PACE UNIVERSITY SCHOOL OF LAW

 

PROPERTY II -- VERSION A

PROFESSOR HUMBACH                                                                                        May 18, 2000

FINAL EXAMINATION                                                                          TIME LIMIT: 3 HOURS

 

IN TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE SCHOOL OF LAW RULES AND PROCEDURES FOR FINAL EXAMINATIONS.  YOU ARE REMINDED TO PLACE YOUR EXAMINATION NUMBER ON EACH EXAMINATION BOOK AND SIGN OUT WITH THE PROCTOR, SUBMITTING TO HIM OR HER YOUR EXAMINATION BOOK(S) AND THE QUESTIONS AT THE CONCLUSION OF THE EXAMINATION.

 

DO NOT UNDER ANY CIRCUMSTANCES REVEAL YOUR IDENTITY ON YOUR EXAMINATION PAPERS OTHER THAN BY YOUR EXAMINATION NUMBER.  ACTIONS BY A STUDENT TO DEFEAT THE ANONYMITY POLICY IS A MATTER OF ACADEMIC DISHONESTY.

 

GENERAL INSTRUCTIONS:

            This examination consists of multiple choice questions and an essay question, on which the maximum score is 20 points. Answer the multiple choice questions on the answer sheet provided. Write "Version A" on the answer sheet. Write it NOW. Also write your examination number on the answer sheet. Answer the essay question in a Bluebook.

 

            Answer each question selecting the BEST answer.  Mark your choice on the answer sheet with the special pencil provided. Select only one answer per question. If you change an answer, be sure to FULLY erase your original answer or the question may be marked wrong. Make sure your answer marks are dark. You may lose points if you do not mark darkly enough.

 

            When you complete the examination, turn in the answer sheet and Bluebook(s) together with this question booklet.

 

            Every even-numbered multiple choice question asks you to reanswer the preceding odd-numbered question. Question 2, for example, asks you to reanswer question 1. If you are fairly confident about your answer to the principal question, mark the same answer for the "reanswer" question. If you can narrow the choice down to two answers, however, and cannot decide which of the two is the better one, you may wish to mark a different answer on the "reanswer" question. IMPORTANT NOTE: If you decide to mark a different answer on a "reanswer" question, at least one of your two answers will be wrong.

 

            Unless the context otherwise requires (such as where the facts are specifically stated to arise in New York), base your answers on general common law principles as generally applied in American common law jurisdictions.  Do not assume the existence of any facts or agreements not set forth in the questions. Unless otherwise specified, assume that the period of limitations on ejectment is 10 years.


1. The amount of notice required to terminate:

 

            a. A term of years for less than one year is one month's notice.

 

            b. A periodic tenancy from month to month is one month's notice, specifying a termination date that is the end of a period.

 

            c. A term of years for one year or more is six month's notice.

 

            d. All of the above.

 

2. Reanswer the previous question.

 

 

3. In a sublease, as opposed to an assignment:

 

            a. The original tenant remains in both privity of estate and in privity of contract with the landlord.

 

            b. The original tenant is relieved of the obligation to pay any further rents, and that obligation devolves on the new tenant ("subtenant").

 

            c. The landlord's prior consent is necessary as a matter of common law, even if the lease does not specify that such consent is required.

 

            d. The landlord is entitled to collect rents from either the old tenant or the new tenant, whichever the landlord chooses.

 

4. Reanswer the previous question.

 

 

Facts for Solloway questions

Solloway owns a parcel of country land ("Parcel A") on which he has a house. He currently reaches his property by way of an easement running from the highway across land belonging to Young. The easement was expressly created by a 1987 deed stating that the easement was "for the benefit of Parcel A."

 

5. Recently, Solloway bought 10 additional acres ("Parcel B") adjoining the back of Parcel A. The 10 acres was formerly part of a 40 acre tract owned by Canfield. Parcels A and B have not been in the same ownership since 1893. Solloway proposes to reconvey Parcel B to his son Jake, who will build a home of his own there:

 

            a. Solloway can lawfully convey to Jake a right to share use of the easement across Young's land so that Jake can use it as his access to Parcel B.

 

            b. If Jake were to share use of the easement across Young's land as access to Parcel B, it would be an unlawful overuse or misuse of the easement.

 

            c. Under these circumstances, Jake should have a fairly good claim to an easement by necessity across Young's land if Parcel B would otherwise be landlocked and useless.

 

            d. Solloway's easement would be automatically extinguished if he attempted to convey a shared right to use it to Jake.

 

6. Reanswer the previous question.

 

 

7. Suppose that Solloway ceases using the access easement that he has across Young's land and, instead, uses a driveway on the other end of his own property, a driveway that is entirely on Solloway's own land. Shortly thereafter, Young builds a swimming pool and bathhouse that both straddle the location of Solloway's access easement under the 1987 deed.

 

            a. If Solloway told Young that he never intended to use the access easement again, Young would have a pretty good case for claiming successfully that Solloway's easement was extinguished by estoppel.

 

            b. Even if Solloway didn't tell Young that he didn't intend to use the access easement again, Young would still have a pretty good case for claiming successfully that Solloway's easement was extinguished by estoppel.

 

            c. Both of the above.

 

            d. By virtue of extended non-use alone, Solloway's easement would be probably be extinguished by abandonment.

 

            e. All of the above.

 

8. Reanswer the previous question.

 

 

9. L leased an apartment to T for a term of 5 years. The lease provided that L was to supply heat, which was necessary to keep the premises livable.

 

            a. The heat provision would simply duplicate the traditional common law rules, under which L would be responsible for maintaining the premises in habitable condition.

 

            b. If L didn't supply the necessary heat, T could remain in possession and withhold rent without fear of eviction under the traditional common law rules.

 

            c. If L didn't supply the necessary heat, the doctrine of constructive eviction would allow T to abandon possession and, if he did, T's obligation to pay rent would be suspended or extinguished.

 

            d. If L didn't supply the necessary heat, T would have no legal recourse under the traditional common law rules since, under those rules, the covenants in leases are independent.

 

10. Reanswer the previous question.

 

 

11. L leased an apartment to T for a term of 5 years. Under the traditional common law rules, if T moves out after 3 years and mails the keys back to L:

 

            a. T's obligation to pay any further rent would be terminated.

 

            b. T could continue to have an obligation to pay the full rent as it comes due for the remainder of the original lease.

 

            c. T would be liable to L, but only for the difference between the agreed rent under the lease and the (lesser) fair market value of the premises.

 

            d. T could be held liable to L in respect of future rent obligations only if L made a good faith effort to relet the premises to somebody else.

 

12. Reanswer the previous question.

 

 

13. L leased an apartment to T for a term of 5 years. Under the traditional common law rules, if T remains in possession after the end of the 5-year term:

 

            a. L may hold T for a new term.

 

            b. T becomes a tenant at sufferance.

 

            c. L can remove T in an ejectment action.

 

            d. All of the above.

 

14. Reanswer the previous question.

 

 

15. Robert and Susan Monroe are married. Since getting married, Robert saved some money from his job and bought a motorboat. Susan took some of her personal inheritance and bought a sports utility vehicle. Presumptively:

 

            a. The vehicle belongs solely to Susan and the motorboat solely to Robert if they are in a community property state.

 

            b. Both the vehicle and the motorboat are shared 50-50 by Susan and Robert if they are in a "common law" property state.

 

            c. The vehicle belongs solely to Susan and the motorboat is shared 50-50 by her and Robert if they are in a community property state.

 

            d. Both the vehicle and the motorboat are shared 50-50 by Susan and Robert if they are in a community property state.

 

16. Reanswer the previous question.

 

 

17. L leased Greenacre to T for five years. The lease contained the usual promise to pay rent. Two years later, T was transferred by his employer and he assigned the lease for remaining time in the term to his acquaintance, Q. After occupying and paying rent to L for six months, Q abandoned without legal cause and has ceased to pay rent.

            a. For the remaining duration of the lease term, L would be entitled to recover rent from either Q or T, as it comes due.

 

            b. For the remaining duration of the lease term, L would be entitled to recover rent only from Q.

 

            c. For the remaining duration of the lease term, L would be entitled to recover rent only from T.

 

            d. None of the above. Neither T nor Q is any longer in privity of estate, so the obligation to pay rent is extinguished.

 

18. Reanswer the previous question.

 

 

19. In order for T to have avoided future rent liability after the assignment to Q in the preceding question, he should have:

 

            a. Obtained L's prior consent to make Q a subtenant.

 

            b. Obtained L's prior consent to the assignment to Q.

 

            c. Neither of the above is correct. T could not in any event have been liable for rent after the assignment to Q.

 

            d. None of the above is correct.

 

20. Reanswer the previous question.

 

 

Facts for Sawyer-Pelman questions

Sawyer owned a house that he wanted to sell. A local real estate broker introduced Sawyer to Pelman, a prospective buyer.

 

21. Sawyer and Pelman have agreed on a price, and they intend to sign a detailed contract of sale as soon as practicable. In the meantime, the broker has suggested that they "hold" the deal by signing a binder form, prepared by the broker. The form sets forth the price, the location and the parties' names. Just above the signature lines is a sentence: "This agreement to sell and buy shall be binding upon and inure to the benefit the parties named above." If properly advised:

 

            a. Sawyer should make sure that the quoted sentence is replaced with "This is not a Contract" (or the like) before he signs, though Pelman would probably be just as well off leaving the quoted sentence in.

 

            b. Pelman should make sure that the quoted sentence is replaced with "This is not a Contract" (or the like) before he signs, though Sawyer would probably be just as well off leaving the quoted sentence in.

 

            c. Both parties should make sure that the quoted sentence is replaced with "This is not a Contract" (or the like) before they sign, given that they want to sign a detailed contract of sale.

 

            d. Neither party should allow the quoted sentence to be replaced with "This is not a Contract" (or the like). Such a change in the wording of the binder would make it legally meaningless, and there would be no point in signing it.

 

22. Reanswer the previous question.

 

 

23. Suppose again that Sawyer and Pelman entered into a contract for the sale of Sawyer's house to Pelman, and Pelman paid Sawyer a down payment of $35,000. A title search on behalf of Pelman revealed that Sawyer's name does not appear in the grantee index at the Recorder's Office. Sawyer explained that the reason is that he acquired title by adverse possession. Pelman should not be entitled to reject Sawyer's deed and get back the $35,000 down payment:

 

            a. If Sawyer had previously brought a suit to quiet title which resulted in a final judgment declaring title in fee simple absolute to be in Sawyer.

 

            b. If Sawyer displayed evidence to show that he had, in fact, acquired a ripened title by adverse possession.

 

            c. Both of the above.

 

            d. If Sawyer is willing to convey by a warranty deed.

 

            e. All of the above.

 

24. Reanswer the previous question.

 

 

25. Suppose again that Sawyer and Pelman entered into a contract for the sale of Sawyer's house to Pelman. Sawyer delivered a deed to Pelman at the closing. Later that day, Pelman noticed that there was an error in the courses and distances description in the deed. As a consequence, the courses and distances description did not describe a "closed" polygon. This problem would be cured:

 

            a. If Pelman makes the necessary correction on the deed that has been delivered to him so that the deed, as recorded, will be correct.

 

            b. If the deed, as delivered to Pelman, also contained a map description that correctly described the premises to be conveyed.

 

            c. Either of the above would (by itself) cure the problem.

 

            d. None of the above. The only way to take care of this problem is to make and deliver a new deed.

 

26. Reanswer the previous question.

 

 

27. A conveyance was made to "Pete, Petra and William Randolph and their heirs." Pete and Petra are husband and wife. William is their adult son. In a state that recognizes the tenancy by the entirety, this conveyance would presumptively result in:

 

            a. A three-way tenancy in common among the three grantees.

 

            b. A tenancy in common among the three grantees and their respective heirs.

 

            c. A tenancy by the entirety between Pete and Petra, as to an undivided one-half, and a tenancy in common between them and William who, as tenant in common, would own the other undivided one-half.

 

            d. A tenancy by the entirety between Pete and Petra, each with an undivided one-third, and a tenancy in common between them and William who, as tenant in common, would own the other undivided one-third.

 

28. Reanswer the previous question. Facts for Easterbrook-Bowers questions.

Bowers bought a 60-acre parcel from Easterbrook, in order to build a summer home. The parcel, shown as parcel "B" on the map below, was conveyed to "Bowers and his heirs."

        |H |__________________________________

        | I |               |                 |

        |G |   "A"      |    "B"        |

        |H |---------------------|

        |W|_______|________ |

        |A |

        |Y |

Immediately prior to Bowers' purchase, parcels "A" and "B" were both owned by Easterbrook. At the time of conveyance, there was a visible lane on the ground, which shown as a line running from the second "H" in highway in the map above.

 

29. Assume that the deed from Easterbrook to Bowers stated: "This conveyance includes a permanent right of way to be located on the existing lane between the highway and premises conveyed." Bowers would presumptively have:

 

            a. An appurtenant easement.

 

            b. An attendant easement.

 

            c. An easement in gross.

 

            d. A license to use parcel "A".

 

30. Reanswer the previous question.

 

 

31. Assume that the deed from Easterbrook to Bowers did not mention any easements but that, prior to the conveyance, Easterbrook had long used the lane running across parcel "A" in order to gain access to the land that is now parcel "B":

 

            a. If Easterbrook had used the lane for a long enough period, an easement by prescription may have arisen for the benefit of parcel "B," and Bowers (as owner of parcel "B") would now be entitled to use this easement.

 

            b. These facts appear to support finding an easement by implication benefitting parcel "B".

 

            c. Both of above.

 

            d. These facts provide no plausible basis for finding an easement benefitting parcel "B".

 

32. Reanswer the previous question

 

 

33. Assume again that the deed from Easterbrook to Bowers did not mention any easements but that, prior to the conveyance, Easterbrook had long used the lane running across parcel "A" in order to gain access to the land that is now parcel "B". If a court were to find that an easement was created by Easterbrook's conveyance, it would, on these facts, almost certainly be:

 

            a. An easement by implied grant.

 

            b. An easement by implied reservation.

 

            c. An easement by prescription.

 

            d. These facts provide no plausible basis for finding an easement benefitting parcel "B".

 

34. Reanswer the previous question.

 

 

35. Assume again that the deed from Easterbrook to Bowers did not mention any easements and that there was no lane. Prior to the conveyance, Easterbrook had never utilized any particular part of parcel "A" in order to gain access to the land that is now parcel "B". Without a means of ingress and egress, however, Bowers could make no use of parcel "B".

 

            a. There is no likely way that Bowers could enforce any kind of legal right-of-way across the lands retained by Easterbrook.

 

            b. Bowers would seem to have a strong case for asserting a quasi-easement across parcel "A", but nothing more.

 

            c. Bowers would seem to have a strong case for asserting an easement by prescription across parcel "A".

 

            d. Bowers would seem to have a strong case for asserting an easement by necessity across parcel "A".

 

36. Reanswer the previous question

 

 

 

 

Facts for Tessier-Sanders questions.

Sanders bought parcel "S" from Tessier, who conveyed to "Sanders and his heirs."

        |   |__________________________________

        |H |             |                  |

        |I  |     "T"    |      "S"       |

        |G |             |                  |

        |H |______|_________|

        |W|           |                |

        |A |   "Q"   |     "R"     |

        |Y |______|_______|

        |    |

Just prior to Sanders's purchase, Tessier owned both parcels "T" and "S".

 

37. Assume that the deed from Tessier to Sanders did not mention any easements. If Sanders were to try to assert that he had an implied easement by necessity across parcel "T", which of the following additional facts would (if true) work most strongly against him?

 

            a. When Sanders bought parcel "S", he already owned parcels "Q" and "R".

 

            b. The deed from Tessier to Sanders did not mention any appurtenances.

 

            c. Tessier had never used any particular part of parcel "T" in order to gain access to what is now parcel "S".

 

            d. All of the above would work strongly against a claim by Sanders of an implied easement by necessity.

 

38. Reanswer the previous question.

 

 

39. Assume that Sanders does have an implied easement by necessity across parcel "T":

 

            a. Even if Sanders later buys parcels "Q" and "R", the easement would continue for as long as it is convenient to the use of parcel "S".

 

            b. Even if Sanders later buys parcels "Q" and "R", the easement would continue for as long as it is reasonably necessary for the use of parcel "S".

 

            c. If Sanders later buys parcels "Q" and "R", the easement by necessity across parcel "T" would probably be extinguished.

 

            d. If Sanders later buys parcels "Q" and "R" and then sells them again, the easement by necessity across parcel "T" would be first extinguished, then revived.

 

40. Reanswer the previous question

 

 

41. Assume that the deed from Tessier to Sanders stated: "This conveyance includes an easement of way to run between the highway and premises conveyed at a location described as follows: [legal description]."

 

            a. If Sanders later conveys parcel "S" to Sylvester, Sylvester would presumptively be entitled to use the easement in order to get access to parcel "S".

 

            b. If Sanders later subdivides parcel "S" into 2 parcels, the owner of each resulting parcel would presumptively be entitled to use the easement to get access to his/her part of parcel "S".

 

            c. Both of the above.

 

            d. If Sanders later acquires parcel "R," he would presumptively be entitled to use the easement as a means of access to parcel "R" as well as to parcel "S".

 

            e. All of the above.

 

42. Reanswer the previous question.

 

 

43. Suppose that Sanders owns an easement of access across parcel "T" but he finds it more convenient--especially in winter--to get to the highway by trespassing over parcels "Q" and "R". The reason is that Quick and Rick (owners of "Q" and "R") plow a driveway from the highway to a point near boundary between "R" and "S", and Sanders likes to avoid the expense of having his own right-of-way plowed. For 9 years now, Sanders has made many trips per day across parcels "Q" and "R" in the winter months, though he rarely does so during the other three seasons.

 

            a. Quick and Rick have absolutely no reason to worry that Sanders's trespasses might ripen into an easement by prescription because the continuity is interrupted for 8-9 months every year.

 

            b. These facts present a typical situation in which the wrongful use of a neighbor's land will not ripen into an easement by prescription because the use is far too occasional and sporadic.

 

            c. Both of the above.

 

            d. In a year or so Sanders will probably have a good case for asserting an easement by prescription over parcels "Q" and "R" unless Quick and Rick take proper action to the stop the ripening of the easement.

 

 

44. Reanswer the previous question.

 

 

45. Assume that, for many years, Sanders regularly cross-country skied across parcels "Q" and "R" to reach the highway. If these trespasses resulted in an easement by prescription:

 

            a. Sanders should be able to lawfully drive his bulldozer over the easement when there is not enough snow for skiing.

 

            b. Sanders should be able to lawfully run a cable TV wire along the easement that he acquired by trespassing on his skis.

 

            c. Sanders should be able to lawfully cut away encroaching brush and remove fallen logs that impede ski travel along the easement of way.

 

            d. None of the above.

 

46. Reanswer the previous question.

 

 

47. If Tessier's deed conveying parcel "S" to Sanders included an express grant of a license to cross parcel "T" by "pedestrians, automobiles, and other vehicles", with a covenant not to revoke that license as long as Sanders owns parcel "S":

 

            a. Tessier can be legally forced to let Sanders cross parcel "T" as long as Sanders owns parcel "S".

 

            b. Tessier can lawfully cut off Sanders right to cross parcel "T" as a matter of property rights, though he would be liable to pay damages for breach of contract.

 

            c. Tessier can lawfully cut off Sanders right to cross parcel "T", with no liability whatsoever.

 

            d. The arrangement could not be an executed parol license because there was no compliance with the Stature of Frauds.

 

48. Reanswer the previous question.

 

49. At a closing of title, the grantor Kensington signed a deed conforming to the contract of sale, and he handed the deed to the grantee, Fredricks, so the latter could show it to his lawyer. Fredricks then tendered a check for the purchase price. When Kensington saw that the check was drawn on the "West Bank of the Mississippi," he balked and said he'd need a certified check on a local bank. "Meanwhile," said Kensington, "I'll take my deed back." Fredricks complied. This all happened 2 years ago. Since then, the deed has been recorded.

 

            a. There is a presumption that the deed has been delivered.

 

            b. The deed became effective to convey title at the moment Kensington signed it.

 

            c. The deed became effective to convey title at the moment Kensington handed it to the grantee, Fredricks, as described above.

 

            d. There is no way for a court  to decide, from these facts, whether or not the deed should be considered effective to convey title.

 

50. Reanswer the previous question.

 

Facts for Grant-Belmont questions

Grant wanted to sell his house. He asked Reilly, a licensed real estate broker, to try to find him a buyer who would pay at least $300,000 for it. Reilly's efforts produced a potential buyer, Belmont. Grant accepted Belmont's offer of $305,000. Grant and Belmont signed a contract, and Belmont paid Grant a 10% down payment.

 

51. Later, after receiving mortgage approval, Belmont changed his mind and decided not to buy Grant's house. Under the majority (and New York) rule:

 

            a. Reilly would not be able to recover a commission from Grant no matter why the intended sale was not consummated.

 

            b. Reilly might be entitled to a commission from Grant, but only if Belmont changed his mind due to some title defect or other fault on Grant's part.

 

            c. Reilly should be entitled to a commission from Grant even if Belmont changed his mind for purely personal reasons.

 

            d. Reilly would apparently not be entitled to any commission from Grant because the facts do not indicate that Grant ever signed any contract to pay a commission.

 

52. Reanswer the previous question.

 

53. Suppose that Grant and Belmont went through to a closing of title. After delivery of the quitclaim deed, Belmont learned that there was a valid (but unutilized) easement for a driveway across the back of the property. Neither Belmont nor Grant knew about the easement until after the closing.

 

            a. From these facts it does not appear that the existence of the easement gives Belmont any cause of action for damages against Grant.

 

            b. Belmont has a cause of action for damages against Grant based on the implied warranty of marketability contained in the contract of sale.

 

            c. Belmont has a cause of action for damages against Grant based on the deed.

 

            d. If Grant is willing to take the property back, Belmont could reconvey to Grant by simply giving back the quitclaim deed that he received at the closing.

 

54. Reanswer the previous question.

 

 

Facts for Rifton-Cleartone questions

Rifton Rowder conveyed a fee simple in a one-acre plot of elevated land to the Cleartone Cellphone Co. The land was completely surrounded by lands that Rifton retained. The deed to Cleartone expressly provided that the grant included, as part of the conveyance, an "easement of way [over a specifically described lane] for travel between Highway 25 and the lands conveyed" as the one-acre plot.

 

55. As a result of this conveyance:

 

            a. Cleartone received an easement by reservation.

 

            b. Cleartone presumptively received an appurtenant easement.

 

            c. Cleartone presumptively received an easement in gross.

 

            d. All of the above.

 

56. Reanswer the previous question.

57. If, at the time of the conveyance, Cleartone intended and very much needed to use the lane as a location to run cables to an antenna that it planned for the one-acre site, then after the conveyance:

 

            a. Cleartone would be presumptively entitled, under the express easement of way, to run the needed cables along the lane.

 

            b. Cleartone would presumptively have an easement by implication to run the needed cables along the lane.

 

            c. Cleartone would presumptively have an easement by necessity to run the needed cables along the lane.

 

            d. Cleartone is likely to be very disappointed.

 

58. Reanswer the previous question.

 

 

59. If, following the conveyance, Cleartone conveyed its fee simple in the one-acre site to TowerRing Transmission Co.:

 

            a. TowerRing would automatically acquire, in effect, an estate in fee simple in the lane.

 

            b. TowerRing would presumptively be entitled to make the same uses of the lane that Cleartone was entitled to make.

 

            c. Both of the above.

 

            d. The easement over the retained Rowder lands would merge into TowerRing's fee simple title.

 

 

60. Reanswer the previous question.

 

61. If Cleartone conveys a fee simple in half of its one-acre plot "with all appurtenances" to TowerRing Transmission Co.:

 

            a. TowerRing will presumptively be entitled to make the same uses of the lane that Cleartone is entitled to make, and Cleartone will continue to be entitled to make such uses.

 

            b. TowerRing will presumptively be entitled to make the same uses of the lane that Cleartone was entitled to make, but Cleartone will not be entitled to make such uses.

 

            c. Cleartone will presumptively continue to be entitled to make the same uses of the lane that it was allowed to make before the conveyance to TowerRing, but TowerRing will not be entitled to make use of the lane.

 

            d. Neither Cleartone nor TowerRing will be entitled to make use of the lane because, by its attempt to subdivide the easement without permission, Cleartone has caused the easement to be extinguished.

 

62. Reanswer the previous question.

 

 

63. Rifton's deed to Cleartone did not mention any reserved right for Rifton to make any future use of the lane covered by the easement. The uses that Rifton may make of the lane probably include:

 

            a. Travel to, from and between interior portions of his retained land.

 

            b. Running cables to and from interior portions of his retained land.

 

            c. Recreational uses such as sledding down the slope of the lane during the winter.

 

            d. All of the above.

 

            e. None of the above.

 

64. Reanswer the previous question.

 

 

65. Suppose that, under the original conveyance from Rifton, Cleartone had no right to install cables along the lane, but Cleartone did so anyway, and now over 10 years have elapsed since the installation occurred:

 

            a. According to the underlying theory of the "lost grant" fiction, mere verbal and written objections to the cables by Rifton during the 10 years should be enough to prevent the ripening of a prescriptive right to maintain the cables.

 

            b. In many states, Cleartone would have a right by prescription to maintain the cables on the easement even if Rifton did object, verbally and writing, during the 10 year period.

 

            c. Both of the above.

 

            d. None of the above. If Cleartone originally had no right to string cables, Cleartone would still have no such right.

 

66. Reanswer the previous question.

 

 

67. Krenmar conveyed a 20 acre parcel at the rear of his farm to Powell. The 20 acre parcel was landlocked (i.e., had no road access). The deed from Krenmar to Powell made no mention of any easements at all:

 

            a. Powell would probably have an easement by implication to cross Krenmar's land to get to and from the 20 acre parcel if there already was, at the time of the conveyance, a visible existing lane that was, apparently and in fact, often used for such ingress and egress.

 

            b. Even absent an existing lane, Powell would probably have an easement by implication to use some portion of Krenmar's land for travel to and from the 20-acre parcel if such use were absolutely necessary for any beneficial enjoyment of the 20-acre parcel.

 

            c. Both of the above.

 

            d. None of the above. Powell would probably now have to make second deal with Krenmar in order to secure a right to use Krenmar's land for travel to and from the 20-acre parcel.

 

68. Reanswer the previous question.

 

69. Ordinarily, to acquire an easement by implied grant based on prior use, it must be shown that:

 

            a. There was a quasi-easement corresponding to the claimed right of use.

 

            b. The claimed right of use is strictly necessary for the beneficial enjoyment of the alleged dominant tenement.

 

            c. The use of the alleged servient tenement for the claimed purpose was clearly visible at the time it was severed from the alleged dominant tenement.

 

            d. All of the above.

 

70. Reanswer the previous question.

 

 

71. Last month, Ethel signed valid contract to sell her house and lot to Larry. At the closing Larry rejected Ethel's title because he had discovered an enforceable equitable servitude prohibiting the keeping of dogs on the property.

 

            a. Larry's rejection of Ethel's title would be wrongful unless the contract of sale had expressly provided that the presence of such an equitable servitude would constitute a ground for rejecting title.

 

            b. Larry's rejection of Ethel's title would be rightful unless the contract of sale had expressly provided that Larry would take subject to such an equitable servitude.

 

            c. The presence of the equitable servitude, whether or not it was mentioned in the contract of sale, almost certainly would not make Ethel's title unmarketable.

 

            d. Larry risks being held to have acted prematurely. He should have accepted title from Ethel and then sued Grant for any damages incurred when, if ever, he decided to buy a dog.

 

72. Reanswer the previous question.

 

 

73. In 1994, Gerald Applebee conveyed Blackacre to "Norman and Nelson Dodgeson and their heirs." Norman and Nelson presumptively received:

 

            a. A tenancy in common with each other and their respective heirs.

 

            b. A tenancy in common with each other.

 

            c. A joint tenancy with right of survivorship.

 

            d. A joint tenancy but without right of survivorship.

 

74. Reanswer the previous question.

 

 

75. Assume that Norman and Nelson received a tenancy in common. Assume also that Norman entered into and has remained in sole possession:

 

            a. Norman would probably acquire a sole title by adverse possession after 10 years of sole possession.

 

            b. Norman would, under the majority rule, presumptively be liable for rent or damages to Nelson, who is equally entitled to enjoy the benefits of possessing the land.

 

            c. If Norman committed an ouster of Nelson, and Nelson did not effectively act to enforce his right to re-enter, Norman would probably acquire a sole title by adverse possession 10 years after the ouster.

 

            d. All of the above.

 

76. Reanswer the previous question.

 

77. Assume that Norman and Nelson received a joint tenancy in Blackacre:

 

            a. If either of them separately conveyed his own interest in Blackacre to a third party, then neither of them would any longer have a right of survivorship.

 

            b. If either of them separately conveyed his own interest in Blackacre to a third party, the result would be to sever the joint tenancy, making it a tenancy in common.

 

            c. Both of the above.

 

            d. None of the above.

 

78. Reanswer the previous question.

 

 

79. Assume that Norman and Nelson had a tenancy in common in Blackacre. Norman leased his own interest in the premises to Fred for three years.

 

            a. Such a lease would constitute an automatic ouster of Nelson unless Nelson had consented to Norman's making the lease.

 

            b. Nelson would be entitled to share possession of the premises with Fred.

 

            c. The rights of survivorship would be destroyed.

 

            d. The lease would be unenforceable.

 

80. Reanswer the previous question.

 

81. When one joint tenant ousts another joint tenant:

 

            a. The ousted joint tenant is normally thereafter able to recover money from the joint tenant who committed the ouster.

 

            b. The ousted joint tenant is normally thereafter able to maintain an ejectment action against the joint tenant who committed the ouster.

 

            c. Both of the above.

 

            d. The right of survivorship of the joint tenant who committed the ouster is destroyed.

 

            e. All of the above.

 

82. Reanswer the previous question.

 

 

83. If Whiteacre is owned by two cotenants, and one of them dies intestate:

 

            a. The surviving cotenant would be entitled to sole ownership and possession if the two cotenants had a joint tenancy.

 

            b. The decedent's heir would be entitled to an undivided shared possession if the two cotenants had a tenancy in common.

 

            c. The surviving cotenant would be entitled to an undivided shared possession if the two cotenants had a tenancy in common.

 

            d. All of the above.

 

84. Reanswer the previous question.

 

85. The implied warranty of marketability:

 

            a. Protects the buyer against almost any unknown situation or circumstance that might seriously detract from the use or value of the property.

 

            b. Does not apply to title "defects" that the buyer agrees to take subject to in the contract of sale.

 

            c. Applies only to legal impediments that detract from use or value, such as restrictive covenants, equitable servitudes, zoning regulations and easements.

 

            d. Is the portion of the deed providing that the grantee receives a title that is free from reasonable doubt in law or fact.

 

86. Reanswer the previous question.

 

 

Facts for Fenway questions

George and Linda Fenway received a co-tenancy in Greenacre in 1980. In 1990, Denton acquired Linda's undivided interest in Greenacre in satisfaction of a tort judgment that he had against her. Since 1990, however, George and Linda have continued to occupy the property.

 

87. If the Fenways had acquired title as tenants by the entirety, and their jurisdiction follows the New York (minority) approach to this kind of situation, Denton would have acquired in 1990:

 

            a. A right to share possession of Greenacre with George for as long as Linda remains alive.

 

            b. A right to enjoy sole possession of Greenacre at George's death, provided that George predeceases Linda.

            c. A right to maintain an ejectment action against George if the latter refuses to allow Denton to join him in possession of Greenacre.

 

            d. All of the above.

 

88. Reanswer the previous question.

89. If the Fenways had held as tenants by the entirety, and their jurisdiction had followed the majority approach (among jurisdictions that recognize the tenancy by the entirety):

 

            a. Denton would not have been able to levy execution on Linda's undivided interest in Greenacre in the first place.

 

            b. Denton would have acquired in 1990 a right to share possession of Greenacre with George for as long as Linda remains alive.

 

            c. Denton would have acquired in 1990 a right to maintain partition against George.

 

            d. Denton would have become a tenant by the entirety with George.

 

90. Reanswer the previous question.

 

 

91. If the Fenway's estate had been a joint tenancy:

 

            a. George's right of survivorship would be "indestructible".

 

            b. George's right of survivorship would have been destroyed when Denton acquired his interest.

            c. Linda's right of survivorship could have been acquired by Denton.

 

            d. Denton would now be the sole owner of Greenacre.

 

92. Reanswer the previous question.

 

 

Facts for Pritchard-Wellston questions

Pritchard owns a one-family house in a residential development. Wellston, who lives down the street, proposes to convert his house into a two-family structure. Pritchard objects. Pritchard and Wellston both derive their respective titles from Dillon, the original developer. Dillon had placed identical covenants, restricting use to one-family structures, in all of the original deeds to lots in the development (all of which were duly recorded when delivered, in 1921 and 1922).

 

93. Which of the following would (if true) probably prevent Pritchard from holding Wellston to the "one-family covenant"?

 

            a. The local zoning allows a two-family house on Wellston's lot.

 

            b. Wellston did not have actual notice of the covenant at the time he bought his house.

 

            c. Wellston did not have actual notice of the covenant at the time he contracted to buy his house.

 

            d. None of the above would, if true, in itself prevent Pritchard from holding Wellston to the "one-family covenant."

 

94. Reanswer the previous question.

 

 

95. Even though all the original deeds from Dillon were duly recorded and contained the "one-family covenant":

 

            a. The covenant would not likely be enforceable because it does not touch and concern the land.

 

            b. The covenant could not be enforced as an equitable servitude unless it was also contained in the deed delivered to Wellston in the conveyance under which he took title.

 

            c. The covenant could not be binding now, on modern owners, since too much time has passed since the covenant was originally made.

 

            d. The covenant might nevertheless be unenforceable today if there have already been a number of two-family conversions over the years in spite of the covenant.

 

 

96. Reanswer the previous question.

 

97. In order for Pritchard to enforce the covenant as an equitable servitude against Wellston:

 

            a. Pritchard would have to show that Wellston purchased with notice of the covenant.

 

            b. Pritchard would have to show that there was privity of estate between Pritchard and Wellston.

 

            c. Pritchard would have to show both that there was privity of estate between Pritchard and Wellston and that Wellston purchased with notice of the covenant.

 

            d. Pritchard would have to show that the covenant was contained in the deed delivered to Wellston when Wellston acquired his title.

 

98. Reanswer the previous question.

 

99. Jellicoe has a house with a beautiful view of Long Island Sound. For the past 30 years the house, standing in its present location, has enjoyed this view across lands owned by Trent. Now Trent proposes to erect a 15-story apartment building, which will block Jellicoe's view. According to expert appraisers, the effect will be to reduce the value of Jellicoe's property by $100,000.

 

            a. Jellicoe probably has, after 30 years, acquired an easement by implication to protect his view.

 

            b. Jellicoe probably has, after 30 years, acquired an easement by prescription to protect his view.

 

            c. Jellicoe could not have an easement by prescription to protect his view because enjoying the view is not a wrongful or "adverse" use of the land owned by Trent.

 

            d. Jellicoe could not have an easement by prescription to protect his view because, for policy reasons, the law does not recognize easements to protect views.

 

100. Reanswer the previous question.

 

ESSAY QUESTION

            Rennett owns a house and lot that is part of a 50-lot subdivision created in the 1950's by Kogan, a developer. Kogan originally sold the property to Altman, as a new house and lot, in 1951. The deed to Altman contained a restrictive covenant stating that "the front porch on the existing or any future house on the premises shall not be enclosed." In 1958, Altman conveyed the lot to Bates. The deed to Bates did not contain or refer to any restrictive covenants. In 1964, Bates conveyed the property to Carver, who in turn conveyed to Delmont in 1978. None of these deeds contained or referred to any restrictive covenants, nor did the deed under which Rennett acquired title from Delmont in 1992. When Rennett bought he had no idea that the porch covenant existed.

 

            Rennett wants to enclose the front porch on his house in order to create a sleeping room for his aging father. The next door neighbor, Filmore, objects. He has an appraiser willing to testify that, if Rennett encloses his porch, the market value of Filmore's property will decline between $5000 and $10,000.

 

            Filmore acquired title to his lot in 1988 from Garvey who, in turn, had received title from Eaton. The person who sold to Eaton, a man by the name of Morrisey, was an original purchaser from Kogan, and he bought in 1952. The deed from Kogan to Morrisey, like all the subsequent deeds in Filmore's chain of title, contained the covenant quoted above.

 

            The neighborhood remains pretty much as it has been since the 1950's, except that a couple of people have partially enclosed their front porches. One porch is fully enclosed. These homes are, however, 2-3 blocks away from Rennett's property. The current zoning allows enclosed front porches.

 

            Discuss whether Filmore can get an injunction against Rennett to enjoin his proposed porch enclosure, and whether Filmore could recover damages from Rennett instead of going for an injunction.

                                                              <End of Examination.>

 


Examination Sources: SP96; SP98