PACE UNIVERSITY SCHOOL OF LAW
PROPERTY II -- VERSION A
May 20, 1997
TIME LIMIT: 2 1/2 HOURS
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This examination consists of multiple choice questions. Answer the questions on the answer sheet provided. Write "Version A" on the answer sheet. Write it NOW. Also write your examination number where it says "Write I.D. Number Here," and then carefully mark your number in the blue-striped box labeled "Mark I.D. Number Here." Do not skip lines. You should mark only one box in each of the first five lines for your five digit examination number.
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 or else the question will be marked wrong. 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 be penalized if you do not mark darkly enough.
When you complete the examination, turn in the answer sheet 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. Davis bought a small warehouse that he wanted to convert to a discount retail store. In order to get building department approval for alterations, Davis has to provide fire exits on both sides of the building. It would be an easy matter to install the required fire doors, but one side of Davis's building abuts land belonging to Corder, who uses the area next to Davis's building as a driveway. For a price, Corder is willing to let Davis have an "easement" for emergency egress from the proposed fire doors. If Corder grants the easement to Davis, it would presumably be (unless otherwise specified):
a. An appurtenant easement.
b. An accessory easement.
c. An easement by necessity.
d. An easement in gross.
2. Reanswer the previous question.
3. Assume that Corder granted Davis the needed easement in the preceding question. Davis later conveyed his store to Home Max, a large home-improvement supply chain. The deed to Home Max did not make any express reference to the easement. The original deed by which Corder granted the easement said that "grantee" shall have use of the easement. Presumptively:
a. Home Max would not be entitled to use the easement in connection with the store.
b. Home Max would have an easement by necessity in connection with the store if the store would otherwise be illegal under the local fire laws.
c. Home Max would have an easement by implication in connection with the store if the store would otherwise be illegal under the local fire laws.
d. The easement would have passed to Home Max as an appurtenance to the dominant tenement conveyed by Davis.
4. Reanswer the previous question.
5. Weller's house was built on a corner lot that is much larger than any of the surrounding lots. As a result, Weller has an exceptionally large "side yard." Now Weller wants to subdivide, selling the "side yard" to someone who would buy it to build a house there. A contract to sell the side yard has been made with Harper. The only problem is that the new lot described in the contract is a few square feet short of the 7,000 sq.ft. minimum which the local zoning requires for a building permit. If Harper discovers the existence of the minimum-lot-size zoning rule before closing, and the zoning law would probably prevent Harper from getting a building permit to build on the lot:
a. Harper should be able to reject Weller's title on the ground that the building permit requirements, as applied in this instance, render the title unmarketable.
b. Harper should be able to reject Weller's title if the contract of sale expressly made the purchaser's obligation contingent on being able to get a building permit.
c. Both of the above.
d. None of the above. There is no way that the presence of the building permit requirements could give Harper an excuse to get out the contract.
6. Reanswer the previous question.
7. The Bradfords bought a lot near the beach in the 1977. The grant included "an easement for pedestrian use only" on a path leading to the ocean. The path lies on land owned by Tonette. The Bradfords never made use of this easement because they had a far more convenient ocean access over land owned by their friends, the Larkins. Although the location of the easement is now overgrown with woody vegetation, there were never any words or conduct inconsistent with future use. Last winter, the Larkins sold their land, and the Bradfords want to reopen the path.
a. The Bradfords probably have a right to clear the path and commence use of the easement.
b. The easement is probably extinguished by prescription.
c. The easement is probably extinguished by abandonment.
d. The easement is probably extinguished by estoppel.
8. Reanswer the previous question.
9. An easement in gross is usually transferable:
a. In connection with a transfer of the dominant tenement.
b. When the easement is a "commercial" easement rather than a mere personal one.
c. If has been created by implication from prior use.
d. None of the above. An easement in gross in never transferrable.
10. Reanswer the previous question.
Facts for Fredrics-Marsh questions
Fredrics bought a house on a large parcel in a semi-rural area. Back when the house was built by a previous owner, an underground septic field was placed on the eastern side of the parcel, the only place where the soils were suitable for this important facility. There was, however, no surface indication of the septic field's location, and there still is not. Recently, to raise some needed cash, Fredrics conveyed the eastern part of his land, including the area with the septic field, to Marsh.
11. Marsh discovered the septic field a few months after the conveyance, while doing some test borings. Now Marsh wants the septic field removed. The actual location of the septic field has come as a genuine surprise to both Fredrics and Marsh, but Fredrics will incur a fair amount of expense if the septic field cannot stay where it is. If Fredrics wishes to claim an easement by implication from prior use to have the septic field continue on Marsh's land, factors that would tend to weigh against him include:
a. The use was not very apparent at the time of the conveyance to Marsh.
b. Fredrics would be a grantor claiming an easement by implied reservation, rather than a grantee claiming by implied grant (at least this would be a problem in some states).
c. Both of the above.
d. There was no quasi-easement at the time of the conveyance to Marsh.
e. All of the above.
12. Reanswer the previous question.
13. Suppose that when Fredrics conveyed to Marsh he expressly reserved an easement to maintain the underground septic field on the premises conveyed. Marsh then bought an adjacent property and built his home there, using the land acquired from Fredrics as an extended yard. Two years later, Marsh planted a beautiful ornamental garden over the area occupied by the underground septic field.
a. In planting the garden, Marsh is trespassing on Fredrics's rights and Fredrics can have the garden dug up any time he wants.
b. Fredrics can have the garden dug up if, at any time, it becomes necessary to do so in order to carry out needed maintenance or repair of the septic system.
c. Marsh's possessory rights to the land acquired from Fredrics are clearly paramount under these facts, and Fredrics would have no right to dig up Marsh's garden without Marsh's consent.
d. Marsh does not violate Fredrics's rights by having a garden, but if Fredrics wants to use the septic field area for something else, such as grazing his horse, Fredrics has the final say.
14. Reanswer the previous question.
15. Suppose that Fredrics had conveyed the western part of his land to Marsh (the part with the house) and retained the part that has the septic field on it. Suppose also that, according to the deed, the grant to Marsh "included...an easement for the grantee, his heirs and assigns, to maintain an underground septic field on the premises retained by grantor hereunder, forever." Finally, suppose that this deed to Marsh was recorded in the normal way right after it was delivered. If Fredrics later sold the retained (eastern) part to Beziers, who purchased without actual notice of the easement or the septic field, the express easement for the septic field:
a. Would not be enforceable against Beziers in states that apply the "direct chain of title" rule.
b. Would be enforceable against Beziers despite the "direct chain of title" rule because it is an affirmative rather than a negative easement.
c. Would be exceptionally hard for a title searcher to find in the ordinary course of searching the title to the Beziers land.
d. Would have been an easement by reservation.
16. Reanswer the previous question.
17. Orburg and Ross owned Dirtacre as joint tenants. Orburg was the sole occupant, without any agreement by or payments to Ross. In the absence of a special statute relating to adverse possession of concurrent estates:
a. Orburg would probably become the sole owner of Dirtacre once he has been in sole occupancy for the normal period specified by the general statute of limitations on ejectment.
b. Orburg's sole occupancy, even without an "ouster," would ordinarily be considered hostile for purposes of the statute of limitations on ejectment.
c. In most states, a large indebtedness to Ross would pile up based on Orburg's sole enjoyment of land which belongs to the two of them.
d. Until sole title ripens in Orburg, Ross could maintain an ejectment action against Orburg if the latter refuses to allow Ross to join in possession of the property.
18. Reanswer the previous question.
19. For the last 12 years, Tinkerton has been "walking" his dog on an empty lot adjacent to his own backyard. The lot belonged to Krant, who paid little attention to these activities. Four years ago, however, Krant sold to Welbourne, who built a house on the lot. The area where Tinkerton has been walking his dog is now part of Welbourne's backyard. About 3 years ago, Welbourne sent the Tinkerton the first of a series of letters and notes protesting the "trespasses" and resulting "filth" on Welbourne's property, and demanding that Tinkerton cease and desist. Now Welbourne is erecting a fence that will keep Tinkerton out.
a. Since Tinkerton had been obviously using the area for a long period of time prior to the purchase by Welbourne, Tinkerton probably has already acquired an easement by implication based on his prior use.
b. If the area where Tinkerton walked his dog was already subject to a utility company easement, it would not be possible for Tinkerton to establish a "second" easement on the area already occupied by the utility company easement.
c. In states that apply the strict traditional version of the "lost grant" fiction, Welbourne's remonstrances should have been sufficient to keep Tinkerton from acquiring an easement by prescription.
d. In states that apply the strict traditional version of the "lost grant" fiction, Welbourne's remonstrances would tend to show "acquiescence."
20. Reanswer the previous question.
Facts for Narbonne-Cosmo questions
Narbonne conveyed a large parcel of heavily wooded riverside land to Cosmo Electric Co., which intended eventually to set up a hydropower generating station on the premises. In the promptly recorded deed, Narbonne reserved for himself "his heirs, successors and assigns" an "exclusive perpetual right to hunt and fish on the premises conveyed hereby," and Cosmo covenanted that the premises "shall never be developed for purposes other than hydroelectric generation." At the time of the deed to Cosmo, Narbonne owned an adjacent parcel of land on which he had a hunting lodge.
21. If Narbonne has conveyed his parcel with the hunting lodge to Fripp, and Cosmo has conveyed its parcel to H & R Vacation Homes, Inc.:
a. Fripp probably has a right to use the H & R parcel for hunting and fishing.
b. Narbonne probably has a right to use the H & R parcel for hunting and fishing.
c. Both of the above.
d. The hunting and fishing easement was presumptively extinguished when Narbonne ceased to have any use for it.
22. Reanswer the previous question.
23. If Narbonne still owns the parcel with the hunting lodge, but Cosmo has sold its parcel to H & R Vacation Homes, Inc.:
a. Narbonne can probably enforce the restrictive covenant against H & R--in part because the covenant touches and concerns the land.
b. Narbonne can probably enforce the restrictive covenant against H & R--in part because there is "privity of estate."
c. Both of the above.
d. None of the above. Narbonne probably cannot enforce the restrictive covenant against H & R.
24. Reanswer the previous question.
25. If Narbonne still owns the parcel with the hunting lodge, but Cosmo has sold its parcel to H & R Vacation Homes, Inc., Narbonne can probably enforce the restrictive covenant against H & R as an equitable servitude:
a. Whether or not H & R bought with actual notice of the covenant, as long as Narbonne's deed to Cosmo was recorded before H & R bought.
b. Even if H & R had no notice whatsoever of the covenant when it purchased the land.
c. Both of the above.
d. None of the above. This restriction was created as a real covenant, not an equitable servitude and, therefore, it cannot be enforced as an equitable servitude.
26. Reanswer the previous question.
27. Suppose that Cosmo still owns the parcel that it bought from Narbonne, but that Cosmo's upstream riparian neighbor, a municipal water works, used its eminent domain powers to condemn Cosmo's hydropower generation rights in the river.
a. It is now indisputably unfair to enforce the restrictive covenant against Cosmo because that would leave Cosmo with no use whatsoever of its property.
b. There is authority holding that, under circumstances similar to these, the covenant should be declared extinguished because otherwise Cosmo now has no valuable use of its property at all.
c. Both of the above.
d. While the covenant might be enforceable against Cosmo, it could not be enforced against a purchaser from Cosmo under the rule against horizontal privity.
28. Reanswer the previous question.
29. Daniels conveyed Greenacre to "Kelton and Kelly Sandstorm and their heirs." If Kelton and Kelly were husband and wife and this all occurred in New York then they presumptively received the land as:
a. Community property.
b. Joint tenants.
c. Tenants in common.
d. Tenants by the entirety.
30. Reanswer the previous question.
31. Assume again that Daniels conveyed Greenacre to "Kelton and Kelly Sandstorm and their heirs." If the state in which the Sandstorms reside (and in which Greenacre is located) is a community property state, and the property was purchased entirely out of money earned by Kelly during the marriage, then presumptively:
a. Mr. Sandstorm could unilaterally dispose of the whole of Greenacre at any time.
b. The Sandstorms would each enjoy an indestructible right of survivorship in Greenacre.
c. Greenacre would be owned 50-50 by the Sandstorms.
d. The Sandstorm's rights depend of the local common law rules that establish and define community property.
32. Reanswer the previous question.
33. Assume again that Daniels conveyed Greenacre to "Kelton and Kelly Sandstorm and their heirs." If the Sandstorms received Greenacre as tenants by the entirety:
a. In some states either of them could separately convey an interest in Greenacre to a third party.
b. In some states neither of them could separately convey any interest in Greenacre to a third party.
c. Both of the above.
d. Either of them would have a right to partition as against the other.
34. Reanswer the previous question.
35. For many years, Lara let her six neighbors use a shortcut lane across her land to reach the nearby highway. In 1994, the lane was deeply rutted and Lara asked the six to contribute $1000 each to get it paved "so we all can use it." Nothing was put in writing, but Lara assured the six that, in exchange for the money, they could use the lane for as long as they liked. They each paid Lara $1000, and the money was used for the paving. Lara has now moved away, and the new owner put a locked gate across the entrance to the lane, preventing the six neighbors from using it.
a. Because the neighbors paid money (a consideration) to use the lane, they have an irrevocable contract right to do so, and their use of the lane cannot legally be prevented.
b. The neighbors seem to have a fairly strong case for asserting an irrevocable right to use the lane as an executed parol license.
c. Both of the above.
d. Because the neighbors had at most only a license, they have no legal recourse.
36. Reanswer the previous question.
37. Willie and Milt owned Officeacre as joint tenants. They leased the property to Caster:
a. Any rent payment that either Willie or Milt receives from Caster would belong to the one who actually receives it, with no obligation to share with the other.
b. Willie and Milt would each have the right, at any time, to enter and share the possession with Caster, provided that in such a case Caster would only have to pay rent (at half the normal rate) to the other.
c. Both of the above.
d. Any rent payment that either Willie or Milt receives above his own proportionate share would have to be paid over to the other.
38. Reanswer the previous question.
39. Willie and Milt owned Officeacre as joint tenants. Milt conveyed his interest to Temple:
a. Willie and Temple would be joint tenants of Officeacre.
b. Temple would be the sole owner of Officeacre if Willie later died before Temple.
c. Temple would be the sole owner of Officeacre if Willie later died before Milt.
d. Willie and Temple would be tenants in common of Officeacre.
40. Reanswer the previous question.
41. Barnaby Betthem bought a house in a residential neighborhood. Last month his neighbor, Clark E. Clerke, began raising chickens in his back yard. The smells and early morning crowing are more than Betthem can take. In the chains of title to Clerke's and Betthem's respective lots there are covenants that prohibit the "keeping of any livestock or fowl" on the property. The covenants were put there by the original developer of the tract in which Clerke and Betthem live. If Betthem wants to enforce the covenant in Clerke's chain of title by means of a suit for damages, he should be prepared to show that:
a. The covenant touches and concerns the land.
b. There is privity of estate.
c. Both of the above.
d. The original parties to the covenant intended it to run with the land.
e. All of the above.
42. Reanswer the previous question.
43. Suppose that Betthem and Clerke lived in a so-called common-interest development, and their chains of title contained covenants creating a governing board, elected by the lot owners, to oversee and enforce all applicable covenants and, as desirable, to make new rules to apply to parcels in the development. Under the emerging law concerning covenants for common-interest developments:
a. The court would probably be especially hostile to enforcing the livestock/fowl covenant on the theory that people who live in close proximity need to learn to get along.
b. The livestock/fowl covenant would probably be unenforceable unless the court could make an independent finding that, in the estimation of the court, the covenant was objectively reasonable as applied in the particular instance.
c. It is possible that Betthem and Clerke could be subjected to new restrictions on use that did not even exist at the time they purchased their respective properties.
d. The use restrictions applicable within the development would generally be valid only if they were of the sort that could have been adopted by the municipality under its ordinary zoning power.
44. Reanswer the previous question.
45. Ransard owns a 500 acre tract of mountain land still in its natural state. Last year he sold a one-acre parcel at the summit to Cell-O-Phone Co., which intended to place an antenna there. The grant included an "easement of way for ingress and egress" across the land retained by Ransard, but made no mention of the antenna, cables or purposes for which Cell-O-Phone bought. Ransard now has sued to enjoin Cell-O-Phone from putting in a cable to the antenna site.
a. Cell-O-Phone probably has an easement by implication to put in and maintain the cable.
b. Cell-O-Phone probably has an easement by necessity to put in and maintain the cable.
c. Cell-O-Phone probably has an easement by prescription to put in and maintain the cable.
d. Cell-O-Phone likely has no right whatsoever to put in and maintain the cable.
46. Reanswer the previous question.
47. Franklin owns a piece of land with a small house on one corner of it. Although Franklin's land has road frontage, the existing driveway to the house crosses land belonging to Swift. Franklin received an express easement to use this driveway when he acquired his land from Swift. Recently, Franklin acquired several additional acres behind and adjacent to his property. This latter acreage, which Franklin bought off the back of Roanoke's land, has no road access. Franklin plans to build a second house there.
a. Franklin would have a right to use the driveway easement to access the second house just as he may use it to access the existing house.
b. Franklin would have an easement by necessity to access the second house via the driveway across Swift's land
c. If Franklin accesses the second house via the existing driveway he would be exceeding the scope of the easement because he would be trying to add on to dominant tenement.
d. If Franklin begins to access the second house via the driveway across Swift's land, the normal remedy would be for the court to order the driveway easement extinguished for overuse or misuse.
48. Reanswer the previous question.
Facts for Fairbone-Peche questions
Fairbone wanted to sell his house and telephoned Benton, a real estate broker, and asked him to find a buyer willing to pay at least $285,000. Three weeks later, Benton introduced Fairbone to Peche, who made an offer of $280,000 for the property.
49. Fairbone said "OK" to Peche's offer, and Peche gave him a check for $2,000 as deposit. At this point:
a. Benton would be considered to have earned his commission under the majority rule.
b. Fairbone would not be liable to pay Benton a commission because the price offered by Peche is less than Fairbone told Benton that he wanted.
c. Fairbone would not yet be liable to pay Benton a commission because the deal still has not closed.
d. Fairbone would not be liable to pay Benton a commission because there is no indication on these facts that Fairbone ever agreed to pay Benton a commission.
50. Reanswer the previous question.
51. A few days after Peche made his offer, Fairbone's lawyer sent Peche's lawyer a draft contract of sale. The draft contract provided that purchaser would take "subject to all conditions, covenants and restrictions of record." The property is in a residential development where all lots are under identical and reciprocal equitable servitudes as part of a common plan or scheme of development.
a. Peche's lawyer should object to including the quoted provision, as now drafted, in the contract because it exposes Peche to an unnecessary risk of difficulties in the using the property.
b. Even if the quoted provision were in the final contract, Peche could still reject Fairbone's title if the equitable servitudes render the title unmarketable.
c. The equitable servitudes would not be enforceable anyway unless the restrictions they impose are no greater than already those imposed under the local zoning.
d. From both parties' point of view, the better drafting solution would have been to add the following words to the quoted provision of the contract: "provided the same do not render the title unmarketable."
52. Reanswer the previous question.
53. After signing the contract to purchase Fairbone's property, Peche received a phone call from Tenway, who lives immediately behind Fairbone. Tenway claims that, for more than ten years, he maintained a garden in what is now the back portion of Fairbone's lot, where Fairbone's swimming pool is now. The contract provides that Fairbone shall convey by quitclaim deed.
a. On the basis of this call alone, Peche should be able to reject Fairbone's title as unmarketable.
b. If Tenway's allegations of past use turn out to be substantially corroborated, Peche should be able to reject Fairbone's title as unmarketable.
c. Even if Tenway's allegations of past use turn out to be substantially corroborated, Peche may not reject Fairbone's title if Fairbone can provide evidence that would counter any claim that Tenway might make to the area in question.
d. Under the better and more sensible rule, Peche should not be able to reject Fairbone's title on grounds of unmarketability because the contract provides that Peche must accept a quitclaim deed.
54. Reanswer the previous question.
55. If, in the preceding question, the factual claims of Tenway turn out to be substantially corroborated, Tenway's possible rights to the area that he formerly gardened:
a. Would provide Peche with a basis for rejecting Fairbone's title only if those rights turn out to be in fact legally valid and enforceable.
b. Would, if valid, give Peche a basis to recover damages for breach of contract from Fairbone even if Peche goes ahead and accepts a quitclaim deed at the closing.
c. Would be definitively resolved (one way or the other) by an action to quiet title.
d. Would not provide a basis for Peche to reject Fairbone's title as long as Fairbone was willing to accept a reasonable reduction of the contract purchase price.
56. Reanswer the previous question.
57. Assume again that Peche entered a contract to buy Fairbone's real property. In preparing for the closing, Fairbone's lawyer drafted a deed to be signed by Fairbone. When the lawyer showed the draft to Fairbone the day before the closing, Fairbone read it and signed it, without being instructed to do so. The lawyer gaped in astonishment and said: "What did you go and do that for?"
a. Fairbone has blundered badly and, inadvertently, he has already conveyed his property to Peche without receiving any money.
b. Fairbone need not worry that he has already conveyed his property to Peche because the conveyance is not complete until the deed is delivered.
c. Fairbone need not worry that he has already conveyed his property to Peche because the conveyance is not complete until the deed is recorded.
d. Even after the deed is delivered, the conveyance can be easily undone by a reverse delivery for the purpose of correcting any mistakes that might be found in the deed.
58. Reanswer the previous question.
59. Several months before conveying title to Peche, Fairbone had taken out a "home-equity" loan pursuant to which he put a mortgage on his house. The lender did not, however, record this mortgage, and nobody thought of it in connection with the sale and conveyance to Peche. Peche was, of course, totally in the dark.
a. In a jurisdiction that has a "notice" type recording act, Peche's title would not be subject to the mortgage and could not be subjected to it, even if Peche himself does not record his deed.
b. In a jurisdiction that has a "race-notice" type recording act, Peche's title would not be subject to the mortgage and could not be subjected to it, even if Peche himself does not record his deed.
c. Both of the above.
d. None of the above. The only way that Peche can get a title that is free of the mortgage, under any kind of recording act, is for Peche to record his deed.
60. Reanswer the previous question.
<End of examination.>