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Law Decks Flash Cards - Property - 2007-2008
Law Decks Flash Cards - Property - 2007-2008
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AUTHORS
Vincent P. Loccisano, JD
Based on years of analyzing and forecasting the topic coverage, fact patterns and question
formats covered on the MBE, as well as the Decks Corp. approach to flashcards, Loccisano has
developed this series of flashcards you have before you. Using this systematical and scientific
approach to studying, he has passed numerous professional licensing exams, including the
Massachusetts Bar Exam and the Federal Patent Bar Exam, all on the first try. Mr. Loccisano
currently practices patent law in Boston, Massachusetts. Loccisano holds a J.D. from the
Intellecutal Property Law Concentration program of Suffolk University School of Law and a B.S.
in Mechanical Engineering from Lehigh University.
B. Che cannot claim title as an adverse possessor since he never entered with hostile
intent.
C. Che is in adverse possession but does not hold title, since Cedric's incompetence 15
year ago stopped the possession clock from running.
B is incorrect. Hostile intent merely requires a possessor to take possession of the land
without permission of the true initial owner, which results in a loss of Cedric's rights.
C is incorrect. The only time in which the statute of limitations for adverse possession
would be tolled is if the true initial owner is mentally incompetent when the possessor
initially takes the land. Here, Cedric's mental illness occurred years after Che initially
took possession.
D is incorrect in light of the correct answer. Answer A clearly and accurately states that
Che has taken right and title by adverse possession.
A. Yes, as Tanaka has a reversion that will occur when Henry's widow dies.
B. Yes, Tanaka has an executory interest that will become possessory in the event that
Henry dies without surviving children.
D. No, so long as Henry is married with living children at the time of the conveyance.
Answer: A
Under the rule against perpetuities, the remainder of Henry's interest is void and Tanaka has a reversionary interest.
Since Tanaka has inherited this reversionary interest from Henry, he has standing to sue. Under the rule against
perpetuities, interest in property is valid unless it must vest, if at all, for longer than 21 years after one or more of the
lives in being at the creation of the interest. The analysis for this rule is done at the time the interest is created. We
have a potential problem with the general word "widow." "Widow" is defined as the person to whom someone is
married at the time of his death, so Henry's widow can only be determined upon Henry's death. Henry's "widow" has
a contingent remainder in a life estate because, until her identity and existence are ascertained, there is no one to
take possession upon Henry's death. Henry's children have a contingent remainder in fee simple, as their interest is
contingent upon outliving both Henry and his widow. This remainder is in violation of the rule against perpetuities, as
Henry may get divorced (assuming that he is married) and remarry someone younger who was not yet born at the
time that the interest was created. He could then have a new child with his new wife, at which time everyone
connected with the vesting of the interest could die. This widow could live for more than 21 years after the death of
all lives in being at the time the interest was created and leave their child. Here, the interest of Henry's widow and
child could vest outside the perpetuities period (21 years) rendering the interest void. In light of this, when Kazuo
convened the northern parcel of his land, he had a reversion, which was passed to his brother Tanaka upon his death.
Tanaka, therefore, has standing to enjoin the destruction of house.
B is incorrect since Tanaka actually holds a reversion interest, and not an executory interest. By definition, an
executory interest is a future interest created in a transferee that is not capable of taking on the natural termination of
a preceding life estate. An executory interest follows a gap in possession which does not occur here. In the present
facts, Tanaka gets his interest in the property through his inheritance rights from his brother Kazuo.
C incorrectly states that Tanaka has no interest in the northern parcel. In light of the correct answer, Tanaka has a
reversionary interest and can sue to enjoin destruction of the house.
D is incorrect. Based upon the analysis given in the correct answer, there is a possibility that the Rule of Perpetuities
could be violated.
©2007-2008 Law Decks
Fropert9 Law
Bartlett owns an apartment building in New Hampshire and decides to execute a deed
to his son that states: "To my son, Franklin, for his life, and upon his death to his children,
except if Franklin becomes a Republican; then I leave it to my daughter, Mary, and then
to Mary's children upon her death." At the time of the grant, Bartlett is alive and healthy
and a Democrat. Assume that Franklin becomes a Republican and Mary takes the
property. How would the interest in Mary's 2 living children best be described?
A. A contingent remainder
C. An executory interest
B is wrong as an interest subject to total divestment means that child 1 and child 2 may
lose their interest. This is not the case. At worst their interest may be reduced upon Mary
having more children.
C is wrong. This is not an executory interest since it follows Mary's life estate rather than
divests the previous estate.
Note: If Mary has not yet taken possession (i.e., Franklin remains a Democrat) then this
would be an executory interest since it would not naturally follow from Franklin's life
estate, but would divest only if Franklin changed political affiliation.
Aarti owns 10,000 acres. She wishes to develop 5,000 of those acres for a housing
development. Aarti intends to hold the remaining acres for a long time, hoping that they
will become more valuable once the housing development is completed. While selling
the houses, Aarti markets the remaining acres to the current potential buyers as a
wildlife refuge, where they can hike, mountain bike and ride mopeds; and is okay with
doing this so long as she can sell the remaining 5,000 acres in 20 years. What is the
best legal remedy Aarti can use to implement her plan?
A. A covenant
B. An easement
C. A leasehold
A is incorrect. A covenant is a promise to do, or refrain from doing, something on one's own
property that one would otherwise be privileged to do. Here, a covenant would not grant the
homeowners a right to use Aarti's land.
C is incorrect. A leasehold is a possessory interest in land and in granting the lease Aarti
could, in fact, be giving up her right to possess the land. Using the easement approach, Aarti
retains the right and ability to essentially do with the property as she pleases, while retaining
the most control possible.
D is incorrect. A personal contract with each homeowner is a poor choice since upon Aarti's
death all rights of the homeowners would be lost. The same loss of rights would occur if Aarti
decided to sell. In the case of a personal contract, the homeowners might be in a position to
acquire payment for damages; but they still could not successfully sue for continued use of
the land. In an easement, however, the homeowners' continual use of the land for the 20 year
period would be protected in the event of Aarti's death or sale of the land.
©2007-2008 Law Decks
Property Law
Suppose that Ramirez owns a farm in Utah and sells it to Johnson. Johnson pays a fair price
based on the market value but fails to record the deed before leaving for his honeymoon.
Ramirez is then hit by a runaway tractor and dies. Her will is probated and it reads: "I leave the
farm to my daughter Sandra." As Sandra knows nothing about the sale to Johnson, she records
the deed the following day. She decides to start raising sheep, and (needing cash) goes to
WaterBank who give her a loan for $100,000 with the farm as collateral. WaterBank checks and
sees that Sandra is the only owner of the farm on record. The sheep farming fails and
WaterBank requires that the farm is sold in foreclosure, the proceeds of which will repay
Sandra's bank loan. Just before the sale, Johnson returns with his executed deed. Suppose that
there is a Utah statute that reads: "No conveyance or mortgage of an interest in land is valid
against any subsequent purchaser for value without notice thereof, unless it is recorded." In light
of this, can WaterBank foreclose and take the proceeds?
D. No, since WaterBank should have known that Sandra's business would likely fail and should
have never granted the loan in the first place.
Answer: B
Here, we have a notice statute. Therefore, a purchaser for value without notice of the
prior conveyance is protected by that state statute. In light of a notice statute like this, a
subsequent bona fide purchaser will prevail over a prior purchaser who failed to record
his purchase.
Note: A bank, as a mortgagor, is considered a purchaser over a prior buyer who failed
to record their deed. Here, WaterBank had no notice of the prior sale, making them a
proper purchaser whose rights are protected.
A is incorrect. Sandra's rights would not protect WaterBank as Sandra was not a bona
fide purchaser, since she failed to pay value for the farm.
C is wrong. Johnson could have challenged Sandra's rights since she was not a bona
fide purchaser. However, WaterBank is a bona fide purchaser who properly recorded the
deed. WaterBank stepping in trumps Johnson's rights due to his failure to record.
D is wrong for offering an irrelevant answer to the question and facts presented. In light
of the facts, the assumption that the loan may have been imprudent is meaningless. All
that matters, here, is that WaterBank was a bona fide purchaser who properly recorded
the deed.
A. No interest
B is wrong as Enrique had no interest he alone could have transferred. This is a tenancy
by the entirety and the property is essentially held by the couple as one.
C is wrong. Enrique acting alone cannot sever the tenancy by the entirety and turn it into
a tenancy in common.
D is wrong for all of the above reasons, and, additionally, because Enrique did not own
the entire fee himself and, therefore, could not convey the entire fee himself.
B. Yes, because his only access to the bumper car park is across the baseball field.
C. No, Serena's purchase of the bumper car park from Bette extinguished the easement.
D. No, Barry needs to use the property for a longer time to gain an easement by
prescription.
Answer: B
There is an easement by necessity over Serena's baseball field, since this is the only
way to access the bumper car park. Upon the sale of the bumper car park from Serena
to Barry, there was an implied grant of an access easement since (given that quicksand
surrounds the other 3 sides of the bumper car park) the baseball field was clearly the
only access to a public road.
A is wrong. An easement in gross does not have a tenant associated with it, but rather
it gives the right to use to the servient tenant, regardless of ownership or possession of
an adjoining piece of land by the easement holder. Here, we have an easement that is
attached to the bumper car park purchased from Serena by Barry. Thus, the easement
is appurtenant, not in gross.
C is wrong. Upon sale Bette's easement was extinguished, but Barry acquired a new
easement by necessity upon purchase.
D is wrong. Barry gains an easement by necessity that results from a certain fact pattern
(quicksand on 3 sides), not based on a time of possession. Here, the lack of access by
any means but through Serena's baseball field, results in the creation of the easement.
C. No, because gas is a free-flowing substance and can be captured wherever it flows.
D. No, Liz's acts do not prevent Josó from drilling on Giant Ranch property himself.
Answer: A
Liz is committing a trespass, which is a tangible physical intrusion that interferes with the
possessor's right to exclusive possession of the land. Damages can be awarded based
on this trespass. Here, Jose is entitled to such damages as the drilling was on property
for which he had exclusive possession. The trespass occurs regardless of whether Liz
struck gas or not.
B is incorrect for only addressing the nuisance grounds for recovery and neglecting the
trespass grounds of recovery. A nuisance is an activity that substantially and
unreasonably interferes with a possessor's use or enjoyment of their property. While
Jose could possibly recover under a nuisance theory, he would have to show that his
enjoyment was interfered with. A trespass theory recovery does not require such a
showing.
C is a true statement of law and would be applicable if Liz had drilled straight down into
Giant Ranch, and the gas was flowing from Little Quinta to Giant Ranch where Liz was
pumping it out. Here, however, Liz has drilled a slanted well that necessarily goes under
Little Quinta in order to hit gas, making this a trespass.
D is incorrect as being irrelevant. The fact that Jose's right to drill was interfered with is
meaningless. Jose can recover for trespass regardless of the interference with is rights.
©2007-2008 Law Decks
Fropert9 Law
Kirti buys a house from Barbara only to learn that it was built improperly with outdated
wiring techniques requiring $10,000 to fix. Kirti sues Barbara for the cost to fix the place.
Which fact, if true, would best help Kirti's chance of winning?
D. Kirti had no knowledge of the defect when she bought the house and it was not
immediately and reasonably evident.
Answer: B
Generally speaking, the conveyance of property has no warranty associated with it when
between ordinary parties. However, if Barbara was the builder, there is an implied
warranty that the house was built in a "workmanlike" manner and suitable for human
habitation.
A is wrong. The fact that the house was unsafe and uninhabitable is meaningless unless
(as set forth in the correct answer) Barbara was the actual builder.
C is wrong. A warranty deed only contains covenants for title. It is not related to, or a
protection for, defects in construction.
D is wrong as knowledge is not a relevant fact here. In many states the acts of a seller
who actively attempts to hide a defect can open the door to liability, but here there is no
indication that Barbara acted in a dishonest manner at all. In light of this, the only way
that Barbara can be liable for these deficiencies is if she is the actual builder (in light of
the implied warranty).
Pasquale enters into an option agreement to buy Philip's house and land. Pasquale is
to pay a fixed monthly rent, plus taxes and maintenance charges for 5 years. This option
can be exercised at any point during that 5 year term by giving Philip 30 days notice.
Three years into the lease, Philip dies, leaving his estate to Rick, his brother. Just before
Philip's death, Pasquale assigned his interest in land to Ashley using a written
agreement. The option terms are set forth, but Pasquale failed to mention the payment
of the real estate taxes. Months later, Rick is informed that there is a tax lien on the
house. Rick pays off the lien. Ashley goes on to assign the lease to Biff, who fails to pay
the taxes or rent. Can Rick sue Ashley to recover?
D. No, since Pasquale was allowed to assign the lease, Ashley is allowed to assign the
lease.
Answer: C
Absent an express assumption, or language otherwise, an assignee does not remain
liable for covenants in the original lease after they assign. Answer C, therefore, makes
Answer A clearly incorrect.
B is wrong because an assignee is not in privity of contract with the lessor unless the
assignee expressly assumes the lease obligations.
B. Harry and Lance never recorded the deed they took from Roman.
C. Since Harry and Lance never recorded, Reva was not aware of their interest when
she paid fair market value for the property.
D. Harry and Lance never recorded. Reva paid fair market value and then immediately
recorded.
Answer: D
Since Roman had no interest to convey, Answer A is wrong. If Reva was a bona fide
purchaser for value who recorded first, then the deed to Harry and Lance would be no
good against her.
B and C are incorrect because they do not contain every element necessary for Reva
to prevail.
Jung owns land in fee simple. In 1990 she devises land to Ty for life with a written
instrument that states: "To Ty for life; if Ed and Ned return home from looking for the
Northwest Passage prior to Ty's death, to Ed and Ned and their heirs. If they do not
return home before Ty dies then the remainder is to go to my heirs." In 2004 Jung and
Ty both die in a tragic smoking accident. Ty's will left the estate to a pro-smoking club,
and Ty's remaining relative is his brother, Jake. Assume for this question that Ed and
Ned do find the Northwest Passage. Assume that Ty is dead and that Ed and Ned are
also dead. Ed predeceased Ned by 2 months. Ned has a son, Scott. What is Scott's
interest after the death of his father Ned?
C. Ownership of an undivided 1/2 interest in Jung's land along with the heirs of Ed who
own the same interest.
D. Ownership of 1/2 of Jung's land as a tenant in common with the heirs of Ed.
Answer: C
When Ed died, his % interest past to his heirs. The same occurred when Ned died,
namely to Scott. In light of this, Scott owns % interest in Jung's land and Ed's heirs own
1/2 interest in fee simple. Answer A is wrong because Scott only owns 1/2 of the land in
B is wrong because Scott holds an undivided % interest in, namely a % interest in all of
Jung's land. Scott does not own % of the land (a full interest in % of the land). Answer
D is also wrong based on similar logic to Answer B.
Luna partners with Lupe to develop Wolf Moon Estates in 1990. In 1999 they acquire all
of the required permits and begin to build Wolf Moon's residential development. The first
portion is comprised of 100 houses on 250 acres of land. The second portion is a
restaurant complex built on an adjoining 50 acres of land. Lupe owns an adjoining piece
of land (100 acres) on which Tom wants to build a condo complex. These condos would
result in the blockage of the residents' of Wolf Moon Estates view of the mountains.
What effect would the original Wolf Moon residential development have on Tom's
proposed condo project?
A. Tom, who has taken the property from Lupe, can only use the property for
constructing single family ranch houses.
B. The owners of Wolf Moon Estates homes have an implied easement for light and air
against Tom, and can enjoin Tom's construction.
C. The owners of Wolf Moon Estates homes have a right of first refusal to buy the land
sold from Lupe to Tom.
D. Tom can do as he pleases, as the owners of Wolf Moon Estates homes have no
enforceable rights against Tom.
Answer: D
The original development plan has no common scheme regarding the land owned by
Lupe, therefore, Tom can do with the land as he pleases. In light of this, Answers A and
C are clearly incorrect as they are not supported by the facts. Answer B is further
incorrect for being a blatant misstatement of the law.
B. Cindy wins, because she built the wall and mote in good faith and without knowledge of
the restrictions.
D. Kendra wins, since the deed language about fencing results in an equitable servitude, which is
enforceable against Cindy.
Answer: D
Kendra wins, as we have an equitable servitude enforceable against Cindy. The deed
language showed intent to allow the restriction to be enforceable by and against
assignees. The burden of the covenant clearly touches and concerns the land occupied
by Cindy, as it results in a restriction of what Cindy can, in fact, do with the land. The
benefit of the covenant touches and concerns Kendra's property as it allows her cats to
roam freely. Cindy further has constructive notice of the restriction based upon the
recorded deed between Felix and Nan resulting in record notice. Cindy may additionally
have been on inquiry notice due to the general makeup of the surrounding properties.
As this was part of a general plan for the entire subdivision, a neighbor can enforce the
deed restriction. We have all of the equitable servitude requirements, which can be
enforced by Kendra against Cindy.
B is incorrect since Cindy had record notice, and, possibly, inquiry notice as set forth in
correct answer.
A and C are both red herrings. We are dealing with an equitable servitude. Privity is not
necessary because the servitude is enforced as an equitable property interest in the
land itself, and not as an in personam right against the owner of the servient tenement.
A. An easement in gross
B. An easement appurtenant
C. An easement by necessity
An easement of necessity is not applicable for two reasons: Hot Spring Caves is unlikely
to be found a public way that Edie needs access to; and Edie does have an alternative
route that could gain her access to the hot springs if she so chooses. Therefore, Answer
C is incorrect.
D is incorrect. We have no facts indicating that Edie ever owned the entire parcel of land
and conveyed a portion of it to Simon, while reserving an easement for herself with the
conveyance.
A. No, since Wilson, has no notice of the restriction in his deed from CoCompany.
B. No, if Wilson relied on the zoning regulations before purchasing his property.
C. Yes, since we have a restrictive covenant that runs with the land, binding Wilson to the covenant.
D. Yes, if Chase can show that a reciprocal negative servitude is implied due to the original subdivision
common scheme.
Answer: C
A covenant runs with the land if it touches and concerns the land and is intended to run.
Here, the covenant regarding use of land for commercial purposes clearly touched and
concerned the land. Furthermore, it is apparent that the original party intended this to
run with the land, as the land was part of a subdivision with a common scheme.
Therefore, Wilson is bound even though his deed did not include this covenant and
restriction, as he was on constructive notice. In light of this, Answer A is incorrect.
D is incorrect. Chase does not need to show a servitude implied from the original
common scheme, as there was a recorded covenant regarding the land, and Chase is
free to enforce this covenant in equity as an equitable servitude.
A. The deed from Rodney to Kathleen referenced Murray's recorded plan, thereby, creating rights in
Kathleen to use this public street.
B. The recording of the plan by Murray gives CampySwamp Road over to the public, which
may subsequently be accessed by Kathleen anyway based on Murray's proposed public use of
the road.
D. Kathleen can only gain access to GolfClub Acres by spending a lot of money to update the existing
dirt road. Therefore, there is sufficient need for access to Murray's CampySwamp Road.
Answer: B
Generally, when a city approves plans such as these, they have accepted the
dedication, allowing Kathleen to gain access to the new public road.
A is wrong. Rodney simply referring to the recorded plan does not give Kathleen the
right to use the plan (and road).
C is wrong. A necessity argument is not proper as Kathleen does, in fact, already have
access, although not as convenient as the proposed new road, to GolfClub Acres.
D is wrong because there is already a means by which Kathleen can gain access to
GolfClub Acres. The fact that it is costly to update the dirt road, does not give rise to an
easement by necessity.
A. Rosalind and Fred, as together they own a fee simple interest in the building.
B. Rosalind and Fred, as the proposed restriction on the use of the property is in violation of the rule
against perpetuities.
B is wrong because the interest in the estate will pass to Fred, if at all, within the 21 year
time allowed by the rule against perpetuities and is, therefore, permissible.
Romeo owns ocean front property and conveys it, "To the woman who is the most
precious and special person I have every known, Juliet, for life, then to the heirs of my
brother, Monty." At the time of the conveyance, Monty has not yet married, preferring the
swinging singles life, and has no children that he knows of. At the time of Juliet's death,
Romeo is still alive and Monty is unmarried and childless. When Juliet dies, to whom
should her interest go?
A. Monty
B. Romeo
C. Juliet's heirs
D. Monty's heirs
Answer: B
Here, we have a reversion interest in the grantor, which occurs when the grantor
conveys a lesser vested estate than he has. In a situation where the reversion was not
expressly retained, operation of law will result in a reversion being created. Since Monty
is still alive, his heirs cannot be ascertained (heirs are only after death) so Romeo takes
a reversion until Monty's heirs can be ascertained and the property can pass to them.
Note: This assumes a modern day law application in which the destructibility doctrine is
not applicable to the interest of a not yet ascertained set of heirs.
A is wrong because Monty has no interest, only his heirs have an interest in Romeo's
ocean front property.
C is wrong because Juliet's interest terminates upon her death since it is only a life
estate. There is no ocean front property, then, for Juliet to pass on to her heirs since she
loses her interest upon death.
D is wrong because, during Monty's life, he has no heirs. Heirs only occur after death.
B. The deed is invalid unless the court allows the Parol Evidence Rule to bring in
evidence as to the amount of acreage conveyed.
The facts, here, are such that we are dealing with a bargain between Jack and Jane for
the northern portion of Stone's Skip, not a bargain for an exact amount of land at issue.
Therefore, there appears to be no grounds for reformation. Answers A and B are wrong
since a conflict in description does not invalidate the deed between Jack and Jane.
B. The covenant of seisin, right to convey, quiet enjoyment, warranty, further assurances, and the
covenant against encumbrances.
C. The covenant of seisin, right to convey, quiet enjoyment, warranty, and further assurances.
B is incorrect. There are no facts to suggest that the property was originally
encumbered, so a breach of the covenant against encumbrances is clearly wrong.
D is wrong. Under the covenant of quiet enjoyment, warranty, and further assurances,
Michael promises Raphael that: 1) Raphael's possession of the land would not be
disturbed; 2) Michael would defend Raphael against lawful title claims; and 3) Michael
would do whatever necessary to perfect Raphael's title. Clearly, Michael has breached
these, making Answer D wrong and Answer C the correct answer.
B. Ling, since Pat cannot obtain color of title through a forged deed
C. Pat, since by farming the southern plot of land he has constructively occupied it all.
B is wrong for two reasons. By definition, "color of title" merely means possession of a
document claiming to give title to the land. Pat clearly has this. Additionally, under an
adverse possession claim, color of title is not necessary. In most jurisdictions, a person
does not need to believe that they have a right to possess land. They can be a trespasser
and still gain adverse possession of the land.
C is wrong because constructive possession of the northern plot, based upon actions in the
southern plot, is insufficient to avoid an adverse possession claim. Most jurisdictions will
claim that if an adverse possessor has possessed a significant portion of the whole, they will
be granted the entire piece if it is a unitary piece of land. Here, the possession is 50% and
we are not dealing with a unitary piece (due to the road cutting it into northern and southern
plots), making a successful adverse possession claim by Pat for the entire land unlikely.
D is wrong since in reality Colby had no title to convey to Pat. The only way that Pat can
have possession to any portion of the land is via an adverse possession claim, not one
based upon color of title.
©2007-2008 Law Decks
Fropert9 Law
Kumar and Kim have an undivided % interest in Faulk Island. Their agreement states
that each has the right to possess all portions of the island and neither has the right to
exclusive possession of any part. One day, Kim ousts Kumar from the island wrongfully.
If Kumar sues, he can recover:
A. The fair rental value of the property for the time excluded.
B. 1/2 of the fair rental value of the property for the time excluded.
C. 1/4 of the fair rental value of the property for the time excluded.
D. Nothing, because each co-tenant has the right to possess all portions of the property
and neither has the right to exclusive possession of any part.
Answer: B
If a co-tenant ousts another co-tenant, the ousted tenant is entitled to % of the fair rental
value of the property for the time he was wrongfully deprived of possession. Here, there
was clearly a wrongful ousting; making Kim liable to Kumar for % the rental value for the
time that he was excluded.
D is a correct statement but it only addresses the right to possession. The share of
ownership determines the share of rental value.
B. The vendor of real property need not have marketable title until the time of the closing.
D. A mortgage of the type described does not follow the land and Tim would have taken
the land free of the mortgage even if Karen did not pay it off.
Answer: B
So long as Karen was willing to deliver marketable title to Tim at closing, she will likely
win. A seller of property only needs marketable title at the time of closing, not before.
For example, a seller can eliminate any existing encumbrances at closing using the
proceeds from the sale. As long as the proceeds are sufficient to cover the
encumbrances, the seller is free to clear the title to the property at closing. Therefore,
Tim cannot claim that the title is unmarketable and must go through with the closing as
planned.
C is wrong as the mortgage here is still enforceable. The fact that the mortgage was
granted for an antecedent debt only results in a lack of protection under the recording
statute, but this is meaningless to the present facts. Here, Tim had notice of Cat&
Bank's interest and could not cut off their interest by placing his first. The loss of
protection by Cat& Bank would only be against any potential lien holder that came in
front of them, of which there are none.
D is wrong as all mortgages follow the transfer of land. If the mortgage was not paid off
Karen is no longer personally liable for the debt and the land could be foreclosed against
by CatOn Bank.
©2007-2008 Law Decks
rropert9 Law
Julia is a rich rock star who owns several properties. She often works from one of her
homes via the internet. One summer, she decides to work from her Seal Harbor property
in Maine. Ordinarily, she doesn't work from this location in August, since she usually
spends August in New Mexico. Unknown to Julia, for years Marta (her neighbor in Seal
Harbor) has been using a portion of Julia's land to have an end of summer clambake for
the entire town. Marta has been doing this for 14 yrs. This year Julia notices and asks
Marta to stop, who promptly refuses. Julia files suit to enjoin Marta from doing this.
Assume that the clambake is totally legal and that the term for adverse possession in
Maine is 10 yrs. Will Julia prevail in her suit?
A. No, because Marta has acquired this portion of Julia's land by adverse possession.
D. Yes. Because Julia had no prior notice of Marta's use, Julia cannot be deemed
acquiescent to Marta's use.
Answer: B
Here, Julia looses. Marta has an easement by prescription, which is a right to use
another's land for a special purpose, with no right to possess and enjoy the property. An
easement by prescription is similar to an easement by adverse possession, requiring the
use of the land to be: open and notorious; adverse and under claim of right; and
continuous and uninterrupted for the statutory period. Mata's use clearly meets these
requirements.
Note: Continuous adverse use does not mean constant use.
A is incorrect as Marta did not entirely possess Julia's property and, therefore, fails to
meet the continuous possession requirements of adverse possession. Here, Marta did
not possess, but rather just used the portion of land once a year.
C is wrong as Marta's use was often enough to acquire a prescriptive easement. All that
is required for a prescriptive easement are periodic acts that put the true owner on
notice.
D is incorrect as Marta's use of the land was open and notorious enough to put Julia on
notice. The fact that Julia is typically not there each August is meaningless. Marta's acts
were enough for the easement requirements.
B. Yes, Cynthia has a right to guard against tort suits, making repairs to the dangerous
potholes in the driveway necessary and acceptable.
C. No, because Cynthia's interest in the driveway is only for the reasonable lifetime of that
driveway.
Note: The use must be apparent at the time the property is divided. In determining reasonable
necessity a court will look to the cost, as well as the difficulty, of the alternatives. Here, the
requirements of the easement by implication were met when Lorraine conveyed the dry cleaner
to Cynthia, which in turn passed to Leo when Lorraine conveyed the tattoo parlor to Leo.
B is wrong for stating a right that clearly does not exist. Absent an easement as set forth in the
correct answer, Cynthia has no rights to enter Leo's property.
C is wrong. An easement is generally for a perpetual duration unless there is some writing in
existence that limits the length of the easement's duration. Here, there are no facts to indicate
a limit on the duration of the easement.
D is wrong in light of the correct answer as Cynthia has an easement implied from an existing
user, which gives Cynthia the right to enter Leo's property.
A. IV only
B. II and III only
C. I, II, and III only
D. I only
Answer: D
Here, Henry is a life tenant and has the requirements not to change the premises in a
way that the holders of subsequent estates have a reasonable ground to object to. The
only permissible changes are those that result from a change in the neighborhood
wherein the land is no longer good in its current form. Here, there are no facts indicating
this to be the case, and Henry will not be permitted to destroy the house in light of
Tanaka's interest.
B and C are wrong because a court cannot force a life tenant to pay taxes or make
repairs. When a life tenant receives a piece of property, they are not obligated to make
repairs at the time the property is passed to them, regardless of whether the property
needs it. A life tenant is only obligated to preserve the land and structures in a
reasonable state of repair, and to pay ordinary taxes to the extent of rents and profits
collected from use of the property. Here, Henry is not occupying the land and cannot
gain any rent due to the poor condition of the house. Therefore, he cannot be forced to
pay the repair bills and taxes.
Property Law
unless the mining is a consistent use #
Bruce owns Icebellow Farm. He is nearing retirement, but his kids show no interest in
farming the earth and raising grain. He puts his highest hopes in his son Murray, a
cheesemaker, thinking that he will someday come around, after a few years. Bruce is
diagnosed with a week to live, based upon a tetanus infection, and drafts his will. It
reads: "I leave lcebellow Farm to my best friend and good neighbor, Wong, for life, then
to my eldest son Murray in fee simple absolute." The remainder of Bruce's property is to
be divided among his remaining children, his only heirs at the time of his death. Bruce
passes away and his estate is dispersed. Weeks later, Wong discovers that Icebellow
Farm has diamonds beneath the surface and begins to start mining the property and
digging tunnels. Murray asks Wong to stop the mining, but Wong (who has 3 kids in
college) refuses. Murray sues seeking to stop Wong. The court will:
C. Order a sale of the property and a division of the proceeds between Murray and
Wong.
D. No, because the property is undeveloped and there is no established necessity for
electrical service.
Answer: C
Vin has no rights to force Van to allow the installation of underground electrical cable to
PiperGate Glen, as a change in the basic understood nature of the easement is not
permissible.
A is incorrect because Vin has no right to exercise the eminent domain rights of the
electric company.
C is wrong because a warranty deed is not superior in right to a quitclaim deed. The only
difference between the two is that a warranty deed normally contains covenants for title,
the breach of which gives rise to a cause of action against the grantor, while a quitclaim
deed contains no assurances by the grantor.
D is wrong because all instruments affecting title to real property are recordable and
should be recorded.
C. Since Qwara has been paying the mortgage, Bernard must subrogate Qwara's rights to the land.
A is wrong as Qwara's intended use of the property is meaningless. Even if Qwara intended
to build a resort, she has a right to receive the property in the same condition as it was left
to Bernard.
C is wrong. The mortgage payments do not grant Qwara a greater right, as the payments
were made simply to protect Qwara's rights.
D is wrong. A life estate, absent language in the grant otherwise, is freely alienable.
Note: A grant of life estate to a person is only in effect for the duration of the life of the life
tenant.
©2007-2008 Law Decks
#covenants once originally recorded run with the
land even if a subsequent deed leaves them out#
Fropert9 Law
Lilly changes the zoning of her property to commercial. She records the zoning changes along with a
plan to subdivide the land into a spa, with numerous homes (including condos, apt buildings and multi-
family houses) having access to the spa. An entire gated community is developed with an automotive
theme; which is included in the development plan as covenants, conditions and restrictions, wherein
each house and store must have a car motif, approved by the merchants association. Twenty acres in
the center of the community are set aside as a racetrack, deemed a "public sports arena." Ten years
later, Lilly sells a number of the lots in the spa to various homeopathic healers that agree to maintain
the car motif: Acupuncture Juncture, Manual Shift Massage, Manifold Manicures, etc... She also sells
numerous residential lots, each of which has the car motif restrictions set in their deed. One spa lot in
the center of the spa region is sold to Tom, who 5 years later sells it to Gary without the deed restriction.
Over a weekend, Gary converts the lot into a safari-themed bicycle shop. Soo owns Acupuncture
Juncture in the spa. It neighbors Gary's spa lot and is in compliance with the car theme deed restriction.
On Monday, Soo sees Gary's safari motif and instantly seeks an injunction compelling him to demolish
the entire store since he failed to obtain consent from the merchant's association. Should the court issue
the injunction?
D. Yes, unless Gary can establish that his safari-themed bicycle shop has as much merit as the car motif
stores.
Answer: C
A covenant such as this runs with the land, therefore, the court should issue the
injunction. A covenant such as this is enforceable under a theory of equitable servitude
—allowing a covenantee, covenantor, or successor to enforce the covenant via the use
of an injunction. A party must prove that: 1) the covenant in a writing satisfies the Statute
of Frauds, 2) touches and concerns the land and 3) indicates an intention that the
servitude exists, and that 4) notice is given to future owners of the burdened land. Here,
we clearly have a written covenant, which touches and concerns the land, benefiting all
of the lots and burdening all of the lots. The intention to create is established via the
writing, as well as the implied common theme of the entire development. Notice was
found, as all of the original deeds of Lilly had the covenant in them.
B is incorrect. Gary clearly had record notice of the deed restriction as it was in the
originally prepared deed from Lilly to Tom. This deed was clearly in Gary's chain of title
and could easily be known to him had he looked.
D is incorrect. Note: A court will enforce a covenant, or potentially choose not to enforce
a covenant; but a court will not get involved in modifying a covenant.
©2007-2008 Law Decks
Property Law
Maya owns 2 adjoining lots, Lot 1 and Lot 2. Lot 1 abuts the road, and has street access. Lot 2
does not and uses the parking lot across Lot 1 to gain access to the road. Maya runs a gas
station on Lot 1 and an ice cream parlor on Lot 2. Since the ice cream parlor is seasonal, it is
only open May to September. Maya sells Lot 2 to Buddy and deeds an easement to use Lot 1
parking lot for access. Buddy promptly records the deed. Two years after the sale to Buddy,
Maya sells the gas station to Cliff, but the deed fails to mention the easement. Cliff demolishes
the gas station and builds a diner, blocking the parking lot to Buddy's ice cream parlor. This
occurs in December, and Buddy has no idea that it is happening as the ice cream parlor is closed
for the winter. In April, Buddy arrives to ready the ice cream parlor for spring opening and finds
that he no longer has any access to his store. Buddy brings an action to compel Cliff to relocate
a portion of the diner to allow the parking lot access. The shortest route for Buddy to the street
is through Cliffs lot. There is an alternative, but it would require passing through 6 parcels of land
to get to the street. How should a court rule on Buddy's motion?
B. For Cliff, as once he built the diner and blocked the driveway Buddy's rights were terminated.
C. For Buddy as he owns the easement and has a right to access his lot.
D. For Buddy, as there is no reasonable alternative access to his lot from the street.
Answer: C
The court should rule for Buddy. Buddy has an easement which is the right to use Cliffs
property for access. Absent language to the contrary, once an easement is granted it is
perpetual in duration. Therefore, the transfer of the property from Maya to Cliff does not
terminate Buddy's easement. Furthermore, Cliff has notice, as Buddy recorded the
easement.
A is incorrect since the recorded deed to Buddy is deemed constructive notice for Cliff,
the purchaser. Therefore, Maya does not need to mention the easement when selling to
Cliff or put it in Cliffs deed.
B is wrong. The statutory period for terminating the easement is typically the same
period as necessary to obtain an easement by prescription. To terminate an easement,
Cliff would have to have openly interfered with Buddy's easement for the statutory
period. Generally, this statutory period is always at least 10-20 years.
D is incorrect. While there might be an easement by absolute necessity (i.e., Buddy has
no other reasonable access); it is inapplicable as an answer since Buddy has an express
easement from Maya.
B is wrong because, under a first in time statute, Bank-a-lot was the first in time to
purchase and record the mortgage and note, making them valid holders of both.
C and D are wrong because (as stated above) the mortgage and note are a package,
and are never separated.
Note: When facing a question which separates the mortgage and note, instantly rule out
answers that find different parties holding different pieces. A mortgage and note travel
together.
Kendis owns Villa Morris in fee simple, and following her husband's death she conveys
Villa Morris: "To my only child Canda, for life, remainder to the children of Ace in fee
simple." Ace was Canda's only child at the time that conveyance was made. Note,
however, that both Canda and Ace were married, but Ace had no children at the time of
conveyance. With regards to Ace's own children (Kendis's great-grandchildren), what
interest would they hold on conveyance?
A. None
B. A springing use
C. A contingent remainder
A is incorrect since Ace's children clearly have an interest, namely the contingent
remainder set forth in Answer C.
B is incorrect. A springing use serves to cut short the estate that is held by the grantor
and a remainder does not cut short the estate of that grantor.
A. For Max, as any suits regarding the height of the house would be frivolous.
C. For Latanya, as any violation, regardless of how small it is, is a breach of contract.
D. For Latanya, as she may be exposed to a lawsuit, making the title unmarketable.
Answer: D
Latanya will prevail as the title here is unmarketable. Implied in each land sale is an
implication that the seller will deliver marketable title (i.e., that the title that is free of
potential litigation). Here, we have a height that is in violation of the deed restriction of
the original developer, making it quite possible that the owner (either Max, or Latanya
should she purchase) would be subject to a lawsuit. Additionally, the belfry 6 inches over
the 20 foot zoning ordinance further makes the title unmarketable due to another
potential suit. A and B are, therefore, incorrect. C is also wrong as being a total
misstatement of the law.
I. A municipality can lose its real property interests via the actions of adverse possession.
II. Jamar's use of the parcel serves as proof that he has asserted dominion over the parcel for
years.
III. A municipality cannot abandon fee interests in real property without an official vote.
IV. The municipality's lack of use created an irrevocable license in Jamar for his use.
A. I and II only
B. I and IV only
C and D are wrong for misstating the requirements of adverse possession. Jamar does
not have to show abandonment by the record owner to prove adverse possession
(Statement III).
B and D are wrong because a license (Statement IV) is not necessary. Additionally, a
showing of a license serves to make an adverse possession claim impossible, as a
license would indicate that Jamar had Oklahoma City's permission and the taking then
would not be hostile.
A. Prevail for the homeowners, since they have acquired an easement by prescription
for recreational use.
B. Prevail for the homeowners, because they have acquired the tract by adverse
possession.
C. Not prevail for the homeowners, because the homeowners have no interest in the
property.
D. Not prevail for the homeowners, since the correct remedy is damages.
Answer: C
Here, the homeowners have absolutely no enforceable property interest and will lose in
court. Looking at the incorrect answers we see that:
D is wrong. The homeowners have no claim at law, making damages their only
applicable remedy, not an injunction.
A. Kesey cannot use the adverse possession claim, as Red's mental incapacity tolls the
statute of limitation period for adverse possession.
B. Kesey cannot claim title by adverse possession as his use was not open and
notorious.
C. Kesey has title to the land under the theory of adverse possession.
A is wrong because Red's disability does not toll the period for an adverse possession
statute of limitations.
B is wrong, in light of the facts, as Kesey's use was clearly open and notorious.
C. Rory wins, since the terms of the deed she gave to Zane control the liability she is
subject to.
D. Rory wins, since Zane acted negligently in not checking the covenants at closing.
Answer: C
Rory wins since it is the terms of the deed that control the liability that she is exposed
to, not the terms of the contract. The merger doctrine states that the contract merges
into the deed, and the terms of the contract are meaningless. The fact that the contract
states "good and marketable title" is meaningless. It is the deed that controls.
A is wrong as the deed will not incorporate the terms of an earlier contract.
B. A tenant at sufferance
C. A licensee
D. A trespasser ab initio
Answer: C
Wong's best argument is that Dunn is a licensee. A licensee agreement allows a party
to enter a licensor's property, but that same license may be revoked at any time by the
licensor's intent to end it.
D is wrong. Dunn is not a trespasser ab initio, as his entry inside the property was with
the permission of the owner.
A. Lee would have been deemed to have taken the property with notice due to the location of the
parcel.
B. Ling can bring a suit in equity to enforce the proposed wildlife preserve plan against Lee.
C. Ling can be viewed as a creditor beneficiary of Toby's promise to make the 50 acre parcel a wildlife
preserve.
D. Ling received an economic benefit from the wildlife preserve's existence in her development. Being
adjacent to the 50 acres with rare bamboo trees, the wildlife preserve is an asset of her plot.
Answer: B
The only way Ling can enjoin Lee is if Ling has an equitable servitude.
A is wrong as location alone is not enough to put Lee on notice. Ling can, however,
enforce the restriction as an equitable servitude, as Lee had record notice in the deed
from Toby. Had Lee investigated the deed properly, he would have been aware of the
restrictions.
C is wrong since Ling dealt directly with Toby and is, therefore, not a 3rd party
beneficiary.
D. The result depends on whether or not the additional planting will generate enough
income to pay the outlaid costs.
Answer: A
A co-tenant such as Kiri has no duty to improve the property and, following an
improvement, cannot force the other co-tenant to pay for the improvements. In light of
this, Answer B is wrong.
C and D are wrong. The outcome of the improvements are meaningless, the rule is
simply that a co-tenant cannot force other co-tenants to pay for improvements made to
a piece of property.
A. Granted, since the estate generated by the deed signing was not, in fact, a tenancy
by the entirety.
B. Granted, because the tenancy by the entirety was severed when Hall left.
B is wrong. If we assume this was, in fact, a tenancy by the entirety, the simple act of
abandonment by one spouse does not severe the estate.
D is wrong since the facts serve to establish that Hall cannot have absolute title.
A. A right of entry
B. A possibility of reverter
C. A fee simple absolute, since we are dealing with a violation of the rule against
perpetuities.
D. Nothing
Answer: B
Fergal's executory interest (as given to her by Ignatius) is void since it could possibly
vest more than 21 years after a life in being, making this a rule against perpetuities
violation. A court would, therefore, strike the gift to Fergal and just look to the remainder
of the conveyance.
C is incorrect. The use of language such as "so long as" results in the creation of a fee
simple determinable and the possibility of a reverter, making Answers A and D incorrect.
C. A landlord must generally charge the same rent for all units in an apartment complex.
B is wrong and counterintuitive. The fact that this is a periodic tenancy does not prevent
Zogby from being evicted, but rather allows his eviction following the proper notice.
C is wrong since freedom of contract allows a landlord to charge whatever she likes.
D is wrong. A landlord generally does not need to establish a valid reason for raising
rent.
A. Sophia's, as she was the owner of Villa Contessa following Marcello's destruction of the
deed.
B. Sophia's estate owns Villa Contessa since the destruction of the deed serves to eliminate
the existence of the original transfer to Marcello.
C. Marcello's. His estate owns Villa Contessa since the physical deed was nothing more
than evidence of Marcello's title, and its destruction failed to cause the title to pass back
to Sophia.
D. Marcello's estate owns Villa Contessa, since the destruction of the deed was under the
undue influence of Sophia.
Answer: C
The deed is simply a physical manifestation of title, and its literal destruction did not
result in the transfer of land back to Sophia. To transfer Villa Contessa back to Sophia,
Marcello would have had to draft a new deed and deliver this deed to Sophia. In light of
this, Answers A and B are wrong.
D is wrong since it is not supported by the facts. There are no facts indicating that Sophia
used any undue influence in getting Marcello to destroy the deed.
D is wrong since the tenancy in common of Nick and Jake does not convert into a joint
tenancy upon their death.
C. For Jag, since it was only land that was damaged and not Lala's house.
C is wrong because damage to the land yields an actionable recovery if support has
been taken way.
D is wrong in light of the correct answer. Neighboring landowners have a right to support
even if there is no building on that particular part of the land.
A. Lisa, since Raphael never paid the property taxes on this part of land.
B. Lisa, as a minor the adverse possession statute will be tolled against her until she reaches
the age of majority.
C. Raphael, as he had an honest belief that the 10 acres were part of Purple Plume Hill.
A is incorrect because only a minority of states require that the adverse possessor pay
property taxes on the land in question.
B is incorrect. The existence of a disability such as 6 year old Lisa's minority status, does
not toll the adverse possession period. The existence of a disability must have existed
at the time the adverse possession began for a tolling to occur. (For example, if Leo was
mentally ill when Raphael built the garage.)
C is incorrect because the majority view makes Raphael's state of mind irrelevant. Even
if he knew he was a trespasser, Raphael could still gain the land under an adverse
possession claim.
A. An executory interest
C. A possibility of reverter
D. A contingent interest
Answer: C
Note that the Able Aviary Association interest is void as it violates the rule against
perpetuities since it may vest beyond the 21 years after the death of a life in being
requirement. In light of this, Mame receives a possibility of reverter in Rough Ride
Ranch. An interest such as this is freely devisable and, therefore, passes to Patrick upon
Mame's death.
A is wrong because Patrick's interest is an interest in the grantor and is not executory.
Note: A grantor cannot hold an executory interest, and an executor interest is held by
someone other than the grantor. Here Patrick's interest is inherited from Mame, the
grantor.
D is wrong. The possibility of reverter is always a vested interest and never runs afoul
of the rule against perpetuities.
A. Lorna for the rent only, as a rent covenant runs with the land.
B. Lorna, for both the rent and the road, assuming that Lorna assumed performance for
all covenants in the original agreement.
C. Mitch and Lorna for both the rent and the road.
Note: The assumption of the duties in an assignee is implied and does not need to be
expressed as part of the assignment. Further note that covenants to pay money run with
the land, as do covenants to perform physical acts on the property; making both Mitch
and Lorna liable. This also makes Answers A and B wrong.
B. For Willie, as Track's use of the easement would unreasonably interfere with his use of his
land for raising sensitive color-genetic sheep.
D. For Track, since Willie has failed to use the land governed by the easement and cannot
assure that the easement has been abandoned.
Answer: C
Easements are generally viewed as being of perpetual duration, and cannot be
abandoned by simply not using them. To abandon, Track would need to have showed
an intention to permanently abandon the easement; such as removing the train tracks.
In light of this, Answer A is clearly incorrect.
B is wrong for stating the wrong result, as the facts in this answer have nothing to do
with abandonment. Why would you choose an answer having to do with abandonment?
The question is not specific to that.
D. Develop the area in accordance with all applicable residential zoning laws.
Answer: C
The best approach is Answer C, as the use of a negative easement in accordance with
Answer A is too limited. ,
A. An equitable servitude
A. Jamal has a life estate that was not subject to termination during his life.
B. Loriel has no claim to Lorien Gardens since she was not living at the time of the
original conveyance from Leroux to Jamal.
D. At best, Loriel has a contingent remainder, contingent upon the death of Jamal.
Answer: A
The conveyance at issue clearly creates a life estate in Jamal. Therefore, Jamal
maintains possession for the duration of his life.
B is wrong since being alive at the time of the conveyance is not necessary for Loriel.
C is incorrect. Since Loriel's interest vests within 21 years of a life in being (namely, her
father, Kurt), it is a valid interest under the rule against perpetuities.
A. Yes, WaterBank had an interest that was acquired at a date prior to that of Lamar.
A is incorrect because, to prevail, the statute here states that WaterBank must have
actually recorded prior to Lamar. The date at which they acquired an interest in the
property is meaningless. Under Florida's statute, it is the date at which the record is
made that counts.
B is incorrect. While the mortgage is, in fact, a security interest for the loan; it is also an
instrument creating an interest in Citrus Harbor held by WaterBank and falls within the
scope of Florida's recording statute.
D is incorrect for offering a red herring type answer. Supposing for this question that
Florida is a lien theory or a title theory state is irrelevant. Under both theories,
WaterBank's mortgage is creating an interest in Citrus Harbor, and is, thus, subject to
the recording statute.
D. The property belongs to Gaston, Vida and Teresa's son as tenants in common.
Answer: B
A joint tenancy carries the right of survivorship. Therefore, when a tenant dies the
property held by this tenant is subsequently divided among the remaining tenants,
making Gaston and Vida each owning 1/2 shares.
A is incorrect. As stated above, Vida does, in fact, have an interest. This answer could
be correct if Gaston could prove that Vida merely had a security interest. However, the
fact that she paid upkeep and bills tends to indicate that her interest was more than a
simple security interest.
C is incorrect since the joint tenancy was not severed. A testamentary conveyance such
as this does not sever the joint tenancy. If there were only 2 parties, however, a
conveyance by one would, in fact, sever the joint tenancy resulting in a tenancy in
common. (But that is not the case in this present set of facts.)
D is incorrect. A will has no effect on a joint tenancy since once the party dies their
interest in the property disappears and is subdivided to the remaining tenancy (Gaston
and Vida). Therefore, Teresa's son has no interest to take.
A. Yes, Pow-Pow Power does have a proper easement and flooding is permissible under the
easement.
B. No. Since Pow-Pow Power has failed to exercise its rights for years, they have lost use of the
easement.
C. No, because the easement was not properly acknowledged and recorded.
D. No, unless the state has an adverse possession statute that requires hostile occupation for a period
longer than 30 years.
Answer: A
Pow-Pow Power Company has a valid easement, as an easement by express grant
requires that there is a writing signed by the grantor. If validly created, an easement lasts
for a perpetual period of time, and all of these requirements were met by the present set
of facts.
C is incorrect because the improper recording of Tierre's easement does not extinguish
the right of the original parties to the easement. Failure to record properly, at best,
results in lack of constructive notice to subsequent parties, but it does not effect the
rights of the original parties to the easement.
A. Mere expectancies
B. Contingent remainders
B. A secured interest against Wendy's 1/2 interest as a tenant in the entirety with Paul.
C. A secured interest against Wendy's 1/2 interest as a tenant in the entirety with Enrique.
D. No interest
Answer: D
Sue has no interest, as this is a tenancy in the entirety and both spouses must join
together to get a mortgage on the property. In light of this, Wendy has no power to grant
a mortgage against the property to Sue.
A is wrong in light of the correct answer. This answer is also wrong because it is
impossible for Wendy to convey a greater interest than the one she holds (namely, a 1/2
interest in the property).
C is wrong since it is impossible for Wendy to convey her interest without Enrique's
consent. Furthermore, it is impossible to hold the property as a tenancy by the entirety
between Enrique and Sue, as they are not married.
Fropert9 Law
permission is only a license#
Edie and Simon own adjoining land. Edie's property is west of Simon's. Adjoining Simon's
property on the other side to the east is Hot Spring Caves. In 1980 Edie buys inflatable rubber
duckies for her children to use while soaking in the hot springs. She asks Simon if it would be
okay for her and her children to walk across a 10 foot expanse of his property to gain access
to the hot springs. Simon knows that the only other access is a circuitous 30 minute car ride
over 15 miles, so he agrees to let Edie and her kids use the 10 feet of his property to get to
the springs. Edie and her family use this strip for 19 years, at which point Simon sells his
property to Art. Art sees Edie walking the strip every Monday, but says nothing, knowing that
this is, in fact, his property. On the 9th month of noticing this, Art speaks up and prohibits Edie
from using the strip. Edie and her family continue to use the land, regardless of the fight, and
continue for 5 more years, at which point Art gets an injunction. The adverse possession
period is 20 years. When Simon gave Edie permission to use the 10 foot strip to cross to the
hot springs, Edie's interest could best be described as:
A. An easement in gross
B. An easement appurtenant
C. An easement by necessity
D. Not an easement
Answer: D
Here, Edie has nothing more than a "license" to use the land. We do not have a written
agreement. Therefore, the Statute of Frauds requirements for the creation of an express
easement were not met. Additionally, because this is permitted use by Simon, Edie's use
of the land was not hostile. This means that the adverse requirements of adverse
possession were not met and, therefore, there is no easement by prescription. In light of
this Answers A, B and C are wrong.
B. Roberto could bring an action for reformation of the deed with a price adjustment.
B is incorrect because a court will never step in and actually rewrite a deed.
Answer D is incorrect as there are no facts to indicate that Buck has made any type of
misrepresentation.
A. Brutus wins, as the title to the property was not marketable as of the date of closing.
B. Brutus wins, since there is an encumbrance on the title (which existed upon the date of
proposed closing between Caesar and Brutus) that remained subject to a possible
litigation.
C. Caesar wins, as the Doctrine of Equitable Conversion states that Brutus was the owner
of the property when the lien was placed against it and, therefore, the lien was improper.
D. Caesar prevails, because a contract such as this has an implied term that Caesar can
use the proceeds of the sale to cover any outstanding liens or encumbrances.
Answer: D
In a contract for the sale of real property, it is assumed that the seller of the land can use
the proceeds of the sale to clear title, as long as he can ensure that the purchaser of the
property will be protected. Here, Caesar was willing to do just this, making Answer A
incorrect.
B is incorrect. Since the potential litigation attached to the property was only for
monetary damages, it did not have an effect on the title, as there was no outstanding
claim that could affect the title to the land. Therefore, Brutus's interest in the land cannot
be harmed.
A. Ann owns the house, since Mary failed to disclose why she was revoking the house.
B. Ann remains the owner, as Ann has yet to transfer the house back to Mary.
C. Mary is the owner, as Ann agreed to return the title by destroying the deed and, in fact, did
just that when she burned it.
D. Mary is the owner. Ann is nothing more than a donee who has a lesser degree of rights
as compared to Denise, the bona fide purchaser.
Answer: B
A deed is nothing more than an evidentiary marker that a person holds title to a piece of
property. Destruction of the deed, therefore, has no effect on actual title. Here, Ann then
retains title in the property even after burning the deed. Ann is, therefore, the true owner,
which in turn makes Answer C incorrect.
A is wrong. Once Mary transferred the deed to Ann, she could no longer make any
changes to the ownership of the land as she no longer owned it. In light of this, Mary
could not subsequently sell to Denise, regardless of the truth or misstatement of the
reason she gave Ann for revoking the deed.
D is incorrect since Denise is not a bona fide purchaser, as Denise knew of the deed to
Mary. A bona fide purchaser is a purchaser that buys without notice and for value. While
Denise clearly paid a "value," she fails to meet the notice requirement, as she clearly
was aware of the deed to Ann.
B. Darius will be able to eject Ling only, because he has suffered no monetary damages.
C. Darius will not be able to eject Ling, because Sonny had no right to sublet under the
lease agreement he entered into as he did not get Darius' approval. Darius can
recover
the full rent paid by Ling, since allowing Sonny to benefit form the sublease is
improper.
B is a close choice, but recall that this is the minority rule of law. The majority rule would
be that acceptance is presumed so long as the conveyance is beneficial to the person
on the receiving end. Knowledge in the grantee is not necessary.
D is the best answer. Even in those states that presume acceptance, the presumption is
rebutted when the grantee expressly refuses to accept the conveyance.
A. Judgment for Marie, since she had no idea that Samir's purchase from Antoinette was
below market value.
B. Judgment for Marie, since Samir had a marketable title at the time Marie sought to
enforce the contract for the sale of $1.5 million.
C. Judgment for Samir, since he had no title to the house at the time he sought to sell
to Marie.
D. Judgment for Samir. His agreement with Marie was fraudulent at the time he entered
into it in regards to Antoinette, and is, therefore, unenforceable.
Answer: B
It is essential to realize that the agreement between Samir and Marie has an implied
condition that Samir will deliver marketable title to Marie at the time of closing. It is not
essential that Samir actually has a marketable title at the time that he enters into the
contract with Marie. Answer C is wrong for this reason.
D is wrong. It is perfectly permissible to go ahead and buy property for the purpose of
resale.
C. The national wildlife society can prevent the tree cutting, but Jen is free to mine
diamonds.
D. The national wildlife society can stop the diamond mine, but not the tree cutting
firewood sales.
Answer: C
A life tenant is generally not allowed to exploit natural resources on a property. There is
one exception, namely the "open mine" exception that is applicable to the present facts,
wherein the life estate holder can continue with actions that occurred at the time of the
grant. Here, the mine previously existed, and Jen will likely be allowed to continue
mining diamonds as the grantor likely intended this activity to go forward. The firewood
sale of cut trees, however, was not occurring at the time of the grant and the "open mine"
exception is not applicable. In light of this, Jen cannot cut trees, making Answer C the
correct choice, and Answers A, B and D incorrect.
A. Carla knew about the land and the power lines when she accepted the deed from Bradley.
B. The only other available access to power for Gary is going to cost 1,000 times what he currently
pays and is difficult to get.
C. Carla originally told Bradley that she was "totally okay with the power" lines spanning across the
southern property.
D. Carla is acting out of spite, as Gary accidentally blocked the road to Carla's orchard one day when
he left his truck in the driveway sticking out too far. She lacks a good faith belief that she has a
right to remove the line.
Answer: B
The best set of facts for Gary is that the only other power access is both expensive and
difficult to get. This helps to prove that there is, in fact, an easement implied by operation
of law ("quasi-easement"). Such an easement can be implied if prior to the time the tract is
divided, a use exists on the "servient part" that is reasonably necessary for the enjoyment
of the "dominant part." Additionally, a court must further determine that the parties intended
the use to continue after division of the property. A party must show that the use was
apparent and continuous at the time the tract was divided. Gary can, in fact, prove these
conditions (the house has and will continue to need electrical power) of an implied easement
for a use such as this, making Answer B the correct answer.
A is wrong. Actual knowledge of the line is irrelevant. Carla does not need to be aware of
the use, it is only necessary to show that the use is apparent. Here, we have above ground
power lines on poles, that could easily be discovered should Carla look up, making the
power lines clearly apparent.
C is wrong. An oral statement made to the grantor at the time of grant is meaningless in
view of the implied easement set forth in the correct answer.
D is wrong because motive is also irrelevant. If there is no easement, Carla is free to remove
the lines for any reason she likes. If there is an easement, however, Carla cannot remove
the lines no matter how good of a reason exists.
©2007-2008 Law Decks
Fropert9 Law
Pasquale enters into an option agreement to buy Philip's house and land. Pasquale is
to pay a fixed monthly rent, plus taxes and maintenance charges for 5 years. This option
can be exercised at any point during that 5 year term by giving Philip 30 days notice.
Three years into the lease, Philip dies, leaving his estate to Rick, his brother. Just before
Philip's death, Pasquale assigned his interest in land to Ashley using a written
agreement and set forth the option terms. Lynn fully performs under the lease. Can Lynn
exercise the option to purchase?
A. Yes, because both the burden and benefit of the covenant to convey run with the land.
B. No, because the covenant to convey between Pasquale and Philip does not touch or
concern the land.
C. No, because the option to purchase was personal to Pasquale and Pasquale alone.
D. No, because the burden of the covenant to convey does not run with the land.
Answer: A
A covenant to convey, both touches and concerns the leasehold and runs with any future
interest in the land, such as Ashley's interest. In light of this, Answer B is clearly
incorrect.
C is incorrect. The option to purchase, as set forth in the question, has no additional
information noting that the option is personal in nature.
D is incorrect because the burden of the covenant to convey does, in fact, run with the
land.
B. Yes, Chase is a creditor 3rd party beneficiary of the promise made by Hattie with respect to plots within
the subdivision.
C. Yes, Chase has an equitable servitude concerning use of land within the subdivisions.
D. No, because the covenant banning commercial activity is only applicable to purchasers of individual
lots, not the 10 lot block sold off at the end of Hattie's dealings.
Answer: C
Chase holds an equitable servitude, namely a right to enforce the covenant in equity.
Note that Chase is NOT a 3rd party beneficiary, but rather a direct promisee.
In light of the correct answer, Answer B is clearly wrong. It does not matter that Clear &
Free was a bona fide purchaser, since they would be bound by the covenant because
of its presence in public records. This also makes Answer A incorrect. Answer D is
further wrong, as the original covenant was not limited to any one type of lot (i.e., a
residential home lot) and is applicable to all lots within the development.
B. Jung has title as long as Quiterie knew of the transfer from Colette.
C. Colette has title, but Jung is free to sue to recover under the theory of estoppel.
C is wrong for misstating the minority position in regards to the estoppel by deed theory.
Under the minority law Jung would have to bring suit to recover title, as compared to the
majority view where title passes automatically.
B. Yes, unless they are willing to post a bond against the possibility of any damage that
they may do to Van's property.
D. No, so long as there is no other means or route that they could take for the power
lines.
Answer: C
The electric company can install lines using its power of eminent domain. It is only
because of this power that Vin and the electric company may use Roadside to lay
underground electrical cable to PiperGlen.
A is incorrect for failing to take into account the electric company's right to eminent
domain. If that right did not exist, however, this answer would be good (and a correct
choice) given the facts.
B is incorrect since the bond issue is meaningless. It is only because of the electric
company's power under eminent domain that the may use the land Roadside to run
lines.
I. Enforceable, even though there was no contractual agreement between Felix and Mike, as this is a
covenant running with the land.
II. Enforceable, as Mike has constructive notice when he bought from Minx.
III. Enforceable, even if it is contained in a deed signed only by the grantor developer and not by
grantee Mike.
A. II only
B. I and Ill only
C. I only
D. I, II, and III
Answer: D
All of the statements are correct. The single-family covenant runs with the land, thereby binding Mike
as if he himself had agreed to it. The original granting language "grantee and his assign" indicates that
Felix and Minx intended all further parties to be bound. Mike also had constructive knowledge of the
covenant, as the original deed between Felix and Minx was recorded and this deed was in Mike's chain
of deeds had he investigated. It is necessary to evaluate whether this covenant runs with the land using
the following analysis: horizontal privity existed between Minx and Felix as they both shared interest in
the land independent of the covenant. Mike further holds the entire interest originally held by Minx; thus,
there is vertical privity. Finally, the covenant touches and concerns the land since it restricts the holder
of the servient estate by limiting the means by which that holder can use the land (single-family home
construction only). In light of this, all requirements for the covenant to run have been met. Consequently,
Statement I is a correct statement and Answer A is incorrect.
Statement II is correct since there is an equitable servitude and Mike had constructive notice. An
equitable servitude is a covenant that equity will enforce against assignees of the burdened land who
have notice of the covenant. Equitable servitudes are only created by mechanism of a covenant that is
in writing and that is enforceable in a court of equity. For the burden to run with the land, the covenanting
parties (Felix and Minx) must have intended the servitude be enforceable by and against assignees. The
covenant language indicates that Felix and Minx did intend this covenant to run with the land. Since
Mike clearly has constructive notice of the fact that the land is to be used for single-family home use
only via the chain of deeds, as required in order for the covenant to run; we clearly have a covenant that
touches and runs with the land. Thus, Answers B and C are incorrect.
Statement III is also correct since acceptance of a deed signed by the grantor alone is enough to bind
the land to an equitable servitude or covenant.
©2007-2008 Law Decks
Fropert9 Law
Rufus owns a small business selling ice in Alaska. He is quickly loosing all of his cash with no
customers or sales. As the planet slowly warms, Rufus's business is slowly getting better, but
he needs cash to stock his freezer with inventory. He goes to Mia for a loan. She agrees to the
loan as long as Rufus puts his house and property up as collateral. Rufus's property was
inherited from a rich uncle and is worth $1 million. Rufus gives Mia a deed and she promptly
records. Mia gives Rufus $500,000 and a promissory note for the remaining $500,000 within 6
months. Rufus continues to live on the property and Mia agrees to re-convey the property back
to Rufus upon repayment of the $500,000 advance. Rufus continues to have no business luck
and within 6 months his ice business is going broke. He asks for an extension but Mia refuses,
realizing that Rufus has no business prospects left. If Mia seeks to take the property as
possession, will she win?
B. Yes, following the institution of foreclosure proceedings and assuming that Mia wins the
foreclosure hearing.
C. No, the $500,000 is below the fair market value of Rufus's property.
D. No, Mia can only seek a contract recovery. There is no space in the law for a security
agreement such as this.
Answer: B
Mia needs to proceed with a foreclosure hearing, and can take possession of the property
assuming that she is the winner of that foreclosure sale. The deed to Mia, in reality, is
nothing more than an equitable mortgage for Rufus's property, wherein the deed was given
in security for the loan. A court then requires a foreclosure sale. An equitable mortgage is
illustrated by showing: 1) the existence of a debt or promise of payment by the deed's
grantor; 2) the grantee's promise to return the land if the debt is paid; 3) the fact that the
amount advanced to the grantor/debtor was much lower than the value of the property; 4)
the degree of the grantor's financial distress; and 5) the parties' prior negotiations. Based
upon this, it is clear that we have an equitable mortgage at issue, requiring a foreclosure
sale.
A is incorrect in light of the proper answer. This is not a deed conveying property, but rather
an equitable mortgage instrument. Mia, therefore, does NOT possess clear record title of
Rufus's property.
C is incorrect. The sum of money under fair market value is not enough, when standing
alone, to indicate that this is an equitable mortgage. We must meet the requirements of the
test set forth in the correct answer before assuming that we have an equitable mortgage at
issue.
D is incorrect. As previously discussed, the court will treat this as an equitable mortgage.
©2007-2008 Law Decks
#create a deed and show any intent to
Property Law transfer the grantor cannot reneg #
Carerra and Andy live together as a couple, but are not married. They live in a common law
marriage state. Andy depends on Carerra for monetary support, but Andy gets nervous as
Carerra is older and is quickly losing his instincts as a lion tamer. Andy worries that he may
become maimed or worse, and that his children from his first marriage will cut her out of any
inheritance. Carerra understands her concerns and, a week later, shows Andy the deed to a
hotel that he owns. He has made Andy the signed grantee on the deed. The deed is properly
executed. Carerra, in the presence of his lawyer (Wallace) and Andy, says, "Wallace, I want it
to be clear that you are to hold this deed until I die. Upon my death, please give it to Andy."
Wallace accepts the deed and promises to do as Carerra wishes. One month later, Carerra
and Andy have a huge fight and Carrera gets Wallace to return the deed to him. Assume that
Andy sues. Who will win?
A. Andy, because the deed gave her a present right to possess the hotel.
B. Andy, because the facts indicate that Carerra intended Andy to have a property right in the
hotel when he handed the deed to Wallace.
C. Carerra, as the transfer lacked lawful consideration and was, therefore, freely revocable by
him.
D. Carerra, since the agreement failed to meet the burden of the Statute of Frauds.
Answer: B
Andy wins as there clearly was an intention in Carerra for Andy to have an interest in the
property. A transfer of a deed requires delivery. Delivery requires words or conduct
evidencing the grantor's intention that the deed have some effect; regardless of the fact
that the right of possession may be postponed until the future. In a situation where the
grantor gives the deed to a 3rd party, most courts hold that the grantor cannot get the
deed back because his intent was to presently convey a future interest to the grantee.
The facts, here, indicate that Carerra intended to turn the hotel over to Andy at some
later date, making his revocation of the deed from Wallace impermissible.
D is incorrect. Instructions to a custodian can be oral and the Parol Evidence Rule
allows the introduction of these conditions and terms which evidence the deposition of
the deed with a 3rd party.
C. Kesey has both title via a prescriptive easement and adverse possession.
D. Kesey has not acquired title via adverse possession, nor by a prescriptive easement.
Answer: D
Here, we have a use of the land with Red's consent, and no facts indicating that Kesey
had intent to claim the land as his own. In lieu of this, the "hostile" requirement of
proscriptive easement and adverse possession are lacking, making Answers A, B and
C incorrect.
A. Sam, as the land had a restrictive covenant and Sam's deed runs with the land.
B. Sam, since his land is not benefited by the existence of a satellite dish on his neighbor's property.
C. Fitz, since Charlie's deed did not have a restrictive covenant in it.
D. Fitz, since he had no notice of the restriction regarding the satellite dish.
Answer: A
Here, there is a restrictive covenant that runs with Sam's lot, benefits that lot and also
burdens Fitz's lot. A covenant must touch and concern the lot in question, and be
intended to run with the property. Here, these requirements are fulfilled. In light of this,
B is clearly wrong.
C is wrong because the restriction was contained in a previous deed relating to the
property.
D is wrong. Fitz had constructive notice of the deed restriction had he looked at the
recorded deed history.
A is wrong in light of the correct answer. There was no delivery of the deed as there was
no intent to pass the deed to Jude.
Note: An agent can pass title, but Wallace was not acting as an agent and, even if found
to be an agent, Wallace never actually delivered to Jude.
B is wrong. Even if we overlook the delivery requirements, there was no intent in Sadie
to relinquish control, making this an ineffective transfer. At the time of Sadie's death,
Julia owns the property and there is nothing that can pass from Sadie to Jude.
D is wrong. This property description, in light of the fact that Sadie owns no other land,
is likely sufficient to convey Eatmore.
Blair and Tony have lived together for years but are not married. Suppose that Connecticut
does not recognize common law marriage, but does have status prohibiting discrimination
based on marital status. One day, Blair goes out and stops at the local state-run casino during
her lunch break. She drops a nickel in a slot machine and wins the $2 million jackpot. She
uses the proceeds to buy Vaux Hall, which has a great Art Deco mansion on the property. Blair
and Tony record the title and hold Vaux Hall as joint tenants. Tony also decides to make a
million gambling, but promptly looses $500,000 playing three-card-monty. He needs to raise
this cash to pay off his bookmaker or his knees will be broken. Tony manages to convince
Bank-a-Lot Bank to enter into a mortgage against Vaux Hall with his signature alone. (Blair
never signs the mortgage.) Seven months later, Tony dies in a tragic supermarket accident
involving a jar of pickles and some pipe cleaners. The mortgage remains unpaid. Tony has no
will and his only heir is his brother. Suppose Connecticut is a "lien theory" mortgage state. Who
holds title to Vaux Hall?
A. Blair
B is wrong since most states believe that a mortgage is a lien on the title to the land.
When Tony took a mortgage out against Vaux Hall, the joint tenancy was not instantly
severed, but rather could only be severed if Bank-a-lot entered a foreclosure hearing
against Vaux Hall. Bank-a-Lot's opportunity to enter into a foreclosure hearing passed
when Tony died. Upon his death Tony's interest in the property terminated and Bank-a-
Lot, therefore, no longer had any interest in Vaux Hall.
C is wrong. Tony's brother has no interest in Vaux Hall. We have a joint tenancy, and in
a joint tenancy the surviving tenant receives the interest upon the death of a co-tenant.
Succession of rights does not occur to an heir following a co-tenant's death. A will only
speaks at death, so only upon Tony's death could his brother potentially gain an
inheritance. However, also upon Tony's death, his rights as a co-tenant terminate and
Blair owns Vaux Hall in full. So upon Tony's death, there are rights to pass to his brother
with regard to Vaux Hall. Because of this, the outcome would still have been the same
even if Tony had left a will, making Answer D wrong.
D. No, because Sheryl is a bona fide purchaser for value who purchased the house
before WorldBank recorded.
Answer: A
WorldBank's mortgage was recorded first, so Sheryl takes subject to the mortgage if
operating in a race-notice jurisdiction, because it was recorded first.
Note: All of the recording acts apply to both deed and mortgages, so a subsequent
purchase takes subject to any and all mortgages unless there is a different result based
on the recording act. Sheryl probably did not have notice of the prior mortgage (due to
the close proximity in time) but she recorded after WorldBank recorded and, therefore,
takes subject to WorldBank's mortgage.
B is wrong since Sheryl failed to win the race to record, which is necessary in a race-
notice jurisdiction for a bona fide subsequent purchaser to prevail.
C is wrong. If we are operating a pure notice jurisdiction, Sheryl would not take the
house subject to WorldBank's mortgage. A subsequent bona fide purchaser that does
not have notice (actual or constructive) prevails over a prior mortgagee who failed to
record.
A. For Charles, as the chair is personal property since it was not bolted down.
B. For Charles, as the removal of the chair did not damage the real property.
C. For Houston, as the chair was part of a fixture in the house and cannot be removed.
D. For Houston, as the removal of the chair reduced the value of the house.
Answer: C
Houston will win since the banquette is a fixture to the house and the chair is integrally connected to
the fixture. A chattel annexed to real property is converted from a personal piece of property to a real
piece of property and passes with ownership in the land.
To determine whether a chattel becomes a fixture, we must look to the intent of the annexor. What
is: 1) the relationship between the annexor and the premises, 2) the degree of annexation, and 3)
the nature and use of the chattel. Here, Ray was the fee owner of his mansion and had the banquette
built specifically for him where 2) the banquette was built into the wall and could not be easily
removed, and 3) the appearance of the banquette, and the leather club chair associated with it, were
probably most important to Ray and not the actual seating it provided. In light of this, the chair
probably became part of the real property and is no longer personal property and Houston will likely
win the return of the chair.
A is incorrect since permanence and bolting to the floor is not determinative of whether the leather
club chair was a fixture. Here, the chair was an accession to the banquette and is, therefore, a fixture.
B is incorrect. The ability to remove the chair without doing damage is not enough to give Charles
the right to take it. Here, the chair is an accession to the banquette and removal would damage the
banquette.
D is incorrect. The test for whether an item is a fixture is NOT if removal would constitute harm to the
parties. The relevant question is if removal of the item damages the real property, which, based on
the present facts, would occur.
02007-2008 Law Decks
##
Fropert9 Law
Jag wants a garage built and hires Besnik. He wants the garage on the backmost region
of his property right near the property line. Jag tells his neighbor, Lala, about the garage:
"It's going to be 6 cars wide, so there will be plenty of room. You are more than welcome
to park your car in it, too, once it is finished if you like." When Besnik starts digging for
the foundation, Lala is home and takes great interest watching the workers dig. She is
friendly as she stands around and watches, but makes it clear to Besnik that he and his
workers may not go onto her property. After several hours of excavating, part of Lala's
yard collapses into the excavated foundation taking Lala's garage with it. What is Jag's
best defense?
A. Jag gave Lala notice of the excavation, and she did not object.
B. Besnik was hired based on his good reputation and numerous recommendations for
his quality work.
C. The excavation was done in a workmanlike manner, and there would not have been
a collapse except for the fact that Lala had a garage there.
D. Lala's garage was made of a 20 inch thick concrete floor and marble walls, and was
way heavier than an ordinary garage.
Answer: C
Absolute liability does not attach if the land would not have subsided and collapsed,
except for the fact that Lala had a building there. Liability in such a situation would only
attach if Jag was acting in a negligent manner. In light of this, Answer C addresses the
potential negligence and the fact that the building was there, making it the best answer.
A is wrong. Jag giving notice and Lala failing to object to his garage, does not result in
Jag being excused from liability.
B is wrong since it only addresses negligence and fails to address the existence of
Lala's garage.
D is a decent answer, but not the best. Jag could still be liable if negligence is proved,
regardless of the fact that Lala's marble garage was heavier than normal.
B. No, to have restrictions like this, the entire Wolf Moon Estates project must have been
built at the same time.
C. Yes, the restrictions will be equally enforceable for this new project in a similar
manner as those directed to Wolf Moon Estates.
D. Yes, if a court decides that this new project is part of the common development
scheme of the original Wolf Moon Estates housing development.
Answer: D
D is correct. Upon a showing of a common scheme of development (as evidenced here)
prior purchasers can enforce restrictions in deeds to subsequent pieces of property; if
these subsequent pieces of property are from a common grantor, so long as that general
scheme intended to benefit the entire subdivision. In lieu of this, Answer B is clearly
wrong.
A is wrong. The existence of zoning restrictions does not absolutely limit the
enforceability of covenant deeds and restrictions.
C is wrong. It fails to address a situation in which the court may find that there is no
common development scheme, making the restrictions unenforceable.
B. Yes, Henna has clearly relied on the abstract of title and the representation of Luis in good
faith.
C. No, the property owners have a right to maintain the subdivision in the form they all originally
agreed to.
B is incorrect because reliance of the abstract of title does not negate the inquire notice
that Henna is held to have.
C is a bogus rule of law that has no standing in a court of law but rather appeals to the
"fairness" arguments.
Note: "Fairness" arguments, absent a legal reason, are always wrong answers.
A. Loriel
D. Leroux and his heirs hold the estate until Loriel turns 21, at which point her interest
vests.
Answer: D
Leroux holds a potential reversionary interest, and would exercise such an interest until
Loriel reaches 21 years of age and can take for herself.
A is wrong as Loriel cannot take possession until she reaches 21. Here, Loriel is not 21,
has no right to take possession and, therefore, cannot actually take possession until she
turns 21.
Loriel cannot take possession through a guardian as set forth in Answer B, as Loriel has
no right to possession until she is 21 years old.
C is wrong in light of the correct answer. Additionally, Leroux does not hold a fee simple,
but rather a reversionary interest until Loriel reaches 21 years of age.
B is therefore wrong.
C is wrong since the estate here is in a remainder interest as the life tenant is still alive.
Therefore, we are not dealing with a fee simple estate.
D is wrong for the same reason as Answer C. Additionally, a tenancy by the entirety can
only be held by a husband and wife. Here, we are not dealing with spouses.
A. For Josef, as Clay's actions were a breach of the implied warranty of fitness for a particular
purpose.
C. For Clay, since Josef had ample opportunity to inspect the house and Clay had no duty to
disclose the house's defects.
D. For Clay, since the property was not new construction built by Clay himself.
Answer: B
A court will likely find for Josef, since Clay knowingly concealed the defects. Even
though the general rule says that property generally has no implied warranty for a
particular purpose; here, we are dealing with a situation where Clay knowingly and
intentionally concealed the defects. Had Josef known of the flood prone basement, he
would have walked away from the deal altogether, or at least demanded it be fixed
before closing.
A is incorrect because the implied warranty of fitness only applies to new construction,
or a house owned by a builder. Here, neither is met based on the given facts. We know
that this is not a newly constructed home, and there are no facts indicating that Clay was
a builder.
C does, in fact, state the general rule, but its application is in error. A seller does not have
to explicitly bring buyers' attention to existing defects, but at the same time he may not
conceal them.
Although D does, in fact, set forth grounds for a situation where the implied warranty is
not applicable, the simple fact that Clay purposefully concealed the defects has resulted
in a situation where Clay remains liable.
A. Skip must cut back on water usage so Mickey's cabins have enough water supply.
D. Nothing
Answer: D
Most states follow a reasonable use theory regarding water wells. As long as Skip's use
was reasonable for the benefit of the land and not a malicious misuse, he is not
responsible for doing anything to benefit Mickey.
A is wrong. Skip may use as much water as he likes, so long as it is not a malicious
misuse or waste.
Note: The minority view prior appropriation rule, granting that the first to use the water
has the most rights, might make this answer correct. We have no facts, however, to
indicate that the minority rule is applicable.
B is wrong under the majority view. However, this would be the best answer under the
minority rule of prior appropriation view.
Note: The minority rule states that domestic use such as Skip's has priority, so Skip may
extract water. However, water rights are deemed property rights, making Skip liable to
Mickey for damages.
A. An executory interest
B. A contingent remainder
C. A vested remainder
A is incorrect because, as explained above, Eric's interest is void. Answers B and C are
also incorrect for the same reason. Additionally note that it is impossible for a remainder
to follow a fee simple interest, as a remainder can only follow a fee tail or a life estate.
C. Contingent remainder
D. Nothing
Answer: C
Monty's heirs have a contingent remainder. By definition, a remainder is a future interest
created in a transferee that is capable of taking in present possession and enjoyment,
upon the termination of the preceding estate, which was created in the same
conveyance. Remainders must be expressly created in the granting instrument and
almost always follow life estates. A contingent remainder is such that it is created to
benefit a party not yet born or ascertained. Here, Monty clearly has a remainder which
is contingent, as his heirs are yet to be ascertained.
A is incorrect. A shifting executory interest cuts short the prior estate, thereby divesting
the prior estate's interest. Here, the interest of Monty's heirs does not cut short Juliet's
estate, but rather simply follows it.
B. In favor of Paris, since Balthazar's actions were violative of the fiduciary duties of an
executor.
C. Against Paris, as Balthazar and Peter are protected under the applicable recording act.
D. Against Paris, since she is not a bona fide purchaser for value.
Answer: A
Here, the deed was never properly delivered as there was not a clear expression of intent
that the grantor envisioned the passage of title to the grantee. Furthermore, Tybalt's failure
to deliver continual possession of the deed sort of implies that there was no intention to
relinquish control in the property. In light of this, Tybalt's land was part of his estate, and
Samson and Paris take it as tenants in common.
C is wrong for two reasons: 1) Since this is a race-notice jurisdiction Samson cannot rely
on recording statute protection. To prevail in a race-notice jurisdiction, a party must be a
subsequent purchaser for value who does not have notice of an adverse claim, and must
record first. Samson has not recorded and has not paid fair value, and further has notice
that he is not a bona fide purchaser since he knows of Paris's will claim. 2) Balthazar
cannot be protected under the subsequent recording as he is Samson's agent and
Samson was a donee with notice.
D is wrong. As explained above, Paris inherited a 1/2 interest in Tybalt's land as a tenant
in common, following the will devise of Tybalt's land. In light of this, Samson cannot
attempt a subsequent recording, as he clearly had notice of Paris's claim to the land.
A. The sale of the property terminated any potential adverse possession claim Edie might have
had.
B. Edie was informed to stop using Art's land before the 20 year adverse possession period ended.
C. It is impossible for Edie to acquire an interest in the land as her agreement with Simon was
originally an oral agreement.
B is wrong. Even in light of the instruction to stop using the land, Edie continues to do
so for a period after the fight.
A. Antoinette will prevail, as the $1,000 consideration is not enough to support the
proposed contract.
D. Samir wins, as his contract with Marie is enough to clearly describe which house
Marie is actually buying from him.
Answer: B
The contract with Antoinette is too ambiguous. It fails to specify which of the two homes
on Antoinette's property is being sold, and the site of the land granted for the garage and
sauna is not set out. In light of this, we cannot go forward with specific performance.
D is wrong. The introduction of evidence from the contract with Marie is irrelevant. What
is at issue is the lack of description in the contract between Antoinette and Samir
regarding which house is for sale.
B. Sale of the northern parcel to a purchaser for market value, who is unaware of Carla's
easement.
C. Excessive use of the easement in a manner that unreasonably increases the burden on
Gary's northern parcel of land.
B is incorrect as the burden of an easement appurtenant passes with the servient land
when transferred or sold. The new owner is, therefore, bound by this easement as it is
clearly visible, putting any purchaser on inquiry notice of an easement.
C is incorrect. If faced with an excessive use complaint, a court would likely put a limit
on the scope or use of the easement; but it would not revoke the easement altogether.
A. Kendra would win, because there is no privity between Kendra and the homeowners association.
B. Kendra would win, as the covenant regarding fees does not touch and concern the land.
C. The homeowners association would win because the covenant regarding fees created an equitable
servitude which binds Kendra.
D. The homeowners association would win because the covenant regarding fees created a burden
that runs with the land at law.
Answer: D
Here, we have a burden that runs with the land. The requirements for running of a burden
are present as the language of the covenant indicates that the parties' intended successors
in interest to the covenantor shall be bound by the terms. Additionally, Kendra has actual
and constructive notice of the covenant at the time of purchase. Horizontal privity exists
between the promissory and the promisee at the time the covenant was entered into. Felix
and Luis shared an interest in the land. Vertical privity also exists since Kendra takes the
entire estate that Luis once held. Finally, the burden of the covenant touches and concerns
the land, because the fees result in an increased obligation of a landowner for use of the
land.
A is incorrect. When faced with a deed that is silent as to who may enforce the covenant,
and if faced with a general plan for the subdivision, any member of the subdivision is entitled
to enforce the covenant. Such a common plan clearly existed, allowing any landowner,
including the homeowners association as a whole, to enforce the covenant.
B is incorrect as it concludes that the covenant, here, fails to touch and concern the land.
As set forth in the correct answer, this is clearly not the case.
C is wrong for giving the incorrect measure of damages. Breach of a real covenant is
remedied by an award of money damages, while breach of an equitable servitude is
remedied by equitable relief such as an injunction or specific performance.
©2007-2008 Law Decks
Fropert9 Law
Carerra and Andy live together as a couple, but are not married. They live in a common law
marriage state. Andy depends on Carerra for monetary support, but Andy gets nervous as
Carerra is older and is quickly losing his instincts as a lion tamer. Andy worries that he may
become maimed or worse, and that his children from his first marriage will cut her out of any
inheritance. Carerra understands her concerns and, a week later, shows Andy the deed to a
hotel that he owns. He has made Andy the signed grantee on the deed. The deed is properly
executed. Carerra hands the deed to Andy with language in the deed stating, "title to the property
will be conveyed upon the death of the grantor named herein." Shortly, thereafter, Carerra is
eaten by a lion when a woman in the front row coughs and distracts him. He does not leave a
will. The administrator of Carerra's estate sues Andy seeking quiet title to the hotel. Who will
win?
A. The administrator will win, because the deed was improperly delivered.
B. The administrator will win, because the transaction between Carerra and Andy violates the
Statute of Frauds.
C. Andy will win, so long as she produces additional evidence that Carerra intended for her to
have an interest in the property while he was still alive.
D. Andy will win, as she possessed a future interest, which has now become a
possessory interest.
Answer: D
Andy now holds a possessory interest, as this deed (which contains an express
provision that title will not pass until the death of the grantor) conveys a present
possessory life estate in the grantor and a future estate in the grantee. Andy's future
interest became possessory once Carerra died. The language within the deed is such
that it is clear Carerra intended to make the deed legally effective when delivered.
Therefore, we have a valid delivery and Andy can take possession of the estate. This
makes Answer A incorrect.
B is incorrect since the deed at issue created a conveyance of a future interest in the
hotel during the lifetime of the grantor when delivered to Andy.
Note: As Carerra intended that no interest would be transferred until his death, the deed
would be testamentary in nature; thereby, requiring that the deed be executed in
accordance with all of the requisite testamentary formalities such as, a signature in front
of witnesses etc... Here, however, we can safely assume that the deed conveyed an
interest to Andy immediately, and that the deed was not burdened by the testamentary
requirements of a will.
C is incorrect. As long as we find that the deed created the intention of an immediate
future interest in Andy at the time of conveyance; we do not need to address the
question of Carerra's intent that Andy receive an interest during his lifetime.
©2007-2008 Law Decks
#these best defenses/arguments don't mean they
Fropertg Law have them, only if they did would it be the best#
Green divides her property, Green Acre Commons, into 100 quarter-acre residential lots. She includes in
the deed of all 100 grantees the following provision: "Grantee covenants for herself and her heirs and
assigns, that all bottles, cans and grass clippings of grantee and her heirs and assigns shall be recycled.
This covenant runs with the land and shall remain in effect as long as there is a recycling center within
five miles of the Green Acre Commons Development." Green advertises the development as "An
Environmentally Sound Place to Live," proudly referring to the recycling covenant to prospective buyers.
Therefore, the development tends to attract "environmentally aware" persons. When Green sells her lots,
there is a recycling center only 1 mile away. Hansel, an environmentalist, purchases a lot at 15 Spotted
Owl Way. His deed contains the recycling clause and he happily recycles. Two years later, Hansel wins
the lottery and moves to Brazil. He gifts his property to his niece, Ginger, whose deed also contains the
recycling covenant. Shortly after Ginger takes possession, the recycling center moves to a new site 4 1/2
miles away. Ginger continues to recycle, but falls in love with Stan. They marry, and Ginger puts her house
up for sale. On the advice of her real estate agent, she says nothing to prospective buyers about the
recycling covenant. Vito Veteran, who lost the use of his legs in Vietnam, buys the house. He is impressed
that the house is wheelchair-accessible with only a few minor alterations required. Vito's deed does not
contain the recycling clause. He hires a gardener to keep the yard who bags all of the grass clippings.
He also hires a garbage disposal service to pick up his trash and they deposit it in a landfill. Watching the
disposal trucks drive up to Vito's property infuriates many neighbors. They inform Vito of his duty to
recycle. Vito explains that he knew nothing of the covenant and, because of his physical condition, must
rely on the disposal service. Unfazed, the neighbors file suit to require Vito to comply with the covenant,
or pay damages. Which is Vito's best defense?
A. Vito's deed did not contain the covenant.
B. The covenant does not touch and concern the land.
C. An intelligent inspection of the neighborhood would raise no inference that the covenant existed.
D. Vito's physical condition requires a balancing of hardships by the court.
Answer: B
The covenant does not clearly "touch and concern" the land. While recycling may benefit
the community at large, "touch and concern" involves the relationship between
landowners at law. Recycling by Vito does not directly benefit the other landowners in
the use and enjoyment of their land. Thus, B is correct.
A is wrong. Even though Vito's deed does not contain the covenant, Vito has record
notice because the restriction is in Vito's chain of title.
C is wrong because servitudes implied from a common scheme apply only to negative
covenants, and the recycling requirement is an affirmative covenant. Thus, this defense
does not go to the point.
D is wrong because it goes only to issues in equity. The suit includes a claim for
damages at law. Regardless, balancing of hardships is not generally applied in such
cases (although some courts might elect to do so).
A. Wolf will not be able to evict Gip, since the drive-by inspection will be deemed to confer actual notice
of Gip's possession of the place.
B. Wolf will not be able to evict Gip, since she has a duty to adequately inspect the place.
C. Gip will be evicted, as Wolf was a subsequent purchaser for value with no notice due to Gip's own
failure to record.
D. Gip will be evicted, since Grimm knew of the statute and willfully failed to record.
Answer: B
Wolf's inspection was inadequate since a title search is not complete without an
examination of possession. In a situation where the possession of the property is
unexplained by the record, the purchaser is obligated to make inquiry such as a
thorough inspection. A purchaser is charged with knowing anything that would have
been disclosed had they went to the property and checked it out. Therefore, Wolf is on
constructive notice of Gip's possession. Wolf, is, therefore, not protected by the
recording statute and she will take subject to Gip's lease.
A is wrong because "actual notice" means that Wolf knew of Gip's possession of the
property. Here, that is clearly not the case. The drive by inspection, additionally, has no
bearing on the situation since it does not confer anything on Wolf.
C is wrong since Wolf has constructive notice of Gip's possession of the property, and
is not awarded protection under the recording statute.
D is wrong. Gip's state of mind is irrelevant when dealing with an application of the
recording statute.
Note: Avoid this type of red-herring answer.
A. Not prevail on the issue of specific performance, but will be allowed to keep the earnest
money.
B. Not prevail on the issue of specific performance, and will be ordered to return the earnest
money.
C. Prevail on the issue of specific performance, but the price will be reduced to $1.6 million.
D. Prevail on the issue of specific performance for the full contract price.
Answer: D
Regan will likely prevail. Majority rule states that in a situation where property is
destroyed before performance, but after the contract is signed, the risk of loss is on the
buyer. Therefore, Kent must pay the contract price regardless of the decrease in value
due to the fire. Note that the contract, here, was silent about loss; therefore, the risk of
loss remains with the buyer.
A and B are incorrect for falsely concluding that specific performance is not an
applicable remedy. This is clearly contrary to the correct answer. B is also incorrect
because it states that the original $1 million earnest money needs to be returned. As set
forth prior, Regan is entitled to the entire contract price, so returning the earnest money
is unnecessary.
C is incorrect because it allows Kent to tender less than the agreed upon contract price,
even though the risk of loss was on Kent. As set forth prior, there is no reduction in price
and the contract must go forward at the originally agreed upon price.
A. Ella never expressly promised in writing that she would restrict the remaining lots when she conveyed
to White.
C. The deed received from White did not contain any restrictive covenants.
A is wrong for the above reasons, and would additionally be wrong if there was a showing of a common
scheme. A prior purchaser of a burdened lot cannot enforce a promise against subsequent purchaser,
unless the original developer promised the prior purchaser that they would restrict the remaining lots in
the development. This does not need to be expressly written, but can be implied from things like maps,
plans, plots or the overall appearance of the development. Here, we do have a brochure, as well as a
general setup based on existing houses, from which we can infer that Ella intended to restrict her
remaining lots of the 40 acre parcel.
B is wrong. Note that the 60 acre plot was part of a common scheme, and the fact that Beauty and Hunter
are not in the same chain of title is meaningless. That is not a requirement for enforcing an equitable
servitude.
C is wrong. The fact that Beauty's deed did not contain a restriction is irrelevant, as the restriction is in
Beauty's record chain of title.
52007-2008 Law Decks
Fropert9 Law
Falstaff contracts to sell land to Henry for $1 million, to be delivered 90 days from
contract signing. At this time, Henry delivers the $1 million. Thirty days later, Henry
learns that Hal actually owns the land, not Falstaff. At closing, Falstaff tenders a deed
and Henry refuses to accept, noting to Falstaff that he is not the record owner. Falstaff
clarifies things by stating that he has been an adverse possessor for 40 years, 20 more
than necessary and that everything is cool. Henry still refuses. If Falstaff sues Henry for
specific performance, what is the outcome?
A. He will prevail, since this is an action in rem, even though Hal is not a party.
B. He will prevail, since Falstaff holds "good and marketable title" by adverse
possession.
C. He will not prevail, as failing to disclose the lack of record title is fraud.
D. He will not prevail, since a court will not make Henry buy a lawsuit, even if it is likely
that Henry would eventually win against Hal.
Answer: D
Historically, an adverse possession acquired title is not deemed to be a marketable title
in the eyes of a court. Common law requires that at closing marketable title is passed.
Here, the adverse possession title is not marketable as the holder may need to defend
his claim in court and a court will not force a purchaser to subsequently take on a
lawsuit. When dealing with an adverse possession claim to title; the adverse possessor
must first sue for quiet title, in order for the title they hold to be deemed marketable. In
light of this, Answer B is clearly incorrect.
A makes no sense and is an illogical answer. A 3rd party with an interest in the land
could clearly enforce that interest, following Falstaffs claim for specific performance.
C is incorrect. Falstaffs action is not fraud, since marketable title can be based on a title
obtained by adverse possession. However, Falstaff must first go to court seeking quiet
title. Additionally, Falstaff never represented that he had marketable title.
A. Against Viola, since she has created a restraint on alienation for failing to consent to the
sublease.
B. Against Viola, the condition consent was in effect a waiver of the lease term requiring written
permission to sublease.
C. For Viola, since Olivia has clearly breached the terms of the lease agreement.
D. For Viola, since her original oral consent to sublet was not enough to satisfy the Statute of
Frauds.
Answer: C
Here, we have a clear breech of the lease due to Olivia's subletting which was a clear
violation. Generally speaking, the transfer is not automatically void when a tenant
transfers in violation of a lease term, but the landlord has the right to terminate the lease
under either the lease terms or a statute. Here, the lease has a forfeiture clause and
Viola is free to terminate the lease under this clause.
D is incorrect since oral consent would be enough, assuming that it was actually made.
Here, the consent was conditional on a 5 year lease extension, which never occurred.
A. Since there was no tract index, Marcel must inquire regarding the riparian rights of owners
abutting his property.
B. Since there was common grantor for Marcel and Manon, whose covenants of title run with
the land, Marcel is stopped from denying Manon's title.
C. An easement is a legal interest that runs with the land it is attached to, and, therefore, binds
successive owners of the servient estate regardless of notice.
D. The easement is a legal interest in Marcel's chain of title even though there is no tract index.
Answer: D
If Manon wins, it is due to the fact that the easement is a legal interest in the chain of
title held by Marcel. The present facts are a recording act problem.
Note: Answers A, B and C all misstate the recording act and the applicable law. Even
if Marcel has no actual or inquiry notice, he has constructive notice due to the recorded
easement by the grantor, Jean, regardless of the absence of a tract index.
B is wrong as Ethan transferred his interest to Wes, and the destruction of the deed has
no effect on this interest. Wes must deed an new interest back to Ethan for the transfer
to be effective.
D is wrong because when Ethan conveyed to Wes, the original joint tenancy was
destroyed and the interest became a tenancy in common, which has no right of
survivorship. In light of this, when Joel died the interest just passed to Sophia, Joel's
heir.
A. Paul
B. Wences
C. Enrique
D. Wendy's heirs
Answer: C
A tenancy at will comes with a right of survivorship which cannot be defeated by a single
spouse. Therefore, Wendy's husband Enrique receives her interest. In light of this,
Answer B is clearly incorrect.
A is wrong. Paul can not have any interests because Enrique cannot convey an interest
to Paul, as this is an tenancy by the entirety.
B. Once Agatha recorded the deed form Oscar, Tyrone could not attack the validity of the recorded
deed.
C. Evidence of Tyrone's instructions to Oscar cannot be introduced under the Statute of Frauds.
D. Agatha is a bona fide purchaser for value. Therefore, Tyrone cannot rely on the agreement with
Oscar regarding filling in the blank deed.
Answer: D
Agatha, in the present case, has detrimentally relied on an agency in Oscar offered by
Tyrone. Therefore, Tyrone cannot deny that the agency was not valid and the deed
recording was not proper. As Tyrone cannot exercise this argument, the transfer to
Agatha is valid and proper.
A is incorrect since the actions of Tyrone were not inequitable, making an unclean hands
argument inapplicable.
B is incorrect. The recording of a deed is not such that the validity of the deed can no
longer be attacked once recorded. A recorded deed can, in fact, be attacked for validity.
C is incorrect because the Statute of Frauds is not applicable to the present facts. The
enforceability of the conveyance would allow the introduction of Tyrone's instructions to
Oscar.
A. For Kansas City, since Clear & Free had constructive notice that the parcel was to be used for park
purposes.
B. For Clear & Free, since its deed had no mention of the park restriction.
C. For Kansas City, since Hattie initially dedicated the land for use as a park and the city accepted this
plan.
D. For Clear & Free, because laches applies to the present facts since Kansas City waited too long (2
years) before doing something with the land.
Answer: C
Once the subdivision plan was recorded including the park provisions, this is deemed an
offer, and Kansas City's action in soliciting bids and naming the park is an acceptance.
Therefore, Kansas City has good title.
Clear & Free had constructive notice of the intended proposed use of the land as a park
through the chain of title. Therefore, Answers A and B are wrong.
A. The co-tenancy created in Maya and Patricia was a tenancy by the entirety.
B is irrelevant because the form of concurrent ownership determines the rights of the
current parties, not the form of the prior holding.
D is irrelevant because the present form of holding is what controls, and the knowledge
(or lack of knowledge) of the subsequent holding is irrelevant.
Under Answer C, Patricia and Cindy hold an undivided 1/2 interest, making this clearly an
incorrect answer.
A. The Statute of Frauds prevents the introduction of evidence that might prove the necessity for Kathleen
to gain access to Murray's road on CampySwamp.
B. Kathleen would be unjustly enriched if she was allowed to use CampySwamp Road.
C. Kathleen has to await the completion of CampySwamp Road and the opening of the road as a public
street used in gaining access to CampySwamp, as Kathleen has no easement - related rights to use the
CampySwamp road.
D. Kathleen could only have use rights of CampySwamp Road by necessity, and the facts indicate that
the access to CampySwamp Road is not an absolute necessity.
Answer: C
Kathleen's rights clearly depend on the existence of a public street. Here, she has street
access via the poor existing dirt road, so Kathleen has no additional rights to use
Murray's new road.
B is wrong. Unjust enrichment does not occur in a situation where a person gains
access to a public street.
D is wrong since, if a public street exists, Kathleen does not need to assert an issue of
necessity. Anyone is eligible to access a public street.
A. Under the Statute of Frauds, WorldBank cannot assert an interest in improvements that
Fisher put into the place.
B. Absent an agreement to the contrary, commercial tenants are free to remove any
improvements they may have made to the property during their lease.
C. A fixture installed for the purpose of a trade by a commercial tenant, may generally be
removed so long as the tenant pays for any damages incurred by the removal.
D is wrong because as WorldBank (the mortgagee) has the same rights to the property
as the original owner, regardless of the fact that Fisher (the tenant) had no knowledge
of the mortgage.
B. No, because Pasquale was not a tenant when Rick gained interest in the land.
C. Yes, because Pasquale's assignment to Ashley does not extinguish his liability.
D. Yes, because this problem was actually caused by Pasquale's failure to include the
tax clause in the assignment to Ashley.
Answer: C
The tenant-assignor (Pasquale) is still in privity of contract with the lessor (originally
Philip, and now Rick) and is liable for the rent reserved in the lease.
A and B are incorrect because the status of Pasquale as a tenant is meaningless when
applied to Pasquale's liability.
D is incorrect. Pasquale's failure to include the tax term is immaterial when viewed
against his liability for the rent as the assignor under privity of contract
A. Chris's heirs
B. Winnie's heirs
C. Robin's heirs
A is wrong because Winnie had a life estate with no potential to pass any interest after
her death.
C is wrong since Winnie survived longer and, therefore, owns all of the remainder that
can pass to her heirs. Robin upon death has nothing, as it all went to Winnie.
D is wrong. Alan has no potential interest in the house on Elm Corner as he has granted
a life estate and an absolutely vested remainder.
A. Dave, as the rule against perpetuities results in the condition imposed on his interest
to be void.
B. Marcus, since the condition imposed is valid and Marcus takes subject to the violation
of this provision.
D. Dave, as the condition imposed on his use was a restraint against alienation.
Answer: C
Marcus wins, as Rocky Top Mountain passes to him under the Residuary Clause. Note
that the attempt to give Marcus an executory interest violates the rule against
perpetuities and is void. Therefore, Answer B is clearly incorrect. A court will read the
conveyance, absent the language directed toward the executory gift, leaving the
possibility of reverter in the original grantor (John). Because of this, Answer A is clearly
incorrect as Marcus succeeded to John's interest as grantor and, due to the residuary
clause of the will, will prevail and hold Rocky Top Mountain.
A. Glen never obtained Raul's approval before making improvements to the building.
B. There was an original violation of the Statute of Frauds, and this violation was incurable.
C. Glen's actions of making monthly payments and improvements are consistent with a tenant
using the place for commercial purposes.
D. Raul has received no unconscionable benefit that would entitle Raul to equitable relief.
Answer: C
Under the Doctrine of Part Performance, a contract that is oral in nature can be enforced
so long as facts are provided that unequivocally prove the existence of the contract.
Here, however, Glen's monthly payments to Raul are the same amount as he was
paying as a tenant, and the improvements he made, are in keeping within the actions of
an ordinary tenant.
A is incorrect because Glen does not need Raul's approval to make the improvements
B is incorrect because if Glen had taken some actions that clearly indicate the presence
of an oral contract, the Doctrine of Part Performance would have applied. As set forth in
the correct answer, however, there is no indication that Glen's actions were in any
manner indicative of part performance, and beyond that which an ordinary tenant would
do.
D is not a good answer. The benefit that might have been garnered by Raul is irrelevant
for the purposes of part performance.
A. Ashley, as under the assignment from Philip she is not liable for the real estate taxes.
B. Ashley, as the agreement to pay taxes is a collateral agreement that does not run
with the land.
C. Ashley, since the tax agreement can only be a covenant running with the land if it is
originally expressed in the original agreement.
B and C are wrong because an agreement to pay taxes touches and concerns the land,
and thus runs with the land.
B. Require that Maria convey to Louisa if she tenders market price for Musical Arbor.
C. Not effect the deed held by Maria, but Louisa could potentially go after her father's estate.
D. Not affect the title held by Maria, since Louisa has no claim against her or Von's estate.
Answer: C
If a "right of first purchase" is found, then a court will deem this right a promissory
restraint, thereby, allowing Louisa to potentially go after Von's estate. Maria's interest is
not affected, unless Maria had knowledge of this right in Louisa when Maria acquired the
estate. Thus, Answers A, B and D are incorrect.
A. Friedrich and Liesl own Gazebo Acres, with right of survivorship, and Kurt and Marta
have no rights.
B. Kurt has a 'A interest, Marta a % interest and Liesl a 1/2 interest.
C. Kurt has a 1/4 interest, Marta a % interest and Liesl 1/2 interest with right of survivorship.
A. Denied, because the Able Aviary Association did not join in the sale.
D. Granted, because Brigitta and Fred's interest merge, resulting in a fee simple interest that they are free
to sell.
Answer: B
The interest of the Able Aviary Association is void as violative under the rule against
perpetuities, because it might vest beyond lives in being plus 21 years.
Note: While there is a charity-to-charity exception, it is inapplicable here since Brigitta is
not a charity. In light of this, Mame retains a possibility of reverter which passes to
Patrick upon Mame's death. In light of this, Answers A and D are clearly wrong.
C is wrong. While Brigitta is free to sell the interest she has, it is not a fee simple, but an
absolute interest directed toward the entire property.
C. Ineffective against Jude, because Julia has knowledge of the deed from Sadie to
Jude.
B is incorrect in light of the correct answer, as title was conveyed to Julia upon delivery
of the deed. Additionally, an answer such as B, relating to the recordation, is irrelevant.
C is wrong. The earlier deed is irrelevant since it was not an effective transfer (never
being properly delivered) and Sadie had no intention of relinquishing control upon
granting it to Jude.
D is wrong as the quitclaim deed of Julia is quite effective against Jude's warranty deed.
A quitclaim gives Julia all the rights of Sadie (she stands in her shoes) namely, a fee
simple absolute.
Note: Because Jude's warranty deed was never delivered, it is meaningless to this
analysis.
B. David is the owner of Purple Plume Hill since, in relation to him, adverse possession only
began in 2000.
C. David owns Purple Plume Hill since Raphael only occupied a portion of it.
D. David owns Purple Plume Hill assuming that Raphael never paid the property taxes on
it.
Answer: A
Using an application of the rule of constructive adverse possession, Raphael is the
owner. The rule states that where the claimant takes possession of a portion of land
under the belief that he has color of title, if the adverse possession period is met, a court
will find the person in possession has title to the entirety. In light of this, Answer C is
clearly incorrect.
B is incorrect because a transfer in ownership does not interrupt the statutory period for
adverse possession (i.e., tacking is permissible).
D is incorrect because only a minority of states require that the adverse possessor pay
taxes on the property in question.
A. The suit would be dismissed, since Rusty is under 35 and has no interest in the
property.
B. The gift to Marin's children violated the rule against perpetuities and is void.
D. The restriction is proper, since Rusty has nothing more than a defeasible estate.
Answer: C
Note that we are dealing with 2 gifts to children, a vested remainder that follows Marin's
life estate, and an executory interest in the other children if one of them tries to sell while
under 35 years of age. This second restriction is an attempt to retain alienation and is
void, making Answer D clearly incorrect.
A is further incorrect, as Rusty, Mindy, and the other 3 children have interests that are
vested at the time of Lamar's death.
B is wrong for a similar reason. The children's interests vested and their class closed at
the time of Lamar's death, making their interests permissible when viewed under the
requirements of the rule against perpetuities.
C. Jane owns the entire stream, since it is necessary to interpret the language of a deed
in the most stringent manner against the seller.
A. Lance
B. Roman
A is incorrect. The joint tenancy with right of survivorship is severed before Harry dies.
B is incorrect as the physical return of the deed does not confer rights back to Roman.
Harry and Lance would have to re-deed the property to Roman for Roman to now hold
it, which they did not do.
A. The agreement between Erica and Julian has no provision regarding this, and Julian
is, therefore, allowed to remove anything he might have added.
B. Caton Bank does not have a security interest in Julian's personal property.
C. The equipment was installed for Julian's benefit with no intention that it would stay
when he left.
A is incorrect. Personal property attached to real property may become a fixture (and,
thus, part of the realty that is not to be removed) if the one who attached it intended it to
become part of the real property.
Note: It is presumed that items used in trade or business, are not intended to be
permanent fixtures.
B is incorrect. Julian's fixtures (the seashell washing machine etc. . .) are not considered
part of the real property, only because they are considered trade fixtures.
C. There has been no severance in the chain, as Wes was adopted by Joel in a court of
law.
B is wrong because Wes's return of the deed to Ethan has no chance on the state or
status of his interest.
C is a bogus answer that should be avoided at all costs for being nonsensical.
Blair and Tony have lived together for years but are not married. Suppose that Connecticut does
not recognize common law marriage, but does have status prohibiting discrimination based on
marital status. One day, Blair goes out and stops at the local state-run casino during her lunch
break. She drops a nickel in a slot machine and wins the $2 million jackpot. She uses the
proceeds to buy Vaux Hall, which has a great Art Deco mansion on the property. Blair and Tony
record the title and hold Vaux Hall as joint tenants. Tony also decides to make a million gambling,
but promptly looses $500,000 playing three-card-monty. He needs to raise this cash to pay off
his bookmaker or his knees will be broken. Tony manages to convince Bank-a-Lot Bank to enter
into a mortgage against Vaux Hall with his signature alone. (Blair never signs the mortgage.)
Seven months later, Tony dies in a tragic supermarket accident involving a jar of pickles and
some pipe cleaners. The mortgage remains unpaid. Tony has no will and his only heir is his
brother. Suppose Connecticut is a "title theory" mortgage state. What is the state of Vaux Hall?
A. Blair and Bank-a-Lot have title because the joint tenancy would have been severed.
D. The result would be the same as under a "lien theory," since the mortgage theory of the
jurisdiction has no effect on whether joint tenancies are severed.
Answer: A
A mortgaging property in a "title theory" state severs a joint tenancy; since in a "title
theory" state a mortgage is deemed an actual transfer of title to the property and not
simply a lien on the property. Once a joint tenant mortgages the land, the legal title is
transferred to the mortgagee (Bank-a-Lot) while severing the joint tenancy between Blair
and Tony. Following the severance in light of the mortgage transfer, Tony and Blair hold
title to the land as tenants in common.
C is wrong. Tony's brother, at best, could inherit an equitable interest. In a mortgage title
theory state, the mortgage of property results in the borrower retaining an equity of
redemption. Following Tony's mortgage, he can again become a title holder with Blair by
repaying the mortgage and, therefore, becoming a tenant in common with Blair again.
Here, Tony's brother could, therefore, have (at best) inherited the right to continue
repaying the mortgage and holding Vaux Hall with Blair as a tenant in common. Note that
this would be an equitable interest, not a legal interest in the property.
D is wrong because a state's mortgage theory has a great effect on the issue of
severance: a mere lien on the property (lien theory) does not cause a severance, but a
transfer of title (title theory) does.
©2007-2008 Law Decks
Property Law
Sadie owns Eatmore Estate in Rhode Island. In 2000 she executes the following deed:
"All of Eatmore to Jude, my best friend and confidant." Sadie puts the deed in the kitchen
cupboard and tells her trusted attorney, Wallace, to turn the deed over if Jude survives
Sadie. By 2004, Sadie hates Jude and gives Eatmore to Julia in a quitclaim deed for
$1,000. Sadie told Julia about the earlier deed and further told her that she would take
great pleasure in burning it that evening. Sadie never did burn it, however. She dies in
2005. Jude is the only surviving heir, and Wallace hands the deed over to Jude as
instructed to do so by Sadie when she was alive. Jude builds another house on Eatmore
and moves in. The house costs $100,000 to build, but it is an ugly house and adds no
value to the land. If Julia prevails over Jude:
A. Julia can keep the house and recover the reasonable rental value for Jude's use and
possession.
B. Julia can keep the house, but reimburse Jude for $100,000 in construction costs.
D. Jude is entitled to a lien on Eatmore Estate for $100,000, minus the fair rental value
for the house.
Answer: A
Jude is a trespasser and Julia can keep the house and receive rental income. Jude's
good faith belief is meaningless, he remains a trespasser. Under many jurisdictions a
trespasser is further liable for the reasonable rental value, making Jude liable in the
present fact pattern for rental fees as well as allowing Julia to keep house.
B is wrong as a good faith improver of property can occasionally recover some amount
of the improvement so long as they add value to the property. Jude's house added no
value, so he is unlikely to recover any amount.
C is wrong because, as explained above, a trespasser may not recover his annexed
item.
D is wrong as Jude is entitled to no monetary value for the house, since it added no
value to the land and Julia is also free to keep the house. Jude cannot place a lien
against Eatmore as nothing is owed him.