PACE UNIVERSITY SCHOOL OF LAW

PROPERTY II  -- VERSION A

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. 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.

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 Seller-Perch questions
Seller owned a house that he wanted to sell. After Seller placed an ad in the newspaper, he received a call from a real estate broker, who said that he knew of some people who might be interested. Seller replied that he would very much like to meet them--adding, however, that he would not accept an offer of less than $350,000. The broker introduced Seller to Perch, a prospective buyer.

a. Under the facts stated above, without any additional facts being necessary.

b. Only if Seller and the broker actually signed a contract in which Seller agreed to pay a commission.

c. Without a need for any contract between Seller and the broker, because the law imposes an obligation on sellers to pay commissions.

d. Cannot be determined, because the facts do not say whether Perch, when introduced to Seller, was "ready, willing and able" to purchase on Seller's terms.

a. Seller should make sure that the quoted sentence is replaced with "This is not a Contract" (or the like) before he signs, though Perch would probably be just as well off leaving the quoted sentence in.

b. Perch should make sure that the quoted sentence is replaced with "This is not a Contract" (or the like) before he signs, though Seller would probably be just as well off leaving the quoted sentence in.

c. Both parties should make sure that the quoted sentence is replaced with "This is not a Contract" (or the like) before they sign, given that they want to sign a detailed contract of sale.

d. Neither party should allow the quoted sentence to be replaced with "This is not a Contract" (or the like). Such a change in the wording of the binder would make it legally meaningless, and there would be no point in signing it.

a. Even if Perch later changes his mind and defaults, causing the sale to fall through.

b. Even if the sale falls through because of title defects that Seller did not know about and could not remedy or cure.

c. Both of the above.

d. None of the above. Seller would not be liable for a commission.

a. There was, across the backyard, an easement that was not referred to in the contract of sale and that Seller could not buy in or otherwise cure.

b. Perch discovered that the house had been the scene of a crime, a fact that was not mentioned in the contract of sale.

c. Perch discovered that the local zoning would prohibit converting the house into a dentist's office, the very purpose for which Perch was buying the property (although the contract made no mention of such a purpose or the zoning).

d. All of the above.

a. If Perch tried diligently to obtain a mortgage commitment but failed because Perch's credit rating was not good enough.

b. If Perch tried diligently to obtain a mortgage commitment but failed because Seller's house was in such bad condition that nobody would lend $300,000 on it.

c. Both of the above.

d. Even if Perch made no effort to obtain a mortgage commitment.

e. All of the above.

a. If Seller had previously brought a suit to quiet title which resulted in a final judgment declaring the title to be in Seller.

b. If Seller offers to indemnify Perch for any costs or loss that Perch might incur in the event someone sues him in ejectment claiming to be the owner of the property.

c. If Seller is willing to convey by means of a warranty deed.

d. All of the above.

a. If Perch makes the necessary correction on the deed that has just been delivered to him.

b. If the deed, as delivered to Perch, also contained a map description that correctly described the premises to be conveyed.

c. Either of the above would (by itself) cure the problem.

d. None of the above. There is no problem.

a. Perch should be able unilaterally to revise the location of the easement at any time, so long as such revisions do not unreasonably interfere with Seller's use of the easement.

b. If Perch records the deed promptly, a buyer to whom Perch later sells would take subject to the easement even if such a buyer purchased with no knowledge whatsoever of the easement's existence.

c. Seller's right to use the easement should continue for as long as Seller wants to use it, even if he later sells Blueacre.

d. The easement will continue only for as long as it is necessary to Seller's use of Blueacre.

a. Perch should be able to rescind the deal and get his money back under the implied warranty of marketability.

b. Under the implied warranty of marketability, Perch should be able to recover from Seller any damages that he sustains as a result of the easement, but he cannot rescind the deal and get all of his money back.

c. The easement would have constituted a clear breach of the implied warranty of marketability, but Perch is no longer able to assert a claim under the implied warranty.

d. None of the above. Such an easement would not constitute a breach of the implied warranty of marketability.

a. In New York, the cases would not let Townes use the "nature preserve" lands under conservation easement in determining his maximum dwelling-unit count for this project.

b. In New York, there is case authority supporting Townes' proposal to use the "nature preserve" lands under conservation easement in determining his maximum dwelling-unit count for this project.

c. Townes has a pretty good chance of having the conservation easement "extinguished" in court on the ground that it renders the bulk of his land unbuildable.

d. The conservation easement should no longer be in effect if Townes inherited the land without any actual notice of the easement.

Facts for Martin-Block questions
Martin Metalflower erected a TV satellite dish antenna next to his house in the Catskills. The dish was aimed at a satellite low in the eastern sky. Martin later sold the part of his land with the house and antenna to Ima Deadwaite, an ardent TV viewer. For the (unexpressed) purpose of preventing interference with TV reception via the dish, the recorded deed from Martin to Ima contained a covenant that prohibited "the grantor or his successors" from putting "any houses, fences or trees" in certain definitely described areas of the land that Martin retained. After the conveyance to Ima, Martin conveyed the remaining portion of his land to Block.

a. The burden of the covenant does not touch or concern the land conveyed to Block.

b. There does not appear to be any basis for concluding that the parties to the covenant intended it to run with the burdened land.

c. The requisite privity of estate is absent.

d. None of the above. The covenanted prohibition probably would be capable of running with the land as to burden.

a. If Block can show that there would be disproportionate hardship to him if the covenant is enforced.

b. Because Block would not be considered (under the "direct chain of title rule") to be on notice of restrictions contained in the recorded deed from Martin to Ima.

c. Because garages are not "houses, fences or trees," and the traditional rule is to construe covenanted land-use restrictions strictly.

d. All of the above.

a. If Mark and Marsha were husband and wife at the time, they would have received a tenancy by the entirety (assuming that tenancies by the entirety are recognized under local law).

b. If Mark and Marsha were brother and sister, they would have received a tenancy in common.

c. Both of the above.

d. If Mark and Marsha were unrelated at the time, they would have probably received a joint tenancy.

e. All of the above.

a. If Mark died intestate without having conveyed any of his interest in the land to anybody else, Marsha would now be the sole owner of Greenacre.

b. If Mark died intestate after conveying "all my interest in Greenacre that I am able to convey" to Fastrack, Marsha would now be the sole owner of Greenacre.

c. If Mark died without having conveyed any of his interest in the land to anybody else, and left a will devising "all my interest in Greenacre" to Fastrack, then Marsha and Fastrack would now be tenants in common of Greenacre.

d. All of the above.

a. Mark can probably do nothing about it because Marsha has by now probably acquired a sole title by adverse possession.

b. Mark probably still has an ejectment action against Marsha (that is, he is probably not yet barred by the statute of limitations), but partition is likely to be Mark's best course of action if he cannot reach a satisfactory accommodation with Marsha.

c. Mark cannot have relief in ejectment against Marsha, because Marsha is just as entitled to possess Greenacre as Mark is, so ejectment is not available.

d. In the majority of states, Mark should be able to recover from Marsha a sum of money compensating him for his share of Greenacre's fair rental value.

a. If Mark dies intestate without having conveyed any of his interest in the land to anybody else.

b. If Mark dies intestate after conveying "all interest in Greenacre that I am able to convey" to Fastrack.

c. If Mark dies without having conveyed any of his interest in the land to anybody else, and leaves a will devising "all my interest in Greenacre" to Fastrack.

d. All of the above.

a. In some states, Marsha's tort creditor would have recourse against her interest in the tenancy by the entirety to satisfy the judgment.

b. In some states, Marsha's tort creditor would not have recourse against her interest in the tenancy by the entirety to satisfy the judgment.

c. Both of the above.

d. In none of the states that recognize the tenancy by the entirety would Marsha's tort creditor have any recourse against her interest in the tenancy by the entirety to satisfy the judgment.

e. In all of the states that recognize the tenancy by the entirety, Marsha's tort creditor would have recourse against at least her interest in the tenancy by the entirety to satisfy the judgment.

Facts for Carver-Whittle-Tompkins questions
Carver owned a piece of city land. In 1977, he divided the land into two lots and sold one of them to Tompkins, who still lives there. Carver later conveyed the remaining lot to Whittle, and Whittle and Tompkins are now next door neighbors. Tompkins has recently become aware of the fact that Whittle's connection to the city electric lines runs across Tompkins' lot.

a. A negative easement.

b. An easement by express reservation.

c. An easement in gross.

d. An easement engrossed.

36. Reanswer the previous question.

a. That there was a quasi-easement while Carver was sole owner of the land.

b. That the use of the quasi-servient tenement for the benefit of the quasi-dominant tenement was apparent.

c. That the use of the quasi-servient tenement for the benefit of the quasi-dominant tenement was reasonably (and, in some jurisdictions, strictly) necessary.

d. All of the above.

a. Prescriptive.

b. Attendant.

c. Appurtenant.

d. Appendant.

a. It does not have a dominant tenement.

b. It does not have a servient tenement.

c. Both of the above.

d. None of the above.

a. Whittle would have a better chance of establishing that an easement by implication arose at the time of the severance.

b. Whittle would have a better chance of establishing that an easement by prescription has a arisen as a result of the line's existence since 1977.

c. Both of the above.

d. None of the above. The line's above-ground location is not relevant.

Facts for Longpath-Frump questions
In 1992, Longpath purchased a substantial tract of undeveloped land from Frump. One boundary of Longpath's tract was only 300 ft from a major highway, but Frump retained a 300 ft strip between Longpath's land and the highway. Right after Longpath bought, Frump told Longpath that he could use an existing dirt lane across the 300 ft strip "for as long as you want." There is also a 1/2 mile gravel road that leads around from the highway to the back of Longpath's property, but it is an inconvenient access.

a. Longpath should now be able to claim an executed parol license to use the lane.

b. Longpath should now have an easement by necessity to use the lane.

c. Longpath should now have an easement by prescription to use the lane.

d. Frump can revoke Longpath's access across the 300 ft strip at any time.

a. Longpath should be able to pave and widen the accessway as reasonably necessary to give the future residents convenient access to the subdivision tract.

b. Longpath should be able to pave and widen the accessway as reasonably necessary for his purposes, but he cannot expect to confer a right to use the accessway to all 150 proposed owners in his subdivision.

c. Longpath should have an easement by necessity to pave and widen the lane.

d. As the servient owner, Frump would not be allowed to make any use of the area to which the easement applies.

<End of Examination>