Real Property: Class Learning Qs

A landowner granted an easement over his front yard to a railway several decades ago for the purpose of operating a cable car system, which the railway then built. The railway used the system for many years, but ceased its operations when the system became rundown and unprofitable. Over 10 years ago, the railway removed the cables and tracks because they had become an eyesore. Three years ago, the landowner planted the area with grass. The applicable statute provides for a prescriptive period of 10 years. Last year, the railway received a state subsidy to reopen its system and is now planning to lay new tracks and cables over its right-of-way. The landowner has brought an action to quiet title and to restrain the railway from building on the landowner's land. If the landowner wins, what will be the likely reason? (A) The railway's removal of its cable and tracks combined with many years of nonuse indicates an intent to abandon the easement. (B) The railway's plan to build the new system will unreasonably interfere with the landowner's use of his fee simple. (C) The railway's easement terminated when it was no longer practical to utilize the easement for the purpose for which it was granted. (D) The railway's nonuse of the easement for a period beyond the prescription period terminated the easement.

(A) If the landowner wins it will be because the railway intended to abandon its easement. An easement can be abandoned provided two things are satisfied: nonuse of the easement together with some affirmative act taken on the property which would indicate an intent to abandon the easement. Mere nonuse would not be enough, no matter how long the easement was not used. It is the act taken on the property that shows the intent to abandon that is crucial. Here, the railway's acts in removing the cables and tracks can show the necessary intent. (B) is incorrect. The landowner had granted the easement to the railway, and if the easement has not been terminated, any interference claimed by the landowner is irrelevant. There is no indication that the railway is planning to use the easement in any way different from the use contemplated in the original grant. (C) is incorrect because easements are not terminated simply because the purpose is no longer "practical." (D) is incorrect. Nonuse of an easement will not terminate the easement unless there is also some physical act taken on the property itself that would show an intent to abandon the easement.

A landlord who owned a strip mall entered into a written five-year lease of one of the units with a discount retail perfumery. The lease provided for a monthly rent of $1,000, payable on or before the first day of each month. The perfumery dutifully paid its rent on time for two years and three months. At that time, with the oral permission of the landlord, the perfumery transferred its interest in the remainder of the lease to a dry cleaner in writing, and added a clause requiring the dry cleaner to get permission from the perfumery for any subsequent assignments. The dry cleaner promptly paid rent to the landlord for 14 months, and then asked the landlord to approve a transfer of its interest in the lease to a video rental store. The landlord gave her oral assent. To obtain the perfumery's approval of the transfer to the video store, the dry cleaner wrote a letter to the perfumery, promising that if any problems arose and anyone tried to go after the perfumery for money, the dry cleaner would "make it good." After the perfumery sent a letter back to the dry cleaner agreeing to the transfer, the dry cleaner executed a written transfer of its interest to the video store. The video store promptly paid rent for three months. Having failed to make any profits, the video store ceased paying any rent to the landlord and cannot be located. The landlord has been unable to find anyone interested in the unit. Given that any judgment against the video store would be worthless, from whom can the landlord collect the unpaid rent owed on the lease? (A) Either the perfumery or the dry cleaner. (B) The perfumery only, but the perfumery may recover in turn from the dry cleaner. (C) The perfumery only, and the perfumery has no recourse against the dry cleaner. (D) Neither the perfumery nor the dry cleaner.

(A) The landlord may collect the unpaid rent from either the perfumery or the dry cleaner. A complete transfer of the tenant's entire remaining term is an assignment of the lease. However, the original tenant can still be held liable on his original contractual obligation in the lease to pay rent; i.e., on privity of contract. (D) is therefore incorrect because the perfumery is liable for the rent. (B) and (C) are also incorrect. Because the covenant to pay rent touches and concerns, and hence runs with the tenant's leasehold estate, an assignee owes the rent directly to the landlord. If the assignee reassigns the leasehold interest, his privity of estate with the landlord ends, and he generally is not liable for the subsequent assignee's failure to pay rent in the absence of a specific promise to the landlord. However, even if the assignee made no promise to the landlord but did promise the original tenant that he would pay all future rent, the landlord may sue the assignee as a third-party beneficiary of the promise to the original tenant. Here, while the dry cleaner made no promise to the landlord, the dry cleaner did make a promise to the perfumery regarding the obligation that the perfumery owed to the landlord. Thus, the landlord can sue either the perfumery or the dry cleaner for the unpaid rent.

A landlord owns a six-unit strip mall. He offered to lease one of the units to a barista, who planned to open a gourmet coffee shop. Because the mall is located on a busy street, the barista insisted that the landlord install a metal fence around the outdoor seating area that would protect her customers. The landlord agreed to do so, and the barista signed a 10-year lease. A term in the lease stated, "The landlord agrees to maintain all structures on the property in good repair." Eight years later, the landlord sold the strip mall to a buyer. The buyer did not agree to perform any obligations under the leases. As instructed, the barista began paying rent to the buyer. The following year, the metal fence was in desperate need of repairs. Citing the lease terms, the barista asked the buyer to repair the fence, but the buyer continually refused to do so. The barista finally repaired the fence herself at a cost of $3,000 and then brought an appropriate lawsuit to recover the money. Absent any other facts, what is the barista likely to recover? (A) $3,000 from either the landlord or the buyer, because they are both in privity with the barista. (B) $2,700 from the landlord and $300 from the buyer, because that represents their pro rata shares. (C) $3,000 from the landlord only, because the buyer did not assume the lease obligations. (D) $3,000 from the buyer only, because a covenant to repair runs with the land.

(A) $3,000 from either the landlord or the buyer, because they are both in privity with the barista. The barista may recover the cost of the repairs from either the landlord or the buyer. A landlord's promise in a lease to maintain the property does not terminate because the property is sold. Although no longer in privity of estate, the original landlord and tenant remain in privity of contract, and the original landlord remains liable on the covenant unless there is a novation. A novation substitutes a new party for an original party to the contract. It requires the assent of all parties, and completely releases the original party. Because neither the barista nor the buyer has agreed to a novation, the landlord remains liable for the covenant because he and the barista remain in privity of contract even after the sale. Thus, the promise to repair can be enforced against the landlord. When leased property is sold, the purchaser is liable to the tenants for performance of all covenants made by the original landlord in the lease, provided that those covenants run with the land. A covenant runs with the land if the parties to the lease so intend and the covenant touches and concerns the land. Generally, promises to do a physical act, such as maintain or repair the property, are considered to run with the land. Thus, the buyer is liable because he is in privity of estate with the barista and the covenant to repair runs with the land. Consequently, both the landlord and the buyer are potentially liable to the barista for the repairs. (B) is incorrect because the barista may recover the full amount from either the landlord or the buyer. (C) is incorrect because the burdens of covenants that touch and concern the land run with the landlord's estate and become the burdens of the new landlord, regardless of whether the new landlord assumes the lease obligations. (D) is incorrect because, although it is true that a covenant to repair touches and concerns the land and runs with it upon assignment, the landlord as well as the buyer can be held liable.

A landlord leased an office building suite to an accounting firm for 10 years. The written lease contained a provision that utilities for the suite would be paid by "the lessee, his successors, and assigns." The accounting firm occupied the suite and paid the rent and utilities for four years. At that time, the accounting firm assigned the balance of the lease to a publishing company and vacated the premises. The assignment was in writing but contained no provision concerning the publishing company's assumption of the duties under the lease. The publishing company now occupies the suite and has paid the rent but not the utilities. If the landlord sues the publishing company for failure to pay the utilities, which of the following would be the publishing company's best defense? (A) The covenant to pay utilities does not run with the land. (B) The publishing company did not assume the covenant to pay utilities. (C) The accounting firm is solely liable for the utilities. (D) The publishing company and the landlord are not in privity of estate.

(A) The covenant to pay utilities does not run with the land. The publishing company's best defense would be that the covenant to pay utilities does not run with the land. The best way to get the correct answer is to use a process of elimination. (B) is incorrect because after an assignment, the assignee stands in the shoes of the original tenant in a direct relationship with the landlord. The assignee and the landlord are in privity of estate, and each is liable to the other on all covenants in the lease that run with the land, regardless of whether the assignee assumed the lease obligations. An assignment arises when a tenant makes a complete transfer of the entire remaining lease term, retaining no interest in the assigned premises. Here, the accounting firm transferred the remaining six years of the lease to the publishing company and retained no other interest. Accordingly, this was an assignment and the publishing company would be liable under privity of estate if the covenant to pay utilities runs with the land. Thus, not assuming the covenant is not a valid defense. (C) is incorrect because, although the original tenant is no longer in privity of estate with the landlord after an assignment, a tenant may still be held liable on its original contractual obligations to the landlord on privity of contract grounds. However, the publishing company also would be liable on privity of estate grounds, so the accounting firm is not solely liable. (D) is incorrect because, as explained above, the publishing company and the landlord are in privity of estate. Thus, the publishing company's best defense would be that the covenant to pay utilities does not run with the land, as choice (A) states. If it does not run with the land, the publishing company would not be bound to pay the utilities unless it assumed the covenant, which it did not.

A tenant moved out of the dormitory at a state college and rented a one-bedroom apartment not far from campus. She signed a one-year lease and moved in on September 1, two weeks before classes began. Rent was specified in the lease to be $750 per month. When classes began, she started walking from her apartment building to the college, and quickly found that the walk, much of which was on a busy street with no sidewalks, was much more difficult than she had thought it would be. After a month, the tenant moved out when she found another apartment. She sent the landlord the keys, together with a note apologizing for the sudden departure. The landlord immediately cleaned up the apartment and placed an ad in the paper. Since school had already started, it was difficult to find someone to take the apartment, and when the landlord found someone, the rent had to be lowered to $620. Which of the following is the most accurate statement concerning the landlord's rights? (A) The landlord was obligated to attempt to re-rent the property to help lower the tenant's damages, but will be able to recover his costs of the re-rental, any unpaid rent until he re-rented the apartment, and $130 per month for the balance of the lease. (B) The landlord was not obligated to attempt to re-rent the property to help lower the tenant's damages, but since he did he will be able to recover the costs of re-rental, any unpaid rent until he re-rented the apartment, and $130 per month for the balance of the lease. (C) The landlord was obligated to attempt to re-rent the property to help lower the tenant's damages, but will be unable to recover the costs of the re-rental since it was mandatory; however, he will be able to recover the difference in rent between what the tenant promised to pay and the amount secured on the re-rental. (D) The landlord was not obligated to attempt to re-rent the property to help lower the tenant's damages, and under these facts the tenant is only liable for the unpaid rent up to the time the landlord retook the apartment, and is not liable for any unpaid rent up to the re-renting, nor for any deficiency in rent.

(A) The landlord was obligated to attempt to re-rent the property to help lower the tenant's damages, but will be able to recover his costs of the re-rental, any unpaid rent until he re-rented the apartment, and $130 per month for the balance of the lease. The landlord was obligated to attempt to re-rent the property but may recover all of his damages. When a tenant wrongfully abandons the leasehold, the landlord has two choices: (i) treat the abandonment as an offer of surrender and accept by retaking the property, thus ending the leasehold and terminating the tenant's obligations from that moment; or (ii) attempt to relet the property on the tenant's account and hold the tenant liable for any difference between what the lease specified and what the landlord can now get on the reletting. For the landlord to choose option (ii), the mitigation of the tenant's damages and holding the tenant liable for the difference, the landlord's retaking and reletting must be done to mitigate the tenant's damages. (B) and (D) are incorrect, since the landlord is under an obligation to mitigate the tenant's damages. (C) is incorrect. Since a reletting was being attempted, the landlord could recover all losses, including the costs of reletting, the unpaid rent, and the difference in rent.

A developer divided his tract of land into four standard lots, which he conveyed to a doctor, a pilot, a carpenter, and an athlete, respectively. Each deed granted by the developer contained a covenant requiring that the property be used only for single-family housing. All deeds were duly recorded in the office of the county recorder of deeds. The doctor and the pilot proceeded to build single-family houses on their lots. The carpenter and the athlete did not develop their properties immediately. The doctor later sold her property to a nurse and included the covenant limiting use to singlefamily dwellings in the deed. The pilot sold his property to a flight attendant, but did not include the covenant in the deed. The carpenter sold her property to an electrician, and the deed contained the restriction. The athlete sold his property to a physical therapist, and the deed did not contain the restriction. All but the electrician's deed were duly recorded. Subsequently, the nurse died and her property passed by will to her daughter. The flight attendant gave her land to her son "for life." The electrician sold his property for value to a plumber. All three transfers of title were recorded, but none of the deeds mentioned the covenant. Which of the current owners below is not bound by the covenant? (A) The nurse's daughter, who received the property by will. (B) The flight attendant's son, who received the property for life. (C) The plumber, who purchased the property from the electrician. (D) The physical therapist, who purchased the property from the athlete.

(B) The covenant may not be enforced at law against the son. If all requirements are met for the burden of a covenant to run, the successors in interest to the burdened estates will be bound by the arrangement entered into by their predecessors as effectively as if they had expressly agreed to be bound. The requirements are: (i) The covenanting parties must have intended that successors in interest to the covenantor be bound by the terms of the covenant. The requisite intent may be inferred from circumstances surrounding creation of the covenant. This requirement is satisfied because the developer's deed to each of the grantees contained a covenant requiring that the property be used only for single-family housing. (ii) By virtue of the recording statutes, a subsequent purchaser of the promisor's land must have actual, inquiry, or constructive (record) notice of the arrangement at the time she purchased the land; otherwise, she is not bound. Here, the daughter, the son, and the physical therapist have at least constructive notice of the restriction because it is in their chain of title. Because the electrician's deed was never recorded, the plumber had a duty to inquire of the electrician where he obtained the property. Thus, the notice requirement is met. (iii) The covenant must "touch and concern" the land; i.e., the performance of the burden must diminish the landowner's rights, privileges, and powers in connection with her enjoyment of the land. The current owners' rights as landowners are diminished because they cannot use their land to construct multifamily dwellings. (iv) Finally, there must be horizontal and vertical privity. Horizontal privity requires that, at the time the promisor entered into the covenant with the promisee, the two shared some interest in the land independent of the covenant. The developer and each of the four original owners, as grantor and grantees, shared an interest in the land independent of the covenant. Vertical privity exists when the successor in interest to the covenanting party holds the entire interest that was held by the covenantor at the time she made the covenant. Here, the daughter, the plumber, and the physical therapist took the entire interest (fee simple absolute) from their predecessors. However, the son possesses only a life estate in the property, which is less than the fee simple absolute held by the flight attendant. Thus, vertical privity is lacking and the son cannot be bound by the covenant. (A) is incorrect because the daughter is bound by the covenant as discussed above. The fact that she took the property by will is irrelevant. In fact, taking in this manner increases the chance that the daughter will be bound because it means she is not a bona fide purchaser for value and thus not protected by the notice requirement of the recording act. (C) is incorrect because the plumber also is bound because he is charged with inquiry notice of the electrician's unrecorded deed, which contained the single-family restriction. (D) is incorrect because even though the physical therapist's deed did not contain the restriction, she will be charged with constructive notice of it. The restriction appears in the developer's deed to the athlete and thus is in the physical therapist's chain of title. Hence, she also is bound by the covenant.

An investor purchased a parcel of land and subdivided it into 25 one-acre lots. He prepared and filed a subdivision map, obtained all the necessary approvals, and began selling the lots. Each of the deeds conveying the lots contained language specifying that the property shall be used for residential purposes only and binding all buyers, their heirs and assigns, and their successors. Three years later, all but two of the lots had been developed as single-family residences. A developer whose commercial land abutted these remaining two lots purchased them from the investor, and received a deed that did not contain any language restricting the use of the property. The developer then sold the lots to a fast food chain, which intended to erect a franchise on the property. An accountant, who had purchased a lot from the investor and earned her living preparing tax forms out of her home for her neighbors, brings suit against the fast food chain, seeking to enforce the restrictions in the original deeds and enjoin construction of the restaurant. Which defense, if asserted, would provide the fast food chain with the best result? (A) The fast food chain was not aware of the restrictions when it purchased the property. (B) The neighborhood has significantly changed and allowing commercial use of the two lots will not affect the enforceability of the deed restrictions of the other 23 lots. (C) The accountant is violating the restriction contained in her deed. (D) The deed by which the developer took the property from the investor did not contain any restrictions on use.

(B) The fast food chain's best defense is that the neighborhood has significantly changed and that allowing commercial use of the two lots will not affect the enforceability of the deed restrictions of the other 23 lots. An injunction against breaching a covenant may be obtained by enforcing the covenant as an equitable servitude. An equitable servitude can be created by a writing complying with the Statute of Frauds concerning a promise that touches and concerns the land and indicates that the servitude exists, as long as notice is given to the future owners of the burdened land. Here, there was a promise that touched and concerned the land and indicated that a servitude existed (the deed restrictions), but the promise was not contained in the fast food chain's deed. Nevertheless, the court will imply a covenant—known as a reciprocal negative servitude—where evidence shows that the developer had a scheme for development when sales began and the grantee in question had notice of the plan. The covenant protects the parties who purchased in reliance on the scheme. Evidence of the scheme can be obtained from the general pattern of other restrictions, and notice can be from actual notice, record notice, or inquiry notice. Here, the recorded subdivision map evidences the investor's common scheme, and the fast food chain has inquiry notice of the restriction regarding nonresidential use because of the uniform residential character of the other lots in the subdivision. Thus, the covenant would be implied. However, a court may withhold injunctive relief if the neighborhood has changed significantly since the time the servitude was created such that it would be inequitable to enforce the restriction. But under the concept of the "entering wedge," if removing the restriction on an outer parcel will produce changed conditions for surrounding parcels, requiring that their restrictions also be lifted, the injunction will probably be allowed. Here, if the fast food chain can show that removing the restriction and allowing commercial development of the two lots would not produce changed conditions for the neighboring, similarly restricted lots, an injunction probably will not issue and the restriction will be terminated as to the two lots. (A) is incorrect because actual awareness of the restriction on the part of the fast food chain is not essential. Because it has inquiry notice (see above), the restriction could be enforced against the two lots absent a defense. (C) is not the best choice because, although unclean hands is a valid defense to the enforcement of an equitable servitude, (B) is a better defense because it may result in termination of the restriction, whereas unclean hands only protects the fast food chain as against the accountant (but not as against other owners in the subdivision). (D) is incorrect because an implied negative servitude would bind subsequent purchasers with notice whether or not the restriction appeared in their deeds.

For many years, a landowner owned a parcel of land bordered on the west by a public road, and his neighbor owned a parcel of land located immediately to the east of that parcel. The neighbor had an easement to cross the west parcel to enter the public road bordering it. Because the neighbor's east parcel is surrounded by swampland on the north, south, and east, the only route of ingress to and egress from that parcel over dry land passed through the west parcel. Subsequently, the neighbor sold the east parcel to the landowner, who proceeded to use both lots as a common tract. Last year, the landowner sold the east parcel to his friend. Does the friend have an easement over the landowner's west parcel? (A) Yes, she has an easement in gross. (B) Yes, because her only access to her parcel from the public road is across the west parcel. (C) No, because the easement was extinguished when the landowner purchased the east parcel. (D) No, because she has not used the property long enough to gain an easement by prescription.

(B) The friend has an easement by necessity over the landowner's west parcel, because only by crossing over that parcel can she gain access to her parcel. When the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road, a right-of-way by absolute necessity is created by implied grant over the lot with access to the public road. The facts state that the east parcel is surrounded by swampland on the north, south, and east. Thus, when the landowner sold that parcel to the friend, there was an implied grant of an access easement across the landowner's parcel because it was clearly her only access to a public road. (A) is wrong because an easement in gross does not have a dominant tenement. The holder of an easement in gross has a right to use the servient tenement independent of her ownership or possession of another tract of land. Here, the easement over the west parcel arises solely as a consequence of the friend's ownership of the adjacent east parcel. Thus, the easement is appurtenant, not in gross. (C) is wrong because even though the neighbor's easement was extinguished, the friend has acquired a new easement by necessity. When the ownership of the easement and the servient tenement is in one person, the easement is extinguished. Thus, when the landowner bought the east parcel, the neighbor's easement was extinguished. After the easement was extinguished, however, a new easement was created by operation of law when the land was again subdivided into two lots and as a result of this subdivision one of the lot owners was deprived of access to a public road. (D) is wrong because the friend has an easement by necessity, which can arise any time the appropriate circumstances exist. The friend need not wait out the prescriptive period to gain the legal right to pass over the landowner's parcel.

A landlord leased a vacant commercial building to a tenant for a 10-year term. On taking possession, the tenant installed a bar, booths, special lighting, and a raised dance floor. The bar and booths were simply placed on the floor and were not secured to it. The lights were installed by a qualified electrician and were directly wired into the building's electrical system. The special dance floor was bolted to the building's cement floor by installation crews from the company that made the dance floor. After installation of the above, the tenant then operated her business for almost 10 years. At that time, she decided that business was so good that she would move to a larger space down the street. She told the landlord that she would not be renewing her lease and that she would be removing the lights, booths, bar, and dance floor. The landlord told her that none of the installations could be removed because they are now part of the building. If a court were called upon to resolve this dispute, how would it likely rule? (A) The tenant may remove the dance floor, bar, and lights, but not the booths. (B) The tenant may remove the bar and the booths, but not the dance floor and the lights. (C) The tenant may remove the bar, booths, dance floor, and lights. (D) The tenant may not remove the bar, booths, dance floor, or lights.

(C) All of the items listed may be removed either because they were not affixed to the real property or because they were used in the tenant's business and thus may properly be termed trade fixtures. As long as the tenant can remove trade fixtures with little damage to the real property, the tenant may always take them when the tenant moves. (A) is incorrect. For a chattel to be deemed a fixture (and thus remain as a part of the realty) it must be affixed to the real property. The booths, along with the bar, were not even attached to the realty; thus, they cannot under any circumstances be considered fixtures, and the tenant may always take them. (B) is incorrect. If these were not trade fixtures, an argument could be made that the tenant could take the items not affixed (bar and booths) but not the ones affixed (lights and dance floor). But even items strongly attached to the realty may be detached by the tenants who installed them if, as here, they are tools of the trade. (D) is incorrect. The booths and bar can be removed because they were not affixed to the building, and even though the lights and dance floor were attached, they can be removed as trade fixtures.

A wealthy philanthropist owned a mansion built to his exact specifications, featuring a pipe organ built into the wall of the music room. The organ was impressive, with beautiful hand-carved wood scrollwork. The accompanying bench was made from the same wood as the organ and was carved to match the patterns on the organ. The bench was fully movable and could be slid into a niche beside the organ when not in use, although the philanthropist usually left the bench in front of the organ for its matching effect, even when the organ was not being played. The philanthropist died, and his will left all of his personal property to his daughter and all of his real property to a local charity. After the will was admitted to probate, the daughter removed all of the furniture and other movables from the mansion, including the organ bench. The daughter refused the charity's request to return the bench to the mansion. If the charity brings suit against the daughter to replevy the bench, which party is likely to prevail? (A) The daughter, because the bench is personalty since it was not bolted to the floor. (B) The daughter, because removing the bench does not damage the real property. (C) The charity, because the bench is integrally connected to the organ. (D) The charity, because removal of the bench reduces the value of the devise to the charity

(C) The charity will win because the organ is a fixture and the bench is integrally connected to the organ. Under the concept of fixtures, a chattel that has been annexed to real property is converted from personalty to realty. As an accessory to the land, it passes with ownership of the land rather than with a transfer of the personal property of an estate. The manifest intent of the annexor determines whether the chattel becomes a fixture. The factors for evaluating the annexor's intent are: (i) the relationship between the annexor and the premises, (ii) the degree of annexation, and (iii) the nature and use of the chattel. Under this analysis, the organ itself is clearly a fixture: (i) the philanthropist was the fee owner of the mansion and had the organ built to his specifications when the mansion was constructed; (ii) the organ was built into the wall of the mansion and could not be easily removed; and (iii) the appearance of the organ and how it complemented the rest of the mansion probably were more important to the philanthropist than its function. Constructive annexation occurs when an article of personal property (an "accession") becomes an integral part of the property, even though it is not physically annexed to the property, in the same sense that a fixture becomes an integral part of the realty. The doctrine is fully applicable in this case even though the accession goes with an item of property that is itself converted from personalty to realty, as the organ was here. The bench is an accession because it was created as an integral part of the organ and significantly contributes to an important aspect of the organ: its overall appearance. Removing the bench and replacing it with a bench made of different wood or carvings would damage the aesthetic value of the organ. Thus, the charity will succeed in obtaining the bench because it is not severable from the organ. (A) is incorrect because the fact that the bench was not bolted to the floor is not determinative. The bolting goes to whether the bench alone is a fixture. This is irrelevant because it is an accession to (and thus a part of) the organ, which is clearly a fixture. (B) is incorrect because the fact that removing the bench does not damage the building itself does not give the daughter the right to remove it. Removing the bench will damage the organ because the bench is an accession to the organ. The organ, as a fixture, is part of the real property; thus, removal of the bench will damage the property. (D) is incorrect because harm to the parties is not an issue in determining whether an item is a fixture. The relevant question is whether removal damages the real property. If the bench were found to be personalty, the fact that its removal would reduce the value of the charity's gift would have no impact on the daughter's right to remove it.

A landowner who owned five acres on the shore of a lake gave verbal permission to a neighbor to cross over her land to get to the lake so he could fish. About three years later, a trespasser built a boat dock on the far west end of the landowner's land without her permission. The land was heavily wooded, and the dock could not be seen from the landowner's house, although if she had taken a walk along the shore she would have found it. The neighbor and the trespasser would see each other frequently while they were fishing, and when the neighbor bought a boat, the trespasser gave him permission to tie up the boat to the dock at any time. Soon thereafter, the trespasser died and left all of his property to his son, who lived in another state. Although the neighbor never contacted the trespasser's son, he kept his boat at the dock. About two years later, the landowner discovered the dock on her land and told the neighbor to remove his boat because she was going to have the dock torn down. The neighbor filed for an injunction to prevent the landowner from tearing down the dock and to establish his right to continue to use it. Although the trespasser had died before he had sufficient time to gain title by adverse possession to the land on which his dock was built, the neighbor had been crossing over the landowner's land for about five and one-half years. The jurisdiction has a five-year requirement to establish title to land by adverse possession or to acquire prescriptive easements. What is the likely ruling of the court? (A) The landowner cannot tear down the dock because the neighbor had been using the dock for a sufficient amount of time to gain an easement by prescription. (B) The landowner can tear down the dock because, although the neighbor has an easement by prescription, he did not build the dock himself and, therefore, had no right to gain title to the land by adverse possession. (C) The landowner can tear down the dock, and the neighbor does not have an easement by prescription. (D) The landowner can tear down the dock because once the trespasser died, the neighbor no longer had permission to use the dock and he did not have time to gain an adverse interest as to the trespasser's son.

(C) The landowner can tear down the dock and the neighbor has no easement right. To acquire a prescriptive easement, the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period. The neighbor's original right to cross the landowner's land was with her oral permission rather than adverse and, therefore, he had a license only. Regardless of how the neighbor's use of the dock is viewed with regard to the landowner's interest, there was not a sufficient amount of time for the neighbor to have gained a prescriptive easement because at least the first three years of his use were not adverse. Hence, (A) and (B) are wrong. (D) is wrong because it would only be relevant that the neighbor had gained an adverse interest against the trespasser's son if the son had gained an adverse interest against the landowner, and the facts indicate that he had not. Although tacking is permitted where the subsequent possessor takes by descent, devise, or deed purporting to convey title, the trespasser's son never possessed the property. Thus, the trespasser's son had not gained title to the property by adverse possession and the landowner could tear down the dock.

The owner of 50 acres of unimproved property prepared and recorded a subdivision plan calling for 80 home sites on one-half acre each. Purchasers were required to build their homes using one of five different approved plans. Each deed, which referred to the recorded plan, stated that "no residence shall be erected on any lot that has not been approved by the homeowners' association." An investor who bought one of the lots but did not build on it resold it to a purchaser a few years later. The deed from the investor to the purchaser did not contain any reference to the recorded plan nor the obligation regarding approval by the homeowners' association. The purchaser began to build a very modernistic house on her one-half acre. A neighbor who had built a house using one of the approved plans brought an action to enjoin the construction. Who is likely to prevail in this action? (A) The purchaser, because her deed contained no restrictive covenants. (B) The purchaser, because any restrictive covenant can only be enforced by the opposite party to the covenant or that person's successor in title. (C) The neighbor, because the recorded subdivision plan, taken with the fact that all lots were similarly restricted and the purchaser had notice of this, gave him the right to enforce the covenant on the purchaser's property. (D) The neighbor, because his deed contained the restrictive covenant.

(C) The neighbor will likely prevail because the purchaser had inquiry and constructive notice of the restriction. When a subdivision is created with similar covenants in all deeds, there is a mutual right of enforcement (each lot owner can enforce against every other lot owner) if two things are satisfied: (i) a common scheme for development existed at the time that sales of parcels in the subdivision began; and (ii) there was notice of the existence of the covenant to the party sued. Here, there was a common scheme evidenced by the recorded plan, and the fact that the covenant was in the purchaser's chain of title gave her constructive notice of the restriction. Therefore, not only does the covenant apply to the purchaser's land, but the neighbor (or any other lot owner) can enforce it as a reciprocal negative servitude. (A) is incorrect. While it is true that the purchaser's deed had no restrictions, those restrictions are binding if they are in her chain of title so as to give her notice of them. The restriction was in the deed from the owner to the investor, so the fact that it was omitted in the deed from the investor to the purchaser is of no significance. (B) is incorrect. While a covenant is normally only enforceable by the party receiving the promise (here, the owner), this is a situation of mutual rights of enforcement within a geographically defined area, which gives every lot owner in the area the right of enforcement, even though they did not directly receive the benefit of the promise. (D) is incorrect. The fact that gives the neighbor the right of enforcement is not just that his deed contains the covenant, but that the same covenant was in all of the deeds from the owner, including the one to the purchaser's predecessor in title.

A property owner owned a large farm that was bisected by a state highway. The westernmost boundary of the owner's land was formed by a large river. On the easternmost boundary of the land was a large state park. The owner leased the eastern portion to a farmer, who used it to grow cotton. The owner leased the western portion to a rancher. The rancher had not yet started using the land, but he planned to bring some cattle onto it once spring arrived. Under state law, the state could purchase land to expand the state park system and save land threatened by commercial development. After an extensive process of evaluation, the state decided to use its powers of eminent domain to take roughly two-thirds of the owner's land. The state took all of the easterly portion—the part leased to the farmer—and part of the westerly portion adjacent to the river. The owner was left with only about one-third of his original farm, all of it lying just west of the highway and all of it part of the property leased to the rancher. Which of the following statements is correct concerning the rights of the farmer and the rancher? (A) The rancher and the farmer may continue to occupy their leased land, as eminent domain proceedings concern only the fee simple interest and do not affect those who hold valid leaseholds. (B) Neither the rancher nor the farmer may continue to occupy the land taken by the state, although the rancher may continue to occupy the portion not taken, and the rancher remains liable to the owner for rent for the portion not taken by the state, but neither the rancher nor the farmer are liable to the owner for rent for the land taken. (C) Neither the rancher nor the farmer may continue to occupy the land taken by the state, and the farmer is not liable for any further rent to the owner, but the rancher must continue to pay full rent to the owner for all the land under his lease, even that portion taken by the state. (D) In the condemnation award, the rancher and the farmer are each entitled to share in the award based on the value of the remaining term of the lease on the property taken, less rent that would have been paid during that period.

(C) Neither the rancher nor the farmer may continue to occupy the land taken by the state, but the rancher remains liable for the full rent. To handle this question you must notice that all of the farmer's leasehold is taken, while only part of the rancher's is taken, and the rules are different. In both cases, however, when the state takes land by eminent domain, tenants lose the right of possession. If there is an entire taking, the leasehold terminates and the tenant has no obligation to pay further rent to the landlord. So the farmer is off the hook. If the taking is partial, the tenant must continue to pay full rent to the landlord. In the condemnation award, the tenant will get an amount equal to the rent to be paid over the remainder of the lease for the portion of the property taken. Thus, the rancher will get, from the state, the rent that the rancher will pay to the owner over the rest of the lease for the part taken, but the rancher remains obligated for the full rent to the owner. (A) is incorrect because when the state takes by eminent domain, possessory rights of tenants end. (B) is incorrect because the rancher continues to be liable for full rent, even for the property taken by the state. (D) is incorrect. While the measure of recovery is correct for the farmer since his entire leasehold was taken, it is incorrect for the rancher. Because the rancher will remain liable to the owner for the full rent on all of the land the rancher leased, the rancher's measure of recovery from the state is the full amount of the rent under the lease for the property taken.

An owner of a large parcel of land divided the parcel into two halves. The front parcel abutted a public highway. The shortest route from the back parcel to the highway was over a small private road that crossed the front parcel. There was another route from the back parcel to the highway that did not involve crossing the front parcel, but it wound through the woods for over four miles. The owner sold the back parcel to a purchaser who planned to open an inn on the property, and included an express easement in the deed permitting her to access the highway via the private road across the front parcel. The purchaser never properly recorded her deed to the back parcel. Although the purchaser built the inn, she never opened it to the public because of financial circumstances and only rarely used the road across the front parcel. Fifteen years after that transaction, the purchaser sold the land to a buyer who planned to open the inn to the public. The buyer promptly recorded her deed to the property from the purchaser, but the buyer's deed made no mention of the right to cross the front parcel via the private road. Shortly after the buyer took possession of the back parcel, she learned of the provision in the original deed. The buyer told the owner, who still owned the front parcel, that she planned to use the road across his property when she opened the inn, but the owner refused to grant permission to do so. Does the buyer have a right to cross the front parcel? (A) No, because the easement is not mentioned in the buyer's deed, and the purchaser's deed containing the easement was not recorded. (B) No, because the buyer's opening of the inn would increase the use of the easement. (C) Yes, because the purchaser exercised her right to use the easement when she owned the back parcel. (D) Yes, because the easement was not extinguished.

(D) The buyer has an easement to cross the front parcel because the easement was never extinguished. The original easement granted to the purchaser was an easement appurtenant, the benefit of which passes with a transfer of the benefited land. An easement is deemed appurtenant when the right of special use benefits the easement holder in her physical use or enjoyment of another tract of land. The land subject to the easement is the servient tenement, while the land having the benefit of the easement is the dominant tenement. The benefit of an easement appurtenant passes with transfers of the benefited land, regardless of whether the easement is mentioned in the conveyance. All who possess or subsequently succeed to title to the dominant tenement are entitled to the benefit of the easement. The easement granted to the purchaser was an easement appurtenant because the right to use the private road across the front parcel (the servient tenement) benefited the purchaser in her use and enjoyment of the back parcel (the dominant tenement) by providing her with the most convenient access to the public highway. Thus, when the purchaser sold the benefited land to the buyer, the benefit of the easement also passed to the buyer as an incident of possession of the back parcel. (A) is wrong because, as explained above, this benefit passed to the buyer despite the fact that the deed to the buyer made no mention of the easement. The failure to record does not affect the validity of the easement. Recordation is not essential to the validity of a deed, but only serves to protect the interests of a grantee against subsequent purchasers. Here, the dispute is between the original grantor and the successor of the original easement holder. (B) is incorrect because the buyer's use of the easement would not be a change in its use. This choice goes to the scope of the easement. The key for determining the scope is the reasonable intent of the original parties, including the reasonable present and future needs of the dominant tenement. Here, because the owner knew of the purchaser's plans to open an inn, he knew that she and her guests would use the road across the front parcel. The buyer's use of the easement would be the same—her use and that of her guests. This is not a change in intended use sufficient to allow the owner to legally prevent the buyer's use of the easement. (C) is incorrect because nonuse does not extinguish an easement. Abandonment, which does terminate an easement, requires a physical act by the easement holder that manifests an intent to permanently abandon the easement (e.g., erecting a building that blocks access to an easement of way). Since there is no indication of such an act by the purchaser, the easement would have continued to benefit the back parcel even if the purchaser had never used it.

The owner of a hotel in a resort town was approached by a seminar speaker who wanted to lease space in which to conduct a two-week seminar. The owner leased to the speaker the hotel's grand ballroom, the period of the lease being August 1 through August 14. To provide the proper atmosphere for the seminars, the speaker attached curtain rods to the walls of the ballroom, using lightweight screws to attach the rods. The speaker then strung light blue ring curtains through the rods. After the seminar, on August 16, the speaker arrived to remove the curtains and rods. The owner brought an action to enjoin the speaker from removing the curtains and the rods from the grand ballroom. How should the court rule? (A) In favor of the speaker, because he had a short-term lease and the curtains and rods were easily removable. (B) In favor of the speaker, because curtains and rods are trade fixtures. (C) In favor of the owner, because the curtain rods were attached by screws, and as such were fixtures, which became part of the realty. (D) In favor of the owner, because the speaker did not remove the curtains and rods before the lease expired.

(D) The court should rule in the owner's favor. A tenant must remove annexed chattels before the termination of the tenancy or they become the property of the landlord. Although the seminar speaker was probably entitled to remove the curtains and rods at the end of the lease, he forfeited them by waiting for two days after the lease expired to remove them. (A) is wrong because it goes to whether the curtains and rods were intended to be fixtures. Because of the delay in their removal, whether the curtains or rods were fixtures is irrelevant. This choice would be correct, however, had the speaker attempted to remove the curtains on August 14. The short-term lease and the fact that the rods are easily removable constitute evidence that the speaker lacked the requisite intent to permanently improve the property, and thus he could have removed them if he had acted promptly. (B) is wrong for the same reason. The delay in the removal of the items results in their becoming the property of the landlord regardless of whether they are trade fixtures. Trade fixtures (i.e., fixtures installed for the purpose of carrying on a trade or business) are removable prior to the end of the lease term. Thus, because the speaker installed the curtains to carry on his business, this would have been a correct choice had the speaker attempted to remove the curtains prior to the end of his lease term. (C) is wrong because the mere fact that the curtain rods were attached by screws does not make them fixtures that must remain with the realty. "Fixtures" are chattels affixed to the land that become part of the land. The intent of the person affixing the chattel is relevant. The curtains and rods would probably not be considered fixtures because the speaker did not have the requisite intent to permanently improve the property, as evidenced by the short-term lease and the easily removable nature of the attached chattels. In the absence of an express agreement to the contrary, if removal of the chattel does not leave unrepaired damage to the premises or cause destruction of the chattel, the tenant has not manifested an intention to permanently improve the property. Here, removing the screws, rods, and curtains would not result in substantial damage to the premises or destruction of the chattels. Also, even if the curtains and rods were found to be fixtures, they would be trade fixtures, which are removable by the tenant.

A recorded subdivision plan contained a provision for 20 one-half acre open spaces designated as "dedicated public parks." One year later, the city in which the subdivision was located decided to put picnic benches and other recreational facilities on the 20 open areas and to establish these areas for public use for the first time. Homeowners in the subdivision and the homeowners' association filed suit to prevent the city from proceeding with this plan, claiming that the resulting congestion and health and safety problems would drive down the value of their property. What is the probable result of the suit? (A) The plan will be blocked, because the city is guilty of laches in not accepting the dedication when it was first offered. (B) The plan will be blocked, unless the city pays damages to the homeowners because of the decrease in value to their property due to this inverse condemnation. (C) The suit will be dismissed, because many of the homeowners had notice of the proposed use of these areas. (D) The suit will be dismissed, because the dedication of the parkland was appropriate and required no acceptance by the city at the time.

(D) The suit will be dismissed because the city's creation of the parkland is appropriate. Even if the city did not expressly accept the dedication of the parkland at the time the plat was filed, the announcement of the construction of the recreational facilities could be taken as acceptance. (A) is incorrect. Laches is a defense, not an affirmative cause of action, and it additionally does not appear that the failure of the city to immediately affirmatively accept the parkland prejudiced the homeowners' rights. (B) is incorrect. There is no inverse condemnation here, because the city has in no way regulated or otherwise interfered with the homeowners' use of their land. (C) is incorrect. It is not the homeowners' notice of the proposed use that binds them but the notice of the dedication of the land for park use that is contained in the recorded plat.

On December 1, a landlord rented an apartment to a tenant for one year, commencing January 1. The tenant paid the first and last months' rent. Both the landlord and the tenant were aware that, at the time of the making of the lease, the apartment in question was occupied by a student, who had a lease on the premises until December 31. The student refused to leave the apartment on December 31, and the landlord served the appropriate legal notices to vacate the premises. The student still did not vacate the apartment, and the landlord instituted an unlawful detainer action against the student. She succeeded in getting the marshal to enforce the judgment and take possession of the apartment, and the tenant received possession of the apartment on February 1. The lease between the landlord and the tenant contained the following statement: "The tenant, on payment of the monthly rent and compliance with all of the covenants and conditions stated herein, shall have the quiet enjoyment of the premises." If the tenant now sues the landlord for damages resulting from the delay in the tenant's possession of the premises, what is the landlord's best defense? (A) The landlord did not breach any specific promise to deliver the premises on January 1. (B) The jurisdiction follows the majority rule regarding the landlord's duty to deliver possession, and the landlord did everything within her power to eject the student in a timely manner. (C) The landlord's obligation to the tenant ended with the signing of the lease (D) The jurisdiction follows the minority rule regarding the landlord's duty to deliver possession, and because the terms of the lease gave the tenant the right to possession rather than the landlord, it was up to the tenant to bring an action against the student.

(D) The jurisdiction follows the minority rule regarding the landlord's duty to deliver possession, and because the terms of the lease gave the tenant the right to possession rather than the landlord, it was up to the tenant to bring an action against the student. The landlord's best defense is that the jurisdiction follows the minority approach regarding the landlord's duty to deliver possession. In most states, statutes require the landlord to put the tenant in actual possession at the beginning of the lease term. In a minority of states, the landlord's obligation is merely to give the tenant the legal right to possession; it is up to the new tenant to bring eviction proceedings against a hold-over tenant. Here, if the jurisdiction follows the minority rule, the landlord will have a complete defense because she has no liability for the student's refusing to vacate the apartment when his lease ended. (A) is incorrect because there need not be a specific promise to deliver the premises at the start of the lease period; that duty will be implied in the lease. (B) is incorrect because, under the majority rule, it is not enough that the landlord did everything in her power to eject the student in a timely manner. She had a duty to deliver actual possession to the tenant, and she is liable under the majority rule for any damages the tenant suffered from the delay in delivering possession. (C) is incorrect because the scope of the landlord's obligation depends on whether the jurisdiction follows the majority rule or the minority rule.