PACE UNIVERSITY SCHOOL OF LAW

PROPERTY II  -- VERSION A

FINAL EXAMINATION
PROFESSOR HUMBACH
May 20, 1997         
TIME LIMIT: 2 1/2 HOURS

GENERAL INSTRUCTIONS:

This examination consists of multiple choice questions. Answer the questions on the answer sheet provided. Write "Version A" on the answer sheet. Write it NOW. Also write your examination number where it says "Write I.D. Number Here," and then carefully mark your number in the blue-striped box labeled "Mark I.D. Number Here." Do not skip lines. You should mark only one box in each of the first five lines for your five digit examination number.

Answer each question selecting the BEST answer. Mark your choice on the answer sheet with the special pencil provided. Select only one answer per question 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. Make sure your answer marks are dark. You may be penalized if you do not mark darkly enough.

When you complete the examination, turn in the answer sheet together with this question booklet.

Every even-numbered multiple choice question asks you to reanswer the preceding odd-numbered question. Question 2, for example, asks you to reanswer question 1. If you are fairly confident about your answer to the principal question, mark the same answer for the "reanswer" question. If you can narrow the choice down to two answers, however, and cannot decide which of the two is the better one, you may wish to mark a different answer on the "reanswer" question. IMPORTANT NOTE: If you decide to mark a different answer on a "reanswer" question, at least one of your two answers will be wrong.

a. An appurtenant easement.

b. An accessory easement.

c. An easement by necessity.

d. An easement in gross.

a. Home Max would not be entitled to use the easement in connection with the store.

b. Home Max would have an easement by necessity in connection with the store if the store would otherwise be illegal under the local fire laws.

c. Home Max would have an easement by implication in connection with the store if the store would otherwise be illegal under the local fire laws.

d. The easement would have passed to Home Max as an appurtenance to the dominant tenement conveyed by Davis.

5. Weller's house was built on a corner lot that is much larger than any of the surrounding lots. As a result, Weller has an exceptionally large "side yard." Now Weller wants to subdivide, selling the "side yard" to someone who would buy it to build a house there. A contract to sell the side yard has been made with Harper. The only problem is that the new lot described in the contract is a few square feet short of the 7,000 sq.ft. minimum which the local zoning requires for a building permit. If Harper discovers the existence of the minimum-lot-size zoning rule before closing, and the zoning law would probably prevent Harper from getting a building permit to build on the lot:

a. Harper should be able to reject Weller's title on the ground that the building permit requirements, as applied in this instance, render the title unmarketable.

b. Harper should be able to reject Weller's title if the contract of sale expressly made the purchaser's obligation contingent on being able to get a building permit.

c. Both of the above.

d. None of the above. There is no way that the presence of the building permit requirements could give Harper an excuse to get out the contract.

a. The Bradfords probably have a right to clear the path and commence use of the easement.

b. The easement is probably extinguished by prescription.

c. The easement is probably extinguished by abandonment.

d. The easement is probably extinguished by estoppel.

a. In connection with a transfer of the dominant tenement.

b. When the easement is a "commercial" easement rather than a mere personal one.

c. If has been created by implication from prior use.

d. None of the above. An easement in gross in never transferrable.

Facts for Fredrics-Marsh questions
Fredrics bought a house on a large parcel in a semi-rural area. Back when the house was built by a previous owner, an underground septic field was placed on the eastern side of the parcel, the only place where the soils were suitable for this important facility. There was, however, no surface indication of the septic field's location, and there still is not. Recently, to raise some needed cash, Fredrics conveyed the eastern part of his land, including the area with the septic field, to Marsh.

a. The use was not very apparent at the time of the conveyance to Marsh.

b. Fredrics would be a grantor claiming an easement by implied reservation, rather than a grantee claiming by implied grant (at least this would be a problem in some states).

c. Both of the above.

d. There was no quasi-easement at the time of the conveyance to Marsh.

e. All of the above.

a. In planting the garden, Marsh is trespassing on Fredrics's rights and Fredrics can have the garden dug up any time he wants.

b. Fredrics can have the garden dug up if, at any time, it becomes necessary to do so in order to carry out needed maintenance or repair of the septic system.

c. Marsh's possessory rights to the land acquired from Fredrics are clearly paramount under these facts, and Fredrics would have no right to dig up Marsh's garden without Marsh's consent.

d. Marsh does not violate Fredrics's rights by having a garden, but if Fredrics wants to use the septic field area for something else, such as grazing his horse, Fredrics has the final say.

a. Would not be enforceable against Beziers in states that apply the "direct chain of title" rule.

b. Would be enforceable against Beziers despite the "direct chain of title" rule because it is an affirmative rather than a negative easement.

c. Would be exceptionally hard for a title searcher to find in the ordinary course of searching the title to the Beziers land.

d. Would have been an easement by reservation.

a. Orburg would probably become the sole owner of Dirtacre once he has been in sole occupancy for the normal period specified by the general statute of limitations on ejectment.

b. Orburg's sole occupancy, even without an "ouster," would ordinarily be considered hostile for purposes of the statute of limitations on ejectment.

c. In most states, a large indebtedness to Ross would pile up based on Orburg's sole enjoyment of land which belongs to the two of them.

d. Until sole title ripens in Orburg, Ross could maintain an ejectment action against Orburg if the latter refuses to allow Ross to join in possession of the property.

a. Since Tinkerton had been obviously using the area for a long period of time prior to the purchase by Welbourne, Tinkerton probably has already acquired an easement by implication based on his prior use.

b. If the area where Tinkerton walked his dog was already subject to a utility company easement, it would not be possible for Tinkerton to establish a "second" easement on the area already occupied by the utility company easement.

c. In states that apply the strict traditional version of the "lost grant" fiction, Welbourne's remonstrances should have been sufficient to keep Tinkerton from acquiring an easement by prescription.

d. In states that apply the strict traditional version of the "lost grant" fiction, Welbourne's remonstrances would tend to show "acquiescence."

Facts for Narbonne-Cosmo questions
Narbonne conveyed a large parcel of heavily wooded riverside land to Cosmo Electric Co., which intended eventually to set up a hydropower generating station on the premises. In the promptly recorded deed, Narbonne reserved for himself "his heirs, successors and assigns" an "exclusive perpetual right to hunt and fish on the premises conveyed hereby," and Cosmo covenanted that the premises "shall never be developed for purposes other than hydroelectric generation." At the time of the deed to Cosmo, Narbonne owned an adjacent parcel of land on which he had a hunting lodge.

a. Fripp probably has a right to use the H & R parcel for hunting and fishing.

b. Narbonne probably has a right to use the H & R parcel for hunting and fishing.

c. Both of the above.

d. The hunting and fishing easement was presumptively extinguished when Narbonne ceased to have any use for it.

a. Narbonne can probably enforce the restrictive covenant against H & R--in part because the covenant touches and concerns the land.

b. Narbonne can probably enforce the restrictive covenant against H & R--in part because there is "privity of estate."

c. Both of the above.

d. None of the above. Narbonne probably cannot enforce the restrictive covenant against H & R.

a. Whether or not H & R bought with actual notice of the covenant, as long as Narbonne's deed to Cosmo was recorded before H & R bought.

b. Even if H & R had no notice whatsoever of the covenant when it purchased the land.

c. Both of the above.

d. None of the above. This restriction was created as a real covenant, not an equitable servitude and, therefore, it cannot be enforced as an equitable servitude.

a. It is now indisputably unfair to enforce the restrictive covenant against Cosmo because that would leave Cosmo with no use whatsoever of its property.

b. There is authority holding that, under circumstances similar to these, the covenant should be declared extinguished because otherwise Cosmo now has no valuable use of its property at all.

c. Both of the above.

d. While the covenant might be enforceable against Cosmo, it could not be enforced against a purchaser from Cosmo under the rule against horizontal privity.

a. Community property.

b. Joint tenants.

c. Tenants in common.

d. Tenants by the entirety.

a. Mr. Sandstorm could unilaterally dispose of the whole of Greenacre at any time.

b. The Sandstorms would each enjoy an indestructible right of survivorship in Greenacre.

c. Greenacre would be owned 50-50 by the Sandstorms.

d. The Sandstorm's rights depend of the local common law rules that establish and define community property.

a. In some states either of them could separately convey an interest in Greenacre to a third party.

b. In some states neither of them could separately convey any interest in Greenacre to a third party.

c. Both of the above.

d. Either of them would have a right to partition as against the other.

a. Because the neighbors paid money (a consideration) to use the lane, they have an irrevocable contract right to do so, and their use of the lane cannot legally be prevented.

b. The neighbors seem to have a fairly strong case for asserting an irrevocable right to use the lane as an executed parol license.

c. Both of the above.

d. Because the neighbors had at most only a license, they have no legal recourse.

a. Any rent payment that either Willie or Milt receives from Caster would belong to the one who actually receives it, with no obligation to share with the other.

b. Willie and Milt would each have the right, at any time, to enter and share the possession with Caster, provided that in such a case Caster would only have to pay rent (at half the normal rate) to the other.

c. Both of the above.

d. Any rent payment that either Willie or Milt receives above his own proportionate share would have to be paid over to the other.

a. Willie and Temple would be joint tenants of Officeacre.

b. Temple would be the sole owner of Officeacre if Willie later died before Temple.

c. Temple would be the sole owner of Officeacre if Willie later died before Milt.

d. Willie and Temple would be tenants in common of Officeacre.

a. The covenant touches and concerns the land.

b. There is privity of estate.

c. Both of the above.

d. The original parties to the covenant intended it to run with the land.

e. All of the above.

a. The court would probably be especially hostile to enforcing the livestock/fowl covenant on the theory that people who live in close proximity need to learn to get along.

b. The livestock/fowl covenant would probably be unenforceable unless the court could make an independent finding that, in the estimation of the court, the covenant was objectively reasonable as applied in the particular instance.

c. It is possible that Betthem and Clerke could be subjected to new restrictions on use that did not even exist at the time they purchased their respective properties.

d. The use restrictions applicable within the development would generally be valid only if they were of the sort that could have been adopted by the municipality under its ordinary zoning power.

a. Cell-O-Phone probably has an easement by implication to put in and maintain the cable.

b. Cell-O-Phone probably has an easement by necessity to put in and maintain the cable.

c. Cell-O-Phone probably has an easement by prescription to put in and maintain the cable.

d. Cell-O-Phone likely has no right whatsoever to put in and maintain the cable.

a. Franklin would have a right to use the driveway easement to access the second house just as he may use it to access the existing house.

b. Franklin would have an easement by necessity to access the second house via the driveway across Swift's land

c. If Franklin accesses the second house via the existing driveway he would be exceeding the scope of the easement because he would be trying to add on to dominant tenement.

d. If Franklin begins to access the second house via the driveway across Swift's land, the normal remedy would be for the court to order the driveway easement extinguished for overuse or misuse.

Facts for Fairbone-Peche questions
Fairbone wanted to sell his house and telephoned Benton, a real estate broker, and asked him to find a buyer willing to pay at least $285,000. Three weeks later, Benton introduced Fairbone to Peche, who made an offer of $280,000 for the property.

a. Benton would be considered to have earned his commission under the majority rule.

b. Fairbone would not be liable to pay Benton a commission because the price offered by Peche is less than Fairbone told Benton that he wanted.

c. Fairbone would not yet be liable to pay Benton a commission because the deal still has not closed.

d. Fairbone would not be liable to pay Benton a commission because there is no indication on these facts that Fairbone ever agreed to pay Benton a commission.

a. Peche's lawyer should object to including the quoted provision, as now drafted, in the contract because it exposes Peche to an unnecessary risk of difficulties in the using the property.

b. Even if the quoted provision were in the final contract, Peche could still reject Fairbone's title if the equitable servitudes render the title unmarketable.

c. The equitable servitudes would not be enforceable anyway unless the restrictions they impose are no greater than already those imposed under the local zoning.

d. From both parties' point of view, the better drafting solution would have been to add the following words to the quoted provision of the contract: "provided the same do not render the title unmarketable."

a. On the basis of this call alone, Peche should be able to reject Fairbone's title as unmarketable.

b. If Tenway's allegations of past use turn out to be substantially corroborated, Peche should be able to reject Fairbone's title as unmarketable.

c. Even if Tenway's allegations of past use turn out to be substantially corroborated, Peche may not reject Fairbone's title if Fairbone can provide evidence that would counter any claim that Tenway might make to the area in question.

d. Under the better and more sensible rule, Peche should not be able to reject Fairbone's title on grounds of unmarketability because the contract provides that Peche must accept a quitclaim deed.

55. If, in the preceding question, the factual claims of Tenway turn out to be substantially corroborated, Tenway's possible rights to the area that he formerly gardened:

a. Would provide Peche with a basis for rejecting Fairbone's title only if those rights turn out to be in fact legally valid and enforceable.

b. Would, if valid, give Peche a basis to recover damages for breach of contract from Fairbone even if Peche goes ahead and accepts a quitclaim deed at the closing.

c. Would be definitively resolved (one way or the other) by an action to quiet title.

d. Would not provide a basis for Peche to reject Fairbone's title as long as Fairbone was willing to accept a reasonable reduction of the contract purchase price.

a. Fairbone has blundered badly and, inadvertently, he has already conveyed his property to Peche without receiving any money.

b. Fairbone need not worry that he has already conveyed his property to Peche because the conveyance is not complete until the deed is delivered.

c. Fairbone need not worry that he has already conveyed his property to Peche because the conveyance is not complete until the deed is recorded.

d. Even after the deed is delivered, the conveyance can be easily undone by a reverse delivery for the purpose of correcting any mistakes that might be found in the deed.

a. In a jurisdiction that has a "notice" type recording act, Peche's title would not be subject to the mortgage and could not be subjected to it, even if Peche himself does not record his deed.

b. In a jurisdiction that has a "race-notice" type recording act, Peche's title would not be subject to the mortgage and could not be subjected to it, even if Peche himself does not record his deed.

c. Both of the above.

d. None of the above. The only way that Peche can get a title that is free of the mortgage, under any kind of recording act, is for Peche to record his deed.