property - textbook chapter questions

5.9 What estates and future interests are granted in each of the conveyances below? Assume that O holds a fee simple and that this jurisdiction applies the common law Rule Against Perpetuities. O conveys "to C, its successors and assigns, provided that if the land is not used as a park, then to K and his heirs." (C is the City of New York.)

The words of purchase "to C" denote C as the grantee of the present possessory interest. The words of limitation identify the estate as a fee simple. However, the words of limitation "provided that" create a defeasible fee. Since the defeasible fee is followed by an interest in a third party, C has a fee simple subject to an executory limitation. The words of purchase "to K" denote K as the grantee of a future interest. The words of limitation "and his heirs" identify the estate (that will exist if the future interest becomes possessory) as a fee simple. Since the defeasible fee is followed by an interest in a third party, K's interest is an executory interest. It is a shifting interest because K, a transferee, will divest C, another transferee, of the estate. Proceeding through the suggested steps: (a) Identify the contingent interests: the rule must be tested against K's shifting executory interest. C's fee simple on executory limitation is a present possessory interest and therefore is deemed to be vested for purposes of the rule. (b) List the lives in being: O and K are alive at the time of conveyance. Therefore, they are both lives in being. Remember, a life in being must be a real person. Thus, C, a city, is not considered a life in being. (c) Consider whether anyone can be born who might affect vesting: no children, issue, heirs, or widows are referred to in the conveyance. K could have a son, B, in 2020. (d) Kill off the lives in being and add 21 years: suppose that in 2021 O and K both die in a common disaster. The lives in being are now dead. The "RAP line" becomes 2042. (e) Ask: is there any possibility that the executory interest may vest more than 21 years after all lives in being (O and K) die (past the 2042 "RAP line")? If you said no, think more creatively. Imagine this possibility: 50 years after the deaths of O and K, C decides the land would make a much nicer parking garage than a park, and converts the land into this different use. According to the terms of the conveyance, the executory interest becomes possessory at that moment. The interest would vest in 2071, far beyond the 2042 "RAP line." RAP is violated. It is important to keep in mind that you are asking whether the future interest itself is capable of violating RAP, not whether the current holder of the interest will be alive when the interest vests. Again, the focus is on the interest and the conditions of its vesting, not on the identity of any current holders of the interest and whether they will vest in possession. The vesting of the executory interest is not dependent on K being alive. When a conveyance violates the Rule Against Perpetuities, it does so when it is made, not 21 years later. In the absence of reform tools, the offending interest is deleted. The conveyance now reads: O conveys "to C, its successors and assigns." C has a fee simple absolute.

5.6 What estates and future interests are granted in each of the conveyances below? Assume that O holds a fee simple and that this jurisdiction applies the common law Rule Against Perpetuities. O conveys "to G and her heirs, but if the land is used as a bar, then O shall have the right to re-enter and retake the estate."

G: fee simple subject to a condition subsequent O: right of entry The words of purchase "to G" denote G as the grantee of the present possessory interest. The words of limitation "and her heirs" create a fee simple. The additional words of limitation "but if" make the fee simple a fee simple subject to a condition subsequent, which is a defeasible fee. The estate can be cut short if the express condition is broken. The conveyance also contains words of re-entry, which further manifest the grantor's intent to create a fee simple subject to a condition subsequent. G (or her grantee, devisee or heir) can lose the estate if the land is used as a bar. O, the grantor, retains a right of entry. Upon the happening of the stated event, O has the right to re-enter and reclaim the estate. O must take affirmative action and exercise this right to regain possession of the estate. G's estate continues until O exercises his right of entry.

7.8 AAA Flower Company leases a large warehouse from L for a 20-year term to store large quantities of flowers until they can be delivered to retail florists. The written lease between AAAFC and L says nothing about the condition of the premises. The warehouse is located in an industrial park owned by L, and L leases other buildings to other tenants. After taking possession of the warehouse and filling it with flowers, AAAFC discovers that one of L's other tenants operates a toxic waste facility in the industrial park which emits large amounts of noxious smoke for three hours every Friday afternoon. The smoke penetrates small cracks in the AAAFC warehouse, which injures 10% of the flowers, making them more difficult to sell. Under these circumstances: (a) AAAFC can use constructive eviction, but may have to vacate the premises. (b) AAAFC cannot use constructive eviction because L is not responsible for the conduct of the toxic waste facility. (c) AAAFC cannot use constructive eviction because L has not breached the lease. (d) AAAFC cannot use constructive eviction because the smoke is a problem for only a few hours each week.

(a) AAAFC can use constructive eviction, but may have to vacate the premises. AAAFC meets the requirements for constructive eviction because L's wrongful failure to control the other tenant has substantially interfered with AAAFC's use of the premises by injuring the flowers. (b) is incorrect because L has the ability to prevent another tenant from committing a nuisance by suing the tenant if necessary. (c) is incorrect because wrongful omissions include allowing nuisance-like behavior and failing to control the common area. Finally, the smoke has a significant impact on AAAFC's business week after week, regardless of the number of hours the smoke is emitted, so (d) is incorrect.

2.5 B owned a 2,000-acre tract of swampland. In 1998, C drove by the land and noticed that rare wild rose bushes grew there. He dug up four rose bushes, each time leaving a hole that was 18" wide and 12" deep; he sold the rose bushes for $50. C did exactly the same thing on a visit in 2002, again in 2005, and again in 2007. C also drove past the land without stopping during trips in 1999, 2001, 2003, 2004 and 2008. Between 1998 and 2008, B drove past the land on two occasions without stopping. Assuming that the adverse possession period is ten years, if C now claims title: (a) C will lose because he did not have continuous possession. (b) C will lose because he did not have exclusive possession. (c) C will lose because his possession was not open and notorious. (d) C will win because he meets the elements of adverse possession.

(a) C will lose because he did not have continuous possession. C's possession was exclusive because B never used the land at all; merely driving past it on the highway is not a use, so (b) is incorrect. Under the Gurwit standard, C's possession might be seen as open and notorious, although the argument is weak. Like Gurwit's conduct, C's activity was "in the sight of passers by;" and the 24 holes that C left on the land are perhaps akin to the signs that Gurwit posted. But the stronger argument is that C's possession was not continuous, assuming that C had possession at all. C entered the land on only four occasions, presumably just long enough to steal rose bushes—perhaps 30 minutes each time. Over ten years, he spent about two hours on the land, not enough for continuous possession even of swampland.

8.11 X and Y signed a purchase contract requiring X to convey Greenacre to Y in fee simple. After closing, Y discovered that X only had a life estate in Greenacre. This is a breach of which covenant? (a) Covenant of seisin. (b) Covenant against encumbrances. (c) Covenant of warranty. (d) Covenant of quiet enjoyment.

(a) Covenant of seisin. The covenant of seisin promises that the grantor owns the estate she purports to convey. Here X purported to convey a fee simple but only had a life estate. (b) is incorrect because the covenant against encumbrances only promises that there are no encumbrances on the title—and there are no encumbrances indicated in the fact pattern. (c) and (d) are incorrect because both are future covenants, which are breached, if at all, when a third party actively asserts his right against the grantee. Here no third party is asserting any claim against Y.

1.8 P was a successful professional baseball pitcher due to his unusually-shaped right hand. During a game, P's right hand was struck by a hard-hit baseball, which almost severed it from his arm, leaving it hanging by only a bit of skin. P was taken to the hospital unconscious, where doctor D removed the hand. One hour later, D transplanted the hand onto the arm of S, another patient. Under Moore v. Regents of the University of California: (a) D is liable for conversion if the hand could have been successfully reattached to P's arm. (b) D is liable for conversion because P's hand is unique. (c) D is not liable for conversion because this would impair important scientific research. (d) D is not liable for conversion if he acted in good faith.

(a) D is liable for conversion if the hand could have been successfully reattached to P's arm. This is a challenging question because the scope of Moore is unclear. Conversion is a strict liability tort, so D's good faith is irrelevant; thus (d) is incorrect. Here there is no evidence that D was engaged in important scientific research, a situation quite different from Moore, so (c) is incorrect. Although the Moore majority discussed whether Moore's cells are unique, this point was not central to the result, so (b) is incorrect. The best answer is (a) because of the key factual differences—and thus policy differences—between this situation and Moore. Notice that P was unconscious after being struck by the ball, so he had no idea that he was even having an operation, unlike Moore who knew his spleen was to be removed. Most importantly, imposing conversion liability here does not impair medical research, so the key policy concern that underpins Moore is absent.

1.1 F provides housing on her farm for farmworkers during the harvest season. G, a neighboring farmer, seeks to enter F's land in order to induce the workers to quit their jobs on F's farm and instead work on G's farm. H, the cousin of a worker living on F's farm, also wants to enter to visit his relative. Under these circumstances: (a) F may only exclude G. (b) F may only exclude H. (c) F may exclude G and H. (d) F may not exclude G or H.

(a) F may only exclude G. Under Shack, F has a legitimate interest in excluding a competitor like G who seeks to interfere with F's farming activities by luring away his employees. However, F has no legitimate reason for excluding H, the farmworker's cousin. The Shack court stresses that a farmworker is entitled to enjoy "the associations common among our citizens," and these would include normal visits by family members.

8.8 C conveys Wateracre for $15,000 to F, who does not record her deed. C then conveys Wateracre for $10,000 to S, who does not record his deed and knows of F. S conveys Wateracre for $16,000 to T, who does not record his deed. T sees a copy of the C-S deed and has no knowledge of F. A few days later, S records his deed; then F records her deed, then T records his deed. Assuming that Wateracre is in a race-notice jurisdiction, who owns Wateracre? (a) F owns Greenacre because she was first in time. (b) T owns Greenacre because he is a subsequent purchaser without notice. (c) F owns Greenacre because the S-T deed is a wild deed. (d) T owns Greenacre because he is sheltered by S's priority over F.

(a) F owns Greenacre because she was first in time. "First in time" prevails unless the recording act gives the subsequent purchaser priority. In a race-notice jurisdiction, T would have to be a (1) subsequent bona fide purchaser (2) who records first. Although T meets (1), he does not record before F. Therefore, T cannot gain the protection of the race-notice recording act, which means F prevails as "first in time." S cannot provide "shelter" for T because S has no priority over F; S knows of F and therefore cannot meet element (1).

3.5 F finds a diamond ring in a field and places it in his pocket. As F walks home, the ring falls out of his pocket and onto the street. K, a passerby, finds the ring. As K admiringly holds it up to the sun, L grabs the ring from K's hand and runs away. F, K, and L bring an action to determine who has the best title to the ring. In whose favor should the court rule? (a) F. (b) K. (c) L. (d) Not for F, K, or L, because the ring belongs to the true owner.

(a) F. F has the better property right because he is the prior possessor of the ring. (b) is incorrect because finder, K, has better property rights than the whole world, except for a prior possessor—which F is. (c) is incorrect because L, as a thief, cannot gain better rights than any prior possessor. (d) is incorrect because the true owner is not before the court, whose focus is on determining the property rights of the parties before it.

2.3 B's hobby is flying radio-controlled model airplanes in the backyard of his suburban home. Each airplane has a wing span of three feet and is propelled by a battery-powered motor. Every Saturday afternoon, B flies one of his airplanes over the homes owned by his neighbors, usually at an altitude of 50-100 feet. B's neighbor G complains about the model airplanes flying over his house. If G sues B, the most likely outcome is: (a) G will win because B's airplanes flew through G's airspace. (b) G will lose because anyone may fly an airplane through the airspace above privately-owned land. (c) G will lose because he is not actually occupying the airspace above his home. (d) G will lose because he only owns as much of the airspace as he can occupy or use in connection with his land.

(a) G will win because B's airplanes flew through G's airspace. In Causby, a taking was found where airplanes flew 83 feet over plaintiffs' farm; the implication of Causby is that a landowner owns at least this portion of the airspace above his property, so the best answer is (a); for the same reason, (b) is incorrect. (c) and (d) are also incorrect under the logic of Causby. It is not necessary for an owner to actually occupy the airspace; and it is reasonable to conclude that an owner is capable of using the airspace within 100 feet of the ground, e.g., to grow trees.

5.5 F inherited Greenacre from his father. The property has been handed down through generations and has great emotional significance to F's family members. F is in a non-traditional relationship with his partner, H. On his deathbed, F devises Greenacre to "my loving partner, H, and his heirs as long as H does not sell Greenacre." What interests are created by this grant? (a) H has a fee simple absolute. (b) H has a fee simple determinable; F has a possibility of reverter. (c) H has a fee simple subject to a condition subsequent; F has a right of entry. (d) H has a fee simple on executory limitation; F has a springing executory interest.

(a) H has a fee simple absolute. An absolute restraint on a fee simple is void. Therefore, the defeasible language is legally inoperative, and H is left with a fee simple absolute ("to H and his heirs").

8.5 H conveys Redacre to F by general warranty deed for $150,000. F records the deed. Two years later, F conveys Redacre to J by quitclaim deed for $300,000. J records the deed. After a few months, J conveys Redacre to L by special warranty deed for $350,000. L records the deed. Several days later, L discovers that H never owned the land; it is owned by N, who retakes possession. N's title predates H's. Which of the following is correct? (a) H is liable to L in an amount up to $150,000. (b) F is liable to L in an amount up to $300,000. (c) J is liable to L in an amount up to $350,000. (d) N is liable to L in an amount up to $350,000.

(a) H is liable to L in an amount up to $150,000. Because H conveyed to F by general warranty deed, the future covenant of quiet enjoyment is breached when N asserts title by taking possession. H is liable for an amount up to the consideration stated in his deed to F. F has no liability since he gave J a quitclaim deed. J has no liability since he gave L a special warranty deed, only warranting against defects that arose during his tenure. N is the owner and has no liability to a later purchaser.

3.1 R wrote his son J, who was studying in Brazil, the following letter: "Son, Happy Birthday! As your present, I give you my Picasso painting which is in my Chicago bedroom. Love, Dad." J never took possession of the painting and R kept it in his home. R died last week, survived by C, his wife, and J. A court will most likely find: (a) J has the best claim to the painting because R made a valid inter vivos gift. (b) J has the best claim to the painting because R made a valid holographic will. (c) C has the best claim to the painting because R's attempt to make a future gift was legally inoperative. (d) C has the best claim to the painting because R kept the painting and therefore there was no delivery.

(a) J has the best claim to the painting because R made a valid inter vivos gift. R made an immediate transfer of a property right—a present transfer of a future interest. R is not required to manually deliver the painting if manual delivery is impossible or impractical—as it is when J lives 7,000 miles away in Brazil. R's letter is an acceptable form of symbolic delivery.

7.2 L leases to T for a term of ten years at a monthly rent of $2,000. Two years later, T transfers "all my interest in this lease" to X; three years later, X "subleases and assigns" to Z for a period of two years. No one is paying rent to L. Under these circumstances: (a) Z is liable to L for the rent under privity of estate. (b) X is liable to L for the rent under privity of estate. (c) Z is liable to L for the rent under privity of contract. (d) X is liable to L for the rent under privity of contract.

(b) X is liable to L for the rent under privity of estate. T assigned to X, who subleased to Z. (b) is correct because the assignment created privity of estate between L and X; (d) is incorrect because there is no contract between L and X. (a) and (c) are incorrect because Z, as a sublessee, has no relationship with L, the original lessor.

9.10 G created a 200-home subdivision designed to appeal to golfers, called "Golf Acres." The subdivision was adjacent to a beautiful golf course owned by G. The set of CC&Rs G recorded against the subdivision before selling any lots expressly provided, among other things, that each lot owner, his heirs, successors and assigns would pay $500 per month to G as a "golf club membership fee" in exchange for being allowed to use G's golf course. H purchased one of the homes in Golf Acres, which he sold to K last year; before he purchased the home, K did not know there were any CC&Rs that affected it. K now refuses to pay the $500 per month fee to G. Under the Restatement approach, the most likely outcome is: (a) K is required to pay the fee. (b) K is not required to pay the fee because there is no vertical privity. (c) K is not required to pay the fee because the fee provision does not touch and concern land. (d) K is not required to pay the fee because he was not on notice of the fee provision.

(a) K is required to pay the fee. Under the Restatement approach, the provision is enforceable because (i) G intended to create a servitude, (ii) the CC&Rs satisfy the Statute of Frauds, and (iii) none of the defenses to enforcement apply. (b) is incorrect because vertical privity does exist; in any event, the Restatement only requires vertical privity in certain situations. (c) is incorrect because the Restatement does not require that a servitude touch and concern land. (d) is incorrect because K is on record notice of the fee provision.

7.4 L leases a house to T for a term of five years. Four months later, T stops paying rent and refuses to move out. In order to convince T to either pay the rent he owes or to vacate the premises, L cuts off the water to the house; T remains in possession. Under these circumstances: (a) L is liable for self-help eviction. (b) L is not liable for breach of the implied warranty of habitability. (c) L's conduct constituted retaliatory eviction. (d) T can successfully claim constructive eviction.

(a) L is liable for self-help eviction. Wrongful self-help includes acts such as cutting off essential services because they present the same risk of violence that the Berg court recognized. (b) is incorrect because running water is vital for habitability, while (c) is incorrect because there is no indication that L is acting in retaliation. Finally, T has not vacated the premises and therefore cannot succeed in a constructive eviction claim, so (d) is incorrect.

4.7 L, a landscape architect, designs an intricate flower bed, with a diameter of 100 feet. It consists of 50 concentric rings of flowering plants, chosen so that they will bloom sequentially in the spring (first the outer row of red flowers, next the inward row of white flowers, next the inward row of red flowers, etc.) as a patriotic display. M copies L's design and builds an identical flower bed for a customer in return for a payment of $50,000. If L sues M for copyright infringement, the most likely outcome is: (a) L will lose because the flower bed is not a work of authorship. (b) L will lose because the work is not sufficiently original. (c) L will lose because M can successfully assert the fair use defense. (d) L will win because M actually copied L's work and the two flower beds are identical.

(a) L will lose because the flower bed is not a work of authorship. A flower bed is not among the works of authorship protected by copyright law, nor is it analogous to any of those works. (b) is incorrect because the originality standard is quite low, as Feist indicates, and L's design reflects some creativity. (c) is incorrect because all factors cut against fair use: M's work is for profit and does not involve transformation or change of any kind; L's work is creative, not factual; M took all of the work; and M interfered with L's potential market for the work. (d) is incorrect because L did not have a valid copyright, even though the other two elements of infringement are arguably met.

4.5 Y opens a series of pretzel stands at airports around the country, calling his business "McPretzel." Each pretzel stand has a large yellow arch on the outside. The McDonald's Corporation holds valid trademarks on the name "McDonald's" and various other product names that begin with "Mc" (such as "McNuggets"). McDonald's restaurants have never sold pretzels, but two company researchers are exploring the idea of serving a hamburger between two pretzels. If McDonald's sues Y, the most likely outcome is: (a) McDonald's will win because its trademark was infringed. (b) McDonald's will win because "McPretzel" is a functional mark. (c) Y will win if Y has only used "McPretzel" in interstate commerce. (d) Y will win because "McPretzel" is a fanciful mark.

(a) McDonald's will win because its trademark was infringed. "McPretzel" is confusingly similar to the various "McDonald's" trademarks, especially given the yellow arch outside each McPretzel store, so (a) is the best choice. Whether Y's mark is functional or fanciful is irrelevant to liability for infringement, so (b) and (d) are incorrect. (c) is incorrect because there is no special exception for the use of an infringing trademark in interstate commerce.

6.1 F is the owner of Forestacre and the father of twin daughters, M and N, and a son, B. Two years before F dies, F devises Forestacre to "M and N as joint tenants with right of survivorship." Two years after F dies, M dies in a car accident. M's will reads, "All my property goes to my brother, B." Who owns Forestacre? (a) N is the sole owner of Forestacre. (b) N and B own Forestacre as tenants in common. (c) N and B own Forestacre as joint tenants. (d) N owns a life estate in Forestacre, and B a vested remainder in fee simple.

(a) N is the sole owner of Forestacre. Upon F's death, M and N hold Forestacre as joint tenants. When M dies, her participation interest is removed, and N holds Forestacre in fee simple. At death, M has no interest in Forestacre to pass to B.

3.4 O is relaxing on a chair in his forested backyard, watching an enormous squirrel bury acorns. P, a squirrel hunter, accidentally wanders onto O's property. Seeing this "trophy" squirrel, P silently sneaks behind it. Just as P is about to grab the squirrel, R, a dealer in wild animals, jumps from behind a tree and snatches it with his hands. R places the squirrel in a cage and runs from O's backyard back to his shop. When one of R's favorite customers, S, arrives and marvels at the size of the animal, R makes S a gift of the squirrel. Who has the best right to the squirrel? (a) O. (b) P. (c) R. (d) S.

(a) O. Even though O never exerted certain control over the squirrel, he is deemed to have constructive possession of the animal vis-à-vis any trespasser on his land. Both P and R are trespassers, and both will lose against O. Even though S had no notice of R's trespass and now exerts certain control over the squirrel, O is deemed to be a prior possessor.

4.8 X, a first-year law student, develops the concept of a new reality television show called "Living the Law," which involves following six students through their first-year of law school as they learn the law, go to class, and socialize with other students. During the final 15 minutes of each episode, the students would compete against each other in answering "Socratic" questions on legal issues posed by the show's host. X calls her friend P, a television show producer, and discusses the concept. P shows no interest. However, a few months later X learns that P is producing a new reality show called "Learning the Law," which is almost identical to X's concept. X confronts P, who admits that the new show is based on X's concept. If X sues P, the most likely outcome is: (a) P will win. (b) X will win because P infringed X's trademark in the name of the show. (c) X will win on copyright infringement because P's show was actually copied from X's show. (d) X will win if X was able to obtain a patent for the show.

(a) P will win. The general rule is that ideas are not protected, and are thereby "as free as the air to common use," unless some special exception applies. No exception applies here, so X has no property rights in the idea of the show. (b) is incorrect because X has not used the title of the show in trade or commerce and the title is not sufficiently descriptive, so no trademark exists. (c) is incorrect because copyright law protects the manner in which an idea is expressed, not the idea itself. (d) is incorrect because even if the PTO issued a patent, it would be invalid due to the lack of patentable subject matter.

5.3 P has always been close to his two nephews, D and E. D and E are the sons of P's sister, S. P and S rarely get along and have been estranged from each other for some time. If S dies at this time, D and E would be her only heirs. S becomes sick and has little hope of surviving. Believing S will live only a few days, P conveys Greenacre to "S and her heirs." S miraculously recovers. Who owns Greenacre? (a) S in fee simple. (b) D and E in fee simple. (c) S, D, and E in fee simple. (d) S in life estate, and D and E have vested remainders in fee simple.

(a) S in fee simple. The words "and her heirs" are words of limitation that signify S receives a fee simple. D and E receive nothing from this grant.

8.3 S resides in a historic house in Town Y. S sells his house to B who is planning to use the house as a day care center. Two weeks after moving in, B discovers that there is a landfill nearby. Every Thursday, a very foul odor permeates B's parcel. It emanates from the landfill as a result of certain processes conducted on those days. In a jurisdiction that applies the holding of Strawn, which of the following is correct? (a) S is not liable to B because S did not build the house. (b) S is not liable to B because odors are not considered a type of nuisance that materially affects use. (c) S is not liable to B because the condition was off-site. (d) S is liable to B because sellers of residential real estate must disclose all conditions that materially affect the use of the property and are not known or discoverable by buyers.

(a) S is not liable to B because S did not build the house. The Strawn court specifically limited its holding to builder-developers of residential real estate or brokers representing them. Builder-developers are liable for nondisclosure of off-site physical conditions known to them and unknown and not readily observable by buyers if these conditions materially affect the use of the property. Because S was the seller of a "used" home, Strawn does not apply (S and B have roughly equivalent bargaining power and access to information); therefore, S has no disclosure requirements for off-site physical conditions and is not liable.

5.2 O conveys Redacre to "S for life, then to T for life, then to S's children for life, then to U and her heirs." S has a five-year-old son, Y. This jurisdiction applies the Rule in Shelley's Case. Which of the following is not correct? (a) T has a contingent remainder. (b) Y has a vested remainder subject to open. (c) U has a vested remainder. (d) U's heirs receive no interest.

(a) T has a contingent remainder. T has a remainder because the interest is capable of becoming possessory immediately upon the expiration of S's life estate, and T cannot divest S of S's interest. However, T's remainder is vested because T is ascertainable and there is no condition precedent (other than the natural termination of S's life estate). The Rule in Shelley's Case does not apply because the grant is to "S's children" rather than "S's heirs."

9.5 In 1900, F received an express easement by grant which allowed "travel over G's land Farmacre in perpetuity" to reach F's property Ranchacre. In 1995, P acquired title to Farmacre. Between 1995 and the present, no one has used the easement to cross Farmacre because there is better access to Ranchacre by another road. R now purchases Ranchacre. R plans to develop a ranch-oriented resort on the land, which will include an elevated tram system that would allow visitors to travel 50 feet "over" the surface of Farmacre, suspended by ten towers to be built on the land. Under these circumstances: (a) The easement language will not be interpreted to include an elevated tram system. (b) R cannot use the easement across Farmacre to support a more intensive use of Ranchacre than the use that existed in 1900. (c) The easement across Farmacre has been eliminated by prescription. (d) The easement across Farmacre has been abandoned.

(a) The easement language will not be interpreted to include an elevated tram system. True, the manner of an easement's use may change over time to accommodate technological development, but operating an elevated tram system is fundamentally different from merely crossing the surface of the land. Elevated tram systems were in existence in 1900, but were not mentioned in the easement; this suggests that the parties did not intend the language to extend so far. In particular, the need to build towers on Farmacre to support the tram system is a fundamental change in the nature of the easement; it requires permanent structures on the land. (d) is incorrect because no facts show that the owner of Ranchacre intended to relinquish the easement, except for non-use—which is insufficient by itself, as Preseault demonstrates. (c) is incorrect because no one has prevented use of the easement. (b) is incorrect as a matter of law; the intensity of use of an easement can expand over time.

6.2 H, S, and T own Greenacre as tenants in common. H sells his interest to X without notifying either S or T. One day later, S dies intestate as a result of a tragic chain saw mishap, leaving Y as his only heir. The next day, T dies. T's will leaves T's entire estate to Z. Who has what interest in Greenacre? (a) H, Y, and Z own Greenacre as tenants in common, in equal shares. (b) X, Y, and Z own Greenacre as tenants in common, in equal shares. (c) X, Y, and Z own Greenacre as tenants in common, in fractional shares of ½, ¼, and ¼. (d) Y and Z own Greenacre as tenants in common, in equal shares.

(b) X, Y, and Z own Greenacre as tenants in common, in equal shares. When H sells his interest to X, then X, S, and T own Greenacre as tenants in common, in equal shares. When S dies, leaving Y as his only heir, then X, Y, and T own Greenacre as tenants in common, in equal shares. And when T dies, leaving his entire estate to Z, then X, Y, and Z own Greenacre as tenants in common, in equal shares.

3.9 X owns a herd of domesticated horses that roam free on his ranch. One day, one of X's horses wandered onto the adjoining property owned by Y. Y decided he wanted to ride the horse and began to pursue it with a rope. Just as Y was about to lasso the horse, Z, who was trespassing on Y's land, jumped out and wrestled the horse onto the ground. Hearing the commotion, X ran over and demanded the horse's return. However, both Y and Z also claim they own the horse. Who owns the horse? (a) X owns the horse because it is a domesticated animal and belongs to X, even though it wandered onto Y's land and even though a subsequent party exercised control over it. (b) Y owns the horse because it was captured on his property, and Y is considered to have constructive possession over it. (c) Y owns the horse because he gained certain control over the horse by pursuing it. (d) Z owns the horse because he gained certain control over the horse by capturing it.

(a) X owns the horse because it is a domesticated animal and belongs to X, even though it wandered onto Y's land and even though a subsequent party exercised control over it. A prior owner retains title to her domestic animals (animus revertendi) even if they roam at large and are captured by a subsequent party. (b) and (d) are incorrect because they reflect the rule of capture for wild animals (ferae naturae). Furthermore, (c) is an incorrect statement of the law—certain control is not gained by pursuit alone.

2.10 Twenty years ago, X constructed a five-story apartment building on a city lot. Part of the building roof protruded six inches into the airspace over the adjacent lot owned by Z. Z now discovers this problem and demands that X remove the protrusion. Under these circumstances: (a) X should refuse because she has acquired title to the airspace by adverse possession. (b) X should refuse because Z's title does not extend five stories above the ground surface. (c) X should refuse because she is not in privity with Z. (d) X should agree to remove the protrusion.

(a) X should refuse because she has acquired title to the airspace by adverse possession. X has met all elements for adverse possession in most states. (b) is incorrect because the surface owner's title does extend upward beyond five stories; it is certainly possible for the owner of a city lot like Z to "occupy or use" this airspace, just as X did on her own lot. (c) is incorrect because privity is irrelevant; X is not trying to tack on Z's ownership.

10.2 Under the Euclid standard, which of the following ordinances is unconstitutional? (a) "No pornographic bookstore or other adult-oriented business may be located within one mile of a school, church, or residential zone." (b) "Every single-family house must contain at least ten bathrooms." (c) "No fast-food restaurants operated by national chains are permitted in the city." (d) "Every single-family house must have wood shingle roof."

(b) "Every single-family house must contain at least ten bathrooms." (a) has a reasonable relationship to the goal of protecting children from exposure to adult-oriented businesses. (c) has a reasonable relationship to the goal of encouraging small businesses in the community; note that (c) might be invalid under the interstate commerce clause, a different provision. A city might require wood shingle roofs for aesthetic reasons, again a rational choice, so (d) is incorrect. The best answer is (b) because the requirement of ten bathrooms for every house verges on the irrational.

8.12 D and B signed a purchase contract in June by which D agreed to sell Greenacre to B for $500,000. D continued to occupy Greenacre during the executory period. Before the September closing, a fire destroyed Greenacre. D died in the fire. D's will devised all his real property to S and all his personal property to R. In a jurisdiction that applies the common law doctrine of equitable conversion, which of the following is correct? (a) The purchase contract cannot be enforced because one of the parties is dead. (b) At closing, R will receive the full purchase price of $500,000. (c) At closing, S will receive Greenacre. (d) S and B must bear the burden of the damages equally. Consequently, B cannot rescind the purchase contract, but only needs to pay S $250,000.

(b) At closing, R will receive the full purchase price of $500,000. Under the common law of equitable conversion, the buyer is the equitable owner of the property and the seller is the equitable owner of the purchase price once the contract is signed. If the property is damaged during the executory period, the buyer bears the burden of that damage. If either party dies before closing, his heirs or devisees can enforce the contract and receive the decedent's interest. Here, after the signing of the purchase contract, D was the equitable owner of the purchase price. This interest passes to R, the beneficiary of D's personal property interest. (a) is incorrect because the contract can be enforced even though one of the parties died. (c) is incorrect because D was no longer an equitable owner of Greenacre, and therefore Greenacre would not pass to the beneficiaries of his real property interest. (d) is an incorrect statement of the common law doctrine.

3. 8 Ace Gas Company stores natural gas from several of its wells around the country in a large, natural underground reservoir in State X. A small portion of the reservoir is located under B's land, and some of the natural gas migrates there. B sinks a well and starts to extract the natural gas. Assume State X has no specific statute regarding ownership rights to natural gas. Applying the rationale of Pierson v. Post, which of the following is true? (a) The gas is B's because B is first to capture this minerae revertendi. (b) B cannot recover damages against Ace for the use and occupation of B's land. (c) The gas is Ace's because of the principle "first in time, first in right." (d) Ace can recover damages against B for conversion.

(b) B cannot recover damages against Ace for the use and occupation of B's land. Pierson provides that ownership of a wild animal continues only while certain control is maintained. Once certain control is lost and the animal returns to its natural habitat, ownership rights cease. Therefore, under Pierson, when the gas is placed back into the ground, it regains its "natural liberty" and Ace loses its ownership of the gas. Since Ace is not the owner of the gas, B cannot charge Ace for trespass. (a) is an incorrect statement of law. (c) has no application to Pierson. (d) is incorrect because Ace is not the owner of the gas when B extracts it.

3.12 Which of the following is not true in most states about a gift causa mortis? (a) The gift must be made in contemplation of imminent death. (b) If the donor recovers, the gift is automatically revoked. (c) The gift can be made for any kind of property. (d) The gift becomes irrevocable upon the donor's death.

(c) The gift can be made for any kind of property. A gift causa mortis cannot be made for real property. (a), (b), and (d) are all true statements in most jurisdictions.

8.10 M agreed to sell Greenacre located at 123 Maple Street, Sacramento, CA to B for $150,000. Three days later, M changed his mind and refused to sell the property to B. B now seeks to enforce the agreement against M based on a written instrument that evidences their agreement. Which of the following writings would not be sufficient to allow B to enforce the agreement? (a) B wrote a check to M for $150,000. In the memo line B wrote: "Greenacre; 123 Maple Street, Sacramento, CA; total price $150,000." M endorsed the check, signing on the back. (b) B sent the following email to M: "This writing confirms the terms of the sale of real property as between M and B for 123 Maple Street, Sacramento, CA for $150,000." B included his electronic signature at the close of the email. (c) M wrote on the back of a bar napkin: "I, M, agree to sell Greenacre located at 123 Maple Street, Sacramento, CA to B for $150,000. Signed, M." (d) M's attorney, R, sent the following note to B: "M agrees to sell Greenacre, located at 123 Maple Street, Sacramento, CA to B for $150,000." R signed the note.

(b) B sent the following email to M: "This writing confirms the terms of the sale of real property as between M and B for 123 Maple Street, Sacramento, CA for $150,000." B included his electronic signature at the close of the email. An agreement for the sale of real property is not enforceable unless it meets the requirements of the Statute of Frauds: (i) there must be a writing, (ii) containing the essential terms of the contract, which is (iii) signed by the party to be bound. (a), (b), (c), and (d) all satisfy elements (i) and (ii). However, in (b) the email from B was signed only by him (note that B's electronic signature is valid), not by M, the party to be bound; therefore B cannot enforce the contract against M. (a), (c), and (d) each satisfy element (iii) because M signed the documents in (a) and (c), while M's attorney, as his agent, signed the document in (d). Note that, in many jurisdictions, the Statute of Frauds requires that the authority of an agent to sign a purchase agreement must also be in writing.

8.6 S conveys Greenacre to B for $150,000 on April 2, but B fails to record her deed. S conveys Greenacre to C for $200,000 on May 1. C has no actual notice of B's interest. B records her deed on May 5. C records his deed on May 7. Who owns Greenacre? (a) In a notice jurisdiction, B owns Greenacre because she was first in time. (b) In a notice jurisdiction, C owns Greenacre because he is a subsequent purchaser without notice. (c) In a race-notice jurisdiction, B owns Greenacre because she recorded first. (d) in a race-notice jurisdiction, C owns Greenacre because he was a subsequent purchaser who properly recorded first.

(b) In a notice jurisdiction, C owns Greenacre because he is a subsequent purchaser without notice. In a notice jurisdiction, a subsequent bona fide purchaser reverses the common law priority of "first in time." C had no notice of B (actual, record, or inquiry) and paid valuable consideration. Thus, C owns Greenacre. When determining the priority between B and C in a notice jurisdiction, it is irrelevant when, or if, C records.

7.6 Lou owned a 25-unit apartment building in a large city. Hoping to find a tenant for Apartment 14, Lou placed this ad on Craigslist: "1 bedroom, great location, perfect for bachelor. $1,200. 890-2286." Jill Wong inspected the unit in response to the ad and asked if she could rent it. Jill mentioned that she earned a high income because she was a physician. Lou replied: "I'll think about it." When Jill called Lou two days later to inquire, Lou told her: "I won't rent to you. You doctors are too arrogant. You never listen to other people. You'd just cause trouble in the building." Lou later rented the unit to a writer. Under these circumstances: (a) Lou's ad does not violate the Fair Housing Act. (b) Jill has a prima facie case for discrimination under the Fair Housing Act. (c) Lou has not offered a nondiscriminatory reason for refusing to rent to Jill. (d) Jill cannot sue under the Civil Rights Act of 1866 because it does not apply to apartment units.

(b) Jill has a prima facie case for discrimination under the Fair Housing Act. Jill has met the four elements for a prima facie case, as discussed in Neithamer: she is a member of protected classes based on race, national origin, and gender; she was qualified to rent the unit; Lou rejected her application; and the unit remained vacant. (a) is incorrect because the ad shows preferences based on gender and on familial status. (c) is incorrect because the Act does not bar discrimination based on one's occupation. (d) is incorrect because the Act applies to all types of property.

6.12 K and L own Greenacre as tenants in common. K lives on the property, while L lives with his parents. One day, L decides to leave his parents' house and tries to move into Greenacre. K refuses to allow L to enter, claiming that he needs perfect quiet to study for law school. K continues to refuse to allow L to occupy the property for the next 12 months. The fair market rental value of Greenacre is $12,000 per year. In a majority of jurisdictions: (a) K is liable to L for the full fair market rental value of $12,000. (b) K is liable to L for $6,000. (c) K is not liable to L for any amount because as a cotenant he is entitled to the full use and enjoyment of Greenacre. (d) K is not liable to L for any amount because L's occupancy would disturb K's use of the premises.

(b) K is liable to L for $6,000. K's refusal to allow L to occupy Greenacre constitutes an ouster. (a), (b), and (d) are incorrect because K is liable to L for K's pro rata share of the rental value of K's occupancy (here $6,000) since K ousted L.

2.6 A owned Pearacre, a 100-acre tract of prize-winning pear trees; he lived in the home which was located in the southeast corner of the tract. In 2000, A was tragically killed by a falling pear tree. A's son S quickly found what appeared to be A's valid will, which left Pearacre to A's niece N. N immediately moved into the home on Pearacre, and used it as her residence until the present; but N has never visited or used any other part of Pearacre. Last week, S discovered that the will was invalid due to a technicality and, accordingly, that he should have inherited Pearacre under state law as A's closest relative. Assuming that the adverse possession period is ten years: (a) N owns the home, and S owns the rest of Pearacre. (b) N owns all of Pearacre. (c) S owns all of Pearacre because N did not act in good faith. (d) S owns all of Pearacre for another reason.

(b) N owns all of Pearacre. By using the home as her residence for more than ten years, N has satisfied all adverse possession elements. The invalid will is a form of color of title, so N's possession of the Pearacre home gives her constructive possession of all of the property. (a) is incorrect because N has color of title. (c) is incorrect because most jurisdictions do not require good faith and, on these facts, it appears that N did act in good faith.

8.9 The following recording statute would be found in which type of jurisdiction? "Every conveyance shall be void as to any subsequent purchaser who gives value and takes without notice, unless such conveyance is duly recorded before the subsequent purchase." (a) Race. (b) Notice. (c) Race-notice. (d) First-in-time.

(b) Notice. The statute would be found in a notice jurisdiction; it provides that a subsequent purchaser who takes without notice and for value will have priority over earlier interests. The language "unless...duly recorded before the subsequent purchase" refers specifically to prior conveyances; there is no requirement that the subsequent conveyance be first recorded.

1.6 X owns a 1,000-acre tract of unfenced, rural land, where he lives in a small cabin. Y walks up to X's front door to try to sell him a set of encyclopedias. The next day, while researching an endangered species of frog, Z walks across X's land, believing in good faith that it is public land. Under these circumstances: (a) Only Y is liable for trespass. (b) Only Z is liable for trespass. (c) Both Y and Z are liable for trespass. (d) Neither Y nor Z are liable for trespass.

(b) Only Z is liable for trespass. Z is liable for trespass because he voluntarily entered X's land; his good faith is irrelevant. But Y is not liable because of X's implied consent to allow solicitors to enter his land. In everyday life, there is an expectation that solicitors normally have an owner's implied permission to enter for the limited purpose of coming to the front door of a residence in order to sell a product, collect charitable donations, or the like. Of course, an owner could overcome this implied consent by posting a "no trespassing" sign; but that did not occur on these facts.

9.4 M, N, P, and O all own vacant lots in a residential subdivision. They enter into a written agreement entitled "Covenant" which provides, among other things, that (a) any structures built on their lots in the future will be limited to one story in height and (b) the burden and the benefit of the covenant shall run to their successors and assigns. The covenant complies with the Statute of Frauds and is recorded. M then sells her lot to S; N sells his lot to T; T now plans to build a four-story apartment building on the property. Under these circumstances, the most likely outcome is that: (a) S can enforce the covenant against T as a real covenant. (b) S can enforce the covenant against T as an equitable servitude. (c) S can enforce the covenant against T either as a real covenant or an equitable servitude. (d) S cannot enforce the covenant against T either as a real covenant or an equitable servitude.

(b) S can enforce the covenant against T as an equitable servitude. All elements are met for enforcement of the agreement as a real covenant except for horizontal privity, so (a) is incorrect. The original parties did not have mutual or successive interests. However, because horizontal privity is not required for an equitable servitude, the agreement can be enforced by an injunction, making (b) the best answer.

7.5 L leases an apartment to T for a term of two years; T agrees to pay $1,000 each month in rent. Six months later, T's employer transfers her to a new state, so T vacates the apartment, stops paying rent, and notifies L that she has left. For six months, L does nothing to find a new tenant for T's unit. L then advertises the unit for rent in the local paper and also retains a real estate broker to find a tenant. P immediately offers to rent the unit for $800 per month; L refuses this offer because he is reasonably confident that R, another prospective tenant, will agree to pay $1,000 per month. But R is killed in an automobile accident. L never finds a replacement tenant. Under these facts: (a) T is liable for $18,000 in rent. (b) T is liable for $12,000 in rent. (c) T is liable for $2,400 in rent. (d) T is not liable for any rent.

(b) T is liable for $12,000 in rent. Under the majority rule in Sommer, L has a duty to mitigate unless he terminates the lease, which did not happen here. L did not make any effort to find a replacement tenant for six months, so he is not entitled to collect the $6,000 in rent for this period from T. However, he did undertake reasonable mitigation efforts for the final year of the lease. It was commercially reasonable for L to refuse P's offer, both because it was below the agreed-upon rent and because L believed that R would pay a higher price. So T is liable for $12,000 in rent, representing all the rent due for the final year of the lease.

8.7 C conveys Wateracre for $15,000 to F, who does not record her deed. C then conveys Wateracre for $10,000 to S, who does not record his deed and knows of F. S conveys Wateracre for $16,000 to T, who does not record his deed. T sees a copy of the C-S deed and has no knowledge of F. A few days later, S records his deed; then F records her deed, then T records his deed. Assuming that Wateracre is in a notice jurisdiction, who owns Wateracre? (a) F owns Greenacre because she was first in time. (b) T owns Greenacre because he is a subsequent purchaser without notice. (c) F owns Greenacre because the S-T deed is a wild deed. (d) T owns Greenacre because he is sheltered by S's priority over F.

(b) T owns Greenacre because he is a subsequent purchaser without notice. In a notice jurisdiction, a subsequent bona fide purchaser reverses the common law priority of "first in time." T had no notice of F (actual, record, or inquiry) and paid valuable consideration. Thus, T owns Greenacre. Once T gains priority (at the time of delivery of the deed to T), the sequence of recording among F, S, and T is irrelevant.

7.3 L leases Redacre to T "for as long as T lives or until L dies, whichever occurs first." What estate does T have? (a) Term of years determinable. (b) Tenancy at will. (c) Life estate. (d) Tenancy for life.

(b) Tenancy at will. Under the logic of Kajo Church Square, T's interest is a tenancy at will. The common law does not recognize a tenancy for life, so (d) is incorrect. (a) is incorrect because there was no fixed term agreed upon in advance; thus, it cannot be a term of years in any form. Because the facts state that the arrangement was merely a lease, (c) is incorrect.

4.3 J applies for a patent on a method of making a ham sandwich. The heart of J's technique is to apply mustard to both sides of the ham slice before placing it between two pieces of bread; thus, the mustard is applied to the ham, not to the bread. The PTO issues the patent. Two years later, J notices that his method is being used to make ham sandwiches in a famous New York deli. If J sues the deli, the most likely outcome is: (a) The deli will win under the fair use defense. (b) The deli will win because J's procedure does not qualify for a patent. (c) J will win based on literal infringement. (d) J will win under the doctrine of equivalents.

(b) The deli will win because J's procedure does not qualify for a patent. J's method is obvious, so it does not qualify for patent protection. Thus, the fair use defense is irrelevant and no form of infringement has occurred.

1.9 The labor theory of property is reflected most directly by: (a) Pierson's victory in Pierson v. Post. (b) White's victory in White v. Samsung Electronics America, Inc. (c) The Jacques' victory in Jacque v. Steenberg Homes, Inc. (d) Prah's victory in Prah v. Maretti.

(b) White's victory in White v. Samsung Electronics America, Inc. Jacque does not reflect labor theory. In both Pierson and Prah, the successful party in fact labored to convert a wild thing (fox; sunshine) into a domesticated product suitable for human use (fox carcass; solar heating), but labor theory is not central to either case. But in White, White's celebrity status—the property right at issue—arose almost exclusively through her labor.

1.3 Movie star M is a tenant in O's apartment building. Seeking to sell the building, O places an advertisement in the local newspaper which reads: "$2,500,000. Luxury 3-unit apartment complex. Home of famous movie star M. Call 333-3333." Has O violated M's right of publicity? (a) No, because it is reasonable for O to tell prospective buyers who the tenants are. (b) Yes, because O used M's name in order to gain a commercial advantage. (c) No, unless M objects to the advertisement within a reasonable time. (d) Yes, if O also used M's likeness in the advertisement.

(b) Yes, because O used M's name in order to gain a commercial advantage. As we saw in White, the common law right of publicity is violated when a person appropriates a celebrity's name or likeness to his advantage, unless the celebrity consents. Here, O seems to be using M's name in order to help sell his building, almost as if M were endorsing a product. (a) is a less plausible choice. It is reasonable for the seller to provide the identities of tenants to a buyer at some point in the sales process, but there is no reason to do this in an advertisement. (d) is incorrect because the right can be violated by the use of a name alone; (c) is incorrect because a violation occurs even if the celebrity does not object.

9.7 In 1998, X purchased a 100-acre tract of forest land, plus an adjacent 20-acre lake; the lake was frozen over in the winter, but provided wonderful recreational opportunities in the summer. X rarely visited the property because he lived in a distant state. A small part of X's lake adjoined a 5-acre parcel which was owned by Z. In 2000, Z built a vacation cabin on her land; since then she and her family have used the cabin for six or seven weeks each summer. During these visits, Z and her family usually swim, fish, and canoe on X's lake for five days each week. Last summer, X visited his property, spotted Z and her family swimming in the lake, and demanded that they "get out of my lake!" Under these circumstances, the most likely outcome is: (a) Z and her family have an implied easement by prior existing use to use the lake. (b) Z and her family have a prescriptive easement to use the lake if the statutory period is shorter than the period they have used the lake. (c) Z and her family have an easement by necessity to use the lake. (d) Z and her family have no right to use the lake.

(b) Z and her family have a prescriptive easement to use the lake if the statutory period is shorter than the period they have used the lake. The conduct of Z and her family: (i) was open and notorious; (ii) was sufficiently continuous, given the seasonal nature of the property; (iii) meets the adversity requirement in the majority of jurisdictions, which presume adversity; and (iv) was continued for longer than the statutory period. (a) and (c) are incorrect, among other reasons, because nothing in the facts suggests that the lands owned by X and Z were ever in common ownership. (d) is incorrect because the elements for a prescriptive easement are satisfied here.

2.1 Z owns a 500-acre farm. She installs an extensive network of wells to extract groundwater so that she can sell it to the residents of an expanding city located 20 miles away. As a result of Z's pumping, the wells located on her neighbor N's land went dry. Under these circumstances: (a) Z may continue pumping groundwater if the state follows the reasonable use approach as long as the city residents use the water reasonably. (b) Z may continue pumping groundwater if the state follows the absolute ownership rule. (c) Z may continue pumping groundwater if the state follows the correlative rights approach. (d) Z may continue pumping groundwater if the state follows the riparian approach.

(b) Z may continue pumping groundwater if the state follows the absolute ownership rule. As Sipriano reflects, a landowner may generally withdraw as much groundwater as he wishes under the absolute ownership rule. (d) is incorrect because the riparian approach does not apply to groundwater; (c) is incorrect because Z is taking more than her share of the groundwater. Finally, the reasonable use rule requires that the water be used on the owner's land, so (a) is incorrect.

9.1 Which of the following provisions in a set of CC&Rs for a common interest community of single-family tract houses would be unenforceable under the Nahrstedt test? (a) "No cars, trucks, or vehicles of any kind may be parked in the driveway of any house at any time." (b) "Front yards and back yards shall be kept free of children's toys and other play equipment at all times." (c) "No public displays of affection are permitted at any time." (d) "Every owner will plant and maintain a vegetable garden on his or her property during the usual growing season."

(c) "No public displays of affection are permitted at any time." The (a) and (b) restrictions have a reasonable relationship to the legitimate purpose of avoiding visual clutter, so they are not arbitrary; nor do they violate a fundamental public policy; finally, the burdens that they impose are minor. The same analysis applies to (d) except that the rationale for the restriction may be related to aesthetics and other arguable concerns: ensuring a high-quality diet, providing exercise, etc. (c) is the best choice because the burden of the restriction outweighs any benefit; it is drafted in such a broad manner that smiling or holding hands is forbidden.

3.13 T rented a storage container at a commercial facility. T placed $8,000 in cash and a diamond necklace in the container. One day, T told his brother, N, "I want S to have the contents of my storage container." T gave N the key to the container and instructed N to give the key to S. A few days later, T died. In which of the following circumstances was there no effective gift? (a) N immediately delivered the key (rather than the contents of the container) to S. (b) N immediately delivered the key to S. T's will provides: "To my wife, all the contents of my storage container." (c) At T's request, N returned the key to T, rather than giving it to S. (d) All of the above.

(c) At T's request, N returned the key to T, rather than giving it to S. Even though T initially had donative intent, there was no effective delivery. Although the key was placed in N's hand, N was T's agent, not S's. (a) and (b) are incorrect—an inter vivos gift was made since delivery was completed (we can presume acceptance). In addition, will provisions cannot "undo" gifts already completed before the donor's death. A will "controls" only those assets in the decedent's estate at the time of his death.

1.5 R notices a rare and valuable butterfly sitting on a leaf in a public park. As R moves forward with his hands outstretched to grab the butterfly, it begins to fly and a brisk wind quickly pushes it 100 feet away from R. S springs up from behind a bush, nets the butterfly, and refuses to give it to R. As between R and S, R owns the butterfly if: (a) R injured the butterfly when trying to grab it. (b) R would have caught it without S's intervention. (c) S acted in bad faith. (d) R threw a rock that mortally wounded the butterfly before S captured it.

(d) R threw a rock that mortally wounded the butterfly before S captured it. The Pierson majority holds that property rights in a wild animal are acquired only through capturing or killing the animal. The butterfly is wild; R mortally wounded it, thus acquiring title, before S captured it.

6.11 B, C and D own Greenacre as tenants in common. B independently sold 10% of the trees on Greenacre to J and received a net profit of $15,000. Which of the following is correct? (a) B can keep the entire $15,000 since his proportionate share of the trees is greater than the amount of trees removed. (b) C and D each receive $1,500 (10% of the net profit). (c) B, C, and D split the net profits equally, each receiving $5,000. (d) C and D each receive $7,500, and B receives nothing because of her malfeasance.

(c) B, C, and D split the net profits equally, each receiving $5,000. When a cotenant sells a portion of the concurrent tenancy's assets, she is required to compensate her cotenants for their proportionate share of the net profits. Therefore, B must split her net profits equally with C and D. (a) is incorrect because a cotenant cannot select and take for herself a part of the property. (d) is incorrect because any cotenant has the right to cut timber; B's actions do not constitute malfeasance.

2.4 A owned a residential condominium unit on the 12th floor of a highrise tower in a large city. But he never used the unit because he lived in Switzerland. A's daughter B bribed the building superintendent to give her a key to the unit; over the next seven years, she spent five hours each day practicing the cello there. When B decided to move to Japan, her cousin C started visiting the unit. C visited the unit every Tuesday for ten hours to write songs. When A returned four years later, C claimed title by adverse possession. If A now sues to recover possession of the unit, assuming that the adverse possession period is ten years: (a) C will lose because B did not have actual possession of the unit. (b) C will lose because B obtained the key by fraud. (c) C will lose because she cannot tack on B's period of possession. (d) C will win because she meets the elements of adverse possession.

(c) C will lose because she cannot tack on B's period of possession. The privity required for tacking usually arises from a deed; here, the only arrangement between B and C was a brief conversation. Even under the liberal standard that you saw in Howard, privity is not present. There is no "reasonable connection" between B and C which raises their claim "above the status of the wrongdoer or the trespasser," so (c) is the best answer. B arguably had actual possession, because the owner of such a unit might use it for regular music practice, so (a) is not the best answer, even if the argument may be plausible. (b) is incorrect because the manner in which B obtained the key is irrelevant.

9.8 In 1970, D developed a 10-lot subdivision called "Happy Acres" on the outskirts of a large industrial city. Before selling any lots, D recorded a set of CC&Rs against the entire subdivision, which were expressly intended to "burden and benefit D, his successors, and his assigns forever." Paragraph 3(b) of the CC&Rs provided that the lots could only be used for "residential purposes." D later sold all of the lots to various buyers, including E, all of whom built single-family homes on their properties. Two years ago, a new oil refinery was built next to Happy Acres; the refinery sometimes emitted odors which drifted into the subdivision and temporarily sickened a few of the residents. As a result, the owners of two lots sold their properties to the oil refinery, which promptly demolished the houses and used the lots to store refinery equipment. E, who still resides in a home on one of the lots, objects to this. Under these circumstances, the most likely outcome is: (a) E will not be able to enforce the residential-only restriction due to lack of horizontal privity. (b) E will not be able to enforce the residential-only restriction due to changed conditions. (c) E will be able to enforce the residential-only restriction against the refinery as an equitable servitude. (d) E will be able to obtain an injunction to shut down the refinery as a nuisance.

(c) E will be able to enforce the residential-only restriction against the refinery as an equitable servitude. E can enforce the restriction. The burden of the restriction runs to the oil refinery because the CC&Rs satisfy the Statute of Frauds; they evidence a clear intent to burden successors; and the residential-only restriction touches and concerns land. Notice that it is not necessary for the benefit to run because E is an original party to the CC&Rs, not a successor. (a) is incorrect in most jurisdictions because horizontal privity exists due to the grantor-grantee relationship between D and his successors or horizontal privity is not required at all; finally, horizontal privity is not required to enforce an equitable servitude. (c) is incorrect because the residential-only restriction still provides substantial benefit to most lot owners. (d) is incorrect because even if a court found liability, it would probably award E damages, not an injunction, for the reasons set forth in Boomer.

9.2 F owns two adjacent parcels, Redacre and Blueacre. A public highway adjoins Redacre; to reach Blueacre, F normally travels from the highway along a gravel road over Redacre until he reaches Blueacre. Blueacre does not adjoin a public road. F sells Blueacre to G; the deed conveying title to G expressly provides that G does not have an easement over Redacre; however, before the closing, F gives G a revocable license to cross Redacre to reach Blueacre. Two days after the closing, F revokes the license. Under these circumstances: (a) G has an easement by necessity to cross Redacre. (b) G has an implied easement by prior existing use to cross Redacre. (c) G has an irrevocable license to cross Redacre. (d) G has no right to cross Redacre.

(c) G has an irrevocable license to cross Redacre. (a) is incorrect because strict necessity did not exist at severance of title; at that time, G had a license. (b) is incorrect because the F-G deed expressly provides that G does not have an easement over Redacre; an implied easement by prior existing use will not arise where the parties have a clear contrary intent, as the Restatement notes. However, an argument can be made that G's license has become irrevocable because G relied on the license in good faith by purchasing the land from F; G would not have purchased the land if he knew that F would revoke the license two days later.

6.10 In 2000, H and W were married. One year later, H purchased Greenacre, using the bonus H received that year from his employer. In 2005, H inherited Redacre and the family business located on it. In 2010, H's rich uncle gave him $500,000 as a birthday gift. H died last week and left a will that devised Greenacre to his mistress, Matilda. H and W have always lived and worked in a community property state, and all of their real estate is located there. As H's surviving spouse, W has rights to: (a) H's $500,000 gift. (b) Half of Redacre. (c) Half of Greenacre. (d) Dower rights in Greenacre and Redacre.

(c) Half of Greenacre. In community property states, both spouses own an equal and undivided share in all earnings acquired during marriage. Because Greenacre was acquired from H's earnings during marriage (H's bonus), it is a community asset and W has an undivided ½ interest in the property. H's will controls only his interest in community property assets; Matilda will only receive his undivided ½ share of Greenacre. (a) and (b) are incorrect because property acquired before marriage and property acquired during marriage by gift or inheritance remain the individual's separate property. (d) is incorrect because there is no dower in community property states.

4.1 K opens a new store that sells excellent fresh-baked cookies. She calls the business "Cookies Unlimited" and occasionally runs newspaper ads promoting her cookies. Five years later, L opens a competing cookie store across the street, which he calls "Cookies Limited." Experts conclude that the quality of L's cookies is low. If K sues L: (a) K will win because L's poor cookies have tarnished K's business name. (b) K will lose because customers are unlikely to be confused. (c) K will lose if her business name has not acquired a secondary meaning. (d) K will lose because she did not use her business name in trade or commerce.

(c) K will lose if her business name has not acquired a secondary meaning. K's trademark is descriptive, so it qualifies for protection only if it has acquired a secondary meaning, which did not happen here. (a) is incorrect because K does not have a famous mark. Customers are likely to be confused by the similarity between the names, so (b) is incorrect. K did use her business name in trade and commerce because she operated under the name and used it in advertising.

7.1 L, a conservative religious organization, leases space in its building to T for a term of five years. The lease provides: "T may not assign or sublease without L's consent, which shall not be unreasonably withheld." T now wishes to assign the lease to N, an organization that will use it as a community center for gay and lesbian couples. Under these circumstances: (a) L can refuse consent on the basis that it is fundamentally opposed to the activities of N. (b) L can refuse consent if its employees would be offended by the use. (c) L cannot refuse consent because there is no commercially reasonable objection. (d) L cannot refuse consent because the common law favors the free alienation of property.

(c) L cannot refuse consent because there is no commercially reasonable objection. L's objection is based on its subjective judgment rather than a commercially reasonable objection, the same test you saw in Kendall, so (a) is incorrect. The same reasoning applies to (b); a reasonableness clause could often be circumvented if the feelings of the lessor's employees were relevant. While the common law does favor alienation, (d) is incorrect because here the parties agreed on a lease clause which limits the tenant's rights.

3.10 O owned a Stradivarius violin worth $1.5 million. D, a dealer who sells and restores stringed instruments, stole the violin after one of O's concerts. Nine months later D sold the Stradivarius for $2 million to F, who had no idea of the violin's history. A few weeks later, O discovered that D had sold his violin to F and demanded its return. F claims the violin is his. Who has the best title to the violin? (a) F, because he purchased the violin from D, a merchant, for valuable consideration and without notice of any adverse claims. (b) F, because he purchased the violin from D, who had acquired title by adverse possession. (c) O, because he never transferred any interest to D. (d) F and O have equal title and it is up to a court of equity to determine the most equitable distribution.

(c) O, because he never transferred any interest to D. A thief gains no title and cannot pass valid title to another. (a) is incorrect because U.C.C. § 2-403 does not apply since D, even though a merchant, stole the violin; he was not entrusted with it. (b) is incorrect because no statute of limitations is as short as a few months. (d) is incorrect because D stole the violin; he had no title to give to F.

3.7 N sits in a booth at a small family-run restaurant and discovers an old wallet lying on the table top. The wallet has no identification in it, but contains $500. N gives the wallet to the P, the restaurant owner, and tells P to hold the wallet until the owner comes back for it. One year passes and the owner of the wallet never returns. When N asks for the wallet and the money, P gives him the wallet but keeps the money. Who has the better right to the $500? (a) N because a finder of a lost article gains the property right to it. (b) N because N found the wallet in a public, rather than a private, place. (c) P because mislaid articles belong to the owner of the place in which they were found. (d) P because N found the wallet in a public, rather than a private, place.

(c) P because mislaid articles belong to the owner of the place in which they were found. Given the type and location of the article, the court will probably presume that the wallet was intentionally placed there by a prior customer and forgotten. Mislaid articles belong to the owner of the locus in quo, not the finder, placing the item in the hands of the person who is most likely to ensure its return to the true owner. The rationales in (a), (b), and (d) are inapplicable to the facts of this problem.

2.7 S owns a 2,000-acre ranch in a remote, undeveloped part of a western state which he uses for grazing cattle. O, an oil company, wants to install an oil pipeline which will run 500 feet underneath S's land; this will be one link in a 200-mile pipeline system. Construction and use of the system will not interfere with S's cattle grazing. Under the Chance standard: (a) S can bar the pipeline because his ownership extends downward to the center of the earth. (b) S can bar the pipeline because it will adversely affect his use of his property. (c) S cannot bar the pipeline because it will not adversely affect his use of his property. (d) S cannot bar the pipeline because his ownership extends downward less than 500 feet.

(c) S cannot bar the pipeline because it will not adversely affect his use of his property. Chance allows the surface owner to prevent a subsurface trespass if it would "actually interfere" with his "reasonable and foreseeable use of the subsurface." Here S has no reasonable and foreseeable use for the subsurface, so (c) is correct and (b) is incorrect. (a) is incorrect because Chance rejects the idea that ownership extends to the center of the earth. (d) is incorrect because Chance does not impose a specific limit on the depth of the surface owner's subsurface ownership.

1.10 The best explanation for the Supreme Court's ruling in Johnson v. M'Intosh that Native Americans did not have the authority to transfer their ancestral lands to private buyers is: (a) The Native Americans lost title to their lands due to abandonment. (b) The Native Americans waited too long to assert their right to transfer. (c) The Native Americans did not have the right to transfer under the laws of the United States. (d) The Native Americans did not use their lands in the same way that Europeans normally used land, so they could not establish first-in-time possession.

(c) The Native Americans did not have the right to transfer under the laws of the United States. Johnson reflects legal positivism. Under the laws of the United States, the Native Americans did not have the right to transfer title to their ancestral lands, as the Court stated: "All of our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy." As the successor to the crown's rights, the United States obtained the right to transfer title. Accordingly, "[c]onquest gives a title which the Courts of the conqueror cannot deny."

4.6 The SSS Company builds a private spacecraft which takes its employee scientists to an asteroid which circles Earth. The scientists locate a microscopic organism which is based on mercury, unlike the carbon-based life forms on Earth. Research proves that releasing the organism on Earth would endanger human life. If the SSS Company now applies to the PTO for a patent on the organism, the most likely outcome is: (a) The patent will be denied because the organism would endanger human life. (b) The patent will be denied because the Framers of the Constitution never intended that patentable subject matter extend to things found in outer space. (c) The patent will be denied because the SSS scientists did not create the organism. (d) The patent will be granted.

(c) The patent will be denied because the SSS scientists did not create the organism. The Diamond Court notes that patentable subject matter does not extend to "manifestations of" nature, such as "a new mineral discovered in the earth or a new plant found in the wild." Here, the SSS scientists merely discovered the organism; they did not invent it. (a) is incorrect because the PTO is not responsible for assessing the potential harm caused by an invention, as Diamond illustrates. (b) is not the best answer because the subjective intent of the Framers is irrelevant; in fact, Congress intended patentable subject matter to extend to "anything under the sun that is made by man."

10.1 V owns a vacant lot which is zoned for single-family residential use only. After V purchased her lot, the zoning ordinance was amended to require that each lot have 100 feet of frontage on a public street. V's lot is oddly shaped, so it only has 18 feet of frontage. V plans to build a home on the lot, with the garage facing the street. As viewed from the street, V's home would look like a 12-foot-wide garage, with a 6-foot-wide walkway on one side, leading to the front door. If V seeks a variance from the frontage requirement: (a) The variance will be denied because V cannot prove hardship. (b) The variance will be denied because V created the problem by not building before the amendment was adopted. (c) The variance may be denied if the appearance of V's house would be aesthetically offensive to a reasonable person. (d) The variance will be granted.

(c) The variance may be denied if the appearance of V's house would be aesthetically offensive to a reasonable person. The irregular lot configuration qualifies as a hardship, as you saw in Detwiler, so (a) is incorrect. (b) is incorrect because the failure to build before an amendment is not considered to be a self-inflicted problem. As Stoyanoff demonstrates, however, a city may regulate the appearance of structures in order to protect the public welfare. V's planned residence is sometimes called a "snout house"—which many consider to be aesthetically unpleasing. If the neighbors object for aesthetic reasons, this would be a basis for denying the variance, so (c) is the best answer.

1.4 The theory of property which best explains why the farmworkers in State v. Shack were entitled to receive visitors over the landowner's objection is: (a) First possession theory. (b) Labor theory. (c) Utilitarian theory. (d) Civil republican theory.

(c) Utilitarian theory. The sentiment in Shack that property rights "serve human values" and "are recognized toward that end" reflects classic utilitarian theory.

3.2 J owned an expensive gold pen. When J became seriously ill, he wrote a will leaving all his property to his wife, G. J then summoned A to his bedside and handed her his pen, saying: "Take this. I want you to have it to remember me by." A took the pen and J died shortly thereafter. Who has the better claim to the pen? (a) G because J left all of his property to her. (b) G because J did not have a present intent to give the pen to A. (c) A because she has present possession of the pen. (d) A because J made a valid gift causa mortis.

(d) A because J made a valid gift causa mortis. J satisfied all the requirements for making a gift causa mortis. Contemplating his death, J had the necessary donative intent, manually delivered the pen, and A accepted his gift. (a) is incorrect since J's will only controls property in his estate at his death; and he already had given away his pen. (b) is incorrect since J did have present intent to make the gift. (c) is incorrect because possession alone will not be sufficient for A to gain priority over G.

9.9 A and B owned adjacent 50-acre parcels where each operated a horse ranch; both parcels adjoined Highway 21, a public road. In 2000, A obtained B's oral permission to install a 100-foot long water pipeline on the surface of part of B's land, to provide water for A's barn by connecting the barn to the main public water line, which ran along Highway 21; this was beneficial to A because this meant the line could be shorter than if it ran entirely through A's own land. A installed the pipeline, which was painted it orange so that it could be easily seen. B recently sold his horse ranch to C. C now demands that A remove the pipeline. Under these circumstances, the most likely outcome is: (a) A must remove the pipeline because C did not agree to have it on his land. (b) A must remove the pipeline because C is a bona fide purchaser. (c) A must remove the pipeline because any easement A had was only in gross, not appurtenant. (d) A has a right to keep the pipeline in place.

(d) A has a right to keep the pipeline in place. A has an irrevocable license because B allowed him to install the pipeline, A relied on the license in good faith by installing the line, and B knew that this reliance would occur. (a) is incorrect because C, as a successor to B, is bound by the license unless he is a bona fide purchaser. (b) is incorrect because C is charged with notice of any right which could have been discovered by a physical inspection of the property, and the orange pipeline would have been obvious. (c) is incorrect because the license benefited A in the use of his property by providing water for his horses, so it is appurtenant and the burden thus runs to C. The same result would occur under the modern view even if it was in gross.

2.9 R owned an undeveloped tract of farm land, located 200 feet from a large river. T's barren and undeveloped 10-acre parcel was located immediately between R's land and the river. Four years ago, R installed a pipeline across the surface of T's land which R uses to bring water to irrigate R's crops during the summer months. Under these circumstances: (a) R has acquired title to the land underneath the pipeline. (b) R has not acquired title to the land underneath the pipeline because his use was not continuous. (c) R has acquired a right to take water from the river under the riparian approach. (d) R has acquired a right to take water from the river under the prior appropriation approach.

(d) R has acquired a right to take water from the river under the prior appropriation approach. R was the first person to put the water to beneficial use, here farming, and thereby obtained a right to the water under the prior appropriation approach. (a) is incorrect because R only used the pipeline for four years, which is not long enough for adverse possession. (b) is incorrect because the pipeline was always in place, so its existence was continuous, even if it was only used during summer months. (c) is incorrect because R's land does not adjoin the river.

8.1 In February, B agrees to sell his family home, Redacre, to D. Both B and D sign a written purchase contract that provides that the closing is to take place on May 1. D gives B a deposit of $25,000. B agrees to deliver title to, and possession of, Redacre on that date. In mid-April, a devastating tornado destroys the home. B receives $250,000 from his insurance company for destruction of the home. At common law, which of the following is correct? (a) D is entitled to rescind the contract and have his deposit returned. (b) D is entitled to rescind the contract but cannot have his deposit returned. (c) B is entitled to specific performance but must abate the purchase price by the loss in value caused by the destruction to the home. (d) B is entitled to the full purchase price from D and can keep the entire amount of the insurance award.

(d) B is entitled to the full purchase price from D and can keep the entire amount of the insurance award. If the property is damaged during the executory period, the common law placed the risk of loss on the buyer. Absent a provision in the purchase agreement on who bears the risk of loss, the doctrine of equitable conversion views the buyer as the equitable owner of the property. Therefore, B is entitled to receive the full contract price from D. Insurance proceeds are deemed to be a personal contract between the insurance company and the insured party. Since B paid for the policy, and is the named insured, any proceeds are B's.

4.2 Newspaper A designs a computerized form for its employees to report on their deliveries of newspapers. The form contains the following information: route number; date; hours worked that day; hourly pay rate; total pay due for that day; and the employee's signature. Each employee must fill out the form every day that he or she works. Newspaper B copies this form for use by its own employees. When A sues B, the most likely outcome is: (a) A wins under the doctrine of equivalents. (b) A wins because of striking similarity. (c) B wins under the fair use defense. (d) B wins because the form cannot be copyrighted.

(d) B wins because the form cannot be copyrighted. A's form is not sufficiently original to qualify for copyright protection under the Feist test, so it is not necessary for B to assert the fair use defense. The doctrine of equivalents is a patent concept, so (a) is incorrect.

5.4 M conveys his house to "C for life, then to Q's widow for life, then to C's children living at the time of Q's widow's death." C is 21 years old, unmarried with no children. Q is 84 years old, happily married to R who is 91 years old, with four adult children. The common law Rule Against Perpetuities applies in this jurisdiction. Who has what interest in the house? (a) C has a life estate; Q's widow has a contingent remainder in life estate; C's children have a contingent remainder in fee simple; M has a reversion. (b) C has a life estate; Q's widow has a life estate; C's children have a contingent remainder in fee simple; M has a reversion. (c) C has a life estate; Q's widow has a vested remainder in life estate; C's children have a contingent remainder in fee simple; M has a reversion. (d) C has a life estate; Q's widow has a contingent remainder in life estate; M has a reversion.

(d) C has a life estate; Q's widow has a contingent remainder in life estate; M has a reversion. C has a life estate because of the words of limitation "for life." Q's widow has a contingent remainder in a life estate because she is unascertainable. Q is alive at the time of the grant; therefore, his widow will only be ascertained at his death. This contingent remainder does not violate RAP because it must vest, if at all, immediately upon a life in being's (Q's) death. C's children have a contingent remainder because they are unascertainable since C has no children. This contingent remainder violates RAP and therefore is void ab initio. Q could marry X, who is not alive at the time of the grant (and therefore is not a life in being). C could have a son, Z, who is not alive at the time of the grant (and therefore is not a life in being). Thirty years after all lives in being (M, C, Q, and R) die, X could die. At that moment, Z's interest would vest—which is at a point beyond the life in being plus 21 years. This provides one instance of remote vesting; and therefore, the contingent remainder in C's children is stricken from the conveyance.

5.1 O conveyed Greenacre to "B so long as it is used as a school, and if such use ever ceases, then to C, if living." At the time of the grant, B is 90 years old and C is five years old. In a jurisdiction that applies the common law Rule Against Perpetuities, which of the following is correct? (a) C has no interest because what would have been a contingent remainder violates the Rule Against Perpetuities. (b) C has a contingent remainder. (c) C has no interest because what would have been an executory interest violates the Rule Against Perpetuities. (d) C has an executory interest.

(d) C has an executory interest. C has an executory interest because it is an interest in a third party that follows a fee simple defeasible; a remainder cannot follow a vested fee simple. The Rule Against Perpetuities (RAP) is not violated because the interest must vest, if at all, during C's life; the conveyance reads "...to C, if living".

1.2 B holds title to Redacre, a 100-year-old mansion. Over the objection of his family and his neighbors, he plans to demolish Redacre in a week. The neighbors file suit, seeking a court order to prevent the demolition. A court is most likely to stop the demolition if: (a) Demolition would lower the value of adjacent houses. (b) The mansion is listed on the National Register of Historic Places. (c) Demolition would leave B penniless. (d) Demolition would release asbestos particles that endanger public health.

(d) Demolition would release asbestos particles that endanger public health. As a general rule, a landowner has a broad right to destroy property during his lifetime. While factors (a) and perhaps (c) were present in Eyerman, that case involved destruction after the owner's death; the court stressed that a living person has the power to dispose of his property "with fewer restraints than a decedent by will." A listing on the National Register does not restrict an owner's right to destroy, so (b) is incorrect. But if the demolition will be done in a manner that releases dangerous asbestos particles into the air, a court would probably enjoin it as a nuisance.

3.3 In which of these examples has W successfully given her pen to V, her partner? W calls V into W's bedroom. (a) Taking the pen from her heavy desk, W hands the pen to V and declares, "I want you to have my pen when I die. Keep it safe." (b) Pointing to her heavy desk, W declares, "I want you to have my desk and everything in it." Inside the desk is the pen. (c) Pointing to her heavy desk, W declares, "I want you to have my desk and everything in it." W gives V a key that unlocks the desk. Inside the desk is the pen. (d) Distracted by the television, V does not see W place the pen in V's back pocket, although she does hear W declare, "I want you to have my pen."

(d) Distracted by the television, V does not see W place the pen in V's back pocket, although she does hear W declare, "I want you to have my pen." W manually transferred the pen to V and had the simultaneous intent to give the pen to her. Acceptance of a valuable item such as a gold pen is presumed. (a), (b), and (c) each lack one of the required elements for a valid gift: in (a), there is no present intent to make an immediate transfer; in (b) there is no delivery—the pen, which is capable of manual transfer, stays in the desk; in (c), there is no delivery—W has made a valid delivery of the desk, but the pen must be manually transferred to V.

2.8 O owned a 50-acre tract of desert, where the only viable economic use was grazing goats for six weeks each spring. Because O was a committed environmentalist who wanted to preserve the natural vegetation on his land, he built a ten foot high fence around the parcel in order to exclude animals. In March, 2006, F broke a large gap through the fence, and brought in his flock of 1,000 goats to feast on the spring vegetation for six weeks. O first noticed the gap in July, and repaired it. This same pattern of fence breaking, grazing use, and fence repair occurred every year thereafter until the present. Under these circumstances, assuming the adverse possession period is five years: (a) F did not have open and notorious possession. (b) F did not have actual possession. (c) F did not have continuous possession. (d) F acquired title by adverse possession.

(d) F acquired title by adverse possession. F has met all the elements for adverse possession in most states. (a) is incorrect because the repeated destruction of the fence should put O on notice of F's use. (b) is incorrect because the nature of the required use for actual possession is dictated by the character, location, and nature of the land; here, the only viable use is goat grazing, and O's desire to preserve the environment is irrelevant. (c) is incorrect because the required continuity is dictated by the character, location, and nature of the land, and here six weeks of grazing is all the land will permit.

4.10 F, a huge fan of the Harry Potter books, decides to write a book which uses a boy wizard called "Charlie Cotter" as the main protagonist. Charlie Cotter has essentially the same traits and characteristics as Harry Potter, but F's story is set in Australia in 1900, where Charlie Cotter must use his magic talents to help poor sheepherders contend with evil forces. If F is sued for copyright infringement, the most likely outcome is: (a) F will win because she did not copy any of the protected expression in the Harry Potter books. (b) F will win because she is telling an entirely different and original story. (c) F will win because of the fair use defense. (d) F will lose.

(d) F will lose. The Harry Potter character is sufficiently unique to qualify for copyright protection, separate and apart from the copyrights in the text of the novels; accordingly, answer (a) is incorrect. (b) is incorrect because F cannot use a copyrighted character. (c) is incorrect, because she cannot prove the fair use elements.

7.10 X leases a retail store space to Z for a term of 10 years. Z uses the premises as an art gallery, selling paintings that she has created over the years. Five years into the lease, Z fires her two employees and hangs a sign on the gallery door that says "Closed for Painting," but continues paying rent thereafter. Two months later, while peering through a window, X sees that the gallery is empty aside from two chairs, a cash register, and five paintings stacked against the wall. The same day X receives the following email from Z: "Gone to France. Sorry for the mess. It's all my fault. Best wishes, Z." One week later, X breaks down the gallery door with an axe, enters the gallery, changes the locks, and removes everything Z had left there. The next day, Z returns from France with 30 new paintings that she has created, and demands that X let her into the gallery. Under these circumstances: (a) X acted properly because Z abandoned the premises. (b) If the jurisdiction does not allow self-help eviction, X acted properly because Z waived any right she might have had to insist that X bring a lawsuit to evict her. (c) If the jurisdiction allows self-help eviction, X acted properly because he used a reasonable amount of force to retake possession of the premises. (d) If the jurisdiction allows self-help eviction, X acted improperly because he did not have the right to possession of the premises.

(d) If the jurisdiction allows self-help eviction, X acted improperly because he did not have the right to possession of the premises. Even in jurisdictions that allow self-help, the landlord must have the legal right to possession of the premises. Here, X is still paying rent and, presumably, complying with other lease terms, so Z is not entitled to possession. (a) is incorrect because X continued to pay rent, so one of the elements of abandonment is missing. (b) is incorrect because (1) in a jurisdiction that requires the landlord use litigation to evict a tenant, the tenant generally cannot waive this protection, due to public policy concerns and (2) there is no evidence that X intended to waive her rights. (c) is incorrect because Z used an excessive amount of force; for example, he could have had a locksmith change the locks.

2.2 T works at the county tax assessor's office. One day he notices that no one is paying taxes on a 50-acre parcel of forest land, so he decides to adversely possess the land. He nails four small signs to trees on the land; each sign states: "Property of T." Each summer, he camps out on the land for two weeks; and every December he comes to the property to cut Christmas trees for his family and friends. Assuming that these activities continue for the ten-year period required for adverse possession: (a) In most states, T has not acquired title by adverse possession because he knew he did not own the land. (b) In most states, T's activities were too infrequent and sporadic to be seen as continuous possession. (c) In most states, T's activities would not be seen as actual possession because a reasonable owner would use the land in a more intensive manner. (d) In most states, T has acquired title by adverse possession.

(d) In most states, T has acquired title by adverse possession. In most states, the adverse claimant's state of mind is irrelevant, so (a) is incorrect. Even minor and sporadic activities will meet the continuity requirement for wild and undeveloped land, as you saw in Gurwit, so (b) is incorrect. T has used the land in a more intensive manner than most owners of forest land would, so (c) is incorrect. The best answer is that T has acquired title by adverse possession, like the claimants in Gurwit.

1.7 K plants a row of young oak trees next to the fence that separates his residential lot from L's lot. Two years later, L installs a new swimming pool in his backyard. Over time, K's trees grow so large that they (a) occasionally cast shadows onto L's pool (making the pool water colder to swim in) and (b) drop some leaves into the pool (forcing L to clean the pool monthly). K's row of trees: (a) Is an illegal spite fence. (b) Is a nuisance because the trees drop leaves into L's pool. (c) Is a nuisance because the trees shadow L's pool. (d) Is neither a spite fence nor a nuisance.

(d) Is neither a spite fence nor a nuisance. Even assuming that the trees could be viewed as a "fence," here K did not plant the trees with malice, so they cannot be a spite fence. Turning to the elements of private nuisance, it seems unlikely that the level of interference with L's use is "substantial." Neighborhood trees routinely cast shadows and drop leaves. In any event, K's conduct is not "unreasonable." The utility of the trees (summer temperature reduction due to shade; aesthetic pleasure; etc.) is greater than the gravity of harm they cause to L.

3.6 In 1980, J secretly took a small statue from his friend G's desk. J brought it home and placed it on his living room mantle where it has remained since then. G had purchased the statue at a garage sale for $10. When he discovered it was missing several months later, G did nothing except complain to his friends that "someone stole my junky statue." For the past two decades, J's home has been included in the yearly "Tour of Historic Homes." J's home also has been featured in numerous home decoration magazines for the past decade, and pictures of the statue atop J's mantle have frequently appeared in these publications. While on a visit to his dentist, G read a magazine and noticed the picture of his statue on J's mantle. The statue is currently valued at $75,000. G sues J for the return of the statue. This jurisdiction applies a ten-year statute of limitations to the recovery of possession of property. It also applies the discovery rule. Does G or J have the better right to the statue? (a) G because he is the true owner, and the statue is personal property. (b) G because he did everything a normal person would do if he found a small item missing. (c) G because the discovery rule provides that the statute of limitations only begins to run from the time G first learns of J's possession. (d) J because he adversely possessed the statue.

(d) J because he adversely possessed the statue. Even though J is a thief, he can gain good title through adverse possession. J did not attempt to conceal the statue, and the yearly home tours and frequent magazine photographs likely would enable J to meet the elements for adverse possession of a personal property item. (a) is incorrect because the facts recited have no legal significance to the issue at hand. (b) is incorrect because the discovery rule requires that G, at minimum, report the theft to the police. (c) is an incorrect statement of the discovery rule.

7.9 T leases a condominium unit from L pursuant to a written lease which creates a month-to-month periodic tenancy. The lease provides, among other things, that "T is responsible for any and all needed repairs to the premises." When L's friend B, enraged that his favorite football team lost the championship, angrily throws a football toward T's unit, it shatters one of the windows. T complains to the police about B's conduct. When T asks L to fix the window, L refuses. Under these circumstances: (a) T can successfully assert the defense of retaliatory eviction if L now tries to evict T. (b) T is obligated to repair the window pursuant to the lease. (c) If the lease contained no clause about the duty to repair, L would not be obligated to repair the window because it is a minor problem. (d) L is obligated to repair the window.

(d) L is obligated to repair the window. L is obligated to repair the window under the implied warranty of habitability because a broken window is a significant hazard to T's health and safety. The broken glass shards could injure T, while the open window would allow rain, wind, and cold to enter the unit. (a) is not correct because the retaliatory eviction doctrine does not cover retaliation for all reasons, but rather only for certain reasons; retaliation for reporting the landlord's friend to the police is not covered. (b) is incorrect because, in general, the implied warranty of habitability cannot be waived by the tenant. (c) is incorrect because the broken window is not a "minor deficiency" under Wade, such as a small water leak, a wall crack, or a need for paint.

4.4 After ten years of extensive research, W discovered that Shakespeare was actually a woman. W wrote and published a 550-page book called The Truth About Shakespeare that documented his conclusions. Six years later, M wrote a screenplay for a fictional movie with the same theme; he incorporated some of the historical incidents set forth in W's book into the screenplay. M's screenplay is used to produce the award-winning movie Shakespeare Revealed. If W sues M, the most likely outcome is: (a) W will win because his copyright was infringed. (b) M will win because W's book was not sufficiently original. (c) M will win under the fair use defense. (d) M will win because his screenplay did not infringe W's copyright.

(d) M will win because his screenplay did not infringe W's copyright. Copyright protects the expression of an idea, not the idea itself. A fact (such as Shakespeare's gender) is viewed as an unprotected idea. M has no need to assert the fair use defense, so (c) is incorrect. (b) is incorrect because even assuming that W's book was sufficiently original, M used only the facts in the book; M did not copy W's expression of those facts.

6.8 H and W were married for two years. H died unexpectedly and his will left all his assets to his mother. At death, H owned: (i) an interest in Greenacre, which H owned as a joint tenant with his brother, B; (ii) a $15,000 Rolex watch that W had given him for their first anniversary; (iii) a life estate in Redacre; and (iv) a commercial building (Moneyacre) that H had purchased in fee simple prior to marrying W. In a separate property state that recognizes dower, W has dower rights in which of the following assets: (a) Greenacre and Redacre. (b) Greenacre, Redacre, and the watch. (c) Greenacre, Redacre, and Moneyacre. (d) Moneyacre.

(d) Moneyacre. Dower is the right of the surviving spouse to a life estate in 1/3 of all freehold land that was seized by the deceased spouse during marriage and inheritable by that spouse's issue. The fact that Moneyacre was purchased before marriage is of no consequence as long as H was seized of Moneyacre sometime during the marriage. (a), (b), and (c) are incorrect since H's interests in Greenacre (joint tenancy) and Redacre (life estate) both expire upon his death and are not inheritable by his issue. In addition, the watch is personal property; dower applies only to real property.

7.7 T enters into an oral agreement to lease L's house "on a year to year basis." But when T arrives to move into the house on the first day of the lease term, he discovers that the house is still occupied by P, the prior tenant, who has remained in possession even though her lease term has expired. Under these circumstances: (a) The oral agreement is unenforceable due to the Statute of Frauds. (b) T has a term of years tenancy. (c) T is entitled to cancel his agreement with L if the jurisdiction follows the American rule. (d) P is a tenant at sufferance.

(d) P is a tenant at sufferance. P is a tenant at sufferance because she rightfully entered into possession, but then continued in possession after her lease term ended. The oral agreement does not violate the Statute of Frauds because only the length of its initial term is counted, and the Statute does not apply to a term which is one year or less, so answer (a) is incorrect. (b) is incorrect because T's tenancy will be renewed for successive years unless notice is given; it is a periodic tenancy. Finally, (c) is incorrect because the American rule does not require the landlord to deliver physical possession of the premises.

6.4 R and J are joint tenants in Redacre. R transfers his interest to S. While J is on sabbatical in France, S takes up exclusive occupation of Redacre. Which of the following is true in most jurisdictions? (a) S must account to J for the fair rental value of Greenacre. (b) S must account to J for ½ of the fair rental value of Greenacre. (c) S must make a contribution to J for ½ of the fair rental value of Greenacre. (d) S is not liable for any part of the rental value of Greenacre.

(d) S is not liable for any part of the rental value of Greenacre. The prevailing rule is that a cotenant in possession does not owe any rent to a cotenant out of possession, absent an ouster. When R transfers his interest to S, S and J become tenants in common. Since S never prevents J from using or occupying the premises, there is no ouster.

8.4 S owns Greenacre. In a crowded room with all his close relatives present, S makes one of statements below. In which of the following cases is the deed delivered? (a) S hands the deed to B, saying "At the end of the month, it's yours. Take it and record it then." (b) S hands the deed to B, saying "Record it immediately, then Greenacre will be yours when I die." (c) S hands the deed to B, saying "I recorded this deed yesterday in your name as I want you to have Greenacre immediately when I die." (d) S places the deed on the table, saying "Greenacre is yours, B."

(d) S places the deed on the table, saying "Greenacre is yours, B." Delivery is an act manifesting intent to make a present transfer. Manual transfer of the deed to the transferee is unnecessary as long as there is present intent. While manual transfer and/or recording does create a presumption of delivery, in (a), (b), and (c) the requisite intent is absent. Therefore, while S merely places the deed on the table in (d), his verbal statement, acknowledged by everyone in the room, demonstrates a present intent to be bound.

6.6 H and W are happily married. They buy a small restaurant and take title as tenants by the entirety. H spends most of his time working at the restaurant while W stays at home raising her son from a prior marriage. W is independently wealthy. The industrial stove in the restaurant breaks down and H immediately goes to the bank to borrow money to purchase a replacement. The bank requires H to sign a promissory note and a mortgage, which he does. The mortgage lists the restaurant as security for the loan. Unfortunately, the restaurant does not succeed and H defaults on the payments to the bank. Which of the following is true in a majority of jurisdictions that recognize tenancies by the entirety? (a) H and W are jointly and severally liable for the loan. (b) The bank can only foreclose on H's survivorship right in the restaurant. (c) The mortgage severed the right of survivorship; the bank can foreclose on all of H's interest in the restaurant. (d) The bank has no interest in the restaurant.

(d) The bank has no interest in the restaurant. In a majority of jurisdictions that recognize tenancies by the entirety, one spouse cannot unilaterally encumber his interest. As the Sawada court stated, neither spouse has a separate divisible interest in the property that can be conveyed to third parties or reached by creditors. Therefore, H could not unilaterally convey any interest to the bank.

9.6 In 1980, AAA Corporation developed a 50-unit condominium project called "Swim World," which was intended to appeal to swimmers. The project included five Olympic size swimming pools. The recorded CC&Rs proclaimed that Swim World would be "the finest condominium project in the nation for swimmers," and created a homeowners association to "maintain and protect the five pools in the Swim World project." The 50 units sold quickly to avid swimmers, but over the years most of the original buyers resold their units, and most of the later buyers valued the project more for its convenient location than for its swimming pools, which were both very expensive to maintain and rarely used; a petition signed by the owners of 45 units asked the board to close the pools. Recently, the board of directors of the homeowners association voted to close the five swimming pools because "the maintenance costs are too high." S, an avid swimmer, objected to this decision. Under these circumstances, the most likely outcome is: (a) The board's decision is proper due to changed circumstances. (b) The board's decision is proper because most owners effectively abandoned the pools. (c) The board's decision is proper because most owners wanted to close the pools. (d) The board's decision is improper.

(d) The board's decision is improper. The decision was improper because the board acted beyond its authority under the CC&Rs; closure of the pools contravenes an express provision of the CC&Rs, and thus violates the Schafer standard. (a) is incorrect because the pools are still of benefit to some residents. (b) is incorrect because no abandonment occurred. (c) would be correct if the residents had formally voted to amend the CC&Rs, but this did not occur; a petition cannot substitute for a formal vote.

4.9 Mark Twain published his novel The Adventures of Tom Sawyer in 1876. Last year, A created a new book called Tom Sawyer and the Zombies. A's book copies about 150 pages of text from the original Twain book, but cleverly adds 50 pages of new material, inserted at different places into the Twain text, to add a zombie story line to the classic story. If Twain's heirs sue A, the most likely outcome is: (a) The heirs will win because A infringed the copyright in The Adventures of Tom Sawyer. (b) The heirs will lose because A added his own material to the old novel. (c) The heirs will lose a copyright infringement lawsuit because A can successfully assert the fair use defense. (d) The heirs will lose for another reason.

(d) The heirs will lose for another reason. Any work which was "published" in the U.S. before 1923 is in the public domain, and anyone may use it freely. (a) is incorrect because the copyright has expired. (b) is incorrect because even a copier who adds material to a copyrighted work is still liable for copyright infringement. (c) is not the best answer, because if the work were still copyrighted it seems unlikely that A could win a fair use defense, even though there might be an element of parody.

9.3 A, B, C, and 247 other homeowners live in a residential subdivision called "Spring Meadows." Last year, the X Corporation purchased the only large tract of undeveloped land remaining in the Spring Meadows development. X Corporation built a high-security laboratory on the land to conduct research into biological warfare techniques. The laboratory complex is extremely safe. X Corporation estimates the risk that any dangerous disease organisms will escape from the complex to be less than 1 in 100 in any given year. Based on these facts: (a) The laboratory is not a nuisance because any invasion would be trespassory. (b) The laboratory is not a nuisance because there has been no actual interference with the homeowners' use and enjoyment of their properties. (c) The laboratory is not a nuisance because the X Corporation does not intend to cause harm and has no knowledge that its facility will do so. (d) The laboratory is a nuisance.

(d) The laboratory is a nuisance. The best answer is (d) because under the Restatement standard the gravity of the threatened harm (risk of death or serious illness for thousands of people) outweighs the utility of the conduct (biological warfare research) at least in this location, a residential subdivision. (a) is incorrect because disease germs would be treated as a nuisance, like dust or smoke; actual interference is not required where there is a severe risk of harm, so (b) is incorrect; and the knowledge of X Corporation that the escape of germs is possible meets the "intent" test.

8.2 Which of the following statements is not true? (a) Property can be marketable yet valueless. (b) Specific performance is an equitable remedy that requires the breaching party to perform the contract. (c) A recorded document might not give constructive notice to a searcher. (d) The recording acts have replaced the common law principle of "first in time" in many jurisdictions.

(d) The recording acts have replaced the common law principle of "first in time" in many jurisdictions. "First in time" is still the rule in most jurisdictions. The recording acts allow a subsequent purchaser who meets the statutory requirements to gain priority over the "first in time" party.

6.5 F is a wealthy bachelor and owns extensive lands in Ohio. His most treasured property is Moneyacre, a large, mineral-rich parcel in the center of the state. F meets W and falls in love. F and W marry and begin their life together in Ohio. A few years later, F sells Moneyacre to T, a bona fide purchaser who has no knowledge of F's marriage to W. Several years later, F dies. Unfortunately, F's will reads, "All to Matilda, my true love." W is crushed. Ohio is a jurisdiction that still recognizes dower rights. Which of the following is correct? (a) T owns Moneyacre free of any interest of W because T was a bona fide purchaser without notice. (b) T owns Moneyacre free of any interest of W because F acquired the parcel before his marriage to W. (c) W holds Moneyacre in fee simple absolute. (d) W holds a life estate in an undivided 1/3 interest in Moneyacre.

(d) W holds a life estate in an undivided 1/3 interest in Moneyacre. Dower provides the surviving spouse a life estate in 1/3 of all the freehold land which was owned by the decedent spouse and inheritable by his issue. F owned Moneyacre in fee simple. He owned the estate during the marriage, and it was an inheritable interest. Therefore, inchoate dower rights attached immediately upon marriage. F cannot destroy these, even by a conveyance out to a third party. When F dies, W can assert her dower interest in Moneyacre against T.

6.3 H, S, and T own Greenacre as joint tenants. H sells his interest to X without notifying either S or T. One day later, S dies intestate as a result of a tragic chain saw mishap, leaving Y as his only heir. The next day, T dies. T's will leaves T's entire estate to Z. Who has what interest in Greenacre? (a) X and Z own Greenacre as joint tenants. (b) X, Y, and Z own Greenacre as joint tenants. (c) X and Z own Greenacre as tenants in common, in equal shares. (d) X and Z own Greenacre as tenants in common, in fractional shares of 1/3 and 2/3.

(d) X and Z own Greenacre as tenants in common, in fractional shares of 1/3 and 2/3. When H sells his interest to X, H severs the joint tenancy and X becomes a tenant in common with S and T (who retain their survivorship rights vis-à-vis each other). X has an undivided 1/3 share; S and T have an undivided 2/3 share. When S dies, his participation interest is removed, and T owns the 2/3 share as a tenant in common with X. When T dies, T's 2/3 interest passes to Z. X and Z are tenants in common, owning fractional shares of 1/3 and 2/3 respectively.

6.9 X, Y, and Z own Greenacre as cotenants. X builds a swimming pool in the backyard and incurs all the costs herself. Absent an agreement, which of the following is true in most jurisdictions? (a) Y and Z are obligated to pay their proportionate share of the cost because they each have an undivided right to use and possess Greenacre. (b) Y and Z are obligated to pay their proportionate share of the cost only if they are cotenants in possession. (c) Y and Z are obligated to pay their proportionate share of the cost if they refuse to let X occupy Greenacre. (d) Y and Z are not obligated to pay their proportionate share of the cost; however, upon partition, X will receive a credit equal to the increased market value produced by the improvement.

(d) Y and Z are not obligated to pay their proportionate share of the cost; however, upon partition, X will receive a credit equal to the increased market value produced by the improvement. Upon partition, a cotenant who improves property is entitled to a credit for the added property value produced by the improvement. If there is a partition in kind, the court will usually assign the improved portion of the property to the improving cotenant. (a) and (b) are incorrect because a cotenant is not responsible for paying her proportionate share of improvements, regardless of her status as a possessor (although she may be responsible for paying her proportionate share of the carrying costs, such as mortgage payments, insurance, and taxes). (c) is incorrect because an ouster does not create an obligation to pay for costs of improvements.

3.11 X, Y, and Z were roommates in law school. After the summer of their first year, X and Z stayed on campus while Y interned at a foreign law firm in Australia. On Y's birthday, X wrote to Y: "Dear Y: I want you to have my painting which has been delivered to your parent's home and awaits your return." Y wrote back saying: "Dear X: Thank you for such a generous gift. I accept!" A few days before Y returned from her internship, she learned that Z objected to X's action, convinced X that Y had no rights to the painting, and counseled X to get the painting back. What owns the painting? (a) X, because X never manually transferred the painting to Y. (b) X, because she revoked her gift before Y gained possession of the painting. (c) Y, because the chain of correspondence between X and Y serves as an enforceable contract. (d) Y, because X parted with dominion and control when the painting was delivered to Y's parents, who acted as Y's agents.

(d) Y, because X parted with dominion and control when the painting was delivered to Y's parents, who acted as Y's agents. X's letter demonstrates donative intent, delivery is effected when X parts with dominion and control and gives the painting to Y's parents (Y's agents), and Y expressly accepts. (a) is incorrect since one can validly deliver a gift to the donee's agent. (b) is incorrect because generally inter vivos gifts are not revocable. (c) is incorrect because a gift, by definition, has no consideration, and without consideration there is no contract.

6.7 M and C are not married but have lived together for ten years. M gave up his career as a professional basketball player to help care for C and manage the home. M could have made a substantial amount of money if he had continued with his career. C gives M an allowance and pays for all his expenses. Throughout their relationship, C has consistently assured M that he "is her deep love" and "could always count on her to take care of him." Unfortunately, C has recently become enamored with a young business executive and has asked M to leave. In a jurisdiction applying the ruling in Roccamonte, does M have any rights to C's property? (a) No, there was no express agreement between M and C. (b) No, housekeeping and sexual relations are the normal social experience of couples that live together and cannot form the basis of a contract for services rendered. (c) No, there was no legally recognized consideration for any promises C made to M. (d) Yes, a contract can be implied from oral statements made by C within the context of a long marital-type relationship.

(d) Yes, a contract can be implied from oral statements made by C within the context of a long marital-type relationship. Roccamonte held that one cohabitant can have enforceable rights in the property of the other, even without an express contract. It is the undertaking of a way of life in which two people commit to each other that provides the consideration.

8.13 In January, S agreed to sell his home, Greenacre, to B. Both parties signed the purchase contract which provided, in part, that S would convey marketable title subject to "all restrictions and easements of record." The contract designated April 1 as the closing date. In March, B learned the following: (i) a city ordinance prohibited houses from being erected within three feet of the side lot line, while the Greenacre house was within 18 inches of the lot line; (ii) a private recorded restriction required all homes in the area be two-stories, while Greenacre was a single-story home; (iii) a private recorded restriction required all homes in the area be painted one of ten particular shades of beige, and Greenacre was painted one of the ten shades; and (iv) S only had a life estate in Greenacre. Which items rendered title unmarketable? (a) i, ii, iii, and iv. (b) ii and iv. (c) ii and iii. (d) i, ii, and iv.

(d) i, ii, and iv. Title is unmarketable if the seller's title is subject to an encumbrance or if the seller's property interest is less than the one he purports to sell. Item (i) made title unmarketable because Greenacre is in violation of the city ordinance. While the mere existence of a public ordinance does not make title unmarketable, the violation of the ordinance does because it exposes the owner to litigation. Item (ii) made title unmarketable because the private restriction was violated. Although the mere existence of a private encumbrance normally prevents marketable title, in this case it did not because the contract stipulated that B agrees to accept "all restrictions and easements of record." Because Greenacre's single-story status violated the private restriction, title is unmarketable. Item (iii) does not render title unmarketable because B agreed to accept all restrictions of record. Finally, Item (iv) made title unmarketable since S purported to convey a fee simple to B, but only held a life estate.

5.7 What estates and future interests are granted in each of the conveyances below? Assume that O holds a fee simple and that this jurisdiction applies the common law Rule Against Perpetuities. O conveys "to G for life, then to M for life, then to M's firstborn child for life." (M has no children.)

G: life estate M: vested remainder in life estate M's firstborn: contingent remainder in life estate O: reversion The words of purchase "to G" denote G as the grantee of the present possessory interest. The words of limitation "for life" identify the estate as a life estate. The words of purchase "to M" denote M as the grantee of a future interest. The words of limitation "for life" identify the estate (that will exist when the future interest becomes possessory) as a life estate. M's future interest is a remainder because (i) it is capable of becoming possessory immediately upon the expiration of the preceding estate and (ii) it cannot divest any other interests. It is vested because (i) M is ascertainable at the time of the conveyance and (ii) there is no condition precedent to her receiving the estate. The words of purchase "to M's firstborn child" denote M's first born as the grantee of a future interest. The words of limitation "for life" identify the estate (that will exist when the future interest becomes possessory) as a life estate. M's firstborn's future interest is a remainder because (i) it is capable of becoming possessory immediately upon the expiration of the preceding estate and (ii) it cannot divest any other interests. It is a contingent remainder because, at the time of the conveyance, the firstborn child of M is unascertainable; the child is not yet born. Since O carved out a smaller estate (three successive life estates) from his larger estate (a fee simple), he retains a future interest known as a reversion, which will become possessory upon the expiration of the last life estate.

5.8 What estates and future interests are granted in each of the conveyances below? Assume that O holds a fee simple and that this jurisdiction applies the common law Rule Against Perpetuities. O conveys "to M for life, then to P and his heirs, but if P dies without issue, then to T and his heirs if T is alive."

M: life estate P: vested remainder in fee simple subject to an executory limitation T: shifting executory interest in fee simple absolute O: reversion The words of purchase "to M" denote M as the grantee of the present possessory interest; thus, she receives the estate. The words of limitation "for life" identify the estate as a life estate. The words of purchase "to P" denote P as the grantee of a future interest. The words of limitation "and his heirs" identify the estate (that will exist when the future interest becomes possessory) as a fee simple. The interest is a remainder because (i) it is capable of becoming possessory immediately upon the expiration of the preceding estate and (ii) it cannot divest any other interests. It is vested because P is (i) ascertainable at the time of the conveyance and (ii) there is no condition precedent. However, the words "but if" are words of limitation that create a defeasible fee. Since P's defeasible fee simple interest is followed by a future interest in a third party, P has a vested remainder in fee simple subject to an executory limitation. The words of purchase "to T" denote T as the grantee of a future interest. The words of limitation "and his heirs" identify the estate (that will exist when the future interest becomes possessory) as a fee simple. Since P's defeasible fee simple is followed by a future interest in a third party, T's interest is an executory interest. It is a shifting interest because T, a transferee, will divest P, another transferee, of the estate. This executory interest does not violate RAP because it can vest only if T, a life in being, is alive. O retains a reversion. T might die before "P dies without issue." If this happens, the future possessory right vests in O, the holder of a reversion.

5.10 What estates and future interests are granted in each of the conveyances below? Assume that O holds a fee simple and that this jurisdiction applies the common law Rule Against Perpetuities. O conveys "to T for life, then to T's first child to graduate from high school and his heirs." (T has a 15-year-old son, K, presently in the 11th grade.)

The words of purchase "to T" denote T as the grantee of the present possessory interest. The words of limitation "for life" identify the estate as a life estate. The words of purchase "to T's first child to graduate from high school" denote the child as the grantee of a future interest. The words of limitation "and his heirs" identify the estate (that will exist if the future interest becomes possessory) as a fee simple. The interest is a remainder because (i) it is capable of becoming possessory immediately upon the expiration of the preceding estate and (ii) it cannot divest any other interests. It is contingent because, at the time of the conveyance, the child is unascertainable. If and when a child of T graduates from high school, the remainder will vest. O retains a future interest known as a reversion. A reversion will always follow a contingent remainder because someone must hold seisin in the estate at all times. Since a contingent remainder is not certain to vest, the grantor must retain a reversion. (a) Because the conveyance creates a contingent remainder, one must consider whether or not the interest violates RAP. (b) List the lives in being: T, K, and O are alive at the time of the conveyance. Therefore, they are the lives in being. (c) Give birth to any potential afterborns: T may have a child, N, after the conveyance. N is not a life in being for purposes of the rule. (d) Kill off the lives in being and add 21 years: suppose that in 2020, T, K (who is then 16), and O all die. The lives in being are now dead. The "RAP line" becomes 2041. (e) Is there any possibility that the contingent remainder may vest more than 21 years after all lives in being (T, K and O) die (past the 2041 "RAP line")? One possibility: T has a child, N, who is born in early 2020 (and therefore is not a life in being at creation). K, a weak student, never graduated from high school. One day after the birth of N, T, in his excitement over the news, slips in the snow, falls into K and O, and the three of them meet an untimely end. The lives in being are now dead. Twenty-two years later (in 2042), N, a poor student, graduates from high school, satisfying the condition precedent. His contingent remainder vests more than 21 years after the deaths of the lives in being, and RAP is violated. When a conveyance violates the Rule Against Perpetuities, it does so when it is made, not 21 years later. In the absence of reform tools, the offending interest is deleted. Hence, the contingent remainder in T's first child to graduate from high school is deleted. The conveyance now reads: O conveys "to T for life." T has a life estate. O has a reversion.