Facts for Bolton-Fromm questions.

Bolton and Fromm owned Blackacre as tenants in common. Each had an undivided one-half interest. For the past several years, Bolton has been the sole occupant of the premises, which he uses as his home. Fromm has never attempted enter but Bolton has never given any indication that Fromm would not be allowed to. Fromm has come to you and asks for legal advice.

1. Fromm wants to know about his rights to receive money from Bolton on the ground that Bolton has been “unfairly” getting all of the benefits of ownership for all this time.

a. Under the generally accepted rule, Fromm would be entitled to recover an amount equal to the fair rental value of the premises.

b. Under the generally accepted rule, Fromm would be entitled to recover an amount equal to one-half the fair rental value of the premises.

c. Under the majority rule, Fromm would not be entitled to recover anything from Bolton based on the latter’s sole occupancy unless Bolton had either made an agreement to pay or committed an ouster.

d. If Fromm enters the premises without permission from Bolton, Fromm would be liable to Bolton in trespass.

2. Reanswer the previous question.

3. Suppose Fromm decides to demand shared possession with Bolton, but he fears that Bolton might refuse. In the event that Bolton does refuse:

a. Fromm will have an ejectment action in which he can recover the possession from Bolton.

b. Fromm will have an ejectment action by means of which he can be put into undivided possession with Bolton.

c. Fromm will not have an ejectment action against Bolton because Fromm is no more entitled to sole possession than Bolton is.

d. Fromm will have an ejectment action in which he can be awarded possession of any 50% of the land, of his choosing, as long as he chooses reasonably.

4. Reanswer the previous question.

5. In the course of interviewing Fromm, you realize that Bolton probably has had sole occupancy of Blackacre for a period that is a few months longer than the local statute of limitations on ejectment. If that is true:

a. Fromm probably has no further interest in the land because Bolton would have probably acquired the sole title by adverse possession.

b. Fromm’s interest in the land has probably been unaffected because tenants in common cannot acquire title by adverse possession against one another.

c. Even if Bolton has acquired sole title by adverse possession against Fromm, it should still be possible for Fromm to recover money from Bolton for his share of the use-value during the period that he still owned an interest in the land (i.e., before sole title ripened in Bolton).

d. Sole title by adverse possession would probably not yet have ripened against Fromm because Bolton has apparently not committed any ouster of Fromm; therefore, Bolton’s sole possession was not initially considered adverse.

6. Reanswer the previous question.

7. Frank and Felicia Youngman are tenants by the entirety in Greenacre.

a. If they have irreconcilable differences concerning the land, either can sue the other for partition, so each will receive separate halves of the land to hold individually.

b. If Frank is sued for damages based on a tort for which he alone is liable, the tort creditor can satisfy the judgment out of Frank’s interest in Greenacre in some of the states that recognize the tenancy by the entirety.

c. If Frank is sued for damages based on tort for which he is solely liable, the tort creditor can satisfy the judgment out of Frank’s interest in Greenacre in all of the states that recognize the tenancy by the entirety.

d. From the facts stated above, it is not clear whether Frank and Felicia are husband and wife rather than brother and sister.

8. Reanswer the previous question.

9. Harlow delivered a deed to “George Jenkins, Irwin Potter and Ken Ulster and their heirs as joint tenants.”

a. In some states the three might be considered tenants in common because the courts look on joint tenancies with disfavor and require words of survivorship in the deed before a joint tenancy can be recognized.

b. If the three are joint tenants, on the death of Irwin the land would be held 50-50 by George and Ken as joint tenants.

c. If the three are joint tenants, and Ken conveys “all his right, title and interest” in the land to Seymour, then George and Irwin would still be joint tenants with each other, but the two of them (with their aggregate 2/3 share) would be in a tenancy in common with Seymour.

d. All of the above.

10. Reanswer the previous question.

11. Roberts and Lowery orally agreed that Roberts would lease Whiteacre to Lowery for a period of 3 years, reserving a rent of $12,000 per year, payable in monthly installments of $1,000 each. Lowery entered into possession. Assuming that this lease does not comply with the statute of frauds:

a. No landlord-tenant relationship was created between Roberts and Lowery.

b. Lowery became the tenant of Roberts but, initially at least, the estate held by Lowery was one under which the landlord-tenant relationship could be terminated at the will of either party.

c. If Lowery remains in possession and pays the rent regularly for a time, he would be deemed to have a tenancy from month the month, since the lease provided that the rent was to be paid monthly.

d. If Lowery remains in possession and pays the rent regularly for a time, he would be deemed to have a tenancy that could be terminated only by one year’s notice.

12. Reanswer the previous question.

13. Roberts leased Whiteacre to Lowery for a period of 3 years, reserving a rent of $12,000 per year, payable in monthly installments of $1,000 each. The lease was in writing and complied with the statute of frauds. It contained the usual promises by the tenant to pay the rent, etc. Lowery entered into possession but, after eight months he assigned the entire remaining term of the lease to Cornice. Roberts consented to the assignment. Four months after that Cornice started missing rent payments.

a. Roberts can continue to recover rent, as it accrues, from Lowery.

b. Properly speaking, Cornice is the subtenant of Lowery, and Lowery is therefore responsible for collecting the rent from Cornice.

c. If Lowery is forced to pay rent to Roberts, he is legally entitled to recover what he pays from Cornice, but only if Cornice “assumed” the lease.

d. Because Roberts consented to the assignment, he can no longer hold Lowery responsible for rent under the lease.

14. Reanswer the previous question.

15. Suppose in the preceding question that, instead of disappearing, Cornice had re-assigned the entire remaining term of the lease to Gerard (again, with the consent of Roberts). Then, a short time later, Gerard abandoned possession and disappeared.

a. Roberts can still hold Cornice liable for the rent as it accrues if Cornice had “assumed” the lease.

b. If Cornice had “assumed” the lease, then (in most states) Roberts would have three people from whom he can potentially recover rent—Lowery, Cornice and Gerard.

c. If Gerard has not assumed the lease, then his liability to pay rent to Roberts can only be based on privity of estate.

d. All of the above.

16. Reanswer the previous question.

17. Tremont leased an apartment to Givens for a period of two years. Later, Tremont leased a ground floor space under Givens’ apartment to a dry cleaning establishment. A strong smell of chemicals used in dry-cleaning wafts up to Givens’ apartment, and on some days it literally makes him sick. He says he either wants out of his lease or permission to sublet. Tremont says he will give neither. The lease has no provision with regard to assignment or subletting.

a. As far as Tremont’s rights are concerned, Givens would be lawfully permitted to assign or sublet the apartment even without Tremont’s consent.

b. According to the doctrine of constructive eviction, Givens would be entitled to cease paying rent even if he retains possession of the entire premises.

c. The doctrine of constructive eviction could not apply to this case because the problem is being caused by a third party, the dry cleaner, and not by Givens’ landlord.

d. Even if there is no basis for claiming a constructive eviction in this case, the acts of Tremont clearly constitute a breach of the implied warranty of quiet enjoyment.

18. Reanswer the previous question.

19. Assume in the preceding question that a court would hold that the chemical odors made the apartment unfit for human habitation:

a. Givens could probably claim a breach of the implied warranty of habitability, but only if he abandons possession of the premises within a reasonable time.

b. Even if Givens does not abandon possession, a modern court might well relieve Givens of the obligation to pay all or part of the rent on the theory that leases should be treated as ordinary contracts.

c. Givens would be prevented from asserting a breach of the implied warranty of habitability unless landlord Tremont actually breached some provision contained in the lease when he allowed the dry cleaner to move in downstairs.

d. Givens would be prevented from asserting a breach of the implied warranty of habitability since dry cleaning is a lawful activity, and courts will normally not interfere with people who are engaged in lawful activities.

20. Reanswer the previous question.

21. Suppose that Givens’ landlord cleared up all the problems with the premises leased to Givens, but later Givens abandoned possession anyway, without legal justification, simply because he wanted to move in with a friend. At the time of the abandonment, the lease still had nearly a year to run.

a. Under traditional common-law principles, the landlord would be expected to mitigate his damages as a precondition to receiving any monetary recovery from Givens.

b. Under traditional common-law principles, Givens would be released from all liability under the lease if he notified the landlord that he was surrendering the possession back to the landlord—thus terminating privity of estate.

c. A number of modern courts would hold that the landlord is required to mitigate his damages as a precondition to receiving any monetary recovery from Givens.

d. Most courts would hold that, if the landlord accepted the keys to the premises from Givens, such acceptance would constitute an “acceptance of the proffered surrender” and terminate Givens’ obligation to pay further rent.

22. Reanswer the previous question.

23. Davis transferred Blackacre “to Watkins and his heirs in trust for Verron and his heirs.” Assuming the Statute of Uses does not execute this trust (because, for example, it is an “active” one):

a. Verron would have an equitable title.

b. Watkins would have a bare legal title, but no beneficial ownership.

c. Verron’s interest would be recognized in equity but not at common law as a “legal” interest.

d. All of the above.

24. Reanswer the previous question.

25. Davis transferred Blueacre “to Watkins and his heirs in trust for Verron for life, and then one day after Verron’s death to Parker and his heirs.” Assuming the Statute of Uses does not execute this trust (because, for example, it is an “active” one):

a. Verron would have an equitable life estate.

b. Parker would have an equitable remainder.

c. Watkins would have an equitable fee simple absolute.

d. All of the above.

26. Reanswer the previous question.

27. Which of the following conveyances describes a future interest that would violate the traditional Rule Against Perpetuities? Assume all named individuals are alive at the time of the conveyance and that A has one child, age 2.

a. “to A for life and then to B’s heirs.”

b. “to A for life and then to A’s first child to reach age 18, and his heirs.”

c. “to A for life and then to A’s first child to reach age 25, and his heirs.”

d. All of the above.

e. None of the above.

28. Reanswer the previous question.

29. Which of the following conveyances describes a future interest that would violate the traditional Rule Against Perpetuities? Assume all named individuals are alive at the time of the conveyance and that A has one grandchild, age 2, while B is childless

a. “to A for life and then to A’s first grandchild now alive to reach age 25, and his heirs.”

b. “to Ace Volunteer Fire Company (a corporation), but if the land ceases to be used for firehouse purposes, then to B and his heirs.”

c. “to A for life and then, one day after A’s death, to B’s first child to reach age 18, and his heirs.”

d. All of the above.

e. None of the above.

30. Reanswer the previous question.

31. In 1990, Haskins Corp. sold a surplus warehouse to Kalper Co. and, as part of the deal, Kalper gave Haskins an option to repurchase the property, at a calculated price, at any time up until the year 2015. The parties are both corporations and in the local jurisdiction the transaction would be subjected to strict or “rigorous” interpretation under the traditional Rule Against Perpetuities (as we saw is done under New York law):

a. There is no basis here for any problem under the Rule Against Perpetuities.

b. The court would probably “wait and see” whether the option is actually exercised within the perpetuities period before declaring it invalid.

c. This option to a corporation would probably be treated as a “class gift.”

d. This option would likely be declared invalid under the Rule Against Perpetuities.

32. Reanswer the previous question.

33. At the time of Oliver’s death, he owned a house in fee simple absolute. He left a will in which he wrote that his housekeeper, Maggie, should be “allowed to remain in the house and possess it for as long as she wishes, but at her death or in case she moves out and resides elsewhere for more than 60 days, the house shall go to the First Congregational Church.”

a. As a practical matter it makes little difference whether this will is interpreted as creating a license or a life estate.

b. If Maggie is deemed to have received a license, then she can be turned out of occupancy essentially at any time.

c. If Maggie is deemed to have received a terminable life estate, then she can be turned out of occupancy essentially at any time.

d. All of the above.

34. Reanswer the previous question.

35. Shortly before his death, Fredericks made a conveyance of his farm: “to my son, Walter, for life, then to his eldest child who survives him, but reserving a life estate in Eleanor Bassett.” At the time of the conveyance, Bassett was living with Fredericks on the farm, and she has continued to live there. Walter is suing her in ejectment.

a. In some states (but not all) the attempted ”reservation” to Bassett would be invalid under the rule concerning reservations to strangers.

b. In some states the old rule concerning reservations to strangers would not be applied to invalidate the attempted ”reservation” to Bassett.

c. Both of the above.

d. The rule concerning reservations in strangers could not apply here because, obviously, Bassett was not a stranger.

36. Reanswer the previous question.

37. Alston held a life estate in Greenacre, with the remainder held by Queech. Shortly before Alton’s death, a fire broke out and did relatively minor damage to the premises. The cost of repair will be about $4000. Also, for a year or so before his death Alston had been neglecting to pay the property taxes.

a. Queech ought to be able to require Alston’s estate to pay the property taxes arrears for the period while Alston was still alive.

b. Queech should be entitled to the proceeds from the fire insurance policy to cover the damage from the fire.

c. There is not even an arguable legal basis for holding Alston’s estate responsible for the cost of repairing the fire damage.

d. All of the above.

38. Reanswer the previous question.

39. The medieval mode of conveyance known as subinfeudation:

a. Was analogous to the modern mode of conveyance known as subleasing

b. Was abolished as to fee simple absolute estates by the Statute Quia Emptores.

c. Both of the above.

d. No longer has any modern counterpart.

40. Reanswer the previous question.

41. Gillman conveyed some property “to Dinkham and her heirs, for the sole purpose of creating and maintaining a day-care center for underprivileged children.”

a. This conveyance would probably be interpreted as creating a fee simple determinable.

b. This conveyance would probably be interpreted as creating a fee simple on condition subsequent.

c. This conveyance would probably be interpreted as creating a fee simple on executory interest.

d. Because courts view forfeiture estates with disfavor, this conveyance would probably be interpreted in such a way that Dinkham could retain possession no matter what use she decided to make of the land.

42. Reanswer the previous question.

43. Gillman conveyed some property, currently a day-care center, “to Dinkham and her heirs as long as the land is used for the sole purpose of maintaining a day-care center, but if the land ever ceases to be so used it shall revert to the grantor.”

a. This conveyance would probably be interpreted as creating a fee simple determinable.

b. This conveyance would probably be interpreted as creating a possibility of reverter.

c. The conveyance would probably be interpreted in such a way that the immediate right to possession would automatically go to Gillman in the event that Dinkham decides to change the use of the land to a welding shop.

d. All of the above.

44. Reanswer the previous question.

45. Fillmore leased Whiteacre to Saunders for 10 years. The lease provided: “In the event of a breach of any covenant by the tenant, the landlord may elect to give notice of such breach stating that the lease will terminate in 5 days, in which case this lease shall terminate 5 days after the giving of such notice.”

a. This language results in a lease on condition.

b. This language result in a lease on conditional limitation.

c. If this lease were made in New York, Fillmore would not be able to recover the property by a summary holdover proceeding (in the event of tenant breach) because of language of the lease gives him an election of whether to trigger a termination or not.

d. This lease clause would generally be considered void as against public policy.

46. Reanswer the previous question.

47. Ebert made a conveyance of land “to Nelson and his heirs.” Under the terms of this conveyance:

a. Nelson and his heirs would presumptively be considered tenants in common of the property.

b. Nelson’s heirs would receive from Ebert a right to possess the property after Nelson’s death.

c. If Nelson dies intestate and without any heirs surviving

him, the estate would come to an end and the land would escheat.

d. If Nelson later conveys the land in fee simple to Dana Peters and then both Peters and Nelson die, the land will go to Nelson’s heirs under the terms of Ebert’s conveyance.

48. Reanswer the previous question.

49. Ebert made a conveyance of land “to Nelson and the heirs of his body.” If this conveyance is treated as creating a fee tail under the traditional rules:

a. Nelson and the heirs of his body would presumptively be considered tenants in common of the property.

b. Nelson and the heirs of his body would presumptively be considered joint tenants of the property.

c. Inheritance would be limited to blood relations of Nelson.

d. If Nelson conveys the land to Dana Peters and then Nelson dies, the land will go to Nelson’s lineal heirs.

50. Reanswer the previous question.

51. Jana was standing in her living room and pointed to a statue on the fireplace mantle and said to her (adult) daughter, Cindy: “When I move to my new apartment, there won’t be any place for this. I’m giving it to you when I move.” Cindy held the statue for a moment and then handed it back to Jana, who replaced it on the mantle. Jana moved and, so far, nothing more has been said about the statue.

a. The statue probably now belongs to Cindy.

b. Jana’s words would probably be interpreted as a gratuitous promise.

c. Apart from any issues of donative intent, there is no way that the delivery requirement could be deemed to have been met on the facts of this case.

d. Apart from any issues of donative intent and delivery, there would not have been a gift unless Cindy actually expressed “acceptance” of the gift.

52. Reanswer the previous question.

53. Benny said to his daughter, who lived in the same house: “The large oak cabinet in the dining room has been in the family since the Civil War, and I want to you have it.” His daughter said thank you, but the cabinet (which weighed half a ton) remained where it was until Benny’s death, some years later.

a. There might have been a valid gift in this case because courts often relax the delivery requirement in the case of large items given by family members to other family members living in the same household, especially if there is clear and convincing evidence of donative intent.

b. There could not have been a valid gift of the cabinet because the only way for the delivery requirement to have been met would have been for the daughter to take the cabinet away, into her own separate possession, which she did not do.

c. Because the cabinet remained where it was until the donor’s death, this would have to be treated as a gift cause mortis

d. None of the above.

54. Reanswer the previous question.

55. Suppose Benny had handed his son a deed of gift, complying with all legal requirements, in which he wrote: “I want you to have the large marble table in the dining room, and I hereby am giving you a remainder in the table, retaining a life estate for myself.” The effect of this transaction:

a. Would be essentially the same as though Benny had executed a will leaving the table to his son.

b. Would be to prevent Benny from making an effective bequest of the table to a museum.

c. Cannot be known until Benny’s death when we see whether his will makes any different disposition of the table.

d. Depends on whether Benny also takes steps to make an effective delivery of the table.

56. Reanswer the previous question.

57. Cara Lincoln owned a Matisse painting that she lent to a local museum, in order to save on insurance. This loan allowed the museum to display her painting to the public. Growing on in years, Lincoln decided that she wanted to donate the Matisse to the museum so, one day, she telephoned the museum’s director and said: “I’m giving the Matisse to the museum. It now belongs to the museum.” The director said: “We thank you.”

a. All that remains for there to be a completed gift is for Lincoln to do something to meet the delivery requirement.

b. A court would normally say that the delivery requirement can be dispensed with in a case like this.

c. The delivery requirement has been met by virtue of the fact that the museum already has possession of the Matisse.

d. Although the delivery requirement has been met, when it is met in this way the gift is considered revocable.

58. Reanswer the previous question.

59. On his deathbed, Orlando said to his nephew Kim: “Over on my dresser there are some silver cufflinks, which I want to you have when I’m gone. Go get them. They’re yours.” Kim said thank you. Later, he took the cufflinks.

a. The gift, if it had been effectively completed at all, would have presumptively been a gift causa mortis.

b. The gift, if it had been effectively completed at all, would have presumptively been revocable by the donor.

c. If Kim did not actually take the cufflinks until after his uncle’s death, the gift would not have been effectively completed.

d. All of the above.

60. Reanswer the previous question.

61. In the early days of the Republic there were sometimes land-ownership disputes between, on one hand, people who traced their titles back to private purchases from various native peoples and, on the other hand, people who traced their titles back to the United States government (or to pre-revolutionary grants from authorized representatives of the British king). In providing a general rule for dealing with these disputes, the United States Supreme Court said:

a. Those who traced their titles back to private purchases from the native peoples should generally be preferred, provided that those private purchases came earlier than the original conveyances out of the United States or British government.

b. Conquest gives a title which the courts of the conqueror cannot deny.

c. The native peoples had no legally relevant claim of occupancy whatsoever to any of the lands taken over by the European powers.

d. All of the above.

62. Reanswer the previous question.

63. In early American cases, the courts had to decide whether to follow the common-law rule applicable in England (where trespass plaintiffs had to have possession of the land allegedly trespassed on). In general the American courts decided:

a. To retain the English rule, essentially unmodified.

b. To eliminate any requirement of “possession” as a pre-condition to maintaining trespass actions.

c. To retain the form of the English rule, but to hold that ownership draws with it constructive possession of land not held by an adverse possessor.

d. To retain the form of the English rule, but to hold that ownership is deemed to be constructive possession per se.

64. Reanswer the previous question.

65. Thornton comes to you and asks about his rights to a parcel of land adjacent to some property he bought many years ago. He has never occupied the adjacent parcel, but it is essentially inaccessible except from Thornton’s land (it is cut off from the highway by some railroad tracks). The true owner of the adjacent parcel, a large utility company, has never had any agents or personnel go to the parcel for over ten years. During this entire period Thornton has effectively controlled the parcel, occasionally going there to pick wild berries, to picnic and for other purposes. He has had a picnic table and grill on the land for over 10 years. Given the nature and location of the land, Thornton has pretty much treated the parcel as though it was his own. Under the general common law rules:

a. Thornton would not be per se disqualified from successfully claiming a ripened title to the land merely because he had never fenced the land, cultivated the land or maintained any structures or improvements there.

b. No court would recognize a ripened title in Thornton if his actions on the adjacent parcel were all done under the honestly mistaken belief that he actually owned the land in question.

c. No court would recognize a ripened title in Thornton if the utility company did not actually know about his actions on the adjacent parcel during the ten years.

d. Although it is helpful to Thornton that he treated the land as an ordinary owner would during the ten-year period, this fact is not usually regarded as particularly relevant to a claim of ripened title by adverse possession.

66. Reanswer the previous question.

67. Gildenstein owned a house and lot at the edge of a woods. The woods itself was part of a farm tract belonging to Stimm. When Gildenstein hired a fencing firm to enclose his lot, the fencing firm placed one stretch of the fence three feet over the property line, so it encompassed a 3-foot strip of Stimm’s land (placing the strip in Gildenstein’s possession). Seven years passed and then Gildenstein sold his house and lot to Arnold, who has possessed the 3-foot strip ever since. Recently, Stimm had a survey done and has demanded removal of the fence. Since Arnold’s period of possession combined with Gildenstein’s totals a little over 10 years, he wonders if he must yield to Stimm’s demand.

a. Arnold must base any claim of title by adverse possession on his own possession and not on that of others. Since his own possession is less than 10 years, he must yield to Stimm’s demand.

b. Arnold may tack his own possession onto that of Gildenstein only if there is “privity of estate” between the two—i.e., if he acquired possession from Gildenstein under a deed (or will or by inheritance).

c. Arnold may tack his own possession onto that of Gildenstein only if they are related in some way, either by blood or marriage.

d. There is no possibility of a ripened title by adverse possession if a court finds (as appears to be the case) that any “adverse” possession was done pursuant to an honest mistake of fact.

68. Reanswer the previous question.

69. For the past 12 years, Peter has continuously maintained an informal alternative entryway to his rural parcel of land across the adjacent parcel to the south. His use of the adjacent parcel was, however, without legal right. Seven years ago, the adjacent parcel was sold by the state (which had owned it), to Carolyn. Now Carolyn wants to fence in the area, which would block Peter’s entryway.

a. In many states Carolyn would be permitted to block Peter’s entryway because it is not possible to acquire rights against the state by adverse possession.

b. Under the general rule Carolyn would be permitted to block Peter’s entryway because, when a new true owner acquires land that is being adversely possessed or used, the period of adverse possession or use must start over again.

c. Carolyn would probably not be permitted to block Peter’s entryway because, under these facts, Peter apparently has an easement by necessity.

d. All of the above.

70. Reanswer the previous question.

71. Suppose that, for the past 12 years, Ingoll has continuously maintained an informal alternative entryway to his rural land across the adjacent parcel belonging to Carolyn. During this entire period, however, Carolyn’s parcel was held by Farney under a long-term lease. Now Farney wants to fence in the area, which would block Ingoll’s entryway. Farney’s lease has five more years to run.

a. Farney would probably not be permitted to block Ingoll’s entryway because, under these facts, Ingoll apparently has acquired an easement good against Farney.

b. Farney would probably not be permitted to block Ingoll’s entryway but, under these facts, it looks like Ingoll may lose his entryway rights in five years, when Farney’s lease expires.

c. Both of the above.

d. Farney would probably not be permitted to block Ingoll’s entryway because he is a mere leasehold tenant.

72. Reanswer the previous question.

73. Fenwick bought a parcel of land in a hilly wooded area. He intended to build a cabin on it. Due to a surveying error, however, he actually built the cabin on the land next door to his own, land belonging to Delpt. Fenwick also built a driveway leading to his cabin. He thought the driveway was entirely on his own land but it was in fact partly on the cabin parcel (belonging to Delpt) and partly on an adjacent parcel belonging to Thrush. All this happened more than ten years ago. In the meantime, Fenwick has regularly used the cabin and driveway during the summer months. Only now does everybody realize Fenwick’s mistake.

a. Fenwick might have by now acquired a ripened title to the area where the cabin is and an easement to the driveway on Thrush’s land, but only if he is the one who has paid the property taxes on the affected lands.

b. It is unlikely that any property rights have ripened in Fenwick to either the cabin parcel or the driveway because his seasonal use during the ten years was too off-and-on to meet the requirement of “continuousness.”

c. Because Fenwick would only be claiming an easement to the driveway, he probably has a good claim to it; as to the cabin parcel, however, mere summer usage would probably not be enough to meet the requirement of “continuousness.”

d. Apart from possible “honest mistake of fact” issues, Fenwick appears to have a strong case for asserting a ripened title to the cabin parcel as well as an easement to use the driveway over Thrush’s land.

74. Reanswer the previous question.

75. Same facts as in the preceding question:

a. In some states, if Fenwick were able to show all the elements of adverse possession and adverse use except “hostility,” then the hostility element would be presumed.

b. In at least one state, although an “honest mistaker” can acquire a ripened title by adverse possession, Fenwick might still conceivably have a problem here if the court finds that—given the nature and location of the parcels—it would not have been at all obvious to the true owners that Fenwick was making adverse possession and use of their land.

c. Both of the above.

d. In virtually every state (including New York) and under the better rule, Fenwick would be prevented from asserting a ripened title by adverse possession because his possession was under an honest mistake of fact.

76. Reanswer the previous question.

77. Telford entered into adverse possession against Williams in 1990, when Williams was 8 years old. Williams reached the age of majority in 2000. If the local jurisdiction has a 21-year statute of limitations on ejectment, with a 10-year disability period like in the statute we studied in class, then title would ripen in Telford:

a. 2021.

b. 2000.

c. 2010.

d. 2011.

78. Reanswer the previous question.

79. Suppose that Phelps entered into adverse possession against Wakefield but, before title ripened in Phelps, a trespasser named Taggott entered into the land and spray-painted graffiti all over the walls of the buildings. Title still has not (yet) ripened in Phelps.

a. Applying the Winkfield (jus tertii) principle, Phelps as a mere adverse possessor should not be able to recover damages against Taggott.

b. Under the approach taken by some courts, Phelps would be able to recover full damages against Taggott.

c. Under the approach taken by virtually all courts, Phelps would be able to recover full damages against Taggott.

d. Even if Phelps acquires full damages against Taggott, that would not prejudice the rights of Wakefield, who also would be entitled to a full recovery from Taggott.

80. Reanswer the previous question.

81. Suppose that Phelps acquires title by adverse possession against Wakefield, but Wakefield wants to sue Phelps for trespass for the period before title ripened. The local period of limitations on trespass actions is 6 years, and title ripened in Phelps one year ago.

a. Wakefield should, under the majority rule, be able to recover trespass damages from Phelps for the last five years of adverse possession before Phelps’ title ripened.

b. Wakefield would not be able to recover trespass damages against Phelps because an adverse possessor is not considered to be a “trespasser.”

c. Wakefield would not be able to recover trespass damages against Phelps because the acts contributing to the ripening of title are retroactively privileged—so that, in effect, when title is acquired by adverse possession it relates back to the time when the adverse possession began.

d. If Wakefield wants to recover trespass damages against Phelps, he must first sue Phelps in ejectment and recover the possession of the land and then he will be able to recover damages in trespass from Phelps.

82. Reanswer the previous question.

83. Galloway lived near a golf course and often entered onto the course in order to look for golf balls that had been lost by the players there. Although he was frequently chased away and told never to come back, he managed over the years to find quite a quantity of balls, which he took and used for practice. Assuming the golfers themselves had legally abandoned the balls found by Galloway:

a. Under the so-called English rule Galloway, as the “finder,” would be legally entitled to the golf balls he discovered and took possession of.

b. Under the so-called American rule Galloway, as the “finder,” would be legally entitled to the golf balls he discovered and took possession of.

c. Both of the above.

d. None of the above.

84. Reanswer the previous question.

85. Suppose that Galloway was a “guest” of the club that owned the golf course and that he was therefore lawfully present on the premises when found and took some golf balls that had been lost by other players. Suppose also that the club makes substantial (and substantially effective) efforts to control access to the course and to keep trespassers off, through the use of frequent patrols and other measures. Assuming the golfers themselves had legally abandoned the balls found by Galloway and that Galloway was not exceeding the scope of his license merely by his acts of “finding” and taking golf balls:

a. Under the so-called English rule Galloway, as the “finder,” would be legally entitled to the golf balls he discovered and took possession of.

b. Under the so-called American rule Galloway, as the “finder,” would be legally entitled to the golf balls he discovered and took possession of.

c. Both of the above.

d. None of the above.

86. Reanswer the previous question.

87. While in the waiting room of a doctor’s office, Semmell placed his briefcase on the floor and then forgot it when he later got up and left. The briefcase was found by Rexham, a patient who was waiting for an appointment. Assuming that the waiting room is not a “public” or “semi-public” place:

a. The doctor would have a better claim than Rexham to possess the briefcase in a jurisdiction that applies the distinction between lost and mislaid property.

b. Rexham would have a better claim than the doctor to possess the briefcase in a jurisdiction that applies the distinction between lost and mislaid property.

c. Neither of the above. The distinction between lost and mislaid property, even if applied in the jurisdiction in question, would have no bearing on a case like this.

d. Apart from the distinction between lost and mislaid property, the doctor would have a better claim than Rexham to possess the briefcase in a jurisdiction that applies the so-called American rule.

88. Reanswer the previous question.

89. While working at a repair shop owned by Melville Co., Donnie found a gold bracelet. It was located in the seat pocket of one of the seats on a bus that was in the shop for repairs. Melville keeps close control over who has access to the repair shop. Assuming the bracelet would be considered to be mislaid, then consistently with the rationale behind the distinction between lost and mislaid property:

a. Donnie should have a better entitlement to the bracelet than the bus owner or Melville.

b. The bus owner should have a better entitlement to the bracelet than Donny or Melville.

c. Melville should have a better entitlement to the bracelet than Donny or the bus owner.

d. None of the above. The rationale behind the distinction between lost and mislaid property would have no logical bearing on the question.

90. Reanswer the previous question.

91. While replacing some wallboard in a home belonging to Hillman, a contractor found $10,000 cash hidden in the wall. The homeowner admits not knowing whom the cash might belong to. In a contest between the contractor and the homeowner over possession of the money:

a. There is no substantial line of authority under which a court would award the possession to the contractor.

b. There is no substantial line of authority under which a court would award the possession to the homeowner.

c. It is probable that the contractor would have a better entitlement to the money under the so-called English rule.

d. The prior owner of the house (from whom the homeowner bought) would have a good case for the money under the so-called English rule, provided there is no reason to doubt that the money was already in the wall during the previous owner’s occupancy.

92. Reanswer the previous question.

93. Farwell entered a bank and presented the teller with a valid check in the amount of $60. The teller counted out six $100 dollar bills and handed them to Farwell, who folded the bills and placed him his pocket.

a. Farwell would be guilty of common law larceny if he knew the teller was making a mistake and yet he silently took advantage of that mistake by accepting and taking the excessive amount of money.

b. Farwell would be guilty of common law larceny even if he discovered the teller’s mistake only after leaving the bank and he decided to take advantage of the mistake (by keeping the money) at a later time.

c. Both of the above.

d. Farwell would be guilty of common law larceny only if he actually did something to induce the teller to make the mistake of paying out an excessive amount of money.

94. Reanswer the previous question.

95. Which of the following is not a bailment?

a. Morton lends an umbrella to Fred.

b. Gary deposits $500 in a savings account at a bank.

c. Abel rents a car at the airport.

d. All of the above are bailments.

e. None of the above (a, b or c) are bailments.

96. Reanswer the previous question.

97. Gerome owned a valuable sculpture in the “primitive” style, which wanted to transport by air to his summer home. Because the art-work was shaped somewhat like a club, he was informed it would have to be checked as baggage. The airline offered to provide wrapping for the object, and Gerome agreed to check it, but he did not inform the airline personnel that the sculpture was worth over $7000. The sculpture disappeared while in the possession of the airline. Now the airline takes the position that it never agreed to accept a bailment of so valuable an artwork, and that its liability should be limited to the value of a large wooden club—like one might find in a forest. (Ignore any special regulatory provisions that might be specially applicable to limit or otherwise affect airlines’ baggage liability.)

a. If the airline did not in fact know the value of the object, then there could be not bailment because bailments require that the bailee consent, and without knowledge of what was bailed there could be no consent.

b. In the law of bailments the actual value of the bailed object is irrelevant to whether the airline is liable and to the amount of such liability, if any.

c. In the law of bailments the apparent value of the bailed object (as it would appear to a reasonable person) is relevant to whether the airline is liable and the actual value is relevant in determining the amount of such liability, if any.

d. The airline could not, in any event, be held liable for more than the apparent value that the bailed object would seem to have in the eyes of a reasonable person.

98. Reanswer the previous question.

99. Gerome checked a suitcase with the bellboy at his hotel. He did not disclose that the suitcase contained several valuable carvings that Gerome was carrying for delivery to a museum. When Gerome returned to pick up the suitcase, he was given back the suitcase itself but the carvings were missing. Under the better analysis:

a. Gerome should be considered to have made a bailment of the suitcase, but not the carvings.

b. Gerome should be considered to have made a bailment of both the suitcase and the carvings, and the hotel would probably be liable for the full value of the missing carvings.

c. Gerome should not be considered to have made a bailment of either the suitcase or the carvings because he has misled the hotel, and there is therefore no mutual assent as is required for a bailment.

d. Gerome should be considered to have made a bailment of both the suitcase and the carvings, but the hotel should not be liable for the value of the missing carvings because, without knowing of their existence, it could not be reasonably expected to take any special precautions against their loss.

100. Reanswer the previous question.

101. Suppose in the preceding question that both the suitcase and the carvings were missing when Gerome went to retrieve them. As to the suitcase itself (at least):

a. There would be a rebuttable presumption that the loss resulted from the hotel’s negligence.

b. There would be an irrebuttable presumption that the loss resulted from the hotel’s negligence.

c. There would no particular presumptions one way or the other as to negligence by the hotel.

d. The hotel would be strictly liable for misdelivery.

102. Reanswer the previous question.

103. Norbert borrowed a bicycle belonging to Griffith. Before Norbert could return it, the bicycle was severely damaged when it was negligently run over by a car being driven by Hyland.

a. Norbert but not Griffith would have a cause of action against Hyland for the damage to the bicycle.

b. Griffith but not Norbert would have a cause of action against Hyland for the damage to the bicycle.

c. Either Griffith or Norbert could properly sue Hyland and recover for the damage to the bicycle.

d. If Norbert sues Hyland and recovers full damages for the damage to the bicycle, that still would not prevent an action by Griffith, as true owner, to recover for his loss.

104. Reanswer the previous question.

105. Morton was a weekend fisherman who caught some fish from his boat, which was floating on a certain pond. The pond is legally not “navigable in fact” and it is located on land almost entirely owned by Dobbs, who therefore owns most of the bed of the pond. A corner of the pond touches on a public highway, and it was from there that Morton gained access to the pond. Several streams flow into and out of the pond, and fish can swim freely in these streams to properties belonging to many different owners. Morton was within Dobbs’ property line when he caught the fish. Under these facts:

a. There is no question that Morton would be considered the owner of the fish because he is the first captor.

b. There is no question that Dobbs would be considered the owner of the fish because he is the owner of the land where the fish were caught.

c. Morton would be entitled to possess the fish, but he would not be considered the owner of them.

d. Dobbs would have a better claim to the fish than Morton unless Morton had a license from Dobbs to fish on the pond.

106. Reanswer the previous question.

107. Same facts as in the previous question:

a. Morton would not be considered a trespasser as long as he merely floated on the pond and did not touch the bed or banks.

b. Morton would be considered a trespasser if he fished where he did without the permission of Dobbs.

c. Morton would not be considered a trespasser in a state where the doctrine of ratione soli is applied.

d. Morton could not be considered a trespasser for fishing where he did unless Dobbs’ property was posted with “No trespassing” signs or Morton otherwise had notice that he was not permitted to fish there.

108. Reanswer the previous question.

109. Hollows and Jenks own property next to one another, and both rely on wells to supply water. During a dry spell the wells in the area ran low and Jenks withdrew substantial quantities of water, to the point where the Hollows’ well went dry. Hollows would have a right of action against Jenks:

a. Under the so-called American rule if Jenks’ withdrawals of the water were for a commercial use, i.e., to sell it to a nearby manufacturer at a considerable profit.

b. Under the so-called American rule if Jenks withdrew the water and then unreasonably wasted it.

c. Both of the above.

d. Under the so-called English rule, no matter what uses Jenks was making of the water.

e. All of the above.

110. Reanswer the previous question.

111. Perkins sold a portion of his property. A 25’ segment of his paved driveway ran across the portion that was conveyed out. Perkins reserved a right to continue using this 25’ segment. However, the deed provided that this right of use would be “personal” to Perkins for “as long as he owned the adjacent property, and no longer.” The most reasonable interpretation of this reservation, in order to carry out parties’ evident intent, is that:

a. It creates an easement appurtenant.

b. It creates a license.

c. It creates an easement in gross.

d. It gives Perkins an estate in fee simple determinable over the driveway segment.

112. Reanswer the previous question.

113. Assume again that when Perkins sold a portion of his property, a segment of his existing paved driveway traversed the conveyed parcel. However, the deed omitted any express provision to create any rights in favor of Perkins to use any portion of the conveyed parcel.

a. There is no plausible legal theory on which Perkins could claim an easement to continue using the driveway segment.

b. Perkins would probably have a good case for an easement by estoppel.

c. Perkins would probably have a good case for an easement by implied reservation, provided he could show that continued of the driveway was sufficiently necessary.

d. Perkins would probably have a good case for an easement by implied grant provided he could show that continued of the driveway was sufficiently necessary.

114. Reanswer the previous question.

115. Ronald sold a portion of his property to Klabber. The deed omitted any express provision to create an easement across the land retained by Ronald. However, the portion of the property conveyed to Klabber is landlocked.

a. Klabber has a good case for an easement by necessity across Ronald’s retained parcel.

b. Klabber has a good case for an easement by necessity across any of the adjacent parcels, including those held by other owners, over which reasonable access to highway would be possible.

c. If Klabber successfully asserts that he has an easement by necessity, the easement would, in most jurisdictions automatically include a right to run wires, pipes and other conduits for electricity, phone, water, and other such necessities.

d. All of the above.

116. Reanswer the previous question.

Facts for Arthur-Collins questions. The entryway to Arthur’s property ran across a bridge, which had fallen into disrepair. Arthur asked his neighbor, Collins, if Arthur could access his property by means of an old lane across Collins’ land. Collins agreed saying: “You can use it as long as you want.” After a few months, Arthur decided that, rather than to replace the bridge, it would be less expensive for him simply to upgrade the old lane. That is what he did. He had it paved.

117. Now Collins objects to Arthur’s continued use of the old lane.

a. If the cost of rebuilding the bridge would be very high, then Arthur probably has an easement by necessity to use the old lane across Collins’ land.

b. A court might well interpret these facts as giving Arthur an “executed parol license” to use the old lane.

c. A court might well interpret these facts as giving Arthur an easement by express grant to use the old lane.

d. All of the above.

118. Reanswer the previous question.

119. Suppose that Arthur and Collins work out a deal granting Arthur an appurtenant easement to use the (now paved) old lane in order to reach his property. Some years later, Arthur has a chance to sell off some his original property and to buy a much larger parcel (Parcel B) that lies behind his original property.

a. A person who buys a portion of Arthur’s original property could not likely have a right to use the old lane on Collins’ land unless a new arrangement were reached with Collins.

b. If Arthur buys Parcel B, he would have the legal right to use the easement over the old lane as a means of access to Parcel B, once he actually owns Parcel B.

c. Both of the above.

d. If Arthur tries to use the old lane as a means of access to Parcel B, that would constitute an unlawful burden on the easement over the old lane.

120. Reanswer the previous question.

121. Suppose again that Arthur and Collins work out a deal confirming that Arthur has an appurtenant easement to use the (now paved) old lane, but that Arthur does not buy the parcel lying behind his original property. However, the owner of that parcel, Wilson, comes to Collins and asks for an easement over a portion of the old lane in order to create a new entryway to Wilson’s house. For a price, Collins agrees and grants Wilson an easement.

a. Because Arthur already has an easement in the old lane, Collins would have no right to convey an easement over it to Wilson.

b. Because Arthur has paid to pave the old lane, Collins would have no right to convey an easement over it to Wilson.

c. Arthur will now apparently have to share use of the lane with Wilson.

d. Collins will probably be liable in damages to Arthur for conveying a right to use the lane to a third person without Arthur’s consent.

e. Both c. and d. above.

122. Reanswer the previous question.

123. Suppose again that Arthur and Collins work out a deal confirming in a recorded deed that Arthur has an appurtenant easement to use the (now paved) old lane, but now a new problem has arisen. Collins has been defaulting on his property taxes, and the municipality has begun foreclosure proceedings.

a. If Arthur does not take decisive action, his easement will almost certainly be extinguished when the Collins land is sold in a tax foreclosure for non-payment of property taxes.

b. The normal rule is that, when the servient land is sold, any easements across the servient land are extinguished unless specific provision is made to keep them alive.

c. Both of the above.

d. Under the “tax assessment” approach, Arthur’s easement would not be affected by a tax foreclosure of the Collins land.

124. Reanswer the previous question.

125. Suppose again that Arthur and Collins work out a deal confirming that Arthur has an appurtenant easement to use the (now paved) old lane, but that Arthur has grown tired of dealing with Collins and decides to fix the bridge on his own property. For several years, Arthur makes no use of the old lane.

a. Arthur’s easement to use the old lane would probably be extinguished by such an extensive period of non-use.

b. Arthur’s easement to use the old lane would probably be extinguished if he tore up the portion of driveway that connects to the lane on his own land, so the lane on Collins’ land essentially comes to a dead end when it reaches Arthur’s property line.

c. Both of the above.

d. None of the above. An easement can only be extinguished by prescription or by a deed that releases the easement back to the servient owner.

126. Reanswer the previous question.

127. When Osgood sold a portion of his property, a segment of his existing paved driveway was on the conveyed parcel. The deed contained language giving Osgood an appurtenant easement over the driveway segment on the conveyed parcel.

a. Osgood’s retained land would be the dominant tenement.

b. The parcel on which the segment was located would be the dominant tenement.

c. There would be no dominant tenement.

d. There would be no servient tenement.

e. Both c. and d. above.

128. Reanswer the previous question.

129. A state legislature prohibited the mining of coal from under homes. The United States Supreme Court held that this state law:

a. Was an unconstitutional taking because the law made it commercially impracticable to mine certain coal, which amounts to a “taking” of the coal that the mining companies had to leave in the ground.

b. Was an unconstitutional taking because the right to mine coal is a “liberty” guaranteed by the Constitution.

c. Was a constitutional impingement on property rights because the prohibition on mining was the only way that public safety could be protected from the danger of subsidence due to undermining.

d. Was constitutional because the protection of even a single private house serves an important public interest.

130. Reanswer the previous question.

131. Talbot’s next-door neighbor has just applied for a building permit to convert his home into a 3-family house, which is permitted by the local zoning regulations. However, Talbot’s lawyer has recently discovered that the original developer of the neighborhood placed covenants in all the original deeds (all recorded) which, among other things, limited the use of the properties to one-family use, pursuant to a common plan or scheme of development. However, when Talbot’s neighbor bought his property he was totally unaware of the one-family use restriction:

a. The neighbor would clearly be legally exempt from the restriction.

b. The neighbor still might be subject to the restriction if Talbot could show that the covenants were intended to run with the land, that they touched and concerned the land and that there was privity of estate.

c. The neighbor would only be subject to the restriction if the covenants “touched and concerned” the land and, under these facts, they would not touch and concern the land because 3-family houses are permitted by the local zoning.

d. The neighbor might be liable on a real covenant theory but, since he bought without actual knowledge of the restrictions, he could possibly not be held on an equitable servitude theory.

132. Reanswer the previous question.

133. In the preceding question, suppose that the original developer of Talbot’s neighborhood not only set up a scheme of restrictive covenants but that he also set up a community association to enforce the covenants. Membership in the association (which itself owns no property) is open to all property owners in the restricted area. The main legal question that arises in allowing such an association to sue to enforce the restrictive covenants is:

a. The absence of privity of estate.

b. The association does not “touch and concern” land because it owns no property.

c. Such associations give excessive power to neighbors who gang up on individual private owners who want to use their land as they please.

d. There has never been any serious legal question as to whether such associations can sue to enforce restrictive covenants.

134. 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) that may be required by law in order to create the defeasible estate.

135. O conveyed “to A for life, then to B and her heirs.” O has an executory interest.

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

137. O conveyed “to A for life, then to B and her heirs.” B’s heirs have a remainder.

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

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

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

141. 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.

142. O conveyed “to A for life.” The conveyance resulted in a reversion.

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

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

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

146. O conveyed “to A for life and then, six days after A’s death, to B and her heirs.” B has a remainder.

147. O conveyed “to A for life, then to B and her heirs if B places a notice of A’s death in the local newspaper.” B has an executory interest.

148. 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.

149. 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.

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

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

152. O conveyed “to A for life, then to B and her heirs if B marries C.” O has no reversion.

153. 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.

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

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

156. 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.

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

158. 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.

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

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

161. 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.

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

163. O conveyed “to A and his heirs as long as swans nest on Belle Isle.” O has an interest that is properly called a reverter.

164. O conveyed “to A and his heirs as long as swans nest on Belle Isle.” O has an interest that is properly called a reversion.

165. 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.

166. 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.

167. 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.

168. 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.