PACE UNIVERSITY SCHOOL OF LAW

PROPERTY II -- VERSION A

PROFESSOR HUMBACH May 20, 1993

FINAL EXAMINATION TIME LIMIT: 2 1/2 HOURS

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GENERAL INSTRUCTIONS:

This examination consists of multiple choice questions. Answer the questions on the answer sheet provided. Write your examination number and the version (A or B) on the answer sheet. Write them NOW.

Answer each question selecting the BEST answer. Mark your choice on the answer sheet with the special pencil provided. Select only one answer per question or else the question will be marked wrong. If you change an answer, be sure to FULLY erase your original answer or the question may be marked wrong. Do not mark in the left margin of the answer sheet (where the little black lines appear). You may be penalized if you do.

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. Assume that the period of limitations on ejectment is 10 years.

Facts for Krippo-Sanders questions:

Krippo leased a downtown storefront to Sanders under a 10 year lease at a rental of $3,000 per month. Sanders entered into possession and opened a flower shop.

1. Suppose that, after three years, Norton made Krippo a very attractive offer to buy the premises--provided there is no tenant.

a. If Sanders is willing to proffer a "surrender," an effective way for Krippo to deal with the remaining seven years under the lease would be to accept the proffered surrender.

b. An effective way for Krippo to deal with the remaining seven years under the lease would be to offer Sanders virtually identical premises owned by Krippo across the street and evict Sanders if he refuses to accept them. Under the circumstances, the damages for such an eviction should not be too great.

c. An actual eviction might get Krippo in much trouble, but he would probably be safe to utilize a constructive eviction by spraying herbicides all around the premises so that Sanders's flowers could not survive.

d. None of the above. Krippo either must turn down Norton's offer, or get the Norton to modify it to accept Sanders as a tenant for the remaining seven years of the lease.

2. Reanswer the previous question.

3. Suppose that, after three years, Sanders found the flower business boring. If Sanders decides to close the business and move out:

a. Sanders has a right to have Krippo "accept the proffered surrender," which would have the effect of terminating Sanders's liability to pay rent for the remaining seven years of the lease.

b. If Sanders just "abandons" possession without legal cause, Krippo is allowed under the traditional rule to leave the premises vacant and require Sanders to pay the rent as it accrues for the remaining seven years.

c. Under ordinary contract law, a party has a legal "duty to mitigate damages" when the other party breaches, and many modern cases apply the ordinary contract rule of mitigation to landlord-tenant cases.

d. Under the traditional rules, if Sanders abandons and Krippo relets to Warezy, Sanders would be temporarily released from paying rent, but Sanders could be held liable for the full rents later if, after a time, Warezy also abandons and ceases to pay rent.

4. Reanswer the previous question.

5. Suppose again that, after three years, Sanders found the flower business boring. If Sanders sells the business to Warezy:

a. Sanders can assign the lease to Warezy, but (under the common law rule) such an assignment would be lawful only if Krippo consents to it--unless the lease contains a provision conferring such consent.

b. Sanders can sublet to Warezy, but (under the common law rule) such a sublease would be lawful only if Krippo consents to it--unless the lease contains a provision conferring such consent.

c. Both of the above.

d. None of the above. If the lease does not contain a prohibition on subletting or assignment, Sanders can do either one without the consent of Krippo.

6. Reanswer the previous question.

7. Assume in the preceding question that Sanders assigned his lease to Warezy. After paying two months rent, Warezy abandoned possession because he wanted a bigger store. Five months have gone by, and Krippo has already missed receiving $15,000 of rent.

a. Sanders is liable to Krippo for the $15,000 under these circumstances.

b. Krippo can go against Sanders for the $15,000, but only if he first tries to recover the rent from Warezy and finds it impossible to do so.

c. If Krippo succeeds in recovering the $15,000 from Sanders, Warezy is totally "off the hook."

d. None of the above. Sanders cannot be held liable to Krippo for the $15,000 under these circumstances.

8. Reanswer the previous question.

9. Assume that Sanders is about to transfer the premises to Warezy (with seven years to run on the lease), and that Sanders wants to make absolutely sure that Krippo, the landlord, cannot hold him liable for rent after Warezy takes over the premises. The best way to achieve this result would be for Sanders to:

a. Get Krippo to consent to the assignment to Warezy.

b. Require Warezy to "assume" the lease.

c. Sublet to Warezy instead of assigning the lease to Warezy.

d. None of the above would work.

e. None of the above would be necessary. Sanders could not be held liable to Krippo for rent accruing after Warezy took over in any event.

10. Reanswer the previous question.

11. Assume that, after three years, Sanders sold Warezy the flower shop business that he ran in the premises leased from Krippo.

a. If Sanders sublets to Warezy then, for purposes of the landlord-tenant relation with Krippo, Warezy steps into Sanders's shoes and becomes the "tenant" in the place of Sanders.

b. If Sanders sublets to Warezy then Sanders would still owe Krippo the full rent for each month in the remaining seven years of the lease.

c. If Sanders wants to sublet to Warezy for the entire remaining duration of the lease. there is no reason why, under the traditional rule still applicable in most states, that Sanders cannot do so.

d. If Warezy is agreeing to pay Sanders $4,000 per month rent and, for this reason, Sanders wants to maintain better "control" over Warezy and the leasehold situation, Sanders would be better off assigning the lease rather than subletting.

12. Reanswer the previous question.

Facts for Tim's apartment questions:

Tim has a one-room "efficiency" apartment in a large building under a 3 year lease. For the past several weeks a leak from the upstairs neighbor's bathroom has been dripping down from Tim's ceiling. Several complaints to the landlord have produced no results. Meanwhile, the drip-drip-dripping all night long prevents Tim from sleeping, and he is so bleary-eyed at work that his boss has threatened to fire him.

13. Assume that Tim moves out because he cannot sleep in the apartment:

a. If the landlord was legally responsible for stopping the drip, Tim should not have any further liability for rent under the doctrine of constructive eviction.

b. Even if neglect of the upstairs tenant caused the dripping, and the landlord had no ability or duty to stop it, Tim still should not have any further liability for rent under the doctrine of constructive eviction.

c. Both of the above.

d. None of the above. Unless the landlord engaged in behavior with the intent of evicting Tim, the case would not be an appropriate one for claiming constructive eviction.

14. Reanswer the previous question.

15. Assume that Tim cannot sleep in the apartment but does not moves out. If the implied warranty of habitability applies to his drippy "efficiency" apartment then:

a. He could logically claim a constructive eviction without actually moving out of the apartment.

b. Assuming no reasonable person could sleep in the apartment because of the constant dripping, Tim should be able to hold the landlord responsible for the dripping even without moving out of the apartment.

c. Tim would not be liable for any rent during any rent period during which the dripping continued, once notice was given to the landlord.

d. All of the above.

16. Reanswer the previous question.

17. Assume that, instead of moving out, Tim reacted to the dripping by withholding part of his rent, paying the landlord only what Tim felt to be the "fair" amount due:

a. Under the traditional common law rule, the landlord could evict Tim whether the lease contained a provision for such eviction or not.

b. Even if the lease provided that Tim could be evicted for non-payment of the full rent when due, many modern cases would hold that the landlord's breach of the warranty of habitability would relieve Tim of the obligation to pay the full rent even though he retains possession of the apartment.

c. Courts that hold as in b. above are, in fact, applying ordinary contract rules to leases.

d. Both b. and c. above.

e. All of the above.

18. Reanswer the previous question.

19. Assume that the landlord fixed the drip but Tim moved out anyway, many months before the end of his lease, because he wanted to live closer to his office. Tim's apartment is still empty and the landlord has sued Tim for several months' back rent. Tim's defense is that the landlord has not "mitigated damages." If you represented the landlord, which of the following would it be helpful to be able to point out?

a. No case in the jurisdiction has ever departed from the traditional rule on mitigation when a tenant abandons.

b. The building is large with many apartments, and at least two or more efficiency apartments (exactly like Tim's) are vacant and available for renting at all times.

c. The landlord has shown Tim's apartment to 2-3 prospective tenants each week, but none have opted to take it.

d. All of the above.

20. Reanswer the previous question.

21. Lomman owned a large parcel of sloping land overlooking a river. He sold the upper portion, higher in elevation and back farther from the river, to Del Este, who plans to build a fancy restaurant there. In order to preserve the fabulous view from the restaurant, Del Este paid an extra $700,000 so that Lomman would put a covenant in the deed to Del Este stating: "Grantor, his heirs, successors and assigns shall build no structure higher than three stories on the retained land." Lomman has now sold the retained land to Hyrise, who wants to build a 10-story apartment complex that will block the river view from Del Este's planned restaurant. The deed to Del Este was recorded long before Hyrise bought.

a. Del Este would clearly have a right to prevent Hyrise from constructing the 10-story building.

b. Del Este may have great difficulty enforcing the view protection against Hyrise if the local jurisdiction follows the rule that a purchaser normally does not have to search outside the "direct" chain of title.

c. Even if the view protection were otherwise enforceable, Hyrise would probably be able to avoid the covenant if he could show that its enforcement would have a substantial negative economic impact on him.

d. Del Este should have no difficulty enforcing the view protection against Hyrise in any jurisdiction as long as it was recorded before Hyrise bought.

22. Reanswer the previous question.

23. In the preceding question, assume that Lomman still owns the land he retained in the sale to Del Este, but that Del Este has re-sold the uphill parcel to a Acme Eateries, Inc., national restaurant chain. Lomman wants to build a 10-story apartment complex that will block the river view from Acme's planned restaurant.

a. It is highly unlikely that Acme could enforce the view protection against Lomman unless the deed from Lomman to Del Este specified an intention that the covenant enure to the benefit of the grantee's "heirs, successors and assigns."

b. It is highly unlikely that Acme could enforce the view protection against Lomman if the local jurisdiction requires "horizontal" (as opposed to "vertical") privity of estate.

c. It is highly unlikely that Acme could enforce the view protection against Lomman unless Acme bought with notice of the view restriction.

d. Acme should have no difficulty enforcing the covenant for view protection against Lomman.

24. Reanswer the previous question.

Facts for Sizemore questions:

Three years ago, Sizemore purchased a steep and rocky piece of land on which to build his house. The property was at the edge of a huge tract of vacant woodland owned by a timber company. Because it would be inconvenient to blast an accessway from the road directly onto Sizemore's land, the building contractor bulldozed a dirt track through the immediately adjacent portion of the timber company's property in order to get workers and materials to the site of Sizemore's house. After Sizemore moved in, he had this dirt track paved and started using it as his driveway, not even realizing that it was not on his land.

25. Under these circumstances:

a. Sizemore probably has an easement by necessity to continue using the driveway.

b. Sizemore probably has an easement by implication to continue using the driveway.

c. Sizemore probably has no right at all to continue using the driveway.

d. Sizemore probably has an executed parol license to continue using the driveway.

26. Reanswer the previous question.

27. Assume that there is some doubt about Sizemore's ability to prove facts establishing that he has a legal right to use the driveway. The timber company wants to prevent Sizemore's claim from firming up under a "prescription" theory so its legal counsel, a lawyer from Maine, wrote Sizemore a letter objecting to his use of the driveway, thereby indicating non-acquiescence:

a. The letter strategy should work if the land is in a jurisdiction that deals with easements by prescription strictly analogously to adverse possession.

b. The letter strategy should work if the land is in a jurisdiction that still strictly adheres to the "lost grant fiction" theory for easements by prescription.

c. Both of the above.

d. None of the above. The only way that a servient owner has ever been able to stop the ripening of an easement by prescription is to actually stop the unlawful use of the property.

28. Reanswer the previous question.

29. Assume that it is definitely unlawful for Sizemore to make use of the driveway across the timber company's adjacent woodland. Sizemore wants to acquire a right the use the driveway, and he is willing to pay a lot of money to avoid the cost of blasting. If the timber company executes and delivers a deed conveying an easement over the driveway to Sizemore:

a. The easement would be presumptively appurtenant, even if the deed does not say so.

b. The easement would be an affirmative easement.

c. If Sizemore sells his property, and the deed to the buyer does not mention the easement, the easement would be presumptively included in the conveyance.

d. All of the above.

30. Reanswer the previous question.

31. Assume that Sizemore has purchased an easement from the timber company to use the portion of the driveway running across the edge of the timber company's land. Thereafter, Sizemore builds a small house for his daughter, returned from college, on the back corner of his property. About a year later, he buys the parcel of land directly behind his original land and builds a home for his son and daughter-in-law to live in. The driveway easement is used to access all three houses on Sizemore's now enlarged parcel.

a. The use of the driveway to reach the daughter's house is an overuse of the easement and a trespass.

b. The use of the driveway to reach the son's house is an overuse of the easement and a trespass.

c. Both of the above.

d. None of the above, provided that the traffic generated by these additional uses is not very great.

32. Reanswer the previous question.

33. Assume again that Sizemore has purchased an easement to use the portion of the driveway running across the edge of the timber company's land. The deed states that the easement is "for driveway use only and located within an area that is 15 feet on either side of a center line described as follows: [at this point the deed describes the center line of the existing driveway]." The timber company now wants to sell the piece of land right next to Sizemore's (the part with the driveway), to Cluneck, who desires to build a residence. Cluneck will buy, however, only if the driveway is relocated. At very least he wants the easement narrowed so that Sizemore cannot chop down all the trees in the whole 30 foot strip, depriving Cluneck of privacy.

a. Cluneck should not be concerned. The easement would not give Sizemore any right to chop any trees in the 30 foot strip anyway, only to drive there.

b. As long as the existing driveway is adequate to serve Sizemore's needs, Sizemore cannot widen it anyway, even if the deed specifies a 30 foot wide location for the easement.

c. As long as no substantial burden results to Sizemore, there is no reason why the timber company cannot just unilaterally relocate the easement by building Sizemore a new driveway at a location acceptable to Cluneck.

d. All of the above.

34. Reanswer the previous question.

35. Assume again that Sizemore has purchased an easement to use the portion of the driveway running across the edge of the timber company's land and that he later builds two more houses, for his daughter and his son, that also access the highway by means of the driveway. Tired of being hassled, wrongly in his view, for adding two households to the burden on the driveway, Sizemore decides to bite the bullet and blast a new driveway, entirely on his own property, to serve all three houses. After doing so, however, he finds it shorter and more convenient (though certainly in no way necessary) to continue using the driveway on timber company land to reach his own house:

a. If the driveway across the timber company land was an easement by necessity, it would be extinguished.

b. If the driveway across the timber company land was an easement by implication from prior use, it would be extinguished.

c. If the driveway across the timber company land was an easement by express grant, it would be extinguished, provided it could be shown to be a substantial burden on the servient tenement and not absolutely necessary for the use of the dominant tenement.

d. All of the above.

36. Reanswer the previous question.

37. Borstead, who owned Blackacre in fee simple absolute, made a conveyance "to Edward and Estelle Tompkins." If Edward and Estelle are husband and wife and the land is in a modern jurisdiction that recognizes all three common law concurrent estates:

a. Edward and Estelle would presumptively be tenants in common.

b. Edward and Estelle would presumptively be joint tenants.

c. Edward and Estelle would presumptively be tenants by the entirety.

d. It cannot be determined from these facts what estate Edward and Estelle would have because the words of conveyance do not specify.

38. Reanswer the previous question.

39. If, in the preceding question, Edward and Estelle were not husband and wife but were brother and sister, and the land is in a modern jurisdiction that recognizes all three common law concurrent estates:

a. Edward and Estelle would presumptively be tenants in common.

b. Edward and Estelle would presumptively be joint tenants.

c. Edward and Estelle would presumptively be tenants by the entirety.

d. It cannot be determined from these facts what estate Edward and Estelle would have because the words of conveyance do not specify.

40. Reanswer the previous question.

41. If Edward and Estelle were considered to be joint tenants of Blackacre:

a. Upon Estelle's death, Edward would be the sole owner of Blackacre even if, before her death, Estelle had made a will devising all her interest in Blackacre to Marvin.

b. Upon Estelle's death, Edward would be the sole owner of Blackacre even if, before her death, Estelle had delivered a deed conveying all her interest in Blackacre to Marvin.

c. Both of the above.

d. Edward and Estelle would each have a right of survivorship that could not be affected or destroyed by the unilateral act of the other.

42. Reanswer the previous question.

43. Assume that Edward and Estelle are tenants in common of Blackacre. If Edward, acting totally on his own, makes a contract to sell Blackacre to Pete (who contracted to buy Blackacre with no notice whatsoever of Estelle or her interest in Blackacre):

a. Pete would be required to accept a conveyance tendered by Edward alone at the closing because that is what Pete contracted to do. If Pete cared that Edward might only be able to convey a title shared with somebody else, Pete should have done a title search before making the contract.

b. If Pete accepts such title as Edward is able to convey, Pete and Estelle would end up owning Blackacre as joint tenants.

c. If Pete accepts such title as Edward is able to convey, Pete and Estelle would end up owning Blackacre as community property.

d. Pete would be able to reject a conveyance tendered by Edward alone at the closing on the ground that the title he would receive (shared with Estelle, contrary to Pete's intention) would not be marketable.

44. Reanswer the previous question.

45. With the help of Doris's broker, Doris and Marie made contract for the sale of Whiteacre. The title that Doris tenders to Marie at the closing is unmarketable.

a. Doris would at least not have to pay a commission to her broker if Marie rejects Doris's title at the closing (assuming the listing agreement had no provision as to the broker's commission).

b. If the contract had no express provision calling for a title of a specific quality (such as an "insurable title" or a "marketable title"), Marie would be required to accept whatever title Doris is able to convey.

c. If neither party knew of the title defect before or at the closing and Marie went ahead and accepted Doris's quitclaim deed, Marie would not later be able to recover damages for breach of the implied warranty of marketability in the sale contract.

d. If the title defect consists of the possible rights of an adverse possessor, Doris should be able to compel Marie to accept the defective title at a reduced purchase price, or with an indemnity, in an action for specific performance of the contract.

46. Reanswer the previous question.

47. Hapscott, Randorf and Pluff were joint tenants of Greenacre. Hapscott conveyed his interest in Greenacre to Randorf. If Randorf were then to die intestate, Greenacre would be owned by:

a. Pluff, alone.

b. Randorf's heirs (as to undivided 1/3) and Pluff (as to undivided 2/3).

c. Randorf's heirs (as to undivided 1/2) and Pluff (as to undivided 1/2), as joint tenants.

d. Randorf's heirs (as to undivided 1/2) and Pluff (as to undivided 1/2), as tenants in common.

48. Reanswer the previous question.

49. Hapscott, Randorf and Pluff were joint tenants of Greenacre. For a number of years, Hapscott has had sole possession of the land, paying nothing to the other joint tenants. Randorf and Pluff now come to you to ask what their rights are. Assume that the statute of limitations on ejectment is 10 years, but do not assume any agreements or ousters not actually specified.

a. If Hapscott actually ousted Randorf and Pluff, and the ouster occurred more than 10 years ago, Randorf and Pluff probably have no further rights in the land.

b. If Hapscott has been in sole possession of the land for twelve years, Randorf and Pluff probably have no further rights in the land.

c. Both of the above.

d. If Hapscott has been in sole possession of the land for less than ten years, Randorf and Pluff are probably entitled to a judgment for rent from Hapscott under the majority rule.

50. Reanswer the previous question.

<end of examination>