PACE UNIVERSITY SCHOOL OF LAW

PROPERTY I -‑ VERSION A

PROFESSOR HUMBACH December 20, 2000

FINAL EXAMINATION TIME LIMIT: 3 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.

GENERAL INSTRUCTIONS:

This examination consists of multiple choice questions and true-false 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. 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 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.

Except as otherwise specified, all conveyances are to be considered as if made, in each case, by a deed having the effect of a bargain and sale, after the Statute of Uses, but ignoring the effects of obsolete doctrines such as the Rule in Shelley's Case, the Doctrine of Worthier Title and the destructibility of contingent remainders. Ignore the possibility of dower and, for perpetuities purposes, ignore the possibility of posthumous children in gestation.

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1. Barnby was building a house on a lot next door to Tolland's. Because Barnby's lot was fairly small, he needed to use a few feet of Tolland's property to bring in a concrete delivery truck in order to pour a rear foundation. Unfortunately, a few days previously, Barnby and Tolland had gotten into a sharp argument over damage that some of Barnby's workers had caused to one of Tolland's ornamental shrubs. Accordingly, when Barnby asked permission to have the concrete truck cross Tolland's property, Tolland refused. Barnby ignored the refusal and had the truck go over Tolland's land anyway, causing damage to a few square feet of Tolland's lawn. The damage to the lawn was visible but minimal, and was invisible in a couple of weeks.

a. Barnby would not be considered to have committed a trespass since Tolland had unreasonably denied permission to make brief use of his land.

b. Barnby has committed a trespass, but he should not be liable for any actual damages because Tolland unreasonably denied permission to make brief use of his land.

c. Barnby has committed a trespass and, to deter such conduct, he should be liable for substantial actual damages, whether or not he caused any substantial injury to Tolland's land.

d. Barnby has committed a trespass and, whether or not he is liable for substantial actual damages, there is good authority for holding him liable for punitive damages.

2. Reanswer the previous question.

Facts for the Andrea Gibbons questions.

For the past 37 years Andrea Gibbons has operated a stable that boards riding horses. In recent years, the surrounding neighborhood has become more densely populated, and the neighbors have complained about the large, biting flies that the horses attract. The city Health Commissioner has determined that the flies pose a health hazard, especially to small children. Acting under a statute that authorizes him to abate “dangers to public health,” the Health Commissioner has issued an order requiring all horses be permanently removed from the Gibbons property within 60 days. Only a couple of years ago, Gibbons made a very substantial investment in new structures to accommodate her horse-boarding business.

3. Assume that, if Gibbons’ stables are permanently closed, she will sustain a large financial loss, even though the land will still have significant residual value to her. Based on Miller v. Schoene (the cedar tree/apple tree case):

a. Even if the horses have to go, Gibbons is not entitled to just compensation under the takings clause.

b. If the horses have to go, Gibbons is entitled to just compensation for her loss of business.

c. Under the U.S. Constitution, the government cannot force the horses to be removed from Gibbons' private property on the mere ground that the health detriments to the neighbors “out-balance” the benefits of the horse boarding business.

d. The horses will not have to go unless the operation of Gibbons' business has become a common-law nuisance.

4. Reanswer the previous question.

5. Suppose now that the termination of the stable use will cause Gibbons' property to become essentially worthless because the amount of money required to remove the new structures would exceed the sale value of the land for other uses. Enforcement of the horse-removal order would nevertheless not constitute a compensable taking:

a. If the use of the property as a stable were determined to be a common-law nuisance.

b. If a court could have lawfully enjoined the stable use as a matter of common law, even in the absence of any statute or order by the Health Commissioner.

c. If the prohibition of use for horse boarding could, under the circumstances of this case, be said to inhere in the title itself.

d. All of the above.

6. Reanswer the previous question.

7. The private homeowners in the city of Bridgenorth have a problem: Most of their homes and public streets are built on land that was originally owned by a coal company. The coal company had sold the surface land subject to a retained right to extract the coal underground. The original deeds from the coal company all contained binding contractual waivers of any and all rights to hold the coal company liable for damages that might result from later withdrawals of subsurface support. According to the Supreme Court (in Pennsylvania Coal v. Mahon):

a. It would solve the problem of these homeowners if the state legislature were to pass a statute that prohibits coal mining under cities and towns.

b. For the legislature to make it commercially impracticable to mine certain coal is the same for constitutional purposes as taking it.

c. While property may be regulated to a certain extent, if the regulation causes a substantial diminution in value it will be regarded as a taking.

d. Although the takings clause of the U.S. Constitution would not protect a mere private house, it would permit the community as a whole to protect itself by prohibiting any mine operations that cause damage to or jeopardize its public streets.

8. Reanswer the previous question.

9. According to the Supreme Court, when the government deprives an owner of beachfront land of the right to develop that land, the owner ought to receive just compensation:

a. Because the high value of beachfront property is mostly due to federal flood insurance programs and, without compensation, the purposes of those programs would be frustrated.

b. Because such a denial of a normal development use constitutes an actual physical invasion by the government, which is a per se taking.

c. If the effect of the denial is to deprive the owner of all beneficial or productive value of his land, leaving it essentially valueless.

d. All of the above.

10 . Reanswer the previous question.

Facts for Deacon questions

Edgar Deacon is a land developer. He bought a hilltop parcel that he desired to subdivide into 150 building lots, with a residence to be placed on each lot. In the course of preliminary surveys, workers discovered various pottery shards and arrowheads on the property, suggesting that the area might be an important archeological site.

11. After extensive procedures, the town planning board approved a subdivision plan that required Deacon to leave about 55% of the property "as is" and undeveloped, which reduced the number of potential building lots (and the value of Deacon's property) by about 50%. It was the best deal that Deacon could get from the board.

a. Deacon is entitled to just compensation equal to 55% of the value his land would have had if the planning board had not required some of it to be left "as is."

b. Deacon is entitled to just compensation equal to the value of the potential building lots he lost due to the planning board's decision.

c. Deacon is entitled to just compensation equal to the amount of the profits that he was prevented from making as a result of the planning board's decision.

d. Deacon is not entitled to just compensation under these facts.

12 . Reanswer the previous question.

13. Suppose that, in addition to reducing the number of potential building lots, the planning board also required Deacon to establish legal arrangements that would permanently allow the public to walk on a certain path across the hilltop parcel in order to visit the archeological site. The area covered by the required pathway is about 2% of Deacon's land, and the pathway requirement reduces the parcel’s fair market value by about 2%. Due to this requirement:

a. Deacon is entitled to just compensation because the planning board’s requirement of public access amounts to an “actual physical taking.”

b. Deacon is not entitled to just compensation under these facts because, in requiring that the path be open for public use, the government has not deprived Deacon of all economically productive use of his land--or even anything close.

c. Deacon is not entitled to just compensation under these facts because the government has not "taken" anything for itself, but only required Deacon to let the public have access to his land.

d. Deacon is not entitled to just compensation under these facts because the government has taken only a small portion of Deacon's property rights.

14. Reanswer the previous question.

Facts for Sedley-Sharp-Osborne Questions.

Sedley and Sharp were floating down a stream in their canoe when they came to a sign that said: "Warning! No trespassing! All entry forbidden for any purpose." Their only choices were either to continue on downstream or, by turning back, to paddle back against the current for several miles. They chose to go on downstream. While later in transit they were seen and identified by Osborne, who owned of the bed and banks of the stream at the particular location. (Under local common law, the beds and banks are generally considered to be in private ownership).

15. Osborne brought suit against Sedley and Sharp seeking damages for common-law trespass.

a. Sedley and Sharp would have clearly committed a trespass if they touched the bed or banks of the stream while passing through Osborne's land.

b. If the stream is navigable in fact, Sedley and Sharp would not be considered to have committed a trespass, even if they touched the bed and banks of the stream at those times when doing so was strictly necessary to navigation.

c. Even if the stream were not navigable in fact, Sedley and Sharp would not have committed a trespass, provided that they at no point touched the bed and banks of the stream while passing through Osborne’s land.

d. Sedley and Sharp would be considered to have committed a trespass even if they never touched the bed or banks of the stream, because the water in the stream is considered be owned by the riparian owner.

16. Reanswer the previous question.

17. In determining whether a stream is navigable in fact, local law deems evidence that a stream is useful for recreational travel to be evidence that the stream is useful in commerce. In order to show that the stretch of stream through Osborne's land was navigable in fact, Sedley and Sharp would have to prove that:

a. It is able to support navigation for commerce or recreation during all or virtually all times of the year.

b. It is able to support navigation for commerce or recreation by motorized craft.

c. It is able to support navigation for commerce or recreation during sufficient periods of the year to make it useful as an artery of commerce and travel.

d. It is able to support navigation for substantial periods during the year and it does not have rapids, shoals or waterfalls that would force travelers to go ashore at one or more points.

18. Reanswer the previous question.

19. The Haycocks own and live on a small piece of rural land. They rely on a well for their domestic water supply. Very near their land is a farm, owned by Cornwall, who has installed a major new irrigation system that draws heavily on the same percolating groundwater as the Haycocks. Even though Cornwall does not waste the groundwater or use it negligently, he has drawn so much from the ground during recent dry summers that the Haycock's well has failed. Now they have to have their well drilled deeper, which will be very expensive. The Haycocks probably have a good case for holding Cornwall liable for the cost of drilling their well deeper if:

a. The local jurisdiction follows the so-called English (absolute ownership) rule.

b. The local jurisdiction follows the so-called American (reasonable use) rule.

c. Irrespective of whether the local jurisdiction follows the so-called English rule or the so-called American rule.

d. None of the above.

20. Reanswer the previous question.

21. Franklin spotted a deer and, after stalking it for a considerable period of time, was just about to close in on it when Elroy appeared out of nowhere and brought it down with a single arrow. By the time Franklin got to the deer, Elroy was already preparing it for removal to his nearby truck. “I guess you chased that deer right into my sights,” said Elroy, smiling in good cheer. Franklin fumed in silence.

a. Elroy has a better entitlement than Franklin to the deer.

b. If the deer had been shot by Elroy while hunting without permission on land belonging to Franklin, Elroy would still have the better entitlement to the deer.

c. Both of the above.

d. If the deer had escaped from a game farm and regained its natural liberty, the owner of the game farm would ordinarily have the best entitlement to the deer, under the traditional rules for ferae naturae, even if identifying the deer was now rather difficult.

e. Franklin has the better entitlement to the deer.

22. Reanswer the previous question.

23. In discussing the origins and status of land titles under United States law, the Supreme Court has said (in Johnson v. M'Intosh):

a. All land titles derive ultimately from conveyances and treaties made by the native peoples who occupied this continent before the arrival of the Europeans.

b. All land titles are ultimately determined according to the laws of the (non-native) sovereign power whose subjects or citizens discovered and effectuated the conquest of the specific territory where the land is located.

c. This nation has long since passed the stage where property ownership can be legitimately founded on or justified by pure "conquest," such ideas being contrary to justice and natural law.

d. All rights that native peoples may have had to lands now lying in the territory of the United States were totally extinguished under the doctrine of conquest.

24. Reanswer the previous question.

Facts for the Quiggin questions.

For some years now, the Quiggin family has been using a 2-acre area of forestland as a "camp" during the summer months. Even though the land was part of a tract owned by a timber company, the Quiggins have, for at least ten years, maintained several large tents and other camping facilities (fireplaces, parking, etc.) on the 2-acre area throughout the summer. Also, throughout the past ten years they have been personally present on and occupied the area almost every summer weekend and for a continuous period of 3 weeks during their annual summer vacations. They have used the land, in short, much as similar small parcels in the area are used by their owners, and for purposes that the land is particularly suited for. Their use of the 2 acres has been exclusive.

25. Under the general American common law approach, evidence of these facts should be held:

a. Sufficient for a jury to find that the Quiggin family has acquired a ripened title by adverse possession.

b. Not sufficient for a jury to find that the Quiggin family has acquired a ripened title by adverse possession because their possession has not been "continuous."

c. Not sufficient for a jury to find that the Quiggin family has acquired a ripened title by adverse possession because it does not include any evidence that their possession was expressly "hostile."

d. Not sufficient for a jury to find that the Quiggin family has acquired a ripened title by adverse possession because it does not include any evidence that they paid the property taxes.

26. Reanswer the previous question.

27. If the facts of the Quiggin case arose in New York, the Quiggins could not establish a ripened title by adverse possession unless they could also show that:

a. The land had been improved.

b. The land had been usually cultivated.

c. The land had been protected by a substantial enclosure.

d. All three of the above had occurred.

e. At least one of the three above (a, b, or c) were true.

28. Reanswer the previous question.

29. Pete had been in adverse possession of Blackacre for 7 years at which point Carrie became the adverse possessor of Blackacre instead of Pete. Carrie has now been in adverse possession for 4 years.

a. Title may well have already ripened in Carrie if she was in "privity of estate" with Pete.

b. Title may well have already ripened in Carrie if Pete delivered her a deed to Blackacre when she took over possession from Pete.

c. Both of the above.

d. The earliest that title can ripen in Carrie would be at least 6 years from now.

30. Reanswer the previous question.

31. Assume that Larry has been in adverse possession of Brownacre for about 7 years, and the true owner of Brownacre has just died leaving a will that devises Brownacre to Penfield. Larry continues in adverse possession, oblivious of these latter occurrences.

a. Penfield has inherited Brownacre and, starting from the date of his inheritance, he has ten years to get rid of Larry, before Larry's title will ripen.

b. Penfield has inherited a right of entry against Larry and, starting from the date of his inheritance, he has ten years to exercise the right of entry to get rid of Larry, before Larry's title will ripen.

c. Penfield now has a right of entry against Larry and has about 3 years to exercise the right of entry to get rid of Larry, before Larry's title will ripen.

d. Penfield has no rights whatever in Brownacre.

32. Reanswer the previous question.

33. Assume that Fred has been in adverse possession of Greenacre for 7 years and the true owner of Greenacre, Glenda Green, has taken no action against Fred. Now Elmer Yearwood has just intruded into Greenacre and cut down some valuable timber. While Fred remains in adverse possession:

a. Fred, as the actual possessor of Greenacre, should have a right to recover damages in trespass (though not necessarily for “permanent” depreciation) from Yearwood.

b. Green, as constructive possessor of Greenacre, should have a right to recover damages in trespass from Yearwood.

c. Green, as the legal owner of Greenacre, should have a right to recover damages in trespass from Yearwood.

d. Green, as the only person actually injured by Yearwood's acts, should have a right to recover damages in trespass from Yearwood.

34. Reanswer the previous question.

35. For purposes of acquiring title by adverse possession, the requirement of continuousness is met:

a. Essentially only by a course of non-stop possession during the entire statutory period of limitations on ejectment.

b. By a continuousness of possession that corresponds to the uses being made of the land and for which the land is suitable, or the uses that a true owner would make, provided there are enough acts of possession to "show the flag."

c. Only if the same possessor personally maintains the adverse possession for the entire statutory period of limitations on ejectment.

d. Even if the original adverse possessor is ousted by another adverse possessor who picks up where his predecessor left off and finishes off the statutory period of limitations on ejectment.

36. Reanswer the previous question.

37. Krelton and Fenmore own neighboring city lots, each about 75' wide. Krelton constructed a fence in his backyard and, due to an honest mistake about the location of the boundary, placed the fence approximately one foot over the property line, on Fenmore's land. The fence has stood for over 15 years, with Krelton occupying and maintaining right up to the fence.

a. In some states, Krelton would now be considered to be the owner of the one-foot strip of land that formerly belong to Fenmore.

b. In some states, Krelton would not be considered to have acquired a ripened title to the one foot-strip of land because a person who possesses while laboring under an honest mistake is not considered to be "hostile."

c. Both of the above.

d. In at least one state, Krelton may have difficulty establishing a ripened title to the one-foot strip of land because, though the state has rejected the "honest mistake" exception, Krelton's adverse possession of so small a strip may not be considered "open and notorious."

e. All of the above.

38. Reanswer the previous question.

39. Assume again that, due to an honest mistake in building a fence, Krelton has occupied a one-foot boundary strip along the property line between his lot and Fenmore's. Under the particular facts and local law, it is clear that (if the case were ever litigated) a court would probably decide in favor of Krelton, declaring him to have acquired a ripened title to the one-foot strip. But Krelton does not want title to the strip, and has never had any actual desire to take advantage of the law of adverse possession against his next door neighbor. That being so, he could restore full title to Fenmore simply by:

a. Moving the fence back one foot and relinquishing possession of the strip.

b. Moving the fence back one foot, provided he also announces openly that he is relinquishing any rights he might have in the strip.

c. Signing and delivering a deed to Fenmore relinquishing any rights he might have in the strip.

d. All of the above.

40. Reanswer the previous question.

41. Truscott owns a piece of land in fee simple absolute. During the past 12 years or so, Stringham has been regularly using a portion of the land as a shortcut, which has allowed him to reach a portion of his own adjacent property more conveniently. Truscott desires to erect a barrier that will prevent any further use of the shortcut by Stringham.

a. Assuming that Stringham's use has met the applicable legal requirements, Stringham now may well have an easement by adverse possession.

b. Assuming that Stringham's use has met the applicable legal requirements, Stringham now may well have an easement by prescription.

c. Even if Stringham's use has met the applicable legal requirements to assert an easement based on adverse use, Stringham would still be required to apply to a court before he can acquire ownership of a legal easement over Truscott's land.

d. Even if Stringham's use has met the applicable legal requirements to assert an easement based on adverse use, Truscott could still terminate Stringham's right of use by issuing to him an order to cease and desist.

42. Reanswer the previous question.

43. Again assume that Truscott owns a piece of land in fee simple absolute but that he had, about 15 years ago, leased the land to Donner, who has occupied it ever since. During the past 12 years or so, Stringham has been regularly using a portion of the leased land as a shortcut. Last month Donner's lease expired and Donner has duly vacated the premises. Truscott now desires to erect a barrier that will prevent Stringham from making any further use of the shortcut. Assuming that Stringham's use of the shortcut has met the requirements that ordinarily would apply for acquiring an easement based on adverse use:

a. Truscott probably could not lawfully prevent Stringham from continuing to use the shortcut in the same manner that he has used it during the past 12 years or so.

b. Stringham would probably have an easement by prescription to use the shortcut.

c. Both of the above.

d. None of the above. Truscott would not have had a trespass action against Stringham during the term of Donner's lease and, therefore, Stringham would not have acquired an easement by prescription against Donner.

44. Reanswer the previous question.

45. Gorse has purchased some beachfront land in order to build a vacation home. The land was originally conveyed out of sovereign ownership by a deed that described the premises as "bounded on the west by the coastal highway and on the east by the Atlantic Ocean." As the property now stands, there is about 70 yards’ width of sand beach lying between the sand dune line (the bottoms of the dunes) and the usual edge of ocean at most daily high tides. Within this 70 yard width runs the “mean high tide” line, which is about 20 yards towards the ocean from the bottoms of the dunes. Under the general rules of interpretation for such a deed, as we discussed in class:

a. Gorse probably owns and can exclude the public out to the mean high tide line.

b. Gorse probably owns and can exclude the public only to sand dune line (the bottoms of the dunes).

c. The legislature would be generally able, without fear of a compensable taking, to modify the area open for free public access all the way back to the sand dune line (the bottoms of the dunes).

d. The legislature would be generally able, without fear of a compensable taking, to extend the area of public access all the way back to the sand dune line (the bottoms of the dunes), as long as the public had customarily been making use of so extensive an area, in various other locations along the coast, giving rise to coastal easements.

46. Reanswer the previous question.

47. About 20 years ago, Stripling purchased a painting by Isbister, now a moderately famous artist. He bought in good faith with no inkling that there might have been any problem concerning the ownership of the painting. The painting has since been hanging prominently in Stripling's home and has gone up greatly in value. Several weeks ago Stripling was notified that the painting was one of several that had been stolen from a gallery a few months before he bought it.

a. In some states, Stripling might well on these facts have acquired ownership of the painting by adverse possession.

b. In some states, Stripling's chances of successfully asserting title by adverse possession would depend on whether the painting's "true owner" had made reasonably diligent efforts to discover the painting's whereabouts during the period since the theft.

c. In New York, the statute of limitations would not start running in Stripling's favor until the true owner had made a demand for return of the painting and Stripling had refused that demand.

d. All of the above.

48. Reanswer the previous question.

49. Gavin wrote the names of several persons on packages of rare coins from his collection. He then handed the packages to his nephew saying they should be delivered to the persons named on them after Gavin's death. Several years afterward, Gavin became ill and died a short time later. His nephew faithfully carried out Gavin's instructions. Assume that, because of the nature of the instructions, especially the part about waiting to deliver until after Gavin's death, it would be almost impossible to regard the nephew as agent for the donees. That being so:

a. The gift would probably succeed because, on these facts, it can be construed as a valid gift causa mortis.

b. The gift probably fails despite the fact that, rather clearly, Gavin has met the delivery requirement.

c. Gavin's executors under his will should probably be able to recover the contents of the packages in a replevin action.

d. The gift, though revocable until the nephew complied with Gavin's instructions, became legally irrevocable after that time.

50. Reanswer the previous question.

51. For his 60th birthday, Gavin's wife, Mona, bought him a large luxury class riding mower, something Gavin had always wanted. The mower was delivered to the garage at the couple's home during the day, and Gavin was taken out to be "surprised" by it during a small family gathering held that same evening. Gavin looked at the mower, sat on its seat and held the controls for a moment, and then everybody went back into the house. Tragically, Mona died soon thereafter and the taxing authorities want to include the value of the mower in her taxable estate. Assuming the taxing authorities follow ordinary state property law on questions of the validity of gifts:

a. There does not appear on these facts to be any plausible basis for not excluding the mower from Mona's taxable estate.

b. Despite the difficulties posed by strict enforcement of the delivery requirement when the donor and donee both live in the same household, the courts uniformly hold that “the law is the law,” and refuse to find any delivery until the donor fully parts with dominion and control.

c. Although Gavin's sitting on the mower might well be considered a “delivery” of the mower, there would be an even stronger case for excluding the mower from Mona's taxable estate if Gavin had driven it around and mowed the lawn a few times with it before his wife's death.

d. All of the above.

52. Reanswer the previous question.

53. Peggy ran into her neighbor, Jimmy, at a garden supply store. She told him that she had just bought a new weed whacker and she wanted

to give him her old one. She added that the old one was in her garden shed, which she kept unlocked, and she suggested that Jimmy could just come over and pick it up "anytime." Jimmy would be the owner of the old weed whacker:

a. As soon as Peggy said these things to Jimmy.

b. As soon as Jimmy picked up the old weed whacker.

c. Only if Peggy later staged a delivery at which she actually presented the old weed whacker to Jimmy.

d. Even if Peggy died before Jimmy picked up the old weed whacker, provided that he did pick it up, as she had instructed him to do.

54. Reanswer the previous question.

55. Suppose in the preceding question that, the next day, Jimmy went to Peggy's garden shed to pick up the weed whacker and, liking the looks of the new one better, took it instead. When Peggy saw Jimmy using the new one on his own property she became furious.

a. Jimmy would be the owner of the new weed whacker.

b. Peggy could revoke the gift of the old weed whacker because that gift is not yet complete and, as a result, Jimmy would end up not having title to either of them.

c. It is too late for Peggy to revoke the gift of the old weed whacker, so Jimmy would have title to it, but Peggy could, of course, retrieve the new one from Jimmy.

d. None of the above.

56. Reanswer the previous question.

57. Assume that Peggy was on her deathbed and told Jimmy that he could have both of her weed whackers in her garden shed, and that he should just take them.

a. Jimmy would become the owner of the weed whackers at the moment Peggy said that he could have them.

b. Jimmy would become the owner of the weed whackers if he took possession of them before or after Peggy died.

c. Once the delivery was complete, Jimmy would become the owner of the weed whackers, but the gift would be presumptively revocable.

d. The only kind of gift that Peggy could make in this situation is a gift causa mortis, and such a gift would be revocable.

58. Reanswer the previous question.

59. Uncle Ronard, who is quite elderly, told Tammy that he wanted her to have a certain rare porcelain vase, worth $10,000, after his death. He signed and handed her a letter that said: "I give you hereby my porcelain vase, to possess from and after my death, but I retain the right to possess it for the remainder of my life."

a. The letter serves essentially the same purpose as a will and, for all intents and purposes, would be treated as a will.

b. If the letter is treated as a will, then legal rights to the vase pass immediately to Tammy subject, however, to revocation since a will can always be revoked prior to the testator's death.

c. The letter serves essentially as evidence of Uncle Ronard's intention to make a gift causa mortis.

d. Delivery of the letter can serve to meet the delivery requirement and provide Tammy with an irrevocable future interest in the vase, which means that the value of Uncle Ronard's interest in the vase is now substantially less than $10,000.

60. Reanswer the previous question.

61. Uncle Ronard was lying on his deathbed and made a gift causa mortis to Tammy of an autographed copy of the book Dust Thou Art by St. John Clarke.

a. The gift is revocable by Uncle Ronard at any time before his death and is automatically revoked if he survives his apprehended peril.

b. If Uncle Ronard survives his apprehended peril, it is possible for him to revoke the gift, but he must make an express election to do so.

c. The effect of this gift is roughly the same as that of an inter vivos gift except that Tammy is not entitled to have possession of the book until after Uncle Ronard's death.

d. The effect of this gift is roughly the same as that of an inter vivos gift except that there is no requirement that there be a delivery of the book until after Uncle Ronard's death.

62. Reanswer the previous question.

63. While still on his deathbed, Uncle Ronard also wrote a check in the amount of $10,000 and handed it to Tammy. There was plenty of money in his account to cover the check. Tammy would be entitled to the $10,000:

a. In some states only if she cashed the check before Uncle Ronard's death.

b. Even if she cashed the check after Uncle Ronard's death, because the general rule is that a check is construed to be an assignment of the funds in the account.

c. Under no circumstances since a check is never a valid means for making a gift of money.

d. Only if the check could be interpreted as a de facto will.

64. Reanswer the previous question.

65. Under the common law system, persons who possess land are called "tenants":

a. Only if they hold under a lease.

b. Because, originally, people who possessed land were viewed as merely "holding," directly or indirectly, under the King, and the word tenant means "holder."

c. Because, originally, the only estates in land were leasehold estates, and the name "tenant" just stuck even after fee simple estates were invented.

d. None of the above. Persons who possess land are not properly referred to as "tenants" unless they are lessees under a lease.

66. Reanswer the previous question.

67. One of the modern counterparts to subinfeudation is:

a. Subleasing, such as occurs in modern landlord-tenant relationships.

b. The ordinary private sale of a house in fee simple absolute.

c. Neither of the above. There is no counterpart since the Statute Quia Emptores forbids all subinfeudation of any kind.

d. All of the above since the Statute Quia Emptores converts all conveyances of title into subinfeudations.

68. Reanswer the previous question.

Facts for Filmore-Gallery, Inc. questions

Filmore found a painting in the attic of the house he had just bought. He took the painting to Gallery, Inc., experts in art appraisals and sales, where he left it. He and Gallery, Inc. had an understanding that, if Gallery could find a buyer, it would receive a 12% commission on the sale. Both Filmore and the people at Gallery, Inc. believed the painting to be a student work having only very moderate value. Several days later, however, there was a fire at Gallery, Inc. in which about 2/3 of the painting's surface was burned away. An investigation has now shown that the painting was a genuine Rembrandt, lost for several centuries, and would have been worth (in good condition) at least several hundred thousand dollars, though it is virtually worthless now.

69. Based on the arrangement between Filmore and Gallery, Inc.:

a. Gallery, Inc. should be considered a bailee of the painting because it accepted possession of it.

b. Gallery, Inc. would be considered a bailee of the painting even if it did not know the painter's true identity, provided such lack of knowledge was due to its failure to use the ordinary care that an expert in its position should have used.

c. Gallery, Inc. should be considered only a gratuitous bailee of the painting because, as of this point, Filmore had neither provided a consideration nor unconditionally promised any consideration to Gallery, Inc.

d. Gallery, Inc. should not be considered a bailee of the painting because it never agreed to accept possession of so valuable an item.

70. Reanswer the previous question.

71. If it were determined by a court that Gallery, Inc. was the bailee of the painting at the time when the fire occurred, then:

a. It should be strictly liable for any loss that the fire cause to the painting.

b. There would be no particular presumption one way or the other as to whether the fire loss was due to its negligence.

c. There is an irrebuttable presumption that the loss was due to its negligence.

d. There is a rebuttable presumption that the loss was due to its negligence.

72. Reanswer the previous question.

73. Assume that a reasonable person with the expertise of Gallery, Inc. would have thought, under the circumstances, that the painting was worth about $500-$1000, even though it was later determined (with the help of unusual and very recent scientific technologies) that the painting was an original "old master" and, therefore, worth at least half a million. Assume also that Filmore desires to assert that Gallery, Inc. failed to use due care in protecting the painting from possible outbreaks of fire.

a. If Gallery, Inc. used the ordinary care appropriate for a $1000 painting, it should not be liable at all.

b. If Gallery, Inc. used less than the ordinary care appropriate for a $1000 painting, it should be liable for the actual value of the painting.

c. Both of the above.

d. If Gallery, Inc. used less than the ordinary care appropriate for a $1000 painting, it should be liable for $1000, or so, but not more.

e. None of the above. The care that is required of a bailee does not in any way depend on the value of the object bailed.

74. Reanswer the previous question.

75. Assume the authorities later determined that the fire at Gallery, Inc. was set by an arsonist known as Manny Torchditt. If Gallery, Inc. were held to be a bailee of the painting at the time it was burned:

a. Gallery, Inc. could recover a judgment from Torchditt for the damage he caused to the painting, but only if Filmore had specifically authorized Gallery, Inc. to sue on his behalf.

b. Gallery, Inc. could recover a judgment from Torchditt for the damage he caused to the painting even if Filmore had not specifically authorized Gallery, Inc. to sue on his behalf.

c. Gallery, Inc. could not (as mere bailee) recover a judgment from Torchditt for the damage he caused to the painting except to the extent of Gallery, Inc.’s own separate interest in the painting (for example, with respect to its expected commission).

.

d. Gallery, Inc. could not recover a judgment from Torchditt for the damage he caused to the painting because Gallery, Inc. only had a jus tertii under which it cannot claim.

76. Reanswer the previous question.

77. Barton Backbay owned a piece of seaside land. He transferred a fee simple title to the local municipality "so it can have a place to erect and maintain a bathhouse for residents of the community." These and other words of the deed made clear that the grantor intended the transfer for the particular purpose. Recently, however, ocean swimming and bathhouse use have declined due to pollution from a nearby chemical refinery. The municipality believes that it can now sell the seaside land to a developer for a profit of several million dollars.

a. The court will likely go out of its way to interpret the deed so as to imply a either possibility of reverter or a right of re-entry, so the grantor can get the land back if the grantee ceases to make the intended use.

b. If the court interprets this deed as creating a fee simple determinable with a special limitation for bathhouse use, the cessation of the bathhouse use would automatically cause the premises to revert to Backbay pursuant to a reversion.

c. If the court interprets this deed as creating a fee simple determinable with a special limitation for bathhouse use, the cessation of bathhouse use would automatically cause the premises to revert to Backbay pursuant to his right of re-entry.

d. If the court interprets this deed as creating a fee simple determinable with a special limitation for bathhouse use, the cessation of bathhouse use would automatically cause the premises to revert to Backbay pursuant to his possibility of reverter.

78. Reanswer the previous question.

Facts for Compton questions.

Compton, a lessee, entered into a lease that stated among other things:

"5. Tenant shall pay, as additional rent, the amounts of any property tax increases when due as aforesaid, and if Tenant does not make such payments when due then this lease shall at Landlord's election come immediately to an end."

"23. If Tenant breaches any covenant of this lease and Landlord elects to give Tenant a notice stating that, in light of such breach, this Lease shall come to end five days from the date of such notice, then upon the expiration of such five days this Lease shall come to end."

79 As usually interpreted in New York (e.g., in the Perrotta case):

a. Section 5 above makes the lease a "lease on conditional limitation."

b. Section 23 above makes the lease a "lease on conditional limitation."

c. Both of the quoted sections make the lease a "lease on conditional limitation."

d. Neither of the quoted sections makes the lease a "lease on conditional limitation."

80. Reanswer the previous question.

81. As usually interpreted in New York (e.g., in the Perrotta case), the landlord could become eligible to remove Compton by a summary holdover proceeding:

a. If Compton fails to make the payments required under Section 5 above, and the landlord makes the election specified in that section.

b. If Compton breaches a covenant of the lease, and the Landlord gives the "five day notice" specified by Section 23 above.

c. Both of the above.

d. None the above.

82. Reanswer the previous question.

83. Fiona’s will “devised” Whiteacre "to [her nephew] Geoffrey until his death or until he ceases to live there for more than 45 consecutive days, then to Courburg Church." At the time the will was made and continuing up until Fiona’s death, Geoffrey was living in Whiteacre as the licensee of Fiona. Under the better interpretation of this testamentary language:

a. Geoffrey has a license to live in Whiteacre for as long as he pleases.

b. Geoffrey has a determinable life estate in Whiteacre.

c. Legally speaking, either one of the above might be a correct interpretation, and Geoffrey's interest acquired under the will would be about the same under either interpretation.

d. The property would eventually go to the church only if Geoffrey ceased to live in Whiteacre for more than 45 consecutive days.

84. Reanswer the previous question.

85. Suppose that Fiona devised a valid life estate in Whiteacre to Geoffrey, with a remainder to Courburg Church. While Geoffrey was living in Whiteacre as life tenant, a big wind came and blew off many of the shingles from the roof, causing $1,000 damage. Fortunately the damage was insured.

a. Geoffrey is entitled to the $1,000 insurance proceeds and is obligated to make the repairs.

b. Geoffrey is entitled to the $1,000 insurance proceeds and is not obligated to make the repairs.

c. The church is entitled to the $1,000 insurance proceeds and Geoffrey is obligated to make the repairs.

d. The church is entitled to the $1,000 insurance proceeds and Geoffrey is not obligated to make the repairs.

86. Reanswer the previous question.

87. Settles conveyed Redacre "to C.E. Tostrup in trust for Mary Jordan."

a. Mary Jordan has what is known as an "equitable title."

b. Tostrup has a legal title.

c. Mary would, in general, be considered to have a more valuable interest in Redacre than Tostrup under this arrangement.

d. All of the above.

e. None of the above.

88. Reanswer the previous question.

89. Harrow entered in possession of Leastacre on April 1, 1997 and has occupied continuously ever since under an oral arrangement with her landlord under which she agreed to pay “rent reserved at a rate of $12,000 per year in monthly installments of $1,000." She has faithfully paid the rent as agreed. The landlord wants to terminate her tenancy. The earliest date as of which he can do so appears to be (from today’s date):

a. December 31, 2000

b. January 31, 2001

c. March 31, 2001.

d. March 31, 2002.

90. Reanswer the previous question.

91. Yingling leased 445 Elcott Avenue, a storefront property, to Fargo. The lease called for a term of 20 years. Five years into the lease, Fargo went out of business and, returning the keys to Yingling, ceased to occupy the premises or pay rent. Under the traditional common-law rules:

a. Yingling would be required to take reasonable steps to mitigate his damages by finding a substitute tenant.

b. The law would authorize Yingling to re-enter the premises and rent them to another tenant for his own account and still collect from Fargo the full rent that Fargo agreed to pay under the lease.

c. Yingling could simply leave the premises empty and continue to be entitled to the rent from Fargo as it came due according to the terms of the lease.

d. Fargo could not be held for rent once he gave up occupancy of the premises because, by thus proffering a surrender, he would cease to be privity of estate and, therefore, would be released from the rent obligation.

92. Reanswer the previous question.

93. Yingling leased 445 Elcott Avenue, a storefront property, to Fargo. The lease called for a term of 20 years. Five years into the lease, Fargo decided to sell its business and Newcomb purchased “all business assets of Fargo” for $1,000,000. Fargo also transferred to Newcomb “all its right to possess the premises at 445 Elcott Avenue.”

a. If the transfer to Newcomb was an assignment, then Fargo became the landlord of Newcomb.

b. If the transfer to Newcomb was a sublease, then Fargo became the landlord of Newcomb.

c. If the transfer to Newcomb was a sublease, then Fargo ceased to be the tenant of Yingling.

d. If the transfer to Newcomb was an assignment, then Fargo would have remained in privity of estate with Yingling.

94. Reanswer the previous question.

95. Again assume that Fargo leased 445 Elcott Avenue from Yingling for 20 years, promising to pay promptly the rent reserved by the terms of the lease. Assume in this question that, about five years into the lease, Fargo assigned the lease to Newcomb. Shortly thereafter, Newcomb entered into possession of the premises (where he remains) but Newcomb did not “assume” the lease.

a. Yingling should now be able to recover rent from either Fargo or Newcomb.

b. Yingling should now be able to recover rent from Fargo but not from Newcomb, as the latter did not “assume” the lease.

c. Yingling should now be able to recover rent from Newcomb but not from Fargo, as the latter is no longer a tenant under the lease.

d. Fargo is now in privity of estate with Yingling, but not in privity of contract.

96. Reanswer the previous question.

97. Bridges leased an apartment to Courtney. Later, Bridges failed to provide certain crucial maintenance services, and Courtney found that, during certain times of the day, it was very unpleasant to be in the apartment:

a. Under the traditional rules applicable to constructive eviction, Courtney can declare a constructive eviction and withhold rent, even without abandoning possession of the premises.

b. Bridges might be found to have breached the implied warranty of habitability, but only if the premises have become in fact uninhabitable due to a breach by Bridges of some specific provision of the lease.

c. If Bridges is found to have breached the implied warranty of habitability, Courtney can recover damages but cannot lawfully refuse to pay the full agreed rent as it accrues.

d. Under the modern doctrines applicable to the implied warranty of habitability, if Bridges is found to have breached the warranty, a court may relieve Courtney of all or part of his rent obligations, even if he doesn’t give up possession.

98. Reanswer the previous question.

99. In each of the following cases, A had one child, X, age 2 years, at the time when O conveyed. Which of the conveyances purports to create a future interest that would be void under the traditional application of the rule against perpetuities?

a. "to A for life, then to first A's grandchild and his heirs"

b. "to Book-o-file Public Library, a New York corporation, so long as the land is used for public library purposes, then to A and his heirs"

c. Both of the above.

d. "to A for life, then to A's first child to reach age 25, and his heirs"

e. All of the above.

100. Reanswer the previous question.

In answering the following TRUE/FALSE questions, assume (unless otherwise specified) that, at the times of conveyance, O is an owner in fee simple absolute, and that every named party is alive and unmarried. Remember that the conveyances are to be interpreted as set forth in the last two paragraphs on the instruction page. Assume that all life estates end at the death of the named life tenant. When you see words appropriate for a defeasible fee simple, assume that the words of conveyance also include whatever additional words (such as words of reverter or re-entry) may be required by law in order to create the defeasible estate.

101. O conveyed “to A for life, then to B and her heirs.” B has a remainder.

102. O conveyed “to A for life and then, one month after A’s death, to B and her heirs.” B has a remainder.

103. O conveyed “to A and her heirs until the present house falls down, then to B and her heirs.” B has a remainder.

104. O conveyed “to A for two years, then to B and her heirs.” B may be properly said to have a remainder.

105. O conveyed “to A for two years, then to B and her heirs if B marries C.” B may be properly said to have a remainder.

106. O conveyed “to A for life.” The conveyance created a remainder.

107. O conveyed “to A for life.” The conveyance created an executory interest.

108. O conveyed “to A to take effect in possession beginning from and after the time of my death.” The conveyance created an executory interest.

109. O conveyed “to A for life, then one day after A’s death to B and her heirs.” B has an executory interest.

110. O conveyed “to A for life, then to B and her heirs if B survives A by at least one year.” B has a remainder.

111. O conveyed “to A for life, then to B and her heirs if B survives A by at least one year.” O has a reversion.

112. O conveyed “to A for life, then to B and her heirs if B survives A by at least one year.” O has a future interest that is subject to divestment.

113. O conveyed “to A for life, then to B and her heirs if B marries C.” B has a contingent remainder.

114. O conveyed “to A for life, then to B and her heirs if B marries C.” O has a reversion.

115. O conveyed “to A for life, then to B and her heirs if B marries C after the death of A.” B has a contingent remainder.

116. O conveyed “to A for life, then to B and her heirs if B marries C after the death of A.” B has an executory interest.

117. O conveyed “to A for life, remainder to the children of B.” B is living but childless. This conveyance creates a vested remainder.

118. O conveyed “to A for life, remainder to the heirs of B” (a living person). This conveyance creates a vested remainder.

119. O conveyed” to A for life, remainder to the heirs of B” (a person recently deceased, just before the conveyance). This conveyance creates a vested remainder.

120. O conveyed ”to A for 5 years, then to the heirs of B” (a living person). This conveyance creates a contingent remainder.

121. O conveyed “to A and his heirs.” The heirs of A receive a contingent remainder under this conveyance.

122. O conveyed “to A and his heirs until the United States admits a 51st state to the Union.” This conveyance creates a fee simple determinable in A.

123. O conveyed “ to A and his heirs as long as swans nest on Belle Isle.” O has a right of re-entry.

124. O conveyed “ to A and his heirs on the condition that the house be kept painted white with green shutters.” The premises will automatically revert back to the grantor if the house is painted green with white shutters.

125. O conveyed “ to A and his heirs on the condition that the premises be kept as a nature preserve and open to the public.” O has a right of re-entry.

126. O conveyed “to A as long as he desires to remain living on the land.” The more modern tendency is to interpret this conveyance as creating a tenancy at will, rather than a determinable life estate.

127. O conveyed to A and the heirs of his body. In states that still recognize the fee tail, this estate would not be inherited if, at A’s death, his sole heirs were one brother and one sister.

<end of examination>