PACE UNIVERSITY SCHOOL OF LAW
PROPERTY II -- VERSION A
May 20, 1999
TIME LIMIT: 2 1/2 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.
This examination consists of 40 multiple choice questions and two essay questions (which count 25% each). 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 where it says "Name" on the answer sheet. Answer the essay questions in a Bluebook.
Answer each multiple choice 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 are finished, turn in the answer sheet, Bluebooks and 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. Henry and Marcia became tenants in common of a house that had belonged to their mother. Marcia unilaterally moved into the vacant house and has lived there alone, without paying a thing to Henry, for six years. Under the majority rule, Marcia would be liable in an action for money by Henry:
a. Solely by virtue of the fact that she has held sole occupancy.
b. If she had at some point during her occupancy "ousted" Henry.
c. According to the so-called Statutes of Anne, which allow a cotenant to recover his proportionate share from one who has received more than her proportionate share.
d. Only if Henry could show that Marcia had made an agreement to make payments to him for use of the house.
2. Reanswer the previous question.
3. Suppose in the previous question that Marcia remained in sole occupancy of the house for over eleven years. The probable result under the usual common law rules is that:
a. Marcia's sole occupancy as tenant in common during the eleven years would be presumptively considered to be the possession of both her and Henry, absent an ouster.
b. If Henry just "tolerated" the situation, but Marcia never ousted him during the eleven years, Marcia would not have a sufficient basis for claiming a sole title by adverse possession.
c. Both of the above.
d. Marcia would have a fairly solid basis from claiming that she has become the sole owner of the property by adverse possession.
4. Reanswer the previous question.
5. Fitzward's neighboring owner, Bosch, built a driveway that was, due to a surveying error, partially located on land belonging to Fitzward. To solve the problem, Bosch paid Fitzward $5000, and Fitzward delivered a deed to Bosch conveying an easement to use the area of the encroachment. The easement created by this deed is presumptively:
a. in gross.
b. separately assignable.
6. Reanswer the previous question.
Facts for Torrence-Barker questions
Torrence wanted to sell his house and telephoned Barker, a local real estate broker, saying he wanted at least $350,000 for the property. The two entered into an informal (oral) listing agreement and, several days later Barker introduced to Torrence to Keymon, who offered exactly $350,000. Torrence accepted Keyman as a potential purchaser and they proceeded to negotiate the details. These discussions culminated in a contract of sale between Torrence and Keymon, for $350,000. The contract mentioned no easements or real covenants.
7. Under the majority rule, Torrence would have became legally liable to pay a commission to Barker:
a. When Barker and Torrence entered into the listing agreement.
b. When Barker produced a prospective buyer who was ready, willing and able to purchase on the essential terms specified by Torrence.
c. Only if the listing agreement expressly specified the amount of the commission that Barker was to receive.
d. None of the above. Torrence would not be liable to pay a commission unless the sale eventually closes.
8. Reanswer the previous question.
9. Keymon supplied a 10% down payment to Torrence at the time the contract of sale was signed. If the sale later falls through because the title insurance company discovers a previously obscure easement affecting Torrence's title, then (under the majority rule):
a. Keymon would be entitled to get his down payment back.
b. Barker would still be entitled to his commission.
c. Both of the above
d. Keymon would have to make a choice between either accepting title subject to the easement or sacrificing his down payment.
10. Reanswer the previous question.
11. During the pre-closing investigation it was revealed that Keymon, if he took title under the contract, would not be legally able to build an addition to the house, as he desires. Even so, Keymon would be required to accept and pay for Torrence's title if:
a. The problem was caused only by local zoning restrictions.
b. The problem was caused only by a real covenant applicable to the property.
c. Both of the above (i.e., both are, individually, true).
d. Keymon had not informed Torrence before contracting that he desired to build such an addition.
e. All of the above.
12. Reanswer the previous question.
13. Suppose that a title search revealed that Torrence's record title is defective because a deed in the chain of title was not properly witnessed or acknowledged. However, Torrence has personally occupied the property for 15 years. If Keymon tries to reject Torrence's title at the closing:
a. Torrence could win specific performance provided he can prove, in a suit to enforce the contract, that his possession would have, in any event, given him a ripened title by adverse possession.
b. Torrence will probably have to bring some kind of action, such as an action to quiet title, before he will be able to sell his property for a market price.
c. Torrence will probably be able to compel Keymon to accept his title in a suit for specific performance, provided he offers to accept a lower purchase price to offset the risk posed by the improperly witnessed or acknowledged deed.
d. Keymon can be compelled to accept such title as Torrence has, but Torrence will only have to deliver a quitclaim deed.
14. Reanswer the previous question.
15. Espin and Allard lived next door to each other and, one day, the two of them decided to put in a common driveway along their mutual property line. They orally agreed that they both would share the cost and that they both could use the completed driveway. After in fact sharing the cost, and nine years of both using the driveway, Espin's rights to use the driveway:
a. Should be secure, since there seems to be an agreement with consideration allowing that use.
b. Could never likely ripen by prescription under these facts because, due to the oral agreement with Allard, Espin's use is in no way hostile.
c. Should be legally enforceable since Espin paid half the cost of the paving, so the pavement belongs one-half to him as tenant in common with Allard.
d. Might well be enforceable on the theory of easement by estoppel, or executed parole easement.
16. Reanswer the previous question.
17. Pardeau occupied an apartment under a 2-year lease. Five months into the lease she was told by her employer that she would be transferred to Houston. If Pardeau finds a friend to take over the lease and she makes an assignment of the lease to the friend:
a. Pardeau's friend would become a subtenant.
b. The friend's rent obligation would be owed directly to the landlord.
c. Pardeau would no longer be in privity of contract or privity of estate with the landlord.
d. All of the above.
18. Reanswer the previous question.
19. Assume again that Pardeau occupied an apartment under a 2-year lease and, five months into the lease, she was told by her employer that she would be transferred to Houston. If Pardeau finds a friend to take over the lease and wants to have no further rent obligation under the lease, she should:
a. Assign the lease, rather than sublease.
b. Make a sublease, rather than assign the lease.
c. Get the landlord's consent to a sublease.
d. Neither assignment nor subletting, even with the landlord's consent, would relieve Pardeau of liability for rent under the lease.
20. Reanswer the previous question.
21. Assume again that Pardeau occupied an apartment under a 2-year lease and, five months into the lease, she was told by her employer that she would be transferred to Houston. If Pardeau cannot find anyone to take over the lease:
a. She would be entitled under the common law to be released from her rent obligation in exchange for giving up her security deposit.
b. She might, under the traditional common law rule, be held for the rent as it accrues for the original term of her lease, even if the landlord takes no steps to mitigate.
c. The landlord would be required, under the traditional common law rule, to take reasonable steps to mitigate by finding a new tenant.
d. She might, under the traditional common law rule, be held for the rent as it accrues for the original term of her lease, even if the landlord finds a new tenant and relets the property to him.
22. Reanswer the previous question.
23. Richards occupied an apartment under a 2-year lease. Seven months into the lease the landlord allowed a plumbing problem on the floor above go unremedied and, due to water leakage, Richard's ceiling fell in, making the apartment legally untenantable. Richard would like to move out, but he has nowhere to go. Under the traditional common law approach to this problem:
a. If Richards retains possession he would be expected to pay the full rent, despite the untenantability, on the ground that covenants in leases are "independent."
b. Richards would be entitled to declare a constructive eviction and remain in occupancy rent-free until the problem is fixed.
c. If Richards retains possession he would be expected to pay the full rent, despite the untenantability, on the ground that covenants in leases are "dependent."
d. The lease would be treated like any other contract and Richards would be entitled to withhold rent until the problem is fixed.
24. Reanswer the previous question.
25. In the preceding question, if Richard's jurisdiction has adopted the implied warranty of habitability:
a. Richards would have been entitled to a habitable apartment at the beginning of the lease but not necessarily thereafter.
b. Richards would be under an obligation to keep the apartment habitable at all times during the lease.
c. Richards would be allowed to use the apartment only as a place of habitation.
d. Richards' landlord would have a legal duty to keep the apartment habitable during term of the lease.
26. Reanswer the previous question.
27. Westburn, the owner of 10 acres of land, asked his lawyer draft a deed to convey a certain 4 acres of the property to Griffitt. Due to a clerical error, however, the description in the deed actually described a 6 acre area as the premises to be conveyed by the deed.
a. Once Westburn signs the deed, Griffitt will have legal title to the entire 6 acres.
b. Once Westburn delivers the executed deed, Griffitt will have legal title to the entire 6 acres.
c. Even after Westburn delivers the executed deed, Griffitt and Westburn can fix the clerical mistake by inking in a modification to the deed so that it describes the actually intended acreage.
d. All of the above.
28. Reanswer the previous question.
29. Greylock, the owner of 10 acres of land, asked his lawyer draft a deed to convey a certain 4 acres of the property to Orford. Due to a clerical error, however, the courses-and-distances description in the deed actually described a set of seven line segments that did not close to form a polygon. Greylock signed the deed and delivered it to Orford.
a. The deed, as described, is ineffective to convey any title to Orford.
b. The deed might nevertheless be effective to convey any title to Orford, provided it also contains a "being the same lands" clause that contains a legally sufficient map description of the premises to be conveyed.
c. Both of the above.
d. None of the above. Even if there was an uncured defective courses-and-distances description, the court will uphold the deed and allow in parol evidence of the parties' real intent.
30. Reanswer the previous question.
31. Fermat conveyed Greenacre "to Laurel and Lily and their heirs." Laurel and Lily are business partners and are not married. As result, the grantees presumptively have:
a. A joint tenancy.
b. A tenancy in common.
c. A tenancy by the entirety.
d. Community property.
32. Reanswer the previous question.
33. Fermat conveyed Brownacre to Laurel, Lily and Lulu. The conveyance was effective to make the grantees joint tenants. Subsequently, Laurel died. Brownacre is now owned by:
a. Lily and Lulu, each holding an undivided 50% interest.
b. Lily, Lulu and the heirs of Laurel, each holding and undivided 1/3 interest as joint tenants.
c. Lily, Lulu and the heirs of Laurel, each holding and undivided 1/3 interest as tenants in common.
d. Lily and Lulu, who together hold an undivided 2/3 as joint tenants, and the heirs of Laurel, who hold an undivided 1/3 interest as tenant in common with them.
34. Reanswer the previous question.
35. Dennis conveyed Blackacre "to Phil and Mary, husband and wife, and their heirs" in a state that recognizes the tenancy by the entirety. Later, Phil's personal creditors obtained a large judgment against Phil:
a. If the state law allows Phil's creditors to obtain satisfaction of the judgment out of Phil's interest in Blackacre, the creditors would end up as tenants by the entirety with Mary.
b. In no state that recognizes the tenancy by the entirety would Phil's personal creditors be able to obtain satisfaction of the judgment out of Phil's interest in Blackacre.
c. In all states that recognize the tenancy by the entirety, Phil's personal creditors would be able to obtain satisfaction of the judgment out of Phil's interest in Blackacre.
d. In some states that recognize the tenancy by the entirety, Phil's personal creditors would be unable to obtain satisfaction of the judgment out of Phil's interest in Blackacre.
36. Reanswer the previous question.
37. When Phil and Mary were first married, and for several years thereafter, they lived in a community property state. During that time:
a. All of Mary's earnings from her job belonged 50% to Phil.
b. All gifts made to Mary belonged 50% to Phil, no matter what the donor's intent might have been.
c. All property owned by Phil prior to getting married legally became 50% Mary's after the marriage.
d. All of the above.
38. Reanswer the previous question.
39. A practical effect of the implied warranty of marketability in a contract for the sale of land is:
a. To allow the purchaser, at any time prior to or at the closing, to insist that the vendor have a good title.
b. To allow the purchaser to reject the vendor's title at the closing if there is a title defect that impairs the title's marketability.
c. To allow the purchaser to recover damages for economic loss if the title conveyed at the closing later turns out to have a title defect that seriously impairs the title's market value.
d. To entitle the purchaser to a warranty deed at the closing.
40. Reanswer the previous question.
In 1982, Davidson owned two adjoining lots in what was then a residential neighborhood. During that year, he sold one of the two lots to Quine. The deed to Quine contained a covenant stating that the land Davidson retained would never be used for any purpose other than residential. The deed from Davidson to Quine was duly recorded shortly after it was delivered.
Davidson sold his retained lot to Jimson in 1985, and Jimson resold it to Harmon, in 1990. Neither of the deeds in these latter two conveyances mentioned the residential-use covenant that was in the deed to Quine, and neither buyer had actual notice of it when he bought. In the meantime, Quine also sold his lot, in 1988. After several intermediate conveyances, it is now owned by Kraft. The neighborhood, except for the two lots originally belonging to Davidson, is now almost entirely commercial, and the zoning has been changed to allow commercial use.
Harmon recently made contract to sell his lot to your client, Acme Stores, whose intent was to covert the property to commercial use. The contract mentions no restrictive covenants. Yesterday the title insurance company called to inform you that, in doing their title search, they discovered the residential-use covenant in the deed from Davidson to Quine. They refuse to insure that the property can be lawfully converted to commercial use, even though the local courts follow the so-called "direct chain of title" rule.
Acme wants to know if, on these facts, it can be compelled to perform its contract to purchase from Harmon. List the potential issues that need to be considered in answering Acme's question and give your thoughts on the resolution of each one.
In 1987 Defert sold Thomson a piece of mountain land on which there was a small house. According to the deed, the conveyance included:
"An easement and right of way, for purposes of vehicle or pedestrian travel, on an existing driveway running across the Grantor's adjacent property between the highway and the premises conveyed hereby."
The power lines and telephone lines to house ran on poles located right next to the driveway referred to, but they were not mentioned in the deed.
Last year, Thomson sold his property to Ballard, delivering a deed that did not mention any easements. Defert took an immediate dislike to Ballard after the latter sold a piece off his property to Greffer.
Defert has threatened to take down the power and telephone lines unless Ballard gets rid of Greffer. Ballard has also said that he does not want Greffer using the driveway, ever. Although Greffer's property touches a public roadway, there is no entryway at that location, and constructing one would be very expensive.
1. Can Defert legally stop Greffer from using the driveway?
2. Can Defert legally remove the power and telephone lines?
<End of examination>