PACE UNIVERSITY SCHOOL OF LAW

PROPERTY II  -- VERSION A

FINAL EXAMINATION
PROFESSOR HUMBACH
May 20, 1996         
TIME LIMIT: 3 HOURS

GENERAL INSTRUCTIONS:

This examination consists of multiple choice and true-false questions. Answer the questions on the answer sheet provided. Write your examination number and "Version A" 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. Unless otherwise specified, assume that the period of limitations on ejectment is 10 years.

a. A tenancy in common with each other.

b. A tenancy in common with each other and their heirs.

c. A joint tenancy with right of survivorship.

d. A joint tenancy but without right of survivorship.

3. Assume that Eric and Anton received a tenancy in common. Assume also that Eric entered into and has remained in sole possession:

a. Eric would probably acquire a sole title by adverse possession after 10 years of sole possession.

b. Eric would, under the majority rule, presumptively be liable for rent or damages to Anton, who is qually entitled to enjoy the benefits of possessing the land.

c. If Eric committed an ouster of Anton, and Anton did not re-enter, Eric would probably acquire a sole title by adverse possession 10 years after the ouster.

d. All of the above.

5. Assume that Eric and Anton had received a joint tenancy:

a. A conveyance by either of them would sever the joint tenancy, making it a tenancy in common.

b. Neither could thereafter cut off the other's right of survivorship.

c. Both of the above.

d. None of the above.

7. Assume that Eric and Anton had a tenancy in common. Eric leased his own interest in the premises to Fred for three years:

a. It would be logical for a court to require Eric to share any rental proceeds equally with Anton.

b. Such a lease would constitute an ouster of Anton unless Anton had consented to Eric's making the lease.

c. The rights of survivorship would be destroyed.

d. Anton would be entitled to share possession of the premises with Fred.

a. The ousted joint tenant is normally thereafter able to recover money from the joint tenant who committed the ouster.

b. The ousted joint tenant is normally thereafter able to maintain an ejectment action against the joint tenant who committed the ouster.

c. Both of the above.

d. The right of survivorship of the joint tenant who committed the ouster is destroyed.

a. The surviving cotenant would be entitled to sole ownership and possession if the two cotenants had a joint tenancy.

b. The heir of the decedent cotenant would be entitled to share possession if the two cotenants had a tenancy in common.

c. The surviving cotenant would be entitled to share possession if the two cotenants had a tenancy in common.

d. All of the above.

Facts for Trackett questions
Dennis and Carol Trackett received a co-tenancy in Greenacre in 1980. In 1990, Ellis acquired Carol's undivided interest in Greenacre in satisfaction of a tort judgment that he had against her. Since 1990, however, Dennis and Carol have continued to occupy the property.

a. A right to share possession of Greenacre with Dennis for as long as Carol remains alive.

b. A right to enjoy sole possession of Greenacre at Dennis's death, provided that Dennis predeceases Carol.

c. A right to maintain an ejectment action against Dennis if the latter refuses to allow Ellis to join him in possession of Greenacre.

d. All of the above.

a. Ellis would not have been able to levy execution on Carol's undivided interest in Greenacre in the first place.

b. Ellis would have acquired in 1990 a right to share possession of Greenacre with Dennis for as long as Carol remains alive.

c. Ellis would have acquired in 1990 a right to maintain partition against Dennis.

d. Ellis would have become a tenant by the entirety with Dennis.

17. If the Trackett's estate had been a joint tenancy:

a. Dennis's right of survivorship would be "indestructible".

b. Dennis's right of survivorship would have been destroyed when Ellis acquired his interest.

c. Carol's right of survivorship could have been acquired by Ellis.

d. Ellis would now be the sole owner of Greenacre.

 
Facts for Linton-Newhouse questions
Linton owns a one-family house in a residential development that was built in the 1920s. All of the other lots in the development also have one-family houses on them. Newhouse, who lives down the street from Linton, proposes to convert his house into a two-family structure. The local zoning permits Newhouse's proposed alteration to a two-family house, but Linton objects. Linton and Newhouse both derive their respective titles from the original developer. All of the deeds from the developer to the original buyers in the development were delivered in the 1920s and all contained identical covenants restricting use to one-family structures.

19. Even though the original 1920s deed to Newhouse's lot contained the one-family covenant, Newhouse could not be bound to it now:

a. Unless he happens to be an original purchaser from the developer.

b. Unless the covenant was intended to run with the land.

c. Unless at the time he bought his property he had actual notice of the covenant.

d. Unless at the time he decided to modify his house to two-family use he had actual notice of the covenant.

a. The covenant would not likely be held to "touch and concern" the land.

b. The covenant could not be enforced as an equitable servitude unless it is still contained in the current deeds to the lots in the development.

c. The covenant would not be binding now, on modern owners, since it is now contrary to the local zoning.

d. None of the above. A court would probably hold that each owner of a lot in the development can enforce the covenant against each other owner, so Linton could enforce it against Newhouse.

a. The association could enforce the one-family covenant as a real covenant against Newhouse, but only if the association was in actual privity of estate with Newhouse.

b. The association could enforce the one-family covenant as a real covenant against Newhouse, but only if the association was in actual privity of estate with Linton.

c. The association could enforce the one-family covenant as a real covenant against Newhouse, but only if the association was in actual privity of estate with both Newhouse and Linton.

d. The association should be able to enforce the one-family covenant as a real covenant against Newhouse despite the absence of privity of estate with either Newhouse or Linton.

a. Linton would have to show that Newhouse purchased with notice of the covenant.

b. Linton would have to show that there was privity of estate between Linton and Newhouse.

c. Linton would have to show both that there was privity of estate between Linton and Newhouse and that Newhouse purchased with notice of the covenant.

d. Linton would have to show that the covenant was contained in the deed under which Newhouse received the conveyance of his lot.

26. Reanswer the previous question.

a. Linton's ability to enforce the covenant as an equitable servitude against Newhouse should not be affected.

b. Linton probably would be unable to enforce the covenant as an equitable servitude against Newhouse.

c. Both of the above.

d. Linton should be able to enforce the covenant as an equitable servitude against Newhouse so long as Linton himself has not violated the covenant.

Facts for Kestrix-Timot questions
Kestrix wanted to sell his house. He asked Williams, a local real estate broker, to try to find him a buyer who would pay at least $300,000 for it. Williams' efforts produced a potential buyer, Timot, who offered $305,000 for Kestrix's house. Kestrix and Timot signed a contract, and Timot paid Kestrix a 10% down payment.

a. Under the majority rule, Williams should be entitled to a commission from Kestrix.

b. Under the majority rule, Williams would not be able to recover a commission from Kestrix because the intended sale never was consummated.

c. Under the majority rule, Williams would be entitled to a commission from Kestrix only if either the sale was consummated or it failed to be consummated due to some title defect or other fault on Kestrix's part.

d. Under minority rule, Williams would be entitled to a commission from Kestrix.

a. Timot has a cause of action for damages against Kestrix based on the deed.

b. Timot has a cause of action for damages against Kestrix based on the implied warranty of marketability contained in the contract of sale.

c. From these facts it does not appear that the existence of the easement gives Timot any cause of action for damages against Kestrix.

d. If Kestrix is willing to take the property back, Timot could reconvey to Kestrix by simply giving back the quitclaim deed that he received at the closing.

33. Suppose that Kestrix and Timot went through to a closing of title, but that Timot rejected Kestrix's title at the closing because there was a valid (but unutilized) easement for a driveway across the back of the property.

a. Timot's rejection of Kestrix's title would be wrongful unless the contract of sale had expressly provided that the presence of such an easement would constitute a ground for rejecting title.

b. Timot's rejection of Kestrix's title would be rightful unless the contract of sale had expressly provided that Timot would take subject to such an easement.

c. The presence of such an easement, whether or not it was mentioned in the contract of sale, probably would not make Kestrix's title unmarketable.

d. Timot risks being held to have acted prematurely. He should have accepted title from Kestrix and then sued Kestrix for any damages incurred when, if ever, the easement is actually put to use.

a. Under the rule limiting record notice to the "direct chain of title," the lot being sold by Kestrix would still be subject to the equitable servitude.

b. Because the equitable servitude was set forth in a deed from one of Kestrix's predecessors in title, it would be considered to be in Kestrix's "direct chain of title."

c. Both of the above.

d. Under the rule limiting record notice to the "direct chain of title," the lot being sold by Kestrix should no longer be subject to the equitable servitude.

37. The implied warranty of marketability:

a. Protects the buyer against almost any unknown situation or circumstance that might seriously detract from the use or value of the property.

b. Applies only to legal impediments that detract from use or value, such as restrictive covenants, equitable servitudes, zoning regulations and easements.

c. Does not apply to title "defects" that the buyer agrees to take subject to in the contract of sale.

d. Is the portion of the deed providing that the grantee receives a title that is free from reasonable doubt in law or fact.

a. Hightower received an easement by reservation.

b. Hightower presumptively received an appurtenant easement.

c. Hightower presumptively received an easement in gross.

d. All of the above.

41. Following the conveyance:

a. Hightower has, in effect, an estate in fee simple in the lane.

b. Hightower would be presumptively entitled under the described easement to use the lane for the purpose of running cables to the antenna that it places on the one-acre site.

c. Hightower would presumptively have an easement by implication to use the lane for the purpose of running cables to the antenna that it places on the one-acre site.

d. If Hightower conveys its fee simple in the one-acre plot to Marscape Transmission Co., Marscape will presumptively be entitled to make the same uses of the lane that Hightower was entitled to make.

a. Marscape will presumptively be entitled to make the same uses of the lane that Hightower is entitled to make, and Hightower will continue to be entitled to make such uses.

b. Marscape will presumptively be entitled to make the same uses of the lane that Hightower was entitled to make, but Hightower will not continue to be entitled to make such uses.

c. Hightower will presumptively continue to be entitled to make the same uses of the lane that it was allowed to make before the conveyance to Marscape, but Marscape will not be entitled to make use of the lane.

d. Neither Hightower nor Marscape will be entitled to make use of the lane because, by its attempt to subdivide the easement without permission, Hightower has caused the easement to be extinguished.

a. Travel to and from interior portions of his retained land.

b. Running cables to and from interior portions of his retained land.

c. Recreational uses such as sledding down the slope of the lane during the winter.

d. All of the above.

e. None of the above.

a. Hightower should have a right by implication to maintain cables on the easement if Dutton has not objected about the cables during the 10 years.

b. Under the majority rule Hightower should have a right by prescription to maintain cables on the easement only if Dutton has not objected about the cables during the 10 years.

c. In many states, Hightower would have a right by prescription to maintain cables on the easement even if Dutton did object during the 10 year period, though some states follow a contrary rule.

d. None of the above. If the deed of conveyance from Dutton to Hightower made no mention of a right to string cables, Hightower would have no such right.

a. Hightower would probably have an easement by implication to use the lane for travel to and from the one-acre plot if use of the lane for that purpose was already a visible existing use at the time of the conveyance.

b. Hightower would probably have an easement by implication to use some portion of Dutton's land for travel to and from the one-acre plot if such use were absolutely necessary for any beneficial enjoyment of the one-acre plot.

c. Both of the above.

d. None of the above. Hightower would probably now have to make second deal with Dutton in order to secure a right to use Dutton's land for travel to and from the one-acre plot.

a. There was a quasi-easement corresponding to the claimed right of use.

b. The claimed right of use is strictly necessary for the beneficial enjoyment of the alleged dominant tenement.

c. The use of the alleged servient tenement for the claimed purpose was clearly visible at the time it was severed from the alleged dominant tenement.

d. All of the above.

a. Nicholson probably has by this time acquired an easement by implication to protect his view.

b. Nicholson probably has by this time acquired an easement by prescription to protect his view.

c. Nicholson could not have an easement by prescription to protect his view because enjoying the view is not a wrongful or "adverse" use of the land owned by Trent.

d. Nicholson could not have an easement by prescription to protect his view because the law does not recognize, for policy reasons, easements to protect views.

a. Fulton can also convey to Jake a right to share use of the easement across Young's land as access to the 10 acres to be acquired by Jake.

b. If Fulton attempts to convey to Jake the shared use of the easement across Young's land to reach the 10 acres, the resulting use by Jake would be an unlawful overuse or misuse of the easement.

c. Under these circumstances, Jake should have a fairly good claim to an easement by necessity across Young's land if his parcel would otherwise be landlocked and useless.

d. Fulton's easement would be automatically extinguished if he attempted to convey a shared right to use it to Jake.

a. If Fulton told Young that he never intended to use the access easement again, Young would have a pretty good case for claiming successfully that Fulton's easement was extinguished by estoppel.

b. If these events occurred over 10 years ago, Young would have a pretty good case for claiming successfully that Fulton's easement was extinguished by prescription.

c. Both of the above.

d. By virtue of extended non-use alone, Fulton's easement would be probably be extinguished by abandonment.

e. All of the above.

In answering the following TRUE/FALSE questions, assume (unless otherwise specified) that each conveyance is made by O, an owner in fee simple absolute. 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.

60. O conveyed "to A for life, then to B and his heirs." B would have a remainder.

62. O conveys "to A and his heirs." A's heirs would receive no interest in the land under this conveyance.

63. If O conveys "to A for life, then one day after A dies to B and her heirs," B would have an executory interest.

66. O conveyed "to A for two years, then to B and her heirs." In order to uphold B's interest, B would be construed to be the landlord of A.

67. O conveyed "to A for life, then to B and her heirs if B marries C." B would have a contingent remainder (if B has not yet married C).

69. A conveyance "to A for life, then to B's first child born after the death of A, and his or her heirs" would create an executory interest in B.

70. O conveyed "to A for life, remainder to B and his heirs." B then died before A. When A later dies the possession will go to the holder of the remainder.

71. O conveyed "to A for life, then to B and her heirs if B reaches age 25." If B is 23 years old when A dies, B's remainder would be destroyed at A's death.

73. O conveyed "to A and his heirs, but if A dies without any children surviving him, then to B and his heirs." B has a shifting interest.

74. If O conveys "to A and his heirs so long as the land is used for educational purposes," O would probably have a possibility of reverter.

76. If O conveyed a fee simple on condition subsequent to A, O would have a right of re-entry for condition broken.

77. O conveyed "to A and his heirs, but if A dies childless, then to B and his heirs." A has a fee simple subject to an executory limitation.

79. If, during B's lifetime, O conveys "to A for life, then to B's heirs," the result would be a contingent remainder following A's life estate.

80. If O conveys "to A and her heirs beginning 7 years from today," A would have a springing executory interest.

81. O leased to T for a term of 5 years. After 2 years T assigns the lease to A, and O consents to the assignment:

a. T will continue to be obligated to pay rent to O, if A defaults, based on privity of estate.

b. T will continue to be obligated to pay rent to O, if A defaults, based on privity of contract.

c. Both of the above.

d. T will have no further rent obligation to O.

a. T will be the landlord of A.

b. A will be the tenant of O.

c. A will have a term of years but T will not.

d. All of the above.

a. Under the traditional common law rule the conditional limitation could operate only if O were not himself in breach of the lease.

b. The conditional limitation would essentially duplicate the result that could be obtained under the common law anyway.

c. Both of the above.

d. In action by O to enforce the forfeiture, the court will be on the alert for ways to relieve against the forfeiture.

a. The heat provision would simply duplicate the traditional common law rules, under which L would be responsible for the habitable condition of the premises.

b. If L didn't supply heat, T could remain in possession and withhold rent without fear of eviction under the traditional common law rules.

c. If L didn't supply heat, the doctrine of constructive eviction would allow T to abandon possession and, if he did, T's obligation to pay rent would be abated.

d. If L didn't supply heat, T would have no legal recourse since, under the traditional common law rules, the covenants in leases are independent.

a. T's obligation to pay any further rent would be terminated.

b. T's obligation to pay the full rent as it comes due would be unaffected.

c. T would be liable for the difference between the agreed rent under the lease and the (lesser) fair market value of the premises.

d. T could be held liable in respect of future rent obligations only if the landlord made a good faith effort to relet the premises to somebody else.

91. L leased an apartment to T for a term of 5 years. Under the traditional common law rules, if T remains in possession after the end of the 5-year term:

a. L may hold T for a new term.

b. T becomes a tenant at sufferance.

c. L can remove T in an ejectment action.

d. All of the above.

a. A term of years for less than one year is one month's notice.

b. A periodic tenancy from month to month is one month's notice, specifying a termination date that is the end of a period.

c. A term of years for one year or more is six month's notice.

d. All of the above.