PACE UNIVERSITY SCHOOL OF LAW

PROPERTY I -- VERSION A

PROFESSOR HUMBACH May 11, 1994

FINAL EXAMINATION TIME LIMIT: 2 1/2 HOURS

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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. 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.

1. Torry conveyed Blackacre "to Carolyn and Quentin and their heirs." Under the modern interpretive presumption:

a. If Carolyn and Quentin are brother and sister, they received a tenancy in common.

b. If Carolyn and Quentin are brother and sister, they received a joint tenancy.

c. If Carolyn and Quentin are brother and sister, they received a tenancy by the entirety.

d. The tenancy that Carolyn and Quentin received cannot be determined from the information given.

2. Reanswer the previous question.

3. Torry conveyed Blackacre "to Carolyn and Quentin and their heirs." In order for the grantees to have received a tenancy by the entirety under the modern interpretive presumption (remember, pick the best answer):

a. The deed would have to specify that the estate conveyed was a tenancy by the entirety.

b. Torry would have to have a tenancy by the entirety in the first place.

c. The grantees would have to be married.

d. The grantees would have to be married to each other.

4. Reanswer the previous question.

5. In New York, if Torry delivered a deed conveying Blackacre "to Carolyn and Quentin, husband and wife, and their heirs as tenants by the entirety," but in fact Quentin (unbeknownst to himself or Carolyn) was still legally married to Jane--due to a defective divorce:

a. The grantees would receive a tenancy by the entirety anyway.

b. The grantees would receive a joint tenancy.

c. The grantees would receive a tenancy in common.

d. The deed would fail because its terms could not be carried into effect, and the land would still belong to Torry.

6. Reanswer the previous question.

7. Torry delivered a deed conveying an undivided 1/5 interest in Blackacre "to Carolyn and her heirs, as joint tenant with me."

a. If Torry predeceased Carolyn, she would be the sole owner of Blackacre.

b. If Carolyn predeceased Torry, he would be the sole owner of Blackacre.

c. Both of the above.

d. If Torry died intestate before Carolyn, she would share possession of Blackacre with Torry's heirs.

8. Reanswer the previous question.

9. Suppose that Torry delivered a deed conveying Blackacre to Ellen and Allen, brother and sister, and their heirs (along with appropriate language to create the desired concurrent tenancy), and that Allen then predeceased Ellen:

a. Ellen would be the sole owner if the tenancy she and Allen received was a joint tenancy.

b. Ellen would be the sole owner if the tenancy she and Allen received was a tenancy in common.

c. Ellen would be the sole owner if Allen had, before his death, delivered a deed purporting to convey "all my interest in Blackacre to Jane and her heirs."

d. None of the above.

10. Reanswer the previous question.

11. Suppose that Torry delivered a deed conveying a joint tenancy to "Ellen and Allen and their heirs," and that Ellen and Allen were not related:

a. After the death intestate of Ellen and Allen--one year apart--their heirs would be entitled to the ownership of the property.

b. After the death intestate of Ellen and Allen--one year apart--the heirs of the one who lived longer would be entitled to the ownership of the property.

c. If Allen then predeceased Ellen, then Ellen would share possession with Allen's heir(s).

d. A conveyance by Allen of all his interest in the land to Jane would make Ellen a joint tenant with Jane.

12. Reanswer the previous question.

13. Torry delivered a deed conveying a joint tenancy to "Ellen, Allen and Otis and their heirs." Otis later delivered a deed conveying his share to Allen. After that, Allen died intestate:

a. Ellen is now the sole owner.

b. Ellen now owns an undivided one-third. Allen's heirs own an undivided two-thirds.

c. Ellen now owns an undivided two-thirds. Allen's heirs own an undivided one-third.

d. Otis still owns his one-third. An interest in a joint tenancy cannot be conveyed because that would violate one or more of the "four unities."

14. Reanswer the previous question.

15. Ellen and Clyde became tenants by the entirety of Greenacre. Later, in settlement of a debt, Clyde delivered a deed stating that it conveyed "all my interest in Greenacre" to Legree.

a. In some states, Legree would be co-owner of Greenacre with Ellen.

b. in some states, Clyde would still own his interest in Greenacre because an interest in a tenancy by the entirety cannot be conveyed by one of the tenants acting alone.

c. If Clyde predeceased Ellen, she would be entitled to sole possession of Greenacre.

d. All of the above.

16. Reanswer the previous question.

17. Ashley and Arthur inherited Blueacre, a one-family residence, from their aunt. Ashley, who had been living with the aunt at her death, remained in occupancy. After several years, Arthur suggested that Ashley was enjoying "his" share of their inheritance and that she should consider paying him a suitable sum each month. She replied: "If you don't like me having it all, move in." Arthur comes to you and inquires as to his rights. As a co-tenant with Ashley in Blueacre:

a. Arthur is entitled to recover monetary compensation from Ashley for the time she has had sole possession, according to the majority rule.

b. Arthur is entitled to recover monetary compensation from Ashley for the time she has had sole possession, according to the usual interpretation of the so-called Statutes of Anne.

c. Both of the above.

d. Arthur is entitled to join in possession with Ashley.

18. Reanswer the previous question.

19. Suppose, in the preceding question, that Ashley has had the sole possession of Blueacre for 12 years. In a state that has no special statute concerning adverse possession by co-tenants (and with a 10-year limitation period on ejectment):

a. Ashley would clearly now be the sole owner of Blueacre.

b. Ashley would be the sole owner of Blueacre if she could show that she had "ousted" Arthur over 10 years ago and he had done nothing about it since.

c. If Ashley succeeds in proving that she "ousted" Arthur over 10 years ago, the result might be that Arthur is entitled to monetary compensation for Ashley's sole possession during the time since that ouster.

d. None of the above.

20. Reanswer the previous question.

Facts for Timothy/Backacre questions

Timothy bought Backacre, a heavily wooded rural parcel whose only public road access was via a 3 mile unimproved dirt road. On the south side of Timothy's parcel was a state highway, but Timothy's land was separated from the highway by a 300 foot strip of land owned by Garth. If Timothy could have direct access to the state highway across Garth's land, it would cut off several tedious miles from his daily trip to town and work.

21. Suppose that Timothy had bought Backacre from Garth, who retained the 300 foot strip for himself. There were no discernable traces of any previous use of any part of the 300 foot strip as an accessway between the highway and the land bought by Timothy.

a. Timothy would have a good case for asserting an easement by necessity.

b. Timothy would have a good case for asserting an easement in invitum.

c. Timothy would have a good case for asserting that there was a quasi-easement across the strip, and on the basis of that he could claim an easement by implied grant.

d. Timothy would apparently need to obtain a conveyance from Garth if he wanted an easement across the 300 foot strip.

22. Reanswer the previous question.

23. Suppose again that Timothy had bought Backacre from Garth, who retained the 300 foot strip for himself. If Timothy intends to assert an easement by implied grant across Garth's land, which of the following facts would be relevant for Timothy to be able to prove:

a. At the time Timothy bought Backacre there was a visible, well-defined lane running across the 300 foot strip between the state highway and Backacre.

b. Access to the highway via the 300 foot strip was reasonably necessary for the use of Backacre.

c. Both of the above.

d. Garth told Timothy that Backacre was legally suitable for further subdivision.

e. All of the above.

24. Reanswer the previous question.

25. If Timothy had bought Backacre from somebody other than Garth, and Garth later sold Timothy an easement giving him access to the highway across the 300 foot strip, the easement would presumptively be:

a. An easement in gross.

b. An appendant easement.

c. An appurtenant easement.

d. An attendant easement.

26. Reanswer the previous question.

27. If Timothy had bought Backacre from somebody other than Garth, and Garth later sold Timothy a highway-access easement across the 300 foot strip, and if Timothy then sold Backacre to Neggst:

a. Neggst should now be the owner of the easement, even if Timothy's deed to Neggst did not mention the easement.

b. Neggst should now be the owner of the easement, provided Timothy's deed to Neggst expressly included the easement.

c. The easement would presumptively merge back into the fee out of which it was created.

d. Timothy would continue to own the easement as long as the deed to Neggst did not convey it to Neggst.

28. Reanswer the previous question.

29. If Timothy had bought Backacre from somebody other than Garth, and Garth later sold Timothy a highway-access easement across the 300 foot strip, and if Timothy then sold Backacre to Garth:

a. Garth should now be the owner of the easement, even if Timothy's deed to Garth did not mention the easement.

b. Garth should now be the owner of the easement, provided Timothy's deed to Garth expressly included the easement.

c. The easement would presumptively merge back into the fee out of which it was created.

d. Timothy would continue to own the easement as long as his deed to Garth did not convey it to Garth.

30. Reanswer the previous question.

31. Suppose that Timothy had bought Backacre from somebody other than Garth and the conveyance did not include any easement across the 300 foot strip. If Timothy just went ahead and regularly crossed the strip anyway, forming in the process a dirt lane running between the highway to Backacre:

a. He would have a good case for asserting an easement by necessity if Garth ever sued to stop him from making such use.

b. Consistently with the lost-grant fiction doctrine, he ought to get an easement by prescription by making such use for 10 years, even if Garth sends him a letter once a year ordering him to cease and desist such "trespasses" on the strip.

c. He ought to get an easement by prescription by making such use for 10 years, even if he uses Backacre only during the warmer months and, therefore, only crosses the 300 foot strip during the spring-summer-fall part of each year.

d. All of the above.

32. Reanswer the previous question.

33. Suppose that, by a duly recorded deed, Garth granted Timothy an easement "for ingress and egress" across the 300 foot strip at a time when Timothy happened to be using Backacre as a vacation property. If, later, Timothy sold off most of Backacre in six different lots, each to a different owner:

a. All six lot buyers, as well as Timothy, would presumptively be entitled to use the easement.

b. All six lot buyers, as well as Timothy, would presumptively be entitled to use the easement, but only for access in connection with the use of their lots as vacation properties.

c. If Timothy expressly purported to include an easement "for ingress and egress" across the strip in each of the six deeds (all of which were duly recorded), the first of the six buyers would receive the easement, but the other five would not--nor would Timothy have it anymore.

d. If Timothy expressly purported to include the easement "for ingress and egress" in each of the six deeds (all of which were duly recorded), the first of the six buyers (and not the other five) would receive the easement--but Timothy would still be entitled to use it, too.

34. Reanswer the previous question.

35. Suppose again that Timothy acquired an easement "for ingress and egress" across the 300 foot strip at a time when he happened to be using Backacre as a vacation property, and that he later sold off most of Backacre in six different lots, each to a different owner. Garth's best chance of terminating the easement would be:

a. If more than one of the six new owners was making use of the easement at any given time, increasing the physical burden on the easement.

b. If Timothy had arranged the roadways through Backacre so that other people with properties on along 3 mile unimproved dirt road were able to use the easement as a shortcut, and they were making such use.

c. If Timothy and the other six lot owners started insisting that the easement way be paved because it was becoming deeply rutted and, on rainy days, virtually impassible without the help of a winch.

d. Any of the above should give Garth a good case for terminating the easement.

36. Reanswer the previous question.

37. Suppose that Timothy bought Backacre from Garth. Suppose also that, 25 years earlier, Garth had sold an adjacent piece of land to Jonas along with a hunting easement over Backacre and had included a covenant in the deed to Jonas stating that the Backacre land "shall ever remain in its natural state."

a. If the easement were enforceable, it would affect the marketability of Timothy's title.

b. If Timothy purchased with notice of the covenant, it could be enforced as an equitable servitude.

c. Apart from issues of recording and notice, the covenant could be enforced as a real covenant in states that require both "horizontal" (simultaneous) as well as "vertical" (successive) privity of estate.

d. All of the above.

38. Reanswer the previous question.

39. Assume in the preceding question that the deed to Jonas was duly recorded and that Timothy could have easily found it by searching Garth's name in the index of conveyances at the local office where deeds are recorded:

a. In states (such as New York) that follow the so-called "chain of title" rule, both the hunting easement and the covenant could be enforced against Timothy.

b. In states (such as New York) that follow the so-called "chain of title" rule, neither the hunting easement nor the covenant could be enforced against Timothy.

c. In states (such as New York) that follow the so-called "chain of title" rule, neither the hunting easement nor the covenant should be enforceable against Timothy, even if Timothy knew (before he bought) that Jonas claimed to own hunting rights on Backacre.

d. It is very reasonable to hold that Timothy should not be bound by either the hunting easement or the covenant because there would no reason for him (or his title searcher) to search Garth's name at all in the index of conveyances.

40. Reanswer the previous question.

Facts for Caravelle/Timpkin questions

Caravelle owns Plotacre and plans to convey it to Timpkin.

41. All that is necessary for Caravelle to vest title to Plotacre in Timpkin is for Caravelle to:

a. Sign a deed naming Timpkin as grantee of Plotacre.

b. Sign a deed naming Timpkin as grantee of Plotacre and have the signature acknowledged or attested (witnessed).

c. Sign a deed naming Timpkin as grantee of Plotacre, have the signature acknowledged or attested (witnessed), and deliver the deed.

d. Sign a deed naming Timpkin as grantee of Plotacre, have the signature acknowledged or attested (witnessed), deliver the deed, and then have the deed properly recorded.

42. Reanswer the previous question.

43. Suppose that Caravelle found Timpkin with the help of a broker, who acted at Caravelle's request. At the time that the broker presented Timpkin to Caravelle, she was ready, willing and able to purchase Plotacre on the terms that Caravelle had specified. In the absence of an agreement to the contrary:

a. In some states the broker's commission has been earned, so the broker would be legally entitled to recover it from Caravelle even if the intended conveyance of Plotacre never occurs.

b. In some states the broker's commission would not yet have been earned, and the broker can recover it from Caravelle only if the intended conveyance of Plotacre actually occurs (or if Caravelle's fault prevents it from occurring).

c. Both of above.

d. None of the above. In most states the broker would be entitled to a commission from Caravelle only if Caravelle and the broker had specifically agreed to the circumstances under which Caravelle would owe the broker a commission.

44. Reanswer the previous question.

45. Suppose that, in the course of searching the title to Plotacre, Timpkin's lawyer finds a restrictive covenant in an earlier deed (in the chain of title) limiting the use of Plotacre to "detached one-family dwellings." The property is, however, in an area that is now zoned to permit one and two-family occupancy--and the latter is much more remunerative to an owner. There is a contract of sale between Timpkin and Caravelle, but it does not mention any restrictive covenants. Under the general rule:

a. If the covenant is legally enforceable, Timpkin can reject Caravelle's tender of a deed, without liability, even if she personally had intended to use Plotacre as a detached one-family residence.

b. The covenant would not be enforceable since the zoning overrides the covenant and the zoning allows 2-family occupancy (as well as one-family occupancy).

c. The presence of restrictive covenants in earlier deeds does not render a title unmarketable.

d. Traditionally, courts would liberally construe covenants such as this one to make sure that the maximum reasonable limitation on use would be imposed, for the benefit of the owners in the vicinity.

46. Reanswer the previous question.

47. Suppose that, at the closing, Timpkin was $5000 short of the money she needed to close, due to unexpected moving costs. Caravelle desperately needed to get the money that Timpkin could pay, however, because he was slated to close on a house he was buying very the next day. Caravelle decided to go ahead and accept, temporarily, $5000 less than agreed, and he handed over the deed on the condition that the $5000 would be paid within 30 days.

a. If Caravelle made the delivery to Timpkin and intended it to be complete, leaving him with no further acts to do and no control over the title, then the delivery would be valid and the condition would be void.

b. If Caravelle made the delivery to Timpkin but intended to reserve the possibility of not going through with the conveyance, then the delivery would be defective and would not convey title to Timpkin.

c. Both of the above.

d. If Caravelle made the delivery to a third party, in escrow, on the condition that the deed go to Timpkin if the money was timely paid, otherwise back to Caravelle, there would be a valid conditional delivery.

e. All of the above.

48. Reanswer the previous question.

49. Cornwall lives in a housing tract that was originally subdivided about 40 years ago. All of the deeds to the original buyers of the lots in the tract were duly recorded and all contained restrictive covenants that prohibit having an enclosed front porch. One of Cornwall's neighbors in the tract, Leonard, is about to enclose his front porch. The deed which Leonard received when he bought does not contain any restrictive covenants.

a. If Cornwall does not move to enforce porch enclosure prohibition against Leonard (and others who may also act to enclose their porches), he risks losing the ability to enforce it at all.

b. In order for Cornwall to enforce the porch enclosure prohibition against Leonard as a real covenant, he must show that the original restrictive covenant was intended to run with the land.

c. In order for Cornwall to enforce the porch enclosure prohibition against Leonard as a real covenant, he must show privity of estate.

d. All of the above.

e. None of the above. Cornwall cannot enforce the porch enclosure prohibition against Leonard.

50. Reanswer the previous question.

<End of Examination.>