advice needed

Postby pfunkera » Fri Jun 15, 2018 3:47 pm

eliminate the wrong choices and go with the "best" option you have left. There was really only one "best" option here as outlined above. On the actual MBE, I recall that on 20-30% of the questions I had to choose between two "best" options. Have fun!

FinallyPassedTheBar

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Re: mbe study advice needed

Postby FinallyPassedTheBar » Fri Jun 15, 2018 5:17 pm

scard wrote:
FinallyPassedTheBar wrote:BTW , I would not characterize answer B definitively as "wrong law". IMHO, given the facts, the answer is murky at best. But the other answer choices are "more wrong".


I say B is the wrong law because that law is that As-is clauses do not relieve a duty to disclose and never has. so to rule that it would control would be to rule against that statement of law.

but I still don't understand how to figure out which way a court would apply the wrong way of conducting court business.. would they go against one statute or interpret something differently? there should be some way to be able to learn to make these decisions as the court would.


I believe that answer B is still the best answer (least worst of bad answers) because it is within the power of the court to interpret the law, (ie interpreting what "as-is" means). Answer C assumes facts not mentioned in the narrative (Paul hiring Bill to be his agent). Answer A relies on a duty that does not exist. And answer D ignores the entire rational for the hidden defect. So given those bad answer choices, B is clearly the only one that can be correct.

Findedeux

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Re: mbe study advice needed

Postby Findedeux » Sat Jun 16, 2018 9:37 am

I'm not sure if the answer is A or B but it's an interesting question.

My notes say that generally you can't avoid your disclosure duties with "as is" disclaimers.

But Themis' long outline states some some states do in fact accept "as is" clauses as a valid waiver of vanilla non-disclosure but not as to misrepresentation or fraudulent concealment. Since there was no misrepresentation or fraudulent concealment here, the "as is" clause could constitute a waiver in a minority of states.

In the real world, most states require real estate agents to disclose when the seller has passed that info on to them.

If anyone has a definitive answer to this question, I would like to know.

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SilvermanBarPrep

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Re: mbe study advice needed

Postby SilvermanBarPrep » Sat Jun 16, 2018 10:48 am

You should classify MBE questions into two categories. Certainly some questions might fall outside these categories, but it's still very helpful. One category asks you to be a judge. For example "for whom should the court rule?" The other asks you to be an advocate, "if the court rules for x, what would be the court's best argument for doing so?"

When they ask you to be an advocate you should view the law less objectively and more with a subjective mindset in favor of your client. In other words, the question here is not whether the "as is" clause is an excellent argument that you'd rule in favor of if you were a judge, but instead whether it's an argument that would be at the very least reasonable to make if you had to make it to advocate for your client. That's what the right answer will come down to--which among the options would be the best argument to make for your client.

Sean (Silverman Bar Exam Tutoring)

JoeSeperac

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Re: mbe study advice needed

Postby JoeSeperac » Sat Jun 16, 2018 10:58 am

I generally tell examinees that the licensed NCBE questions (via Adaptibar, S&T, Barmax, etc) should supplement your MBE practice, but they should not be the primary source of your MBE practice. I divide the released NCBE questions into two categories – OPE questions which were released between 2006-2017 and non-OPE questions which were released between 1991-1998. There are 641 OPE questions (OPE 1-4 exams, MBE Study Aid and various sample questions) versus 1,176 non-OPE questions (1991, 1992, and 1998 exam books). The OPE questions are extremely important and you should review and write rules for every single one of them. This is because the question style and length reflects the current MBE and because the legal principles tested can all be re-tested on the upcoming MBE.

The 1,176 non-OPE questions have limited value because of their age (these questions are from 1972-1998). For example, the released 1991 and 1998 NCBE MBE questions (600 questions) available on NCBE’s website (http://www.ncbex.org/exams/mbe/preparing/) contain warnings that they should not be used for substantive preparation for the MBE. Even more telling is that NCBE no longer provides the MBE 1992 Question Book (which contained 581 questions from 1972-1991) on their site (they used to). If you can find a copy of the MBE 1992 question book on the internet, it contains the following NCBE warning: DO NOT USE THESE QUESTIONS TO STUDY CONTENT FOR THE MULTISTATE BAR EXAMINATION!!”

The question you are having a problem with is a perfect example why. This question is from the MBE 1992 question book. Interestingly, it was also used as a sample question in the MBE Information Books from 2002-2007 and then was removed in 2008 (probably when they realized it was out-dated). This question was likely written 40 years ago, but over the past 20 years or so, the caveat emptor rule has been softened and now a broker can be liable for intentional misrepresentations or affirmative acts to conceal facts or to mislead purchasers about material facts.

Stick with the OPE 1-4 questions and the MBE Study Aid questions – these are the ones most reflective of the current MBE exam (in both style and law) and you won't encounter any confusion over which choice is the correct answer. Furthermore, the question topic distribution of the old NCBE questions is not reflective of the current exam and there are also significant gaps contextually. For example, in the older released NCBE questions, there are only two questions on Double Jeopardy (1/10 of 1% of the questions). In contrast, Double Jeopardy is tested fairly frequently on the current MBE (I expect it to represent about 1% of your total MBE score). Thus, if you only rely on the older released NCBE questions for your knowledge of Double Jeopardy, you will be blind-sided on the MBE exam. The entire area of Constitutional Protection of Accused Persons is severely under-represented in the released NCBE questions (it is just 3% of the older NCBE questions, but expected to be 7% or more of your MBE score). If you miss 50% of the Criminal Procedure MBE questions due to this incomplete knowledge, that represents about 5 MBE points.



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