Len's Practice Questions 2

. Assume for the purposes of this question only that Shelley's Rule has been abolished by statute in this jurisdiction. Thus, John's prayer for specific performance would now be (A) denied, since the Rule would not be triggered, thus creating only a life estate in John (B) granted, since the remainder in his heirs would become vested into a full fee in those heirs (C) granted, since John's heirs receive a vested indefeasible interest in Blackacre (D) denied, since under the Doctrine of Worthier Title, at the termination of John's life estate, the grantor has a reversionary interest

(A) Choice (A) is correct because since the Rule is abolished, John would only acquire a life estate. As a result, in order to convey marketable title John's heirs must join in the conveyance of Blackacre. The remainder to John's heirs is treated as a vested remainder which does not merge with John's life estate.

33. After Simon failed to make his rental payments for the first two months of his lease, Harry brought suit against Tony to recover for the unpaid rent. Judgment for (A) Harry, since Tony's contractual obligation under the lease survived the assignments (B) Harry, since he did not object to the assignments (C) Tony, since Simon, as assignee, would only be held liable (D) Tony, since his assignment to Rick constituted a nova¬tion, thereby extinguishing his obligation to pay rent

(A) In reiteration, where a tenant-assignor transfers all of his leasehold interest to an assignee, such assignment does not release the tenant from his contract obligations to the landlord under the terms of the lease. This is true even when the assignee, thereafter, assigns/transfers his lease¬hold interest to a sub-assignee.

41. After McQuirk's assignment to Moore, Donaldson sues McQuirk to recover the rent in arrears. Donaldson will most likely: (A) succeed, because Donaldson and McQuirk stood in privity of contract (B) succeed, even though he had notice of the assignment (C) not succeed, because McQuirk had assigned his inter¬est in the premises before Donaldson brought suit (D) not succeed, because he did not object to the assignment

(A) Under the terms of their original leasehold agreement, McGuirk would remain liable for the rent in arrears. McGuirk's assignment to Moore would not operate as an extinguishment of his duty to pay rent to Donaldson under the terms of their original agreement. An assignment does not release the tenant from his contractual obligation to the landlord under the lease. To be sure a lease is a contract as well as a conveyance. Choice (B) is erroneous because Donaldson's notice (of the assignment) is irrelevant to the effectuation of Moore's obligations under the assignment. Choices (C) and (D) are erroneous for the above reasons.

In August 1953, Oscar, who was the owner of 1500 acres of undeveloped timberland, mortgaged his land to Jackson by a mortgage deed, which was not recorded in the Tract Index until January 1954. The mortgage was given to secure a note for $50,000, repayable over a twenty-year period. In September 1953, Oscar executed a warranty deed purport¬ing to convey the same land to Babson in fee simple. Babson recorded immediately in the Grantor-Grantee Index. Then in April 1954, Babson conveyed the same tract to Callahan in fee simple by warranty deed. Callahan paid full market value and recorded the deed at once in the Grantor-Grantee Index. The land in question had never been occupied, fenced or cleared except that between the years 1950-1974, Groves Mining Co., owner of an adjacent tract, regularly drove trucks over a cleared path pursuant to a 1950 agreement with Oscar. The agreement, which was duly recorded, provided that "the parties expressly agree and Oscar promises that Oscar and his successors shall refrain from obstructing the said described path-way across Oscar's land which the Groves Mining Co. and its successors may perpetually use as a road, in consideration of which Groves, and its successors, will pay the sum of $700 per annum." During the period between 1954 through 1975, Callahan collected the yearly $700 fees from Groves and also paid all property taxes. In November 1977, Callahan entered into a contract to sell the land to Daniels. The contract called for a "good and marketable title" with an express exception for rights under the 1950 Oscar Groves agreement. However, Daniels learned about the 1953 mortgage in the course of his title search and refused to honor the contract for sale of the property. Assume this jurisdiction follows a lien theory for mortgages and has a pure-notice type recording statute. 91. Asserting that he had marketable title, Callahan instituted suit against Daniels for specific performance. If Callahan prevails, it will be because (A) Callahan's grantor, Babson, recorded before Jackson (B) Jackson's prior recorded mortgage is deemed to be out¬side Callahan's chain of title (C) Callahan's grantor, Babson, had no notice of Jackson's mortgage interest (D) as between two warranty deeds, the latter one is controlling

(B) A prospective purchaser of real estate or of an interest in real estate is chargeable with knowledge of what appears in the Grantor-Grantee Index, the legal record required to be main¬tained by the Recorder; generally, he is not chargeable with notice of that which appears in other records which may be kept as a convenience, such as a Tract Index. Thus, if Callahan pre¬vails, it will be because the record of the mortgage in the Tract Index was outside this chain of title, and thus not constructive notice to third persons.

57. From the standpoint of Birch and Catskill, the drainage system would most likely be defined as a (an) (A) easement appurtenant (B) easement by implication (C) prescriptive easement (D) express easement

(B) An easement may arise by implication if the existence of the easement is strictly (or rea¬sonably) necessary for the beneficial use of the land. The creation of such an easement is based upon the presumed intent of the grantor and grantee. If the claim is made that the easement arose out of a prior conveyance, there must be proof of the fact that at one time both the dom¬inant and servient estates were under one ownership. Technically, alternative (A) is correct but choice (B) is the preferred answer because the present example is an illustration of an implied easement appurtenant. With respect to choice (C) an easement (or profit) may also be acquired by prescription in a manner similar to that by which ownership of a possessory estate may be acquired by adverse possession.

On May 2, 1972, Abigail Marcus entered into a leasehold agreement for a term of ten years with Ray Haynes, who intend¬ed to use Blue Bell Farm for the raising of cattle and hogs. Haynes immediately took possession of the farm and remained in possession as a tenant until November 1, 1979. Shortly after entering into possession of the farm, Haynes built thereon, at his own expense, a corn crib made of lumber which was fifteen feet wide and twenty feet long and set on loose bricks. At each corner of the corn crib, he set a wood post in the ground fifteen inches deep and nailed the corn crib to the four corner posts. In 1975, he also built a hog house of brick and mortar on the premises. The hog house was constructed on a cement foundation which extended into the ground twenty-four inches. This structure was twenty feet wide by fifty feet long and was used to keep the brood sows warm during the winter months. On October 1, 1979, The Farm Life Insurance Co. instituted foreclosure proceedings against Alvin and Abigail Marcus for default of the promissory note on Blue Bell Farm. When Haynes become aware of the foreclosure proceedings, he disengaged the corn crib from the four corner posts (which anchored it in the ground) and removed the corn crib and posts to another farm. Moreover, on October 15, 1979, Haynes dismantled the hog house, brick by brick. He loaded the bricks on his truck and hauled them away. 64. In an action by Abigail Marcus against Ray Haynes alleging waste for removal of certain fixtures (i.e., corn crib and hog house) which of the following is (are) correct? I. Haynes would be liable for removal of the corn crib. II. Haynes would be liable for removal of the hog house. (A) I only (B) II only (C) I and II (D) neither I nor II

(B) Haynes would be liable for removal of the hog house but not the corn crib. For an article of personal property to become a fixture on land, it is necessary that (1) there be an annexation of the article to the land either actually or constructively, (2) the article be adapted to the use for which the land is used, and (3) there be an intention on the part of the annexer that the arti¬cle become a fixture. With respect to the hog house, the facts clearly state that it was built of brick and mortar and affixed to a cement foundation which extended twenty-four inches into the soil. Thus, given the fact that the hog house was actually built into the soil and cannot be removed without lifting the cement foundation out of its resting place (and causing complete destruction of the hog house as a building) clearly indicates an intention to make it a fixture. Conversely, the fact that the corn crib can be removed from the property with practically no injury to the freehold would indicate that there would be little economic waste in its removal. Therefore, it seems proper to permit Haynes to remove the corn crib without being liable for waste.

30. In an appropriate action to construe Tenant's obligation under the covenant to keep the premises in repair, which of the following is the most accurate statement? (A) Tenant is liable for normal wear and tear under the covenant to repair. (B) Tenant is liable under such a covenant for all defects, including the acts of God. (C) Tenant's covenant to repair is void as against public policy, since the landlord is under an affirmative duty to make repairs on the demised premises. (D) Tenant's duty to keep the premises in good repair relieves the landlord of his obligation to disclose the existence of any latent defects.

30. (B) The general rule provides that a tenant who covenants to keep the leasehold premises in good repair is liable under such a covenant for all defects (except normal wear and tear) regard¬less of their cause. As a result, a tenant remains liable for any defects caused by himself, third persons and even acts of God. Choices (A), (C) and (D) are all incorrect statements of law.

65. Assume for the purposes of this question only that The Farm Life Insurance Co. obtained a foreclosure decree against the Marcuses. Both Farm Life Insurance Co. and Abigail Marcus bring separate actions against Ray Haynes alleging waste for removal of trade fixtures. If Farm Life Insurance Co. prevails, it will be because (A) Haynes' removal of the corn crib and hog house constituted unpermissive waste (B) the claim of the mortgagee would take priority over the claim of the mortgagor to those fixtures which were annexed to the land (C) the claim of the mortgagee would take priority over the claim of the mortgagor, only if Haynes was aware of the existence of the mortgage at the time he entered into the leasehold agreement (D) the mortgagee would acquire a security interest to the chattel property, even though the latter did not become fixtures

(B) When land has been mortgaged and thereafter a chattel is attached to the land and becomes a fixture, the claim of the mortgagee takes priority over the claim of the mortgagor. Moreover, if a tenant of the mortgagor adds a chattel, as a fixture of the realty, it inures to the benefit of the mortgagee of the real property. As a result, Farm Life Insurance Co. would prevail over Abigail (the mortgagor), since the removal of the hog house would constitute waste. It is important to note that trade fixtures are chattels which are annexed to the land by a tenant for the purpose and convenience of his trade or business on the land. Usually this doctrine is applied to factory machinery, store and shop equipment or temporary partitions in industrial establishments. However, difficulty exists when this doctrine is applied to buildings or to additional extensions to the buildings already present on the land.

On January 1, 1979 Barnes entered into an agreement of sale to convey his farm, Winterthur, to Stevens. According to the con¬tract, settlement (or closing) was to take place on March 1, 1979. On January 15, 1979, Stevens conducted a title search on Winterthur and discovered the following transactions in Barnes' chain of title: In 1930, Smith, the record owner of Winterthur died and in his will he devised Winterthur to "my son, Smitty, and his heirs but if Smitty dies without issue to my daughter, Dixie, and her heirs." The next instrument of record is a deed from Smitty to "Bailey and his heirs" which was executed on July 1, 1940 and recorded on the same date. In 1941 Bailey died and in his will he devised Winterthur to "my brother Corley for life, then to Corley's heirs." In 1950 Corley executed a general warranty deed in which he conveyed "all my right, title and interest in Winterthur to my children, Jessie and James." James died intestate in 1955, leaving his son Butch, a four year-old as his only heir. Corley died in 1960 leav¬ing Butch and Jessie as heirs. In 1965 Butch and Jessie conveyed Winterthur by a general warranty deed to "Barnes and his heirs." Although both Butch and Jessie were married, their respectives wives did not join in the deed. Barnes has been in continuous possession of Winterthur since 1965. Smitty died on January 1, 1976 without issue and Dixie is still alive. 66. After Smith's death in 1930, Dixie's interest in Winterthur may best be described as a (an) (A) contingent remainder (B) springing executory interest (C) shifting executory interest (D) vested remainder, subject to complete divestiture

(C) After Smith's death in 1930, Dixie's interest in Winterthur could best be described as a shifting executory interest (or executory devise as it was created by will), which divests the preceding estate upon the happening or non-happening of a stated event. Executory devises are interests which are identical with springing and shifting uses, except that they are created by will, instead of by deed. Thus, in 1930 Smith devised a fee simple to his son, Smitty, and his heirs, which was subject to Dixie's executory interest. If the event happens (Smitty dies without issue) then Dixie will have a possessory estate in fee.

Question 90 is based on the following fact situation. Bradley was the record owner in fee simple absolute of Greenacre, a 125-acre parcel of land located in Oxford. In 1992 Bradley conveyed the property "to my sister, Martina, for life with remainder to my son, Reed, if he be living." At the time of the conveyance, Reed was in medical school in Grenada. Martina immediately recorded the deed and took possession. Shortly thereafter, Martina discovered that the property con¬tained large coal deposits which she severed and began to sell. In 1995 Reed graduated from medical school and returned to Oxford. He then learned of the conveyance and also ascertained that Martina had not paid taxes on Greenacre for the last three years. After discovering that the property was subject to a pend¬ing tax foreclosure, Reed demanded that Martina pay the delin¬quent taxes. Even though the profits from the coal sales were quite substantial, Martina refused to pay the outstanding taxes. Reed thus paid the taxes himself. 90. If Reed sues Martina to recover the taxes and for an accounting of the proceeds received from the coal sales, judgment should be (A) in favor of Reed for the taxes but not for the coal (B) in favor of Reed for the coal but not for the taxes (C) in favor of Reed for both the taxes and the coal (D) against Reed for both the taxes and the coal

(C) Before attempting to answer this question, students must first determine what interest, if any, Reed has in Greenacre. As we know, Bradley (the grantor) conveyed the property "to Martina for life with remainder to Reed, if he be living." Does Reed take a vested or contingent remainder under this conveyance? The answer is that Reed takes a vested remainder. A vested remainder is one which is limited to an ascertained person who has the right to immediate possession if and when the prior estate is terminated. It may be subject to no other condition, in which case it is said to be indefeasibly or absolutely vested. In that case it is certain to become an estate in possession. But it may (as in this example) be subject to a condition sub¬sequent (i.e., Reed's surviving Martina) which will divest the remainderman of his estate. But it is, nevertheless, vested until divested. On the other hand, a contingent remainder is one which is subject to a condition precedent. It is one which will not vest until the happening of an event or the ascertainment of a person. In our case, Reed has a vested remainder although it may be totally divested since it is subject to the condition subsequent that he be living at the termination of Martina's prior life estate. Note that a tenant for life or for years is liable to the (vested) remainderman or reversioner for voluntary waste, therefore Martina is liable to Reed for an accounting of the proceeds from the coal sales. In addition, a vested remainderman has a right to compel the prior estate owner to pay taxes and interest on encumbrances to the extent of the value of rents and profits. Consequently, choice (C) is correct.

68. On January 20, 1979, a barn on the Winterthur property was destroyed by fire. When Stevens was notified of the loss the following day, he contacted Barnes and told him that the deal was off because of the fire. As a result, Stevens filed suit against Barnes on January 25, 1979 for a refund of his downpayment of $5,000. In his suit, Stevens will be unsuccessful and will be obliged to complete the contract if the court determines that on January 20th, (A) Stevens held the legal title to the farm (B) Barnes held the legal title to the farm (C) Stevens held the equitable title to the farm (D) Barnes held the equitable title to the farm

(C) Equitable conversion applies when there is an enforceable obligation to sell land. The doc¬trine treats interests in land as if the land had already been converted into personal property. The doctrine states that when the sales contract is made, equity then considers the vendee as the owner of the land and the vendor as the owner of the purchase money. Applying the facts of the case to this doctrine, Stevens would be construed as the equitable owner of the land on January 20, 1979, when the barn was destroyed by fire. As a result, Stevens as equitable owner, would become subject to all losses not occasioned by the fault of the seller. Therefore, if the court determined that Stevens held equitable title to Winterthur on January 20th, he would be unsuccessful in his lawsuit against Barnes.

67. In March 1976, Dixie, asserting that her title was held free of any claim by Barnes, instituted suit against Barnes to quiet title to Winterthur. Judgment for (A) Barnes, since his prior recorded deed would be deemed to be outside Dixie's chain of title (B) Barnes, since the devise to Dixie would be violative of the Rule against Perpetuities (C) Dixie, since she acquired fee simple interest at the time of Smitty's death in January 1976 (D) Dixie, since she acquired an indefeasible vested remainder under her father's will in 1930

(C) In a suit to quiet title to Winterthur, Dixie would prevail. At the time of Smitty's death on January 1, 1976, (without issue) Dixie's executory interest was executed into a legal estate in fee. In fact, Dixie's interest vested automatically upon Smitty's death without issue, without any affirmative act on her part.

Harry is the owner in fee simple of a tract of land on which is situated a large office building. Harry leases the land and build¬ing thereon to Tony for a term of seven years, commencing on August 1, 1974, and terminating at midnight on July 31, 1981. The lease contains the following provisions: "(1) Tony covenants not to assign the leased premises without the consent of Harry; (2) Tony covenants to pay the rent of $750 per month on the first day of each month; (3) Tony covenants to keep the leased premises in repair; (4) Tony covenants to keep the building on the leased premises insured against fire in the amount of $100,000; (5) Harry covenants to utilize any fire insurance proceeds for repair or replacement only." After three years of the lease had expired, Tony, without the consent of Harry, assigned the entire balance of the lease period to Rick, who took immediate possession of the leased property. Harry accepted rental payments from Rick. Then in 1978, Rick assigned his leasehold interest to Simon. Simon went into pos¬session, but failed to pay any rent for two months. Soon after¬wards, a fire spread from an adjoining building to the leased property, completely destroying the building thereon. It was established that the owner of the premises on which the fire started had failed for several years to comply with the municipal Fire Code measures applicable to his building. While Tony was in possession of the leased property, he carried a fire insurance policy on the premises in the amount of $100,000. However, Tony allowed the policy to lapse after his assignment to Rick. Rick did carry insurance on the leased building, but only in the amount of $50,000. When Simon took possession of the building, he did not obtain any fire insurance. 31. Harry learned that the building was not insured at the time of the fire. In an action by Harry against Tony to recover for the fire loss, Harry will most probably (A) recover, since in accordance with the Rule in Spencer's Case, the covenant to maintain fire insurance would "touch and concern" the land (B) recover, since Tony's obligation to maintain fire insur¬ance did not terminate after his assignment to Rick (C) not recover, since the covenant to provide fire insur¬ance did not run with the land (D) not recover, since Simon, as assignee, would be liable for the fire loss

31. (B) A covenant in a lease to pay (fire) insurance is held to "run with the land." In this regard, note that a covenant to pay insurance is capable of running if and only if the landlord is bound to use the proceeds for repair or replacement. It is important to understand that Tony's assignment of his leasehold interest to Rick did not relieve or extinguish Tony's contractual obligations under his lease with Harry. In short, an assignment does not release the tenant from his contract obligations to the landlord under the terms of this original leasehold agreement. To be sure, a lease is a contract as well as a conveyance.

58. Assume for the purposes of this question only that Catskill's land began to subside over the drainage system. This was because of an especially pliable soil condition of which Ash was unaware prior to construction of the drainage system. In an action brought by Catskill against Ash to recover prop¬erty damage for the subsidence of his land, judgment for whom? (A) Catskill, because Catskill is entitled to lateral support for his land in its natural condition. (B) Catskill, because Catskill is entitled to subjacent sup¬port for his land in its natural condition. (C) Catskill, because Catskill is entitled to support for his land in its improved condition. (D) Ash, unless Catskill proves that Ash was negligent in constructing the drainage system.

(D) The right to subjacent support means support from underneath the surface of the land as distinguished from the sides, but the rights involved are substantially the same as those involved in lateral support. Thus, the right to lateral (and subjacent) support does not include the right to have the additional weight of artificial structures on the land held up by the neighboring land. However, if there is negligence on the part of the wrongdoer who removes lateral or subjacent support, then the wrongdoer is liable for all damages which naturally and proximately result. In this hypo, since Catskill's land was in an improved state with a dwelling erected on the land, he must show that Ash acted negligently.

Ash is the owner of record of a parcel of land designated as "A". It is the highest of the three neighboring properties on Big Rock Candy Mountain. Birch is the owner of parcel "B", which is situated lower than "A" on the mountainside. Catskill owns parcel "C" which lies below parcels "A" and "B" on the moun¬tain slope. In 1950 Ash, who owned all three parcels of land, construct¬ed a private drainage system. This system consisted of an under¬ground pipeline which extended across all three parcels of land. Sewage from parcel "A" drained through the system to a mu¬nicipal sewer which was located at the bottom of the mountain. In 1955, Ash sold parcel "B" to Birch. The following year, Catskill purchased parcel "C" from Ash. The deeds to Birch and Catskill did not contain any mention of Ash's drainage system. Located on each of the parcels are large ranch-style homes occupied by the respective owners. 56. Lately, the sewage drain has begun to emit an unpleasant odor across parcel "B". As a result, Birch sued Ash in tres¬pass praying for damages caused by the drainage system. Judgment for (A) Ash, since the deed to Birch did not contain any covenants restricting Ash's use of the land (B) Ash, since Birch's proper cause of action would be for nuisance, rather than trespass (C) Birch, because the drainage system was the proximate cause of plaintiff's damages as a matter of law (D) Birch, because Ash did not have the right to improve his own land in a manner which caused harm to another

. (B) Birch's proper cause of action should be based on nuisance, rather than trespass. The basic distinction which is now recognized is that trespass is an invasion of the plaintiff's interest in the exclusive possession of his land, whereas nuisance is an interference with his use and enjoy¬ment of it. In all likelihood, Ash has an implied easement for his sewer pipe from parcel "A" across parcels "B" and "C." It is generally agreed that in cases involving an implied reservation (or quasi-easement) in favor of the grantor, there must be reasonable necessity for the existence of the implied easement.

55. Assume for the purposes of this question only that Hunter claims the entire fee simple absolute title to Blackacre and brings an action against Trent to quiet title in himself. If the Commonwealth of Pennsylvania has an ordinary 20 years adverse possession statute, judgment for whom? (A) Trent, because one cotenant cannot acquire title by adverse possession against another. (B) Trent, because there is no evidence that Hunter has performed sufficient acts to constitute an ouster. (C) Hunter, because the acts of the parties indicate Trent's intention to renounce his ownership rights to Blackacre. (D) Hunter, because during the past 25 years Hunter has exercised the type of occupancy ordinarily considered sufficient to satisfy adverse possession requirements.

. (B) Under the unity of possession, each co-tenant is entitled to possess and enjoy the whole of the property subject to the equal right of his (or her) co-tenant. If one tenant wrongfully excludes another co-tenant from possession of the whole or any part of the whole of the prop¬erty, such conduct amounts to an ouster. Here, choice (B) is correct because there is no evi¬dence that Hunter was wrongfully excluding Trent from Blackacre. Note that choice (A) is wrong because Burby points out that "possession may become adverse if the co-tenants are excluded from possession (i.e., ouster) or if the co-tenants are specifically notified of the adverse claim or can be charged with notice because of the acts of the possessor." Real Property, pg. 232.

Questions 1-2 are based on the following fact situation. In 1995 Wilkes was the true and record owner of Blackacre, a 150 acre tract of undeveloped land in densely populated Lovette County, mostly wooded except for 5 acres of pasture in the northeast corner that Wilkes sometimes used for cattle-grazing in connection with his dairying operation on Creenacre, an adjoining tract of land. In that year officers of the Lovette Preservation League, a newly created, non-profit corporation devoted to conservation activities, sought to negotiate with Wilkes for the purchase of Blackacre. Wilkes declined to sell because, as he said, "that land has been owned by the Wilkes family for six generations and I couldn't let it out of the family now." Further discussions, however, led to Wilkes' executing and delivering to the League (in exchange for $100,000) the fol¬lowing instrument: "It is hereby agreed between the owner and the Lovette Preservation League (hereinafter "League") that from and after the date hereof (a) no entry shall be made, and no activity conducted, on Blackacre except as expressly permitted by such regulations as the League may from time to time adopt in the inter¬est of maximum enjoyment by the public of Blackacre's virgin, natural values consistent with due protection for those values; (b) agents and employees of the League shall at all times be allowed access to Blackacre as required for the pur¬pose of appraising the current conditions and needs of the land, and of discovering violations of the League's regulations; and (c) whenever so requested by the League, the owner shall initiate such actions at law and suits in equity, and shall file such com¬plaints in criminal trespass and other like proceedings, as the League may reasonably require to enforce its regulations." Wilkes continued his occasional pasturing of cattle on Blackacre until he died in 1998, leaving a will probated in that year, that devised Greenacre to his friend, Rambis. The will made no mention of Blackacre, and contained no residuary clause. Wilkes' closest surviving relative was (and is) his son, Jammal. In 1998, the Lovette Preservation League wound up its affairs and transferred all its assets and property holding to the Forum Audubon Club of Greater Lovette, Inc., another non¬profit conservationist organization. 1. In an appropriate action to construe the agreement between Wilkes and Lovette Preservation League, the court will determine provision (a) to be a (an) (A) easement (B) profit (C) covenant running with the land (D) negative covenant

1. (D) In order for a covenant to run with the land, four elements must co-exist: (1) there must be a writing; (2) there must be an intention that the covenant run with the land; (3) the covenant must "touch and concern" the land; and (4) there must be privity of estate. In the present example, no privity of estate exists between Wilkes and the Lovette Preservation League. As a con¬sequence, provision (a) cannot be viewed as a covenant running with the land. By process of elimination, choice (D) is therefore the best answer.

X, Y and Z are the owners of three contiguous lots in the City of Palm Grove. A downward slope exists from X's land to Z's land. X's and Y's lots were in an unimproved natural state. Z, how¬ever, had lived for ten years in a house which he had built on his property. In 1990, X planted trees and shrubbery on his land along the boundary of Y's lot. In 1991, Y, in preparation for building a house on his lot, care¬fully made an excavation eight feet deep for the purpose of building a basement. The west side of the excavation which was five feet east of the X-Y boundary, suddenly collapsed and a quantity of X's soil, his trees and shrubbery fell into the hole. Y hauled away the debris. Y completed construction of his house and macadamized an area for use as a driveway, without changing the former contours of the land. Shortly thereafter, Z began to make complaints to Y about the flooding of his basement, which he claimed had been previously free of water. 10. In an appropriate action by X against Y to recover for the damage to his land, judgment for whom? (A) Y, if he was conducting the excavation work non-negligently (B) Y, because he was under no duty to support X's land in its improved state (C) X, because a landowner is entitled to support of his land in its natural condition (D) X, because a landowner has an absolute right to have his land supported by the neighboring land

10. (C) One who by excavation or otherwise withdraws lateral support from her neighbor's land is liable for the injury done to such land in its natural condition, regardless of negligence. The common law right to lateral support is a right to the support of land in substantially its natural condition. It does not include the right to have the additional weight of artificial structures sup¬ported by the neighboring land. However, a defendant may be held liable for damage caused to structures if there is proof of negligence on his part. In the present example, X's land was essentially in its natural condition. As a result, choice (C) states the correct rule.

100. If the property in question was located in a state having a notice-type statute, which of the following parties would ultimately prevail? (A) Dave (B) Betty (C) Clyde (D) none of the above

100. (A) Under a notice type statute, the subsequent bona fide purchaser without notice prevails over the prior interest whether the subsequent purchaser records or not.

11. Assume for the purposes of this question only that Z builds a concrete wall three feet along his border with Y to prevent the flow of rain water running onto his land from Y's prop¬erty. This causes the surface water to stand and become stagnant on the northerly corner of Y's land. Y demanded that Z remove the wall and upon Z's refusal, Y brought an appropriate action to compel removal. The most likely result is (A) Z must remove the wall because he has no right to obstruct the flow of such surface water (B) Z must remove the wall at Y's expense (C) Z may leave the wall without being liable to Y for money damages (D) Z may leave the wall but he will be liable to Y for money damages

11. (C) A popular Multistate testing area deals with surface waters. Surface waters are those which come from rain, springs and melting snow and ice, and simply follow the contours of the land and have not yet reached a natural water course or basin with well defined bed and banks. Under the common law rule (still followed in a majority of jurisdictions), sometimes called the "common enemy rule" because surface water is considered a common enemy, the lower tract is not burdened with any servitude in favor of the higher land and the owner of the lower tract has the right to protect his lower tract from "the common enemy" or the flow of surface water by making any improvements which are suitable for the purpose.

Assume for the purposes of this question only that Y became engaged in experimentation with artificial means to seed clouds in an attempt to suppress damaging rain storms. The rain storms apparently originated in and over the area with¬in which Z's land is located. Z brought suit to enjoin such cloud seeding activity. At trial, it was found that Y had been conducting its activities over clouds above Z's land. According to further testimony, Y's seeding operations did, in fact, cause the complete dissipation of the clouds. The court should (A) enjoin Y's seeding operations because it constitutes an unreasonable interference with the space above Z's land (B) enjoin Y's seeding operations because one does not have the right to interfere with natural rainfall (C) not enjoin Y's seeding operations if they were neces¬sary to protect his property from the rain storms (D) not enjoin Y's seeding operations because Z does not own the space above his land

12. (A) The possessor of real property has the right to the exclusive possession of the surface of the ground, the airspace above and the soil underneath, the extent of which is determined by his exterior boundaries extended vertically upward and downward. This is commonly referred to as the "ad coelum" doctrine as to the upper space and was expressed in the Latin maxim, "cujus est solum ejus est usque ad coelum." Translated literally, "whose is the soil, his is to the sky or high heavens." In applying this rule, choice (A) is correct because any use of the space above one's land which is unreasonable, improper, or interferes with the use and enjoyment of the surface can constitute a trespass.

Quirk owned a four-story office building located in downtown El Paso. The building, named Quirk Towers, was old and badly in need of renovation. To finance the improvements, Quirk bor¬rowed $125,000 from his friend, Lama. As consideration for the loan, Quirk executed a promissory note for $1 25,000 payable to Lama in one year and secured by a mortgage on Quirk Towers. The mortgage was dated January 1, 1988, and was recorded January 2, 1988. Thereafter, on February 1, 1988, Quirk execut¬ed a deed absolute on Quirk Towers and named Lama as grantee. This deed, although absolute in form, was intended only as additional security for the payment of the debt. In order to make judicial foreclosure unnecessary and to eliminate the right to redeem, Quirk then delivered the deed to Uribe in escrow with instructions to deliver the deed to Lama if Quirk failed to pay his promissory note at maturity. On January 1, 1989, Quirk failed to pay the note when it came due. Thereupon, Uribe, in accordance with escrow instructions, delivered Quirk's deed on the office building to Lama, which he promptly and properly recorded. Two weeks later, Quirk tendered the $125,000 indebtedness to Lama. When Lama refused to accept it, Quirk brought an appropriate action to set aside and cancel the deed absolute and to permit the redemption of Quirk Towers from Lama. Conversely, Lama counterclaimed to quiet title and argued that the deed absolute was intended as an outright conveyance upon default. 13. The court should enter a judgment that will grant the relief sought by (A) Quirk, but only if Quirk can establish that the mortgage takes precedence over the deed absolute since it was executed earlier in time (B) Quirk, because the deed absolute did not extinguish his right of redemption (C) Lama, because the deed absolute effectuated an out¬right conveyance that extinguished the redemption interest sought to be retained by Quirk (D) Lama, because Quirk is estopped to deny the effect of the deed absolute in conjunction with the escrow arrangement

13. (B) One of the most popular Multistate testing areas deals with mortgages. The reason why mortgage problems are frequently tested on the exam is because the "general" bar review courses provide only a cursory review of this extremely important subject area. In this particu¬lar question, it has long been recognized in equity that a deed absolute intended for security, will in fact be construed as a mortgage. This is not really surprising when it is remembered that the traditional form of the mortgage was a conveyance subject to defeasance, and that the equi-ty of redemption was created by the equity court to protect the mortgagor after default. In order to preserve this equity of redemption various rules were formulated to prevent mortgages from limiting or clogging the equity of redemption. The most common example of such rules is the principle "once a mortgage always a mortgage." This, in effect, means that a mortgagee cannot circumscribe the mortgagor's right to redeem by disguising the transaction as an outright con¬veyance. In this example, the facts indicate that Quirk executed the deed absolute to Lama as additional security. Therefore, the deed will not extinguish Quirk's right of redemption since it (the deed absolute) will be construed as a mortgage and not an outright conveyance.

14. For this question only, assume the following facts. On January 1, 1989, Quirk failed to pay the note when it came due. The next day, Uribe, the escrow agent, delivered the deed to Quirk Towers to Lama. Lama then properly record¬ed this deed on January 3. One week later, on January 10 Lama conveyed Quirk Towers by warranty deed to Gonzales for the purchase price of $200,000. On January 12, Quirk tendered the $125,000 balance due to Lama which he refused to accept. Quirk now brings an appropri¬ate action against Lama and Gonzales to set aside the con¬veyance and to permit the redemption of the property by Quirk. Which of the following best states Quirk's legal rights, if any, in his action against Lama and Gonzales? (A) Quirk has no rights against Gonzales but Quirk does have an action for redemption against Lama for the value of the property. (B) Quirk has no rights against Lama but Quirk does have an action for redemption against Gonzales for the value of the property. (C) Quirk has the option of seeking redemption against either Lama or Gonzales for the value of the property but Quirk cannot set aside the conveyance. (D) Quirk has no rights against either Lama or Gonzales because he defaulted on the promissory note.

14. (A) When the "mortgagee" under a deed absolute mortgage transfers to a bona fide purchaser, the mortgagor has no rights against the bona fide purchaser, but he does have an action for redemption against the "mortgagee "for the value of the land, or, at his election, the proceeds of the sale. The theory is that the mortgagee now has the value of the land in his hands as a separate fund, and such fund as a substitute for the land may be redeemed by the mortgagor. Applying this rule to our given set of facts, Quirk has no right against Gonzales, the bona fide purchaser, but he does have an action for redemption against Lama, the mortgagee.

Lord was the owner of a large, high-rise apartment building in Detroit. On June 1, 1981, Mr. and Mrs. Tenner took possession of a 3 bedroom apartment in Lord's building under a 3 year lease to them from Lord at a rental of $825 per month. Their lease (as all other leases given by Lord) contained the following provisions: "Tenants hereby agree that...the premises are not to be occupied by any two or more persons not relat¬ed to one another by blood or marriage..." "The term of this lease shall be three years from the date hereof as long as all the agreements herein shall be faithfully performed." Mr. and Mrs. Tenner lived in the apartment for two years. On June 10, 1983, however, a fire destroyed the apartment building. As a result, all the apartments in the building were rendered uninhabitable. After Mr. and Mrs. Tenner were dispossessed from their apartment, Lord brought suit against them to recover the rent due for the balance of the lease. Mr. and Mrs. Tenner claim that they are no longer liable for rent or any other obliga¬tions under the lease. The Lord-Tenner leasehold contract con-tained no provision regarding liability for fire. 20. If the decision is in favor of Mr. and Mrs. Tenner, it will be because (A) there was nothing in the lease regarding liability for fire (B) Mr. and Mrs. Tenner did not own an interest in the property (C) Lord should not be unjustly enriched (D) Lord did not contract to convey the property to Mr. and Mrs. Tenner

20. (D) At common law, a tenant remains liable to pay rent even though because of fire, floods, storms or other action of the elements or otherwise, the property is rendered totally uninhabitable unless the lease otherwise provides. So, therefore, if the decision is in favor of Mr. and Mrs. Tenner, it will most likely be because the doctrine of equitable conversion is inapplicable. Note that the equitable conversion doctrine applies only when there is an enforceable obligation to sell land. Caveat: Choice (C) is wrong because since this is an action at law (to recover money damages), the court will not apply equitable considerations (e.g., unjust enrichment) in resolving the dispute. Choice (B) is also wrong because a leasehold is considered an interest in land.

Fegen owned two adjacent ten story commercial buildings in Beverly Hills. The buildings were respectively known as Trump Towers and Galleria Plaza. The first floors of both buildings were occupied by various retail establishments. The buildings' other floors were rented to tenants and used as offices. There was an enclosed walkway which connected the second floor of each building. Thus, shoppers and office workers could walk across the common walkway and gain access to each building. While the buildings were being used in this manner, Fegen sold Trump Towers to Toyota by warranty deed, which made no mention of any rights concerning the walkway. The walkway continued to be used by the occupants of both buildings. Thereafter, the walkway became unsafe as a consequence of wear and tear. As a result, Toyota hired a contractor to repair the walkway area. When Fegen saw the contractor removing the carpeting along the walkway, he demanded that Toyota discontinue the repair work. After Toyota refused, Fegen brought an action to enjoin Toyota from continuing the work. 15. The most likely result will be a decision for (A) Fegen, because Toyota does not have rights in the walkway (B) Fegen, because Toyota's rights in Trump Towers do not extend to the walkway (C) Toyota, because Toyota has an easement in the walk¬way, and an implied right to keep the walkway in repair (D) Toyota, because he has a right to take whatever action is necessary to protect himself from possible tort liability from persons using the walkway

15. (C) Apparently, Toyota would have an implied easement in the walkway. An implied easement is created and proved not by the words of the conveyance but by all the circumstances surround¬ing the execution of the conveyance. It is based on the intention of the parties as inferred from the surrounding circumstances. There are five distinct requirements for the existence of an implied easement all of which are present in the facts of this example. First, there must be two properties owned by one person who uses one of the pieces of property to serve the other piece of land. Second, there must be a conveyance of one part of the property to another person, the other part being retained by the conveyor. Third, the quasi-easement must be apparent at the time of the con¬veyance. Fourth, the quasi-easement must be continuous, which means that the use of the quasi-servient tenement must be permanently adapted to serve the needs of the quasi-dominant tenement. Fifth, the quasi-easement must be (a) "reasonably necessary" to the convenient enjoyment of the quasi-dominant land if that tract is the property conveyed to the grantee, and (b) "strictly necessary" to the enjoyment of the quasi-dominant tenement if that tract is retained by the grantor. By virtue of the implied easement, Toyota has the right to enter the walkway for the purpose of repairing, maintaining and improving the means by which the easement is enjoyed.

Questions 16-18 are based on the following fact situation. In 1956, Obie conveyed Blackacre to John "for life, remain¬der after John's death to his heirs." Two years later John entered into a real estate agreement for the sale of Blackacre to Ed, whereby John agreed to convey the premises to Ed in fee simple absolute. Prior to the settlement date, Ed contacted John, telling him that he would not perform his part of the agreement because John could not convey a fee simple. 16. If the Rule in Shelley's Case is followed in this jurisdiction, the outcome of a suit by John for specific performance of the real estate contract would result in (A) John not succeeding, since he could not convey mar¬ketable title (B) John succeeding, because he had a fee simple to convey (C) John not succeeding, because his heirs have to join in the transaction in order to convey marketable title (D) John succeeding, because the conveyance of his life estate divested the contingent remainder of his heirs

16. (B) John would succeed because Shelley's Rule operates as follows: if a life estate is conveyed to A and in the same instrument a remainder is given to A's heirs, then A will take a remainder in fee simple. In other words, A's life estate merges with the remainder to his heirs, thus giv¬ing A a fee simple absolute.

Assume for the purposes of this question only that Obie conveyed Blackacre to John "for life, with remainder to Obie's heirs." Later John conveyed Blackacre to Sam "for as long as he would continue to farm the property." After John's death, Obie's heirs brought suit against Sam to quiet title. Which Common Law doctrine would be most appli-cable in the court's determination of the ownership of Blackacre? (A) Rule of Wild's Case (B) Doctrine of Destructibility of Contingent Remainders (C) Doctrine of Worthier Title (D) Rule against Remainders in the Grantees' Heirs

18. (C) Choice (C) is correct because the old common law Doctrine of Worthier Title is construed today as a rule of construction whereby the grantor presumes not to create a remainder in his heirs, but rather intends to retain a reversion in himself. Refer to Justice Cardozo's opinion in the leading case of Doctor v. Hughes, 22 N.E. 211,1919.

Rockne Faust owned Scenicacre, a 40 acre tract of farmland, which was located in the township of South Bend. Rockne leased the property and building thereon to Dan Devine for a term of seven years commencing on February 15,1970 and ter¬minating at 12 noon on February 15, 1977. The lease contained the following provision: "Lessee covenants to pay the rent of $1,000 per month on the fifteenth day of each month and to keep the building situated upon said leased premises in as good repair as it was at the time of said lease until the expiration thereof." The lease also contained a provision giving Devine the option to purchase 10 acres of Scenicacre for $30,000 at the expiration of the lease term. Before the lease was executed, Faust orally promised Devine that he (Faust) would have the 10 acre tract surveyed. During the last year of the lease Devine decided to exercise the option to purchase the 10 acres of Scenicacre. Without Faust's knowledge, Devine began to build an irrigation ditch across the northern section of the property. When Devine noti¬fied Faust that he planned to exercise the option, Faust refused to perform. Faust also informed Devine that he never had the 10 acre tract surveyed. 19. If Devine brings suit for specific performance, which of the following is Faust's best defense? (A) The option agreement was unenforceable under the parole evidence rule. (B) Faust's failure to survey the 10 acre tract excused him from further obligations under the contract. (C) The description of the property was too indefinite to permit the remedy sought. (D) The option was unenforceable because it lacked sepa¬rate consideration.

19. (C) Smith and Boyer note that no conveyance is valid unless the description of the land sought to be conveyed is sufficient to identify the land. In this example, the facts indicate that Scenic-acre is a 40 acre tract of farmland. The leasehold agreement provided that Devine would have an option to purchase 10 acres of Scenicacre. Since the lease failed to identify or describe a dis¬tinct piece of Scenicacre, Faust's best argument is that the option should fail for lack of description. Law of Property, pg. 300.

2. In an appropriate action to construe the agreement between Wilkes and the Lovette Preservation League, the court will determine provision (b) to a (an) (A) easement (B) profit (C) covenant running with the land (D) equitable servitude

2. (A) Section (b) of the Wilkes-Lovette agreement would be construed as an easement. An ease¬ment is the right of one person to go onto the land in possession of another and make a limited use thereof. Students are advised to refer to CAVEAT 44 for a more complete explanation on the distinction(s) between easements, profits and licenses.

32. Which of the following is the most accurate statement regarding a tenant's covenant to keep the premises in repair? (A) A tenant is liable for normal wear and tear under the covenant to repair. (B) A tenant is liable under such a covenant for all defects, including the acts of God. (C) A tenant's covenant to repair is void as against public policy, since the landlord is under an affirmative duty to make repairs on the demised premises. (D) The tenant's duty to keep the premises in good repair relieves the landlord of his obligation to disclose the existence of any latent defects.

20. (B) The most accurate statement regarding a covenant (in the lease) which requires the tenant to keep the premises in repair is that he is liable under such a covenant for all defects (except normal wear and tear) regardless of their cause. As a result, a tenant is liable for any defects caused by himself, third persons, and even acts of God.

Questions 21-22 are based on the following fact situation. In 1995, John Jones executed a deed by which he conveyed Blackacre for a consideration of one dollar, receipt of which was acknowledged, "to Burkhart for life, then to Carr for life but if Carr moves to another state, to Drew for the life of Carr, then to the heirs of Carr if Carr does not move to another state and to the heirs of Drew if Carr does move to another state." This deed was promptly recorded. 21. During Burkhart's lifetime, Carr's interest may best be described as a (an) (A) contingent remainder (B) shifting executory interest (C) vested remainder subject to complete divestiture (D) vested remainder subject to partial divestiture

21. (C) Choice (C) is correct. Carr's interest in Blackacre would be a vested interest subject to com¬plete divestiture. At the expiration of Burkhart's life estate, Carr would immediately be entitled to take possession of Blackacre. However, Carr's vested remainder (i.e., life estate in futuro in Blackacre) would be subject to complete divestiture upon the contingency of his redomiciling. Choice (A) is incorrect since a contingent remainder is a remainder limited so as to depend on an event or condition which may not happen or be performed until after the termination of the preceding estate. Conversely, we are certain, here, that Burkhart's life estate will eventually ter¬minate. Thus, although Carr may predecease Burkhart thereby terminating his actual enjoyment, his right to such enjoyment (i.e., vested remainder in Blackacre) is not uncertain. Choice (B) is incorrect since a "shifting" executory interest is a contingent remainder whereby one party's expectant interest is transferred or "shifted" to another upon the happening or non-happening of a particular contingency.

22. During Burkhart's lifetime, Drew's interest may best be described as a (an) (A) estate pur autre vie (B) contingent remainder pur autre vie (C) vested remainder pur autre vie (D) shifting executory interest pur autre vie

22. (D) Alternative (D) is correct since Drew's interest would be a shifting executory interest pur autre vie. An executory interest is an interest that divests the interest of another transferee (shift¬ing executory interest) or that "follows a gap" or divests the interest of the transferor (springing executory interest). Furthermore, his shifting executory interest would be pur autre vie, since it would be an estate for the life of another (Carr).

In 1970 Rufus Reefer owned Grassacre, a thirty acre tract located just inside Weedville in Humboldt County. Grassacre included the family home, The Rookery, a decaying antebellum mansion complete with tennis courts, stables and a smaller second house which once was occupied by tenants who farmed Grassacre. The second house, however, had long been vacant as a result of the economic decay of Humboldt County. Prosperity burst upon Weedville in 1971, and Reefer began selling acre lots in Grassacre. By 1978, Reefer had sold twenty five acres, retaining five acres which included The Rookery, tennis courts, stables and the former tenants' house. On May, 19, 1979, Reefer entered into a valid written contract with Doper. According to the terms of their agreement, Reefer agreed to sell and convey his remaining interest in Grassacre for a consideration of $500,000. The land sale contract provided a closing date of November 19, 1979 and stipulated that "time was of the essence." On July 2, 1979, a fire destroyed The Rookery. Reefer had The Rookery insured for $450,000 against fire loss and collected that amount from the insurance company. At the closing on November 19th, Doper tendered a cashier's check for $50,000 and demanded a deed conveying a fee simple interest in the property. Conversely, Reefer tendered a deed of conveyance and demanded the full purchase price of $500,000. Doper refused Reefer's demand. 23. In an appropriate action for specific performance against Doper, Reefer demanded $500,000. If Reefer prevails, which of the following is the best rationale for the outcome? (A) The fact that The Rookery was insured for $450,000 is irrelevant. (B) Reefer and Doper each had an insurable interest in the property. (C) The doctrine of equitable conversion has been abolished. (D) The doctrine of equitable conversion requires such a result.

23. (D) This is exactly the same situation that Smith and Boyer discuss in their hornbook on pg. 255. An executory contract for the sale of land requiring the seller to execute a deed con¬veying legal title upon payment of the full purchase price works an equitable conversion so as to make the purchaser the equitable owner of the land and the seller the equitable owner of the purchase price. The result is that the purchaser, the equitable owner of the land, takes the benefit of all subsequent increases in value and, at the same time, becomes subject to all losses not occasioned by the fault of the seller. Thus, the purchaser, to protect himself, either must procure his own insurance, or by appropriate provision in the contract, cast the risk upon the seller. He is not, however, entitled to recover insurance payments payable to the vendor. Note that choice (D) is a better answer than (A) because the equitable conversion doctrine which places the risk on the buyer requires such a result.

Question 24 is based on the following fact situation. On November 1, 1984, Beeson contracted to purchase from Sloan for $250,000 certain property on which was erected a hotel. The contract required Beeson to pay Sloan a deposit of $12,500 with the balance of the purchase price payable at clos¬ing on December 1, 1984. On November 24, 1984, a fire caused the hotel to burn down. As a consequence, Beeson refused to honor the contract. Sloan now brings an action for specific performance arguing that the doctrine of equitable conversion places the loss on the buyer. Beeson argues that to enforce the contract would be harsh and oppressive to him. 24. If judgment is for Beeson, it will be because (A) Sloan assumed the risk (B) Sloan would be unjustly enriched (C) legal title remained in Sloan (D) equity will relieve Beeson of a bad bargain

24. (B) Under the doctrine of equitable conversion the risk of loss from casualty and other fortu¬itous events is normally placed on the purchaser in the absence of controlling provisions in the contract. Equity thus considers the vendee as the owner of the land and the vendor as the owner of the purchase money. Smith and Boyer point out, however, that this rule is limited in its application to cases where the intention of the parties will not produce an inequitable result. For example, assume that A contracts to sell to B a certain piece of land which was to be used for the purpose of erecting a hotel. However, between the time the contract of sale was made and the time for delivery of the deed, the city council rezones the lot so that it could only be used for residential purposes. A now brings suit for specific performance. In this situation, Smith and Boyer note that the granting of specific performance would be unduly harsh and oppressive to B. Since the intent of the parties was defeated by the supervening event, specific performance should be denied. However, the denial of specific performance does not end the matter, but, instead, the vendor may proceed against the purchaser in a suit at law. Real Property, pg. 255. By analogy, if the court rules in favor of Beeson, it will be to avoid unjust enrichment.

The state of Runnymede has the following recording statute in effect: "No conveyance is good against a subsequent pur¬chaser for a valuable consideration and without notice, unless the same be recorded prior to subse¬quent purchase." Lau is the owner in fee simple of Blackacre, a 20-acre tract of unimproved land, situated in Madison, Runnymede. On May 1, Lau sold Blackacre to Eto for the purchase price of $40,000 under a quitclaim deed. Eto did not record the deed. On May 5, Lau died leaving a valid will by which he devised Blackacre to his son, Landon. After the administration of Lau's estate, Landon, in consideration of the sum of $75,000, conveyed Blackacre to Fong by warranty deed. This transaction took place on August 1. When Fong acquired title to Blackacre, he had no actual knowl¬edge of Eto's deed (which was still unrecorded). On August 10, Eto recorded his deed to Blackacre. Fong did not record the deed he received from Landon until August 15. 25. In an appropriate action to quiet title to Blackacre, in which all interested parties have been joined, title will be found to be in (A) Eto, because his deed preceded Fong's deed (B) Eto, because his deed was recorded prior to Fong's deed (C) Fong, because he is protected by the recording statute (D) Fong, because he took title by warranty deed and Eto took title by quitclaim deed

25. (C) The "key" to this question is carefully interpreting the wording of the recording statute. According to the statutory language, the Runnymede recording act protects subsequent bona fide purchasers for value and without notice. As such, this is an example of a pure "notice" type recording statute which generally provide: an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser for value and without notice. Under this type of recording statute, the subsequent bona fide purchaser prevails over the prior interest whether the subsequent purchaser records or not. As a consequence, Fong will prevail over Eto because Fong was a subsequent bona fide purchaser without notice of Eto's deed.

46. Which of the following accurately states the legal relation¬ship^) of the various parties? I. Privity of estate and privity of contract exist between Landley and Tennance. II. Privity of estate and privity of contract exist between Tennance and Aruba. III. Privity of estate but not privity of contract exists between Landley and Aruba. IV. Neither privity of estate nor privity of contract exists between Landley and Simon. (A) I and II, but not III and IV (B) II and III, but not I and IV (C) I and IV, but not II and III (D) I, II and IV, but not III

46. (D) As noted in the previous explanation, there is privity of estate and privity of contract between the landlord and the tenant. Likewise, privity of estate and privity of contract exist between the tenant and subtenant. However, neither privity of contract nor privity of estate exists between the landlord and the subtenant.

Question 26 is based on the following fact situation. A deed executed by A in 1977 conveyed Blackacre for a con¬sideration of one dollar, receipt of which was acknowledged, "to B for life, then to the heirs of B." A life interest in Blackacre for the life of B is worth $20,000 on the date of the conveyance. The total worth of Blackacre is $50,000. B accepted but didn't record the deed. The recording statute in this jurisdiction pro¬vided "unless recorded all written instruments affecting title to land are void as to subsequent purchasers who paid value and without notice." In 1981 A purported to convey Blackacre in fee simple absolute to his two sons, C and D, by a warranty deed as a gift. C and D recorded the deed. Shortly thereafter, B ascertained that C and D were about to take possession of Blackacre. As a con¬sequence, B promptly recorded his deed. 26. In a dispute between B and A's children as to the ownership of Blackacre, if B prevails it will be because (A) B paid valuable consideration for his deed (B) B recorded his deed before A's children sought to oust him from the land (C) C and D are not protected by the recording statute (D) A's knowledge is imputed to his children

26. (C) In order to be a bona fide purchaser protected under the recording act, one must (a) be subsequent, (b) pay value, (c) be without notice (the value must have actually been paid before notice), and (d) be of good faith. Students must be aware that recording statutes do not protect a subsequent claimant who has not paid more than a nominal consideration because he is not a purchaser. Therefore, in our case C and D (A's children) are not protected by the recording statute because they are not purchasers (as A purportedly conveyed the property to them as a gift).

Fletcher, a noted conservationist, died four years ago leaving a will by which he devised Greenacre, a 100-acre tract, to his daughter, Fawn. At the time of Fletcher's death, he believed that he owned all of Greenacre. However, Fletcher actually owned ninety-five acres of Greenacre. The other five acres were owned by Oswald. After taking possession of Greenacre, Fawn execut¬ed and delivered a warranty deed to Scott purporting to convey all 100-acres of Greenacre. The agreed purchase price was $100,000. According to the terms of the sale, Scott paid Fawn a down payment of $25,000 with the unpaid portion of the pur¬chase price (i.e. $75,000) secured by a mortgage. The mortgage instrument described the property interest as covering all 100-acres of Greenacre. After the Fawn-Scott transaction was completed, Oswald came forward and informed the parties that she was the true record owner of five acres of Greenacre. Upon Oswald's threat to sue to quiet title, Fawn negotiated a deal whereby she paid Oswald $5,000 for the five-acre tract. As part of their agreement, Oswald executed and delivered a quitclaim deed quitclaiming to Scott all of her interest in the five-acre parcel. Thereafter, Scott defaulted on the mortgage debt and Fawn properly consummated foreclosure proceedings, becoming the purchaser of Greenacre at her own foreclosure sale. The descrip¬tion of the deed in the foreclosure sale referred to Greenacre as consisting of all 100-acres. After the foreclosure sale was final¬ized, Scott brought suit claiming title in fee simple to the five-acre tract, formerly owned by Oswald. 27. In an appropriate action to determine the title to the said five-acre tract, Scott will (A) lose, because Fawn did not have good and marketable title at the time she purported to convey Greenacre to Scott (B) lose, because the doctrine of after-acquired title controls (C) win, because the deed from Oswald to Scott was a quitclaim deed (D) win, because the quitclaim deed from Oswald to Scott was subsequent to the deed from Fawn to Scott and to the mortgage

27. (B) The doctrine of estoppel by deed (sometimes referred to as the "after-acquired title" doc¬trine) applies when a person executes a deed purporting to convey an estate in land which he does not have or which is larger than he has, and such person at a later date acquires such estate in such land, then the subsequently acquired estate will, by estoppel, pass to the grantee. In this example, once Fawn purchased the five-acre tract from Oswald, title inured to the benefit of Scott as evidenced by Oswald's quitclaim deed to Scott. Most importantly, Fawn held a mort¬gage on Greenacre. The mortgage instrument described the property interest as covering all 100-acres of Greenacre. Thus, when Scott defaulted and Fawn foreclosed, she purchased back the entire tract of Greenacre (including the 5-acres previously owned by Oswald). Note that choice (A) is wrong because even though Fawn did not have good and marketable title to Greenacre initially, this title defect was subsequently cured by operation of the Fawn-Oswald transaction. Choice (C) is incorrect because at the moment Fawn acquired title to the 5-acres from Oswald, title automatically inured to the benefit of Scott by virtue of the estoppel by deed doctrine. It is really irrelevant whether Oswald quitclaimed the property to Scott. This is tricky because in most states estoppel by deed will not be applied where the conveyance is by a quit¬claim deed. In this question, however, students must remember that the Fawn-Scott conveyance was by warranty deed. That's why "after-acquired title" applies. In other words, even if Oswald didn't quitclaim the 5-acre parcel to Scott, title would nonetheless inure to Scott's benefit.

Wilson, being fee simple owner of Blackacre, devised it to his daughter, Jennifer, and her husband, Brad, as tenants by the entirety. Jennifer and Brad took immediate possession of Blackacre and lived there with their children, Beth and Jeffrey. Thereafter, Brad died in an automobile accident. In 1952, two years after her father's death, Beth moved to another state. Jeffrey lived with his mother on Blackacre until her death intestate in 1960. He continued in exclusive possession of Blackacre until his death in 1981. In his will, Jeffrey devised Blackacre to the Boy Scouts of America. Jeffrey was unaware that Beth was still alive and that title to Blackacre had descend¬ed to the two of them as their mother's sole surviving heirs. Since his mother's death in 1960, Jeffrey has held himself out as the owner of Blackacre, maintaining it and paying all of the taxes on the property. Beth has not communicated with either her moth¬er or Jeffrey since her redomiciling in 1952. The jurisdiction in which Blackacre is located has a 20 year limitation period for the acquisition of property by adverse possession. 28. What interest, if any, does Beth have in the property? (A) None, because of her own laches. (B) None, because Jeffrey acquired title to Blackacre by adverse possession. (C) An undivided one-half interest because Jeffrey's pos¬session was not adverse to Beth's title. (D) An undivided one-half interest because the 20 year limitation period did not run against her since she was unaware of Jeffrey's exclusive possession.

28. (C) Here, Jeffrey and Beth acquired title to Blackacre as tenants in common (by descent). In a tenancy in common each tenant owns an undivided fractional part of the property, none owns the whole as in joint tenancy. Note that choice (B) is wrong because Jeffrey's possession of Blackacre was not hostile and adverse since he in fact was the owner of the property (as a ten¬ant in common).

Questions 29-30 are based on the following fact situation. Landlord owns a three-story building which is located in the township of Scotch Plains. Landlord leased the building and the surrounding property to tenant for a term of six years commenc¬ing on December 1, 1975 and terminating on November 30,1981. Their leasehold agreement contained the following provisions: "Tenant covenants to pay the rent of $500 per month on the first day of each month and to keep the building situated upon leased premises in as good repair as it was at the time of said lease until the expiration thereof." On April 15, 1976 Neighbor, owner of a adjoining parcel of land, was burning leaves and underbrush on his land. There was a high wind blowing in the direction of the land which Landlord leased to Tenant and the wind carried the burning leaves onto Tenant's property. The building caught fire and caused $150,000 in fire damages. Because of the fire, Tenant has not occupied the leased premises since the date of the fire because the building was rendered uninhabitable. NOTE: Scotch Plains is a common law jurisdiction. In addi¬tion, the controlling Scotch Plains Statute of Limitations for initi¬ating an action for damages due to negligence is five years from the time the cause of damage occurs. 29. On May 1, 1976 Landlord brings suit against Tenant assert¬ing breach of contract. Judgment for (A) Landlord, since a Tenant remains liable to pay rent even though as a result of the fire, the property was rendered uninhabitable (B) Landlord, since the covenant to pay rent runs with the land (C) Tenant, as it would be inequitable to enforce the rental provision in the lease because the premises was ren¬dered uninhabitable (D) Tenant, since an increasing number of states have enacted statutes relieving a tenant of his obligation to pay rent where the premises are rendered uninhabit¬able by fire or other acts of God

29. (A) Tenant is still liable to Landlord for the $500 monthly rental despite the fact that he can no longer reside in the building. At common law, the general rule is that a tenant remains liable to pay rent even though because of fire, floods, or other unforeseen action, the property is ren¬dered totally uninhabitable. Please note that it is possible for the parties to provide in a lease for certain excuses for nonpayment of rental. But in our hypothetical, no such provision was made in the lease.

Questions 3-4 are based on the following fact situation. Duffy, a wealthy and devoted naturalist, owned a large and uninhabited island just a short distance off shore in Balboa Lake in the state of Dakota. Duffy permitted no pesticides or hunting on the island, and over the course of his life had bought several quite rare species of animals which were native to Dakota and turned them loose on the island. Among these was a magnificent albino ocelot. Duffy lived in a large Tudor-style mansion that his grandfather, Dudley Duffy, built in 1902. Since the time the mansion was built, it has passed from father to son. In 1993, Duffy has informed his attorney that he wishes to transfer ownership of the island to his daughter, Dawn. During the consultations with his attorney, Duffy indicated that he wanted the following restric¬tions incorporated in the instrument of conveyance: (1) all use of the island's land must be restricted to residential, non-commercial purposes; (2) no hunting of animal life on the island shall be permitted and reasonable efforts should be made to pre¬serve the albino ocelot species; (3) the Tudor-style mansion should be repaired as needed but must never be torn down or demolished; and (4) the mansion shall never be any color except pink, the color it has been since it was built at the turn of the century. Furthermore, Duffy told his attorney that he wanted to prevent Dawn from selling, mortgaging or otherwise encumbering the land within Dawn's lifetime. Lastly, Duffy remarked to his attor¬ney, "I want to keep things as simple and plain as possible; but I flat out don't want you setting up any type of trust arrangement." 3. Which of the following legal devices is most likely to be appropriate for carrying out Duffy's wishes? (A) Equitable servitude (B) Defeasible fee (C) Covenant (D) Tenancy at will

3. (B) A "fee" describes a freehold estate of inheritance which has potentially infinite duration, or which can be terminable upon the happening of an event (i.e., "defeasance"). As a posses¬sory real property interest a defeasible fee can be distinguished from a covenant, choice (C), or an equitable servitude, choice (A). The latter two interests are non-possessory interests which act as private land use restrictions. Since Duffy wants to transfer ownership of the island to Dawn, he must convey to her a possessory interest. Choice (B), a defeasible fee, is the correct answer, since it is the only possessory interest given. Choice (D) is incorrect because a tenancy at will is an estate in land terminable at the will of either the landlord or the tenant. No such relationship is intended under these facts.

34. Assume for the purposes of this question only that Harry, after learning of Rick's assignment to Simon, brings suit against Rick to have the assignment declared void. Harry will most likely (A) succeed, since the original leasehold agreement pro¬hibited assignments (B) succeed, since the covenant prohibiting assignments did not run with the land (C) not succeed, since in accordance with the Rule in Dumpor's Case, where the landlord consents to one transfer, he waives his right to avoid future transfers (D) not succeed, since the privity of estate between Rick and Harry terminated when he assigned the leasehold to Simon

34. (C) In accordance with the Rule in Dumpor's Case, if a landlord grants consent to one trans¬fer (e.g., Tony's assignment to Rick), he waives his right to avoid future transfers, assigns or sub¬leases in violation of a prohibition in the lease against such transfers. By the same token, if the lessee/assignee pays rent to the landlord and such rent is accepted by him, in spite of the fact that the transfer was in violation of the lease, the landlord will be deemed to have waived his right to avoid the transfer.

35. If Leonard brings suit against Thomas for payment of rent in arrears, he would most likely: (A) succeed, because the tenant is estopped to deny Leonard's title (B) succeed, because of his security interest in the property (C) fail, because the purchase by Thomas vitiated any fur¬ther contractual obligations (D) fail, because he was under a duty to keep the demised premises in reasonably good repair

35. (C) After purchasing the property at the sheriff's sale, Thomas, as record title owner, would no longer remain obligated under the leasehold contract. As such, choice (C) is correct because the sheriff's sale would vitiate Thomas' obligation to make any further rental payments to Leonard.

36. In a subsequent proceeding by Leonard against Thomas to recover for the damage to the parquet floors resulting from the leak, liability would most likely be imposed upon: (A) Leonard, because he was under an implied obligation to keep the premises in a habitable condition (B) Leonard, because he was under an affirmative obliga¬tion to deliver the premises in a reasonable state of repair (C) Leonard, because of the contractual obligation under the lease to make all necessary repairs during the term of the lease (D) Thomas, because a tenant for years is obligated to make such ordinary repairs on the leased property

36. (D) Thomas is liable for the damage to the floors caused by his failure to replace the shingles since a tenant for years is legally bound to make such ordinary repairs on the leased property as will avoid serious injury to the property. Thus, Thomas' failure to make the necessary repairs would make him liable for such permissive waste.

37. Assume for the purposes of this question only that 2 years after Thomas entered into the leasehold agreement with Leonard, that he subleases the house to Steve. Thereafter, Steve defaults on the rental payments. If Leonard brings an action to recover the past rent due from Steve, Leonard will: (A) recover, because privity of estate exists between a landlord and sublessee (B) recover, because there is privity of contract between a landlord and sublessee (C) recover, because there is both privity of estate and priv¬ity of contract between a landlord and sublessee (D) not recover, because privity of estate does not exist between the landlord and sublessee

37. (D) Leonard may not recover for rent due from sublessee since there is no privity of estate between landlord and sublessee. Leonard's only cause of action remains against the tenant under their original leasehold agreement.

Recreational Systems, Inc., under the authority of a statute of the State of Creenora, sued to have condemned 1000 acres of forested land owned by the Great Lakes Timber Co. which it planned to develop for use as a state recreational area and state gamelands. After a hearing, the state court ordered possession of the land surrendered to Recreational Systems, prior to determi¬nation of compensation, upon deposit in court of a sum deemed adequate to cover damages which might be awarded. Great Lakes Timber Co. immediately commenced an action to enjoin the court ordered sale of their property. 38. Indicate which of the following would be the best ground for upholding the state court's order: (A) the power of eminent domain may only be delegated directly to a private enterprise for a public related use or activity (B) the power of eminent domain may only be delegated to a public authority through a legislative determination (C) the injured party has not proved such irreparable injury to use as amounts to a "taking" (D) the Fifth Amendment power of eminent domain incor¬porated by the Fourteenth Amendment as applicable to the States does not require that payment be made prior to condemnation of the property

38. (A) The power of eminent domain may be delegated directly or indirectly to a private person or enterprise subject to the requirements that the taking be (a) for a public use and (b) just com¬pensation be given.

Question 39 is based on the following fact situation. Southhampton is a state with a long stretch of scenic, eco¬logically unique, and relatively unspoilt sea coast. Most of the coastline is privately owned by persons who have permanent or vacation residences on their coastal lands. In 1954 Little pur¬chased a two acre tract of littoral (i.e. coastal) land in Southhampton. When Little bought the property, there was a narrow concrete walkway (about 20 feet in length and 5 feet in width) adjoining the land. The walkway, which was designed to provide pedestrian access to the beach, was owned by the Southhampton Coastal Commission. When Little moved into his beach house in 1954, he noticed that the walkway was rarely used. As a result, Little decided to enclose the walkway and con¬struct a paddle ball court over the entire area. He did so without notifying the state Coastal Commission. He has continued to use this area in excess of the period required for adverse possession. 39. In an appropriate action brought by Little to establish title to the walkway area, which of the following must he establish if he is to prevail? I. Real property interests can be abandoned by a govern- mental entity without an official vote. II. Lack of use of the walkway by the state created an irrevocable license in him. III. Real property interests can be lost by a state by adverse possession. IV. His use of the walkway area is proof of his intent to assert dominion over that section. (A) I and II only (B) I and III only (C) II and IV only (D) III and IV only

39. (D) In answering "tier" questions of this type, you should read each statement (i.e., I, II, III and IV) and determine whether it is true or false. Be advised that statement II is false because this question deals with adverse possession not licenses. As a consequence, choices (A) and (C) can be eliminated. In choosing between alternatives (B) and (D), the latter is preferred because it establishes the necessary state of mind required for adverse possession. Possession of real prop¬erty requires acts of dominion and control with an intent to possess and exclude others.

4. Regardless of which legal device is used in the preceding question, which of Duffy's objectives is LEAST likely to be upheld? (A) Restriction to use of the island for residential purposes. (B) Restriction prohibiting the hunting of animals on the island. (C) Restriction requiring the mansion to be painted only the color of pink. (D) Restriction on the sale, mortgage or other encumbrance on the land.

4. (D) Reasonable restrictions on the use of the land—such as residential use only, prohibition of hunting on the premises, or painting the premises only a certain color are generally upheld either as covenants at law or as equitable servitudes. Choices (A), (B) and (C) are reasonable types of restrictions. However, regarding restraints on alienation, the general rule is that any type of direct restraint upon alienation is null and void insofar as an estate in fee is concerned, based on strong public policy favoring free alienation. Burby, Real Property, p. 427. Therefore, choice (D) is the least likely restriction to be upheld since restricting the sale, mortgage, or other encumbrance of the land would amount to a direct restraint on alienation.

Donaldson, an owner in fee simple, leased a three-story house to McQuirk for a term of ten years. By the terms of the lease McQuirk expressly covenanted to pay a monthly rental of $300 and to pay the taxes on the premises during the term of the lease. The lease also stipulated that McQuirk, as lessee, may not assign or sub-lease the said premises. McQuirk and his family lived in the house for two years. Then McQuirk, still owing Donaldson three months back rent, assigned his leasehold interest in the property to Moore, who was unaware of the prohibition against assignments. This writ¬ten assignment expressly provided that Moore would pay Donaldson the monthly rental of $300 but was silent concern¬ing the payment of taxes. Donaldson never objected to this assignment. Six months after the assignment, Donaldson con¬veyed his property interest in the premises to Davis. After residing in the house for a year, Moore sub-leased the third floor to Burger for a term of two years; the agreement pro¬vided that Moore would receive a monthly rental payment of $100. 40. Moore failed to pay the taxes on the property. Davis, after paying the taxes, brought suit against Moore for the amount paid. Judgment would be for: (A) Davis (B) Moore, since h21. (C) Choice (C) is correct. Carr's interest in Blackacre would be a vested interest subject to com¬plete divestiture. At the expiration of Burkhart's life estate, Carr would immediately be entitled to take possession of Blackacre. However, Carr's vested remainder (i.e., life estate in futuro in Blackacre) would be subject to complete divestiture upon the contingency of his redomiciling. Choice (A) is incorrect since a contingent remainder is a remainder limited so as to depend on an event or condition which may not happen or be performed until after the termination of the preceding estate. Conversely, we are certain, here, that Burkhart's life estate will eventually ter¬minate. Thus, although Carr may predecease Burkhart thereby terminating his actual enjoyment, his right to such enjoyment (i.e., vested remainder in Blackacre) is not uncertain. Choice (B) is incorrect since a "shifting" executory interest is a contingent remainder whereby one party's expectant interest is transferred or "shifted" to another upon the happening or non-happening of a particular contingency.did not contract with McQuirk to pay the taxes on the property (C) Moore, since the covenant to pay taxes will not "run with the land" unless the intent is clearly expressed in the original lease (D) Moore, since the covenant to pay taxes is merely col¬lateral and does not "run with the land"

40. (A) By virtue of the assignment, the assignee (i.e., Moore) falls into privity of estate with the landlord and he is liable on all covenants in the original lease which "run with the land". Since the covenant to pay taxes, under the original leasehold agreement between landlord Donaldson and tenant-McGuirk, "runs with the land", Moore, as assignee, would be held liable. In light of the fact that Moore, as assignee, is liable on the covenant to pay taxes, all other choices are incorrect.

42. After Burger had made regular rental payments to Moore for the first six months of the sub-lease, he defaulted. The fol¬lowing month, Moore sent Davis $200 as payment for rent and notified him that he should collect the remaining $100 from Burger, who refused to vacate the premises. In an action by Davis against Burger to recover the additional $100 for rent due, he will most probably (A) recover, since the landlord and sublessee are in privity of estate (B) recover, even though he never objected to the sublease (C) not recover, since McQuirk, as assignor, would only be held liable (D) not recover, since Moore remains liable

42. (D) Since the sub-lessee Burger is not in privity of estate with the landlord, the sub-lessee is not subject to the covenants or terms of the leasehold agreement. Therefore, Moore will remain liable for the entire $300 rental. As a result, choices (A) and (B) are incorrect. Choice (C) is wrong because McGuirk, as assignor, would not be the only party liable.

43. For the purposes of this question only, assume that the orig¬inal leasehold agreement provided for the rental of the three story house in addition to a Tk acre tract upon which the house was located. During Moore's tenancy, the State Highway Authority filed proceedings to condemn two acres of the tract for the purpose of highway construction. As a result, Moore contacted Davis and informed him that he should be entitled to an apportioned reduction in the rental. After Davis refused to reduce the rent, Moore brings an action to have his rent apportioned pro fanto. Judgment for: (A) Davis, although Moore would be entitled to terminate the lease (B) Davis, since Moore would be held to the original leasehold contract (C) Moore, since the value of his leasehold interest was reduced pro tanto (D) Moore, since eminent domain operates as an appor¬tionment of rent

43. (B) The question of law presented here, namely, when there is a partial taking of a leasehold estate by condemnation and the remaining portion is susceptible for occupation, shall the con¬tractual monthly rental be abated pro tanto for the part taken during the remainder of the time of the lease? The majority rule is that rentals are not abated in this situation, but rather the ten¬ant is obligated to continue the payment of the rentals provided in the lease contract and must look to an apportionment of the damages assessed against the condemning authority based on the reduced value of his lease.

Landley owned a large building in the city of Ames. On January 15,1979, Landley leased the building to Tennance for a period of 20 years at a rental of $10,000 per month. The lease¬hold agreement between Landley and Tennance provided that the latter was not permitted "to assign this lease to anyone except a corporation with an 'A' credit rating from the Delmarva Credit Rating Corporation." On February 1, 1980, Tennance leased the premises to Aruba Inc., a corporation which did not have the required credit rating. The Tennance-Aruba lease was for a period of 5 years, with a rental of $15,000 per month, payable by Aruba to Tennance. In addition, Aruba agreed to abide "by all of the terms and conditions of the lease between Landley and Tennance." One year later, Aruba Inc. leased the premises to Simon for the balance of the term of the Aruba-Tennance lease. Simon took possession of the said premises on February 1, 1981, the same day that Aruba Inc. vacated its occupancy. Pursuant to the Aruba-Simon leasehold agreement, the latter was obligated to pay a monthly rental of $17,500 directly to Aruba Inc. Simon has a 'B' credit rating with the Delmarva Credit Rating Corporation. For one year, Simon paid $17,500, each month directly to Aruba Inc. During that same period, Aruba Inc. con¬tinued to pay $15,000 each month to Tennance while the latter paid $10,000 (each month) to Landley. Landley knew about the leases to Aruba Inc. and Simon, and protested promptly, but took no further action, apparently satisfied as long as he received his $10,000 per month from Tennance. On February 1, 1982, Simon abandoned the premises and stopped paying rent to Aruba Inc. After Simon discontinued pay¬ing rent, Aruba Inc. stopped paying rent to Tennance. When Tennance failed to receive his rent, he, too, stopped paying rent to Landley. The building is now vacant, and Tennance refuses to pay rent until the air conditioning is fixed. Simon has returned his keys to Aruba Inc., and the latter has returned its keys to Tennance. However Tennance has not returned any keys to Landley yet. Simon's abandonment was caused by the destruction of the air conditioning unit in a fire apparently set by some vandals. The damaged unit was located in an area inside the store that was used for storing merchandise. Simon has flatly refused to repair or replace the equipment at his own expense. Despite Simon's repeated demands, Aruba, Tennance and Landley have all refused to replace the air conditioning system. 44. Which of the following accurately states the legal effect of the non-assignability clause contained in the Landley-Tennance leasehold contract? (A) The non-assignability provision had no legal effect. (B) The non-assignability provision made the assignment from Tennance to Aruba ineffective. (C) The Tennance-Aruba lease did not effectuate a breach of the Landley-Tennance contract. (D) Although the Tennance-Aruba lease constituted a breach of the Landley-Tennance contract, Landley would nevertheless be required to recognize the validity of the transfer (of the premises) to Aruba.

44. (A) Choice (A) is the most accurate statement. The question asks in so many words "What is the legal effect of the non-assignability clause in the Landley-Tennance contract?" Well, the non-assignability provision had no legal effect. Since Tennance's transfer (of the premises) to Aruba constituted a sublease, not an assignment, the said provision would have no legal effect. Choice (C) is less correct because, although factually true, it does not answer the question asked. Students must know the distinction between an assignment and a sublease. An assignment is a transfer of tenant's entire leasehold estate to another; whereas a sublease is a transfer of anything less than tenant's entire leasehold estate. In the example here, Tennance entered into his leasehold agreement with Aruba one year after his contract with Landley.

45. If Landley brings suit to recover for past rent due, which of the following is (are) correct? I. Landley may recover against Tennance for past rent due. II. Landley may recover against Aruba for past rent due. III. Landley may recover against Simon for past rent due. (A) I only (B) I and II (C) II only (D) I, II and III

45. (A) In the case of a sublease, privity of estate and privity of contract exist between the original landlord and tenant. Similarly, privity of estate and privity of contract exist between the tenant and subtenant. However, neither privity of contract nor privity of estate exists between the orig¬inal landlord and subtenant. Therefore, the landlord cannot sue the subtenant. As a conse¬quence, Landley may not recover against subtenants Aruba and Simon. He may only recover against tenant-Tennance under the terms of their original leasehold contract.

Question 47 is based on the following fact situation. Cornell was the owner of a vacant warehouse which was located in the township of Richmond. On May 1, Cornell leased the warehouse to Yale for a term of five years with a renewable option. The leasehold agreement provided in part: "Yale hereby acknowledges that certain areas of the leased premises are in a state of disrepair and unsafe for the conduct of business, Nonetheless, Yale agrees to assume full responsibility for the necessary repairs. Furthermore, Yale agrees to indemnify Cornell for any loss resulting from the condition of the said premises." Under the terms of the lease, Cornell delivered possession of the warehouse to Yale on May 2. On that date, Brown, who was an employee of Yale's, was working in the warehouse. He was moving some equipment into the warehouse when a section of the ceiling collapsed and fell on him. At the time Cornell and Yale entered into their lease, only Cornell was aware that the ceiling was defective and needed to be repaired. Although Cornell could have remedied the defect before delivering pos¬session to Yale, he (Cornell) didn't perform any repair work on the ceiling. Brown initiated suit against Cornell to recover dam¬ages resulting from his injury. There are no applicable statutes. 47. If Brown prevails it will be because a (A) landowner is strictly liable for injuries occurring on his property (B) landowner's duty of care to third parties cannot be shifted to a tenant by the terms of a lease (C) tenant cannot waive the implied warranty of commer¬cial habitability (D) covenant to indemnify by a tenant in favor of a land¬owner is against public policy

47. (B) At common law, a landlord generally does not impliedly warrant that the leased premises are suitable for any particular purpose, and he is not liable for a dangerous condition existing on the leased premises. Normally, the doctrine of caveat emptor prevails, but there are two notable exceptions. First, Smith and Boyer point out that "A landlord may be liable in tort to the tenant, his guests, licensees and invitees, if at the commencement of the lease there is a dangerous condition which the landlord knows or should know about and the discovery of which would not likely occur by the tenant exercising due care." Property, pg. 138. Based on this exception, choice (B) is correct because the dangerous condition existed at the commencement of leasehold period (note: the facts indicate that Brown was injured on the first day Yale took possession of the warehouse). The second exception is that a landlord in the lease of a completely furnished dwelling for a short period of time impliedly warrants the fitness of the premises and the furnishings.

Woody, a famous environmentalist in the State of Sylvania, was the owner of Pocono Woods, a large tract of virgin forest. In 1960, Woody conveyed Pocono Woods "to the people of the State of Sylvania in fee simple; provided, however, that if any portion of said tract shall ever be used or developed for any commercial purpose or otherwise converted from its natural state (with exception for recreational, scientific or educational purposes), then the grantor or his successors in interest may re¬enter as of the grantor's former estate." Under Sylvania law, conveyances of real property to "the people" of the State are deemed to vest title in the State regard¬ed as a legal entity, and custody over such property resides in an appointed official known as the Director of Environmental Resources. In 1970, the Director granted Crockett Company the privilege to cut timber on a remote portion of Pocono Woods, together with incidental easements of way. The section that Crockett Co. was to clear would be used for the development of a state recreational area. After the privilege was granted, Crockett proceeded to clear the timber which he later sold for $10,000. When Woody learned that Crockett was cutting the timber and selling it, he notified the Director to desist further exploitation of the land. 48. In 1960, the interest of the State of Sylvania in Pocono Woods would be best described as a (A) fee simple determinable (B) fee simple subject to condition subsequent (C) easement appurtenant (D) determinable fee subject to an executory interest

48. (B) In 1960 the state of Sylvania's interest in Pocono Woods would be described as a fee simple subject to condition subsequent, which means fee simple subject to being terminated by exercise of the power of termination or right of re-entry for condition broken. The important characteristic which distinguishes this type of estate from a fee simple determinable is that the estate will continue in the grantee, or his successors, unless and until the power of termination is exercised. Although no particular words are essential to create an estate on condition subsequent, the use in the conveyance of the traditional words of condition, "upon condition that," "provided that," or "but if" - coupled with a provision for re-entry by the transferor or the occurrence of the stated event will normally be construed to manifest an intention to create an estate on condition subsequent.

49. The right of Crockett to cut and sell the timber which was to be cleared from Pocono Woods would be an example of a (an) (A) license (B) easement appurtenant (C) easement in gross (D) profit-a-prendre

49. (D) A profit-a-pendre is similar to an easement, in that it is a non-possessory interest. The holder of the profit is entitled to enter upon the servient tenement and take the substance of the land (e.g., minerals, trees, oil or game) subject to the privilege. In this regard, a profit, like an easement, may be appurtenant or in gross.

For many months, Drew had been negotiating with Rollins for the purchase of Treeacre. Finally, on August 18, 1994 Drew and Rollins entered into a real estate sales contract which provided in part: "I, Rollins, agree to convey good and marketable title to Drew sixty days from the date of this contract." The stated pur¬chase price for Treeacre was $175,000. On October 11, 1994. Drew telephoned Rollins and told him that his title search indicated that Wilkins, not Rollins, was the owner of record to the property. Rollins responded that, notwith¬standing the state of the record, he had been in adverse pos¬session for twenty-one years. The statutory period of adverse possession in this jurisdiction is twenty years. The next day Drew conducted an investigation which revealed that Rollins had in fact been in adverse possession of Treeacre for twenty-one years. At the time set for closing, Rollins tendered a deed in the form agreed in the sales contract. Drew, however, refused to pay the purchase price or take possession of Treeacre because of Rollins' inability to convey "good and mar¬ketable title." 5. In an appropriate action by Rollins against Drew for specific performance, the vendor will (A) prevail, because he has obtained "good and marketable title" by adverse possession (B) prevail, because Rollins' action for specific perfor¬mance is an action in rem to which Wilkins is not a necessary party (C) not prevail, because an adverse possessor takes title subject to an equitable lien from the dispossessed owner (D) not prevail, because Drew cannot be required to buy a lawsuit even if the probability is great that Drew would prevail against Rollins

5. (D) This is an extremely tricky Multistate example dealing with conveyancing. Students should be aware that title established through adverse possession is free from encumbrance and of a character to assure quiet and peaceful enjoyment of the property by the vendee, but it is not a "marketable" title of record until there has been a judicial determination of such title. To show a record title by adverse possession requires a suit and the recording of a decree. Even though a court may determine that the vendor had title by adverse possession, the vendee did not bar¬gain for that kind of title when the contract required a "marketable" title of record. Therefore, in accordance with the prevailing view, choice (D) is correct. This specific problem is referred to in Smith and Boyer, Law of Property, pg, 264.

50. In an ejectment action instituted by Woody in 1971 against the State of Sylvania to recover Pocono Woods, what result? (A) Woody would succeed, since Crockett's selling of the timber would entitle Woody to re-enter and terminate the grant to the State. (B) Woody would succeed, since Crockett's selling of the timber would constitute an automatic termination of the State's fee in Pocono Woods. (C) Woody would not succeed, since the Director approved the clearing of the timber in order to develop the area for recreational purposes. (D) Woody would not succeed, since the reservation of Woody's right to terminate would be violative of the Rule Against Perpetuities.

50. (C) Woody will not succeed since the Director's objective in the clearing of the timber was for the purpose of developing a recreational area. Although Crockett was not privileged (under the terms of Woody's deed over to Sylvania) to use the tract for his own commercial advantage, the court will look to the ultimate purpose for which the land was to be used (i.e., recreational park). Thus, the court will conclude that Woody's original intention and expectation in conveying Pocono Woods to the state was not materially or adversely affected.

51. In 1968, O wanted to move back to Greenacre because he desired to return to the country. Finding A in possession, O initiated a suit in ejectment against A. The most probable judicial determination would be: (A) O would lose, since A's possession was open, hostile and continuous (B) O would lose, because A had fulfilled the required statutory period to become an adverse possessor (C) O would win, since A's possession was not continuous (D) O would win, because he is the title-holder of record

51. (C) O would win since A's possession was not continuous. For one to hold property adversely, his possession must be: (1) actual and exclusive, (2) open and notorious, (3) continuous and peaceable (meaning without any interruption) and (4) hostile and adverse. In this case, since A's possession was interrupted he didn't fulfill the statutory requirement of continuous possession for 20 years.

52. If A's nephew agreed to live and farm the Greenacre prop¬erty during A's absence, and A then returned from his moth¬er's home in 1957 and thereafter, continued in possession until 1968 when O brought the ejectment action, the court would most likely hold that: (A) O was the rightful owner and thus entitled to possess Greenacre (B) O was entitled to possession since A's intermittent pos¬session was insufficient to make him an adverse possessor (C) A was entitled to possession because his possession was open, notorious, continuous and hostile as required for the statutory period (D) A was entitled to possession because of the privity between A and his nephew which aided him in fulfilling the required statutory period

52. (D) Choice (D) is correct since the period of adverse possession of one possessor can be tacked to the period of adverse possession of another possessor when there is privity (e.g. blood or con¬tract) between the two.

53. Upon O's death in 1977, his sole heir, B, brings an ejectment suit to recover possession of the property from A. In his action, B will most probably: (A) lose, because A has acquired title by adverse possession (B) win, because the statutory period for adverse possession does not run against a remainderman until his interest becomes possessory (C) lose, since A was successful in the action by O, B would be estopped from instituting another action against A for ejectment (D) win, since his title was perfected at the time of conveyance

53. (A) Since A was in continuous possession of Greenacre from 1957 to 1977, he would acquire title by adverse possession. As a result, choice (A) is correct. Students should note that choice (B) is incorrect because the facts do not disclose that B was a remainderman or had a remainder interest in Greenacre. Rather, O simply devised the property to B in 1961. As a con¬sequence, B did not have a remainder interest but a present possessory interest as of 1961.

Judd inherited the bulk of his father's very substantial estate in 1935, including Blackacre, a rambling "farm" of woods and fields in upstate Pennsylvania, Judd, who lived in Philadelphia, used Blackacre as a weekend and holiday retreat. Judd, his wife having predeceased him, died in 1967. His will devised Blackacre to his two sons, Trent and Hunter, "to share and share alike as tenants in common". At the time of their father's death, Trent lived in Pittsburgh while Hunter resided in Washington, D.C. After Judd's funeral, Trent returned to his residence in Pittsburgh, but Hunter decided to occupy Blackacre. He put his name on the mailbox and has paid the taxes and maintenance expenses. Trent has been gen¬erally aware of this, but since he cared little about Blackacre, Trent has never pressed Hunter about the property. Since 1967 Trent has not paid any rent or other compensation to Hunter, nor has Hunter requested such payment. In January, 1992, a series of disputes arose between Trent and Hunter for the first time concerning their respective rights to Blackacre. The Commonwealth of Pennsylvania recognizes the usual common law types of cotenancies, and there is no appli¬cable legislation on the subject. 54. Hunter brings an appropriate action for the partition of Blackacre by sale and requests that in the division of the proceeds he be awarded an equitable additional amount based on the fact that he paid the taxes and made improve¬ments. If Trent contests the award of this additional sum, judgment for whom? (A) Trent, because the maintenance expenses and improvements made by Hunter were voluntary and deemed to have been made for his own convenience. (B) Trent, because as soon as the maintenance work and improvements were made they became a part of the land owned by the cotenants in equal shares. (C) Hunter, provided Trent is allowed an equitable setoff for the value of Hunter's occupancy. (D) Hunter, without any allowance to Trent for a setoff based on the value of Hunter's occupancy.

54. (C) According to Smith and Boyer, a joint tenant has no right of contribution against the other joint tenants for repairs or improvements he has made, but if partition is had the court in mak¬ing an equitable division of the proceeds will take into consideration the expenditures made by one tenant for repairs and improvements. Law of Property, pg. 66. Students should be advised that partition proceedings are under the jurisdiction of a court of equity. So therefore, apply¬ing the maxim "that one who seeks equity must do equity, the court is free to adjust accounts between the parties in a fair and equitable manner." Be advised that choice (C) is correct because "one concurrent owner may be charged for use and occupation of the property (rea¬sonable rental value) and he may be given credit for the value of improvements erected, repairs made and taxes paid." Burby, Real Property, pg. 233.

Question 6 is based on the following fact situation. Testator owns Pineview in fee simple. Testator executes and delivers a deed to Pineview with the following granting clause: "To Peter and Paula for their joint lives and upon the death of the first of them to die to the survivor, but if Patrick outlives both of them, then to Patrick." 6. As a result of the grant, which of the following is the most accurate statement regarding the ownership rights of Pineview? (A) Peter and Paula are joint tenants in fee simple defeasi¬ble, and Patrick has an executory interest. (B) Peter and Paula have a joint life estate for the life of the one who lives the longest, and Peter, Paula and Patrick have contingent remainders. (C) Peter and Paula are tenants in common for the life of the first of them to die, Peter and Paula have contingent remainders in fee simple defeasible, and Patrick has an executory interest. (D) There is no legal difference between the results reached in alternatives (A), (B) or (C).

6. (B) First of all, the conveyance created a life estate in Peter and Paula for their "joint lives" in Pineview. This life estate in the joint lives of Peter and Paula could only last until one of them died. In other words, at the death of either Peter or Paula, the life estate terminated. Secondly, Peter, Paula and Patrick each have a contingent remainder in fee simple in Pineview. Contingent remainders are future interests created in favor of a transferee at the same time and in the same instrument as the prior estate and they are subject to a condition precedent. The condition precedent is a happening or non-happening which must occur on or before the termination of the prior estate. In our factual situation, Peter, Paula or Patrick's taking of the estate is subject to a condition precedent: that one of the parties must survive in order to take. Simply stated, the contingency of survival is expressed as the condition precedent.

Bobby Saul Estes, a resident of El Paso, had been a Texas state senator for three years. During that period of time, it had been Bobby Saul's regular practice to stay at the Four Seasons Hotel in Austin while the legislature was in session (namely from September through March). As a general rule, Bobby Saul stayed at the hotel each and every night during that seven month peri¬od. When Bobby Saul checked into the hotel on September 1, 1997 for the 1997-1998 term, the hotel manager quoted Bobby Saul his usual senatorial discount rate of $50 per night. Although nothing was said regarding payment terms, Bobby Saul custom¬arily paid the bill in weekly installments. During the months of September and October, he paid the hotel at the end of each week $350 plus tax and other accumu¬lated expenses. On the last day of October, Bobby Saul made his usual weekly payment covering the rental period from October 25th to October 31st. Then on the morning of November 4th (before check-out time for that day), Bobby Saul decided to suddenly move out of the Four Seasons and register into the Ritz Carlton, a new hotel located two blocks away. He notified the manager at the Four Seasons of his intent to check out and tendered a check for $150 plus tax and other incidental charges incurred from November 1st through November 3rd. When the manager noticed that Bobby Saul was only paying for three days, she remarked, "You still owe us $200 plus tax for the rest of the week and $350 plus taxes for an additional week because you didn't give us a week's notice that you planned to vacate." Bobby Saul refused to pay the additional charges. 60. If the Four Seasons Hotel brings suit against Bobby Saul to recover for the unpaid balance, how many additional days lodging will he be required to pay for? (A) None (B) Four (C) Seven (D) Eleven

60. (A) Every leasehold includes the following elements: (a) an estate in the tenant, (b) a reversion in the landlord, (c) exclusive possession and control of the land in the tenant, and (d) generally, a contract between the parties. The first three elements constitute privity of estate, and the fourth is privity of contract. Whereas in a lease exclusive possession must reside in the tenant, in a license the possession remains in the licensor and the licensee has a mere privilege of being on the land without being treated as a trespasser. Smith and Boyer, Real Property, p. 48. Ordinarily a lodging contract does not create a landlord-tenant relationship but only that of licensor and licensee, whereby the occupant contracts for the use of a room and facilities without a posses¬sory interest in the land. Exclusive possession and control remains in the landowner. In this question Bobby Saul, as a hotel guest, does not have exclusive possession and control of his hotel room. He is a licensee rather than a tenant. Furthermore, the facts do not strongly support a periodic tenancy since his oral agreement with the Four Seasons Hotel was not referred to as a "lease", nor was the weekly payment referred to as "rent." Therefore, no seven-day prior notice will be required. Thus, in the absence of any leasehold Bobby will owe no additional balance beyond the day he checks out. Choice (A) is correct.

Jim is the fee simple owner of Blue Bayou, a one thousand acre tract of land in Louisiana. Half of Blue Bayou is swampland totally unfit for cultivation, but heavily covered with valuable hardwood timber. The other half of Blue Bayou is also covered with valuable timber, but is land which is fit for the raising of crops when cleared of the timber thereon. The latter section of land is more valuable for cultivation than for the growing of timber. In 1972, Jim conveyed his Blue Bayou tract to his brother Tim for life. At the time of the conveyance, the swampland had never been used for the production of timber. Tim took possession and cleared forty acres of the timber on the section that was suitable for cultivation. In addition, Tim cut sixty acres of timber in the swampland, thus becoming the first person to exploit this area. He then sold the timber from the swampland for $2,400; he sold the timber from the area adaptable for cultivation for $2,000. Tim then proceeded to clear some timber on the tract and used it as "estovers" for the purpose of utilization in repairing fences, buildings, equipment and the like on the Blue Bayou property. 61. In an action by Jim to permanently enjoin Tim from cutting any more timber on the swampland section of Blue Bayou and to account for profits received in the sale of the timber, Jim will most likely (A) succeed, since a life tenant must account for permissive waste to the reversioner or remainderman (B) succeed, since a life tenant may not exploit natural resources where no such prior use had been made (C) not succeed, since a life tenant is not liable for ameliorative waste (D) not succeed, since a life tenant has a right to make reasonable use of the land.

61. (B) The swampland is not now and cannot be made usable for the growing of crops. It seems to be capable of growing trees only. This swampland, as far as the facts disclose, has never been used and at the time of the taking effect of Tim's life estate was not being used for the produc¬tion of lumber. Tim is the first to cut timber thereon. At this point an analogy may assist in the analysis and understanding of the problem. It is well settled that a tenant for life or for years has a right to continue the operation of old mines on the leased premises for the reason that such is the use to which the land has been put or is being put at the time of the beginning of the ten¬ant's estate. The lease implies that such use may be continued. On the other hand, such tenants have no right to open new mines and appropriate the minerals therefrom. The reason is clear. It has taken eons of time to produce the minerals which underlay the land. It is the very sub¬stance of which the land is made and that corpus should not be available for consumption or destruction by a tenant of a limited interest in the premises, unless of course the lease is made for the very purpose of mining. Likewise, it has taken generations of time to produce the hard-wood forests of the swampland and the value of that forest is the very heart and substance of that portion of Blue Bayou. It should not be available for consumption and destruction by a ten¬ant of a limited estate as against the reversioner or remainderman who owns the inheritance. Therefore, Tim should be permanently enjoined from cutting any more trees on the swampland, and should account for the proceeds from the sale of the timber which was cut on the swampland.

In 1954, Oswald, a devoted conservationist, was the owner of Greenacre, a 100 acre tract of undeveloped land. In that year, Oswald conveyed Greenacre "to Grant in fee simple, provided, however, that the grantee agrees that neither he nor his heirs or assigns shall ever use the property for any commercial purpose." The deed further stipulated that "if any portion of said tract is used for other than residential purposes, then the grantor or his successors in interest may re-enter as of the grantor's former estate." This deed was properly recorded. Grant died intestate in 1972, survived by Wilma, his wife. Oswald died in 1975, sur¬vived by his children, Carla and Carrie, his only heirs. During the period between 1954 and 1980, the spreading development from the nearby city of Greenville has begun to engulf Greenacre. Though still undeveloped, Greenacre has become surrounded by office buildings, shopping malls and other commercial edification. In 1982, Wilma executed and delivered to Miles a fee simple conveyance of Greenacre, which Miles immediately recorded. The deed did not contain any ref¬erence to the restriction noted above. After Miles acquired title to Greenacre, he planned to commence construction of a hotel complex on a portion of the tract that bordered an apartment building. The applicable recording statute in effect in this juris¬diction provides, in part "No deed or other instrument in writ¬ing, not recorded in accordance with this statute, shall affect the title or rights to, in any real estate, or any devisee or purchaser in good faith, without knowledge of the existence of such unrecorded instruments." If Carla brings suit to enjoin Miles from constructing the hotel, the plaintiff will most likely (A) win, because Miles is charged by the recording act with notice of the provision in the original deed (B) win, because either Carla or Carrie has the right of reentry for condition broken (C) lose, because the change in the character of the sur¬rounding area has rendered the restriction meaningless (D) lose, because a common development scheme had been established for the entire Greenacre tract

78. (B) In this example, Grant has a fee simple subject to a condition subsequent, which is an estate in fee simple that may be terminated by the conveyor, or those claiming under him upon the happening of a named event. Students should note that the important characteristic which distinguishes this type of estate from a fee simple determinable, is that the estate will continue in the grantee, or his successors, unless and until the power of termination is exercised. The basic difference, therefore, is that the fee simple determinable automatically expires by force of the special limitation contained in the instrument creating the estate, when the stated contingency occurs, whereas the fee simple on condition subsequent continues despite the breach of the specified condition until it is divested or cut short by the exercise by the grantor of his power to terminate. Although no particular words are essential to create an estate on condition subsequent the use in the conveyance of the traditional words of condition - "upon condition that," "provided that," "but if" - coupled with a provision for re-entry by the grantor will be construed to create an estate on condition subsequent.

62. Tim's cutting of the timber on the section of Blue Bayou suitable for cultivation would be an example of (A) permissive waste (B) ameliorative waste (C) equitable waste (D) unreasonable exploitation

62. (B) Ameliorating waste is a change in the physical characteristics of the occupied premises by an unauthorized act of the tenant which increases the value of the property. Herein, any change in the characteristics of land which makes it more productive and adds to the store of consumable goods should be given all the protection which sound legal principles permit. It takes much time, labor and power to convert timberland into tillable fields for the production of annual crops. The law takes account of such by awarding to him the timber which is removed for such purpose. Thus, the tenant for life or for years has a right to use land as good husbandry dictates. As such, this usually includes the right to transform timberland into arable land for the plow, provided of course the soil can be made suitable for such purpose.

Chet Walker died in 1940, owning a tract of land in New Mexico which was then being used for a gold mine, and leaving a will (executed in 1935) in which he specifically devised "my gold mine in New Mexico to my beloved brother, Luke, whatev¬er is left over at his death to go first to his widow if he leaves one and then to his surviving heirs." Chet left the rest and residue of his ample estate in trust for his wife, Wendy, for life, remainder to his son Hal. Chefs only surviving family were, Luke, Wendy, and Hal. Luke continued to mine the land for a number of years, ceas¬ing operations after the profit margin from mining had been destroyed by a combination of increasing costs, diminishing returns, and legal controls on gold prices. Luke has now acquired some adjacent land which he pro¬poses to use for a mountain resort-hotel. In conjunction with the hotel, he would like to use the tract devised to him by Chet for a riding stable and pasture. This would entail dismantling the mining structures, filling excavations, and constructing the sta¬ble buildings. Luke is married and has a 30-year-old son named Wilt, with whom he is not on friendly terms. Wendy and Hal are both still alive. Luke does not want to proceed with redevelop¬ment if there is any significant risk of his being enjoined from continuing. 63. Will anyone be able to obtain an injunction against Luke's proposed redevelopment of the gold mine? (A) Yes, because a life tenant or tenant for years is liable to the reversioner or the remainderman for voluntary waste. (B) Yes, because a life tenant or tenant for years is liable to the reversioner or the remainderman for permissive waste. (C) Yes, because a life tenant or tenant for years is liable to the reversioner or remainderman for equitable waste. (D) No, because a life tenant or tenant for years is ordinar¬ily not liable to the reversioner or the remainderman for ameliorating waste.

63. (C) It is of utmost importance to understand and recognize the difference between actions at law and in equity. Injunctive relief is an equitable remedy. Thus, choice (C) is correct because equitable waste is an injury to the reversionary interest in land which is inconsistent with good husbandry and is recognized only by the equity courts. Be aware that it (i.e., equitable waste) does not constitute legal waste as recognized by the courts of law. On the other hand, all other alternatives are incorrect because (a) voluntary waste, (b) permissive waste and (c) ameliorating waste are types of legal waste, wherein the life tenant or tenant for years will be liable for mon¬etary damages.

Widom is the owner of a large two-story office building in downtown Long Beach. Widom, an architect, designed and supervised the building's construction. He and his associate, Weed, occupy the first floor for their architectural business. On June, 1986, Widom entered into a valid and binding written lease with Coltrane to rent the second floor, office space for four years at a monthly rental of $5,000. The lease contained a pro-vision wherein Widom was required to repaint the second floor premises after two years of occupancy. On June 1, 1988, Coltrane sent Widom a written letter requesting the repainting of the second floor office space. Widom made no reply and failed to perform the repainting as the lease required. The cost of repainting Coltrane's office was estimated at $1,750. On July 1, 1989, Widom had still not repainted the premises. The following day, Coltrane moved out, mailed the keys to Widom, and refused to pay any more rent. The lease was silent as to the rights and remedies of Coltrane due to Widom's failure to perform the repainting. There is no applicable statute in the jurisdiction. 69. In an appropriate action by Widom against Coltrane for the rent due, Widom will (A) win, because there was no constructive eviction (B) win, because Coltrane had the remedy of self-help (C) lose, because he cannot maintain an action for rent while in breach of an express covenant (D) lose, because the obligation to pay rent is dependent on Widom's performance of his express covenant

69. (A) At common law, since a tenant was deemed to receive an estate in land, his rights and duties were treated as independent of the landlord's rights and duties. Thus, if the landlord promised to keep the property in repair, a breach of this promise did not relieve the tenant from the duty of paying rent. According to the common law rationale, the rent was owed as payment for the estate, and the promise to do repairs was merely a collateral promise which could be enforced only by a separate contractual suit brought by the tenant. This doctrine is generally referred to as the independence of covenants. As a result, choices (C) and (D) are incorrect. Choice (B) is wrong because the reason the landlord will prevail is because the premises were not uninhabitable (the basis for constructive eviction) rather than because the tenant failed to perform the re-painting himself. In other words, self-help is not an appropriate remedy inasmuch as the tenant had no duty to make such repairs.

Luzinski was the fee simple owner of Grassacre, a 20 acre tract located in northern Iowa. When Luzinski moved to Florida, Fisk took possession of Grassacre. Fisk's possession has at all times complied with the requirements of the applicable adverse possession statute in effect. Twelve years after Fisk took possession, Luzinski died intes¬tate, leaving Carlton, his six-year-old son, as his only surviving heir. Nine years after Luzinski's death when Carlton was fifteen, Law, who was Carlton's guardian, discovered that Fisk was in possession of Grassacre. In Iowa the statutory period of adverse possession is twenty years and the age of majority is eighteen. 7. Which of the following correctly describes the state of title to Grassacre? (A) Fisk has acquired title by adverse possession. (B) Fisk will not acquire title unless he continues in adverse possession for an additional three years, or until Carlton reaches the age of eighteen. (C) Fisk will not acquire title unless he continues in adverse possession for an additional eight years, making a total of twelve years after Luzinski's death. (D) Fisk will not acquire title unless he continues in adverse possession for an additional twelve years, or nine years after Carlton attains the age of eighteen.

7. (A) Here's a highly confusing Multistate Property example. Quite often, you may be confront¬ed with a perplexing problem requiring mathematical computation. In this situation, don't get flustered! Stay cool! Obviously, this is an adverse possession problem. First, the facts indicate that the statutory period of adverse possession in this jurisdiction is 20 years. Looking back, the facts tell you that 12 years after Fisk took possession (of Grassacre), Luzinski died. Next, the facts indicate that 9 years after his death, his son's guardian discovered Fisk in (adverse) possession of Grassacre. Now, adding the 12 years (before Luzinski's death) + the 9 years (following his death) = 21 years. Thus, since Fisk's adverse possession is beyond the statutory period, choice (A) is correct. This is an extremely popular Multistate example because the test maker knows that many students will incorrectly choose either choice (C) or (D) because they are familiar with the rule wherein one who is under a disability at the time of the accrual of the cause of action against the adverse possessor, is given by statute, time beyond the removal of his dis¬ability in which to bring his action. This defense, however, is not applicable here because the facts do not indicate that this Jurisdiction has enacted such a statute.

In a jurisdiction using the grantor/grantee indices, the follow¬ing events have occurred in the order listed below: (1) In 1942, Alpha conveyed to Beta a tract of land now com¬posing Greenacre, by a deed which was immediately recorded. (2) In 1962, Beta died a widower and devised Greenacre to his son, Gamma, by a will that was duly admitted to probate. (3) In 1973, Gamma mortgaged Greenacre to Epsilon Mortgage Company to secure a note for $25,000, due on December 31, 1983, with 9.2% interest per annum. (4) In 1976, Epsilon recorded the mortgage on Greenacre. (5) In 1983, in a signed writing which Gamma delivered to his daughter, Delta, Gamma promised to convey Greenacre to Delta by a quitclaim deed and pay the mort¬gage debt when it came due. 70. If Gamma refused to convey Greenacre to Delta and Delta brings suit against Gamma to compel a conveyance of the property, Delta will most likely (A) prevail, because there was an effective gift (B) prevail, because there was an effective assignment (C) not prevail, because there was no consideration to sup¬port Gamma's promise to convey the property (D) not prevail, because specific performance will not be granted where there is an adequate remedy at law

70. (C) The Statute of Frauds requires a writing (1) identifying the parties (2) describing the subject matter (3) stating the purchase price and (4) signed by the party to be charged. The writing Gamma delivered to Delta did not state any consideration — it was intended as a gift. Furthermore, it was not an effective gift because it was only a promise to convey. An effective gift requires a present transfer of an interest. If the transfer is to take effect in futuro, it is a mere promise to make a gift and unenforceable for lack of consideration. Smith and Boyer, Survey of the Law of Property, p. 469. Therefore, choice (A) is incorrect, and choice (C) is the correct answer. Since Gamma's writing did not create an assignment, choice (B) is incorrect. Choice (D) is incorrect. Delta does not have an adequate remedy at law for lack of considera¬tion, nor will specific performance be granted for lack of mutuality.

71. Suppose that Gamma did, in fact, deliver to Delta a quit¬claim deed which made no reference to the mortgage. If Gamma thereafter defaulted on the mortgage debt, which of the following is probably correct? (A) Only Delta has a cause of action against Gamma. (B) Only Epsilon has a cause of action against Gamma. (C) Both Delta and Epsilon have causes of action against Gamma. (D) Neither Delta nor Epsilon has a cause of action against Gamma.

71. (B) A mortgagee has both an in personam claim against the mortgagor on the debt or obligation and an in rem action against the security. As a result, choice (B) is correct because mortgagee-Epsilon has an in personam action against mortgagor-Gamma. Note that choices (A) and (C) are wrong because Gamma's conveyance to Delta was by a quitclaim deed. A quitclaim deed usually contains no assurances; it simply operates as a transfer to the grantee of whatever interest, if any, the grantor happens to own.

72. Suppose that Gamma did, in fact, deliver to Delta a quit¬claim deed which made no reference to the mortgage. If Gamma thereafter defaulted on the mortgage and Epsilon brought an in personam action against Delta to recover the amount due on the mortgage debt, the mortgagee will probably (A) succeed, because Epsilon is a third party beneficiary of the agreement between Gamma and Delta (B) succeed, because there was an implied delegation of duties to Delta (C) not succeed, because Delta did not promise to pay the mortgage debt (D) not succeed, because the law does not permit the mortgagor to delegate duties under this type of a property transfer

72. (C) In this case, Epsilon, the mortgagee, is bringing a claim against Delta, the grantee. Since the facts state that the deed "made no reference to the mortgage," it is presumed that Delta took "subject to" Gamma's mortgage. Therefore, Delta will not be personally liable, because she did not promise to pay the mortgage debt. Choice (C) is correct. Note: Only Gamma as mortgagor would be liable to Epsilon under these facts.

Hancock, the owner of Hancock House Apartments, orally entered into a five year lease with Jay, with the rental period to commence on February 1, 1978. The lease provided that Jay would pay Hancock rent at the rate of $3,500 per year for a one bedroom apartment. Jay made payments of $3,500 on the first day of February in 1978 and 1979. On March 31, 1979, Hancock notified Jay and the other tenants of the apartment building that he had sold the building that day to Madison. The following day, Madison, the new owner, notified Jay that the building would be converted to a condominium and that Jay's lease would be terminated as of December 31, 1979. However, Jay would be entitled to purchase the condominium unit (an interest in real estate subject to recording statutes) at a special resident's discount price of $32,500, if Jay signed an agreement of sale within six months. Jay decided not to purchase the unit, because he had already planned to move away to the city of Anatevka. However, Fred, who was Jay's friend, wanted to buy Jay's unit at the discounted price. Since Madison would sell to Fred only at the nonresident's price of $38,500, Fred consulted a lawyer and determined how he could purchase at the lower price by a series of transactions. Jay signed an agreement of sale on May 1, 1979 and pur¬chased the unit at the discounted price. Closing was held on September 15, 1979. On September 16, 1979, Jay conveyed his entire interest to Fred for $32,500. The two deeds were record¬ed immediately, in proper order. On July 3,1980, Fred signed an agreement to sell his interest in the unit to Miss Kitty for $47,500. Closing was scheduled for September 17,1980. 73. On April 2, 1979 considering all appropriate defenses, the termination date of Jay's lease was: (A) September 15,1979 (B) December 31,1979 (C) January 31,1980 (D) January 31,1983

73. (C) The termination date of Jay's lease was January 31, 1980. The facts state that on February 1, 1979, Jay had made the yearly rental payment of $3500 to Hancock for the year 1979. Therefore, Jay had complied with his obligation in accordance with the original leasehold agreement. It is important to note that Hancock and Jay entered into an oral leasehold agreement for five years. In the majority of states, such a parol lease for a period not to exceed one year from the making thereof is valid. However, parol leases which exceed the one year's time period are generally invalid to create such a tenancy for years because of the Statute of Frauds. But as a general rule, the Statute of Frauds only affects the duration of the lease. Thus any covenants and conditions agreed upon in the lease such as the rental obligations, are still valid as long as the landlord-tenant relationship exists.

74. If Miss Kitty properly checks the real estate records prior to her closing she would (A) look for Fred's name in the grantee index (B) look for Fred's name in the grantor index (C) look for Fred's name in the grantee and grantor index (D) not look for Fred's name in either the grantee or grantor

74. (C) The grantor and grantee indices are utilized in most jurisdictions today in the title search of real state records. In the grantor index, all conveyances are indexed alphabetically and chronologically under the initial letter of the grantor's surname. In the grantee index, a like index is made of conveyances under the initial letter of the grantee's surname. A title searcher must trace both indices in order to complete his search. Therefore, Miss Kitty should properly trace Fred's name in both the grantor index and the grantee index.

Looney was the owner of a 300-acre tract of land that was located in Pittman County. Over the course of time, she developed the property into a residential subdivision known as Devonshire. Lincoln Boulevard, a four-lane public highway, ran along the northern boundary of Devonshire. When Devonshire was first plotted, Looney constructed a private road called Looney Lane across the western boundary of the subdivision. Looney Lane was used only for the benefit of the owners who purchased lots in the subdivision. Dooley owned a 20-acre tract that was situated just below Lincoln Boulevard and immediately adjacent to the west side of Looney Lane. Dooley's property was divided into two 10-acre parcels: Parcel 1 was the northern half and bordered along Lincoln Boulevard; Parcel 2 was the southern sector and abutted the Peekskill River. In 1997, Dooley conveyed Parcel 1 to Perez by warranty deed. No encumbrances were mentioned in the deed. Six months later, Dooley conveyed Parcel 2 by warranty deed to Eagleson. Both Perez and Eagleson promptly recorded their deeds with the Pittman County Recorder's Office. 75. Assume for the purposes of this question only that no part of Parcel 2 adjoins a public road. Consequently, Eagleson constructed an access road connecting his property to Looney Lane. After Eagleson used Looney Lane for approximately two months, Slotnick, a Devonshire lot owner, ordered Eagleson to discontinue using the private road. In an appropriate action by Slotnick against Eagleson to enjoin the use of Looney Lane, Eagleson will (A) win, because there is an easement by necessity over Looney Lane (B) win, because there is an implied easement appurtenant over Looney Lane (C) lose, unless Looney Lane is the only access road by which Eagleson can gain ingress and egress to his property (D) lose, because he has no legal right to travel over Looney Lane

75. (D) In Slotnick's action to enjoin Eagleson's use of Looney Lane, Eagleson will lose because he has no legal right to drive over Looney Lane. Choice (D) is correct. Looney constructed Looney Lane as a private road for use only by owners of the lots in the subdivision. The road was not intended to benefit outside landowners, such as Eagleson, who did not reside in the subdivision. Choice (B) is incorrect because an implied easement is based on the inferred intention of the parties, namely the grantor and the grantee. Use of Looney Lane arises between Looney, the grantor, and her grantees, such as Slotnick. Eagleson, on the other hand, was Dooley's grantee, and constructed the access road to Looney Lane after he purchased Parcel 2 from Dooley. Choice (A) is incorrect because an easement by necessity requires, inter alia, that at the time of the conveyance one part of the land is being used for the benefit of the other part (a quasi-easement). Smith and Boyer, Survey of the Law of Property, p. 384. Looney Lane was not used by Eagleson until after he built the access road connecting Parcel 2 with it. Choice (C) is incor¬rect under the facts stated since Eagleson could use the access road he constructed to reach Lincoln Boulevard.

76. Assume the following facts for this question only. In 1965, Dooley constructed a driveway from Looney Lane over what is now Parcel 2. This driveway, which extended over Parcel 1 where it connected with Lincoln Boulevard, was used con¬tinuously by Dooley until 1997 when he conveyed his prop¬erty to Perez and Eagleson. When Eagleson took possession of Parcel 2, he immediately began to use the driveway across Parcel 1. Thereafter, Perez requested that Eagleson cease to use the driveway over Parcel 1. After Eagleson refused, Perez brought an appropriate action to enjoin Eagleson from using the driveway. In this action, Perez will (A) win, because his deed antedated Eagleson's deed (B) win, because no encumbrances were mentioned in his deed (C) lose, because Eagleson has an easement by necessity (D) lose, because Eagleson has a prescriptive easement

76. (C) Perez will not be able to enjoin Eagleson's use of the driveway across Parcel 1 because Eagleson has an easement by necessity. Choice (C) is correct. An easement by necessity requires the following; (1) existence of a quasi-easement at the time of conveyance; (2) apparent use; (3) continuous use; (4) reasonable necessity, where the grantee receives the dominant tenement. A quasi-easement existed when Dooley conveyed to Eagleson. At that time Parcel 2 had no other access to a public road, thereby allowing Dooley an easement by strict necessity over Perez' land, which passed to Eagleson upon conveyance of Parcel 2. Choice (D) is incorrect because Dooley's use was not adverse to anyone—he owned both parcels—until 1986, so no prescriptive easement is possible. Choices (A) and (B) reach the wrong conclusion and are incorrect because of the existence of the easement by necessity.

Carson is the owner of a parcel of land known as Tall Acres which is situated upon the top of Candy Rock Mountain. Located below Tall Acres is Grasslands, a forty acre hillside estate which is owned by DuVall. Crystal Stream is a non-navigable watercourse that originates at the top of Candy Rock Mountain and runs all the way down into the San Vicente Valley. Both Tall Acres and Grasslands are within the watershed of Crystal Stream. When DuVall purchased Grasslands in 1956, he started taking water from Crystal Stream and used it to irrigate the southern half of his property which he has used as a farm. Prior to 1956, the southern half of Grasslands had been cleared and placed in cultivation, while the northern half remained wooded and unused except for an occasional hike or gathering of timber for use as domestic fuel. DuVall continued this established pattern of use. Now (January, 1988), he is still taking water from Crystal Stream and using it to irrigate the southern half of Grasslands. In 1986, Carson built a home on Tall Acres and started taking water from Crystal Stream for domestic purposes. During that year there was heavy rainfall, and this caused Crystal Stream to run down the mountain at a high water level. The next year, however, there was a drought. As a result, Crystal Stream flowed at a very low level. Consequently, there was only enough water to irrigate DuVall's farmland or, in the alternative, to supply all of Carson's domestic water needs and one-quarter of DuVall's irrigation requirements. Candy Rock Mountain is located in a jurisdiction where the period of prescription is fifteen years. 77. Inasmuch as Crystal Stream is still flowing at a very low level and Carson is continuing to take water for his personal needs, there is insufficient water to irrigate Grasslands. As a consequence, DuVall brings an appropriate action to declare that his water rights to the stream are superior to those of Carson. In addition, DuVall moves to have the full flow of Crystal Stream passed to him, notwithstanding the effect it might have on Carson. If this state follows the common law of riparian rights but does not follow the doctrine of prior appropriation, judgment for whom? (A) Carson, because as an upstream landowner, he would have superior rights to the water than a downstream owner. (B) Carson, because domestic use is superior to and is pro¬tected against an agricultural use. (C) DuVall, because he has obtained an easement by prescription to remove as much water as he may need. (D) DuVall, because he has put the water to a beneficial use prior to Carson's use and has continuously used the water.

77. (B) Under the doctrine of riparian rights there are two theories, the "natural flow" theory and the "reasonable use" theory. The former stresses the right of each owner to have the natural state of the stream or lake undiminished in both quality and quantity. The latter stresses maximum use by each owner provided it does not interfere with like use by other owners. Also, under the riparian doctrine, use of water for natural purposes—domestic use, watering of stock—is superior to use of water for artificial purposes—irrigation, mining, industry. Smith and Boyer, Survey of the Law of Property, pp. 186-189. Therefore, based on these rules, Carson will prevail over DuVall in accordance with answer choice (B). Choice (A) is incorrect because the theory of riparian rights allows a lower riparian (DuVall) to sue an upper riparian (Carson) where the latter's use materially affects the quantity or quality of water—the natural flow—or unreasonably causes damages—reasonable use. Choice (C) is incorrect because DuVall's use was only "adverse" since 1986, not for the statutory 15 years. Choice (D) is incorrect since it states the rule under the prior appropriation theory.

79. Assume for the purposes of this question only that Grant developed Greenacre into a residential subdivision between 1960 and 1969. The 100 acre tract was divided into single acre lots all of which were sold during the same decade. Single family residential dwellings were construct¬ed on all of the lots except four which were sold to Home in 1968. The deed to the four lots contained the same restriction as stipulated in the Oswald-Grant deed. In 1980, the Federal Savings & Loan Co. acquired Home's four lots in a foreclosure proceeding, and in the same year sold the property to Holiday. If Holiday seeks to construct a service station on his parcel of land, which of the following arguments, if true, would offer him the best chance of implementation? (A) The restriction against residential use is void as violative of the Rule Against Perpetuities. (B) The commercial development surrounding the property has made the deed restriction unenforceable. (C) When Holiday purchased the property from Federal Savings & Loan, the deed did not contain any mention of the restriction. (D) The jurisdiction in which Greenacre is located approved a zoning ordinance permitting the commercial development of the area surrounding Holiday's property.

79. (B) An equitable servitude may be extinguished by the existence of conditions which make the purpose and object of the servitude impossible of achievement, such as change in the character of the neighborhood from a residential to a business area. Note choice (D) is incorrect because a zoning ordinance will not generally invalidate an equitable servitude.

Questions 8-9 are based on the following fact situation. 8. Wanda and Hugo own Blackacre as joint tenants. If Wanda transfers her interest, by quitclaim deed to Louis, without Hugo's knowledge, what interest, if any, does Louis have in Blackacre? (A) no interest (B) an undivided one-half interest with right of survivorship. (C) an undivided one-half interest without right of survivorship (D) a lien against the entire property

8. (C) If one joint tenant conveys his (or her) interest in the property to another, even if the con¬veyance is done secretly, severance occurs, whereby the right of survivorship is severed and a tenancy in common results. Based on the facts presented, Louis would take an undivided one-half interest in Blackacre without right of survivorship.

Question 80 is based on the following fact situation. Rose, owner of Roseacre, granted to Morgan, owner of Diamondacre, an easement of way. Rose then went to Japan to live. Morgan then moved into possession of Roseacre and used it openly and exclusively, paying the taxes, for 23 years. He did not use his easement during that period. Rose returned and tried to evict Morgan from Roseacre. The court held that Morgan had acquired Roseacre by adverse possession. Morgan then sold Roseacre back to Rose who then put a chain across the ease¬ment. Morgan has now brought an action to remove the chain. 80. In most jurisdictions, Morgan will (A) lose, because he abandoned his easement (B) lose, because he did not use his easement for the statu¬tory period of 20 years (C) lose, because, rather than using his easement, he used all of Roseacre (D) win, because mere non-use of an easement does not extinguish it

80. (C) This is an example of the extinguishment of an easement by merger. An easement appurtenant is terminated by merger if the dominant and servient tenements come into common own¬ership. Choice (A) is wrong because failure to use an easement or profit will not result in its extinguishment. Note, however, that non-use coupled with physical acts (clearly indicating the user's intent to abandon) may be sufficient to effectuate an extinguishment. As a general review, remember that easements (or profits) may be terminated in the following ways: (1) by merger, (2) by written release, (3) non-use + other acts indicating an intent to abandon, (4) by prescription, (5) destruction of servient tenement, (6) tax sale of servient tenement, or (7) by estoppel.

R.J. Longhorn was a cattle rancher who owned substantial oil and mineral interests in West Texas. In July, 1990, Longhorn acquired title to Alpine Flats, a 200 acre tract located just inside the city limits of El Paso. The property was purchased at a sheriff's sale after its former owner, N.E. Fectual, became delinquent on his property taxes. In 1997, Longhorn decided to relocate in California and sell his vast ranching and oil interests in the Southwest. In July, Longhorn conveyed Alpine Flats for a consideration of $1.00, receipt of which was acknowledged, "to Austin, his heirs and assigns, but if Austin's wife, Molly, dies without issue, to Rosalina and her heirs and assigns." After taking possession of Alpine Flats, Austin discovered considerable oil reserves on the property. He thus began oil drilling operations and removed large quantities of oil which he sold on the spot market. At no time did he give notice to Rosalina of his oil drilling activities. Months passed before Rosalina learned that Austin was selling oil from the drilling operations. 81. Rosalina has now brought an action in equity for an accounting of the value of the oil removed and for an injunction against any further oil removal. If the decision is in favor of Austin, it will be on account of the fact that (A) the right to remove oil is an incident of a defeasible fee simple (B) Rosalina has no interest in Alpine Flats (C) there was no showing that Austin acted in bad faith (D) the right to remove oil is an incident of the right to possession

81. (A/D) The owner of a possessory estate in land is under a duty to use his possessory rights in a reasonable manner. Physical damage to the land is waste if it causes a substantial diminution in the value of estates owned by others in the same land. Burby, Real Property, p. 33. However, the owner of an estate in fee simple has almost complete freedom of action with respect to the use and enjoyment of the land. Austin is a fee simple owner and as an incident of possession has "the right to the exclusive possession of the surface of the ground, the airspace above and the soil underneath." Smith and Boyer, Survey of the Law of Property, p. 71. Choice (D) is correct. Choice (A) is also correct, since the right to remove oil is an incident of possession of any fee simple interest, whether a fee simple absolute or a fee simple defeasible. Removal of oil turns on Austin's right of exclusive possession. Furthermore, students should remember in this case that Rosalina, as the holder of the shifting executory interest has no vested interest in Alpine Flats, but rather a mere expectancy, until such time that Molly might die without children. Until then, Austin can remove oil and his doing so as a fee simple owner does not constitute waste.

82. If Molly died without issue before the beginning of Austin's oil drilling operations, the likelihood of Rosalina's success in her lawsuit against Austin would probably have been (A) unaffected, because the right to remove oil is an incident of the right to possession (B) unaffected, because the nature of Austin's estate would not be altered by Molly's death (C) improved, because Molly's death without issue would convert Austin's fee into a reversionary interest (D) improved, because although Austin still has a fee, it would now be certain to terminate

82. (D) Here's a rather confusing Multistate example where all four answer choices are technically incorrect. However, by process of elimination alternative (D) is the "best of the worst." Choices (A) and (B) are incorrect because once Molly died without issue, Rosalina's shifting executory interest "vested" and Austin's fee was cut off. Choice (C) is wrong because Austin's fee does not "revert" back to the grantor-Longhorn but shifts to the benefit of the grantee-Rosalina. Thus, choice (D) is the best answer even though Austin's fee terminated at Molly's death.

was located in the township of Deer Valley. In 1954, Erickson conveyed Hillacre to The Downhill Development Association "on condition that a ski lodge and resort area be built thereon and the land be used solely for skiing purposes and, in the event that said property is not used as a ski resort, the property shall revert to myself, the grantor, my heirs or assigns." Subsequently, a ski lodge was built and the land was continuously used as a ski resort for over twenty years. In 1959, Stein, owner of Grassacre, a property abutting the northeast corner of Hillacre, began to use a portion of Hillacre in order to gain access to Grassacre for ingress and egress. He used this access road openly, visibly and notoriously until 1980. The period of prescription in this particular jurisdiction was 20 years. In March, 1980, he decided to sell Grassacre to Grich for the purchase price of $500,000. Thereupon, Stein and Grich entered into a written real estate sales contract with closing being set for May 1, 1980. On April 1, 1980, Downer, the president of The Downhill Development Association, was approached by Grich with the request that written easement be given over the access road and that an appropriate instrument be delivered to Grich concurrently with Grich's closing with Stein. Following Downer's meeting with Grich, The Downhill Development Association held a duly announced meeting and voted unanimously to authorize its trustees to grant such an easement. On April 15, 1980, Erickson died. Erickson's sole descendant and successor in interest was his wife, Erika. Upon her husband's death, she immediately notified The Downhill Development Association that if it granted the easement to Grich, Hillacre would revert to her. Grich then brought an appropriate action, joining Stein, Erika and The Downhill Development Association, seeking a declaratory judgment that Stein has a perpetual easement appurtenant to Hillacre. 83. In this action, judgment should be in favor of which of the following parties? (A) Erika, because Grich could not obtain rights against The Downhill Development Association by prescription. (B) Erika, because the easement would violate the negative restriction that Erickson originally sought to impose. (C) Grich, because Stein had already obtained an ease¬ment by prescription. (D) Grich, because the language of the conveyance to The Downhill Development Association was too vague to support any claim by Erika.

83. (C) An easement by prescription arises by adverse use of the servient tenement by the dominant tenant for the period of the statute of limitations. To mature such an easement against a landowner the use must be (a) adverse as distinct from permissive; in derogation of right rather than in subordination to the rights of the landowner; and (b) open and notorious, and (c) continuous and without interruption, and (d) for the period of prescription. See Smith and Boyer, Law of Property, p. 387. Since Stein openly and notoriously used the northeast portion of Hillacre to gain access to Grassacre for the 20-year period, as required by statute, he obtained an easement by prescription. This easement passed on to Grich, who was in privity with Stein by means of the 1980 sales contract. Therefore, Grich's rights are enforceable against the whole world and he will prevail against Erika. Choice (C) is the correct answer.

In 1850 the State of Baden conveyed to Evers a tract of land, which today composes the two farms of Breezyacre and Windyacre, by deed that was immediately recorded. Evers died a widower in 1900, devising all of his real property to his son Warner. The will was duly probated shortly thereafter. In 1915, Warner conveyed the Breezyacre-Windyacre tract to Tidwell. This deed was not recorded until after Warner's death in 1919. Warner's will, duly probated following his death, named Tidwell as sole legatee and devisee of Warner's entire estate. In 1918, Warner mortgaged the Breezyacre-Windyacre tract to the Baden National Bank. The mortgage instrument, which was recorded in 1918, recited that it was subordinate to a mort¬gage on the same land given by Warner to Miller in 1898 and recorded in 1898. In that instrument Warner purported to grant Miller a mortgage on the Breezyacre-Windyacre tract. In 1941, Tidwell conveyed the parcel known as Breezyacre to Rumson, retaining Windyacre. This deed was duly recorded, but did not mention any mortgage. In 1956, Rumson conveyed Breezyacre to Vincent, who promptly recorded the deed. Recorded at the same time was an instrument from the Baden National Bank discharging and releasing the 1918 mortgage, which recited that the underlying debt has been fully repaid. In 1970, Baggett entered into an agreement with Vincent, whereby Vincent would convey Breezyacre in fee simple to Baggett for the sum of $75,000. The closing date was set for January 15,1971. NOTE that all of the deeds mentioned in the aforementioned transactions are general warranty deeds. In addition, the State of Baden has a notice-type recording statute and follows a title the¬ory for mortgages. 84. In 1915, asserting that his title to the Breezyacre-Windyacre tract was held free of any claim by Miller, Tidwell instituted suit against Miller to quiet title to the property. Judgment for (A) Tidwell, since Warner did not own the property in 1898, and therefore, his mortgage to Miller would be ineffective (B) Tidwell, since a subsequent bona fide purchaser with¬out notice would prevail over a prior mortgagee (C) Miller, since under the after acquired title doctrine, where the mortgagor mortgages a larger estate than he possesses in the land and subsequently acquires such larger estate, it inures to the benefit of the mortgagee (D) Miller, since in the title theory state, a mortgagee would prevail over a bona fide purchaser

84. (B) Choice (B) is the preferred alternative since a subsequent bona fide purchaser without notice of a prior mortgage (e.g., the 1898 Warner-Miller mortgage) outside the chain of title would prevail over the prior mortgagee. It is important to note that Tidwell would not be charged with "constructive notice" of the 1898 Warner-Miller mortgage since Warner did not acquire title to the property until 1900. Therefore, Tidwell would be charged with constructive notice of the 1900 devise from Evers to Warner and the 1850 conveyance from the State of Baden to Evers. In sum, the 1898 Warner-Miller mortgage would fall outside Tidwell's chain of title.

85. What is the probable legal effect of Warner's mortgage (agreement) in 1918 with the Baden National Bank? (A) The mortgage would be invalid, since Warner conveyed his interest in the property to Tidwell in 1915. (B) The mortgage would be invalid, since the first mortgage in 1898 would take precedence over the second mortgage. (C) The mortgage would be invalid, unless the mortgagee Baden National Bank had knowledge of the prior conveyance to Tidwell. (D) The subsequent mortgagee, Baden National Bank, would prevail as against the prior conveyee-Tidwell, who failed to record before the mortgage was effectuated.

85. (D) Under notice-type recording statutes, an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser (creditor or mortgagee) for value and with¬out notice. Under this type of statute the subsequent bona fide purchaser prevails over the prior interest whether the subsequent purchaser records or not. Insofar as the subsequent purchaser is concerned, there is no premium on his race to the recorder's office; his priority is determined upon his status at the time he acquires his deed or mortgage.

86. Assume that on January 10, 1971, Baggett conducted a title search which revealed the existence of Miller's 1898 mort¬gage on the Breezyacre-Windyacre tract. Which of the following statements is most accurate with respect to that mortgage? (A) Baggett would be entitled to rescind the real estate contract with Vincent immediately. (B) The encumbrance renders title to Breezyacre unmarketable. (C) The mortgage would only encumber the Windyacre parcel, not the Breezyacre tract, since Tidwell's parti¬tion in 1941 created a joint tenancy. (D) The encumbrance would not entitle Baggett to rescind the real estate contract until closing on January 15th. 87. Assume for the purposes of this question only that on January

86. (D) There can be no rescission of an executory contract for the sale of land merely because of lack of title (e.g., existence of an encumbrance) in the vendor prior to the date when performance is due (on the "closing" date). Neither can a vendee place the vendor in default by tendering payment and demanding a deed in advance of the time and under circumstances not contemplated by the contract.

87. Assume for the purposes of this question only that on January 15,1971, the sale of Breezyacre is finalized, with Baggett paying Vincent $75,000 and Vincent executing a general warranty deed. The deed contains the following covenants of title: (a) Covenant for seisin; (b) Covenant of the right to convey; and (c) Covenant against encumbrances. After Baggett takes possession of Breezyacre, he learns of the Warner-Miller 1898 mortgage, which was not satisfied, and seeks monetary damages for breach of the covenant against encumbrances. Judgment for (A) Baggett, since the covenant against encumbrances is a guarantee to the grantee that the property is not subject to outstanding rights or interests. (B) Baggett, since the covenant against encumbrances would be breached at the time the deed was delivered, thereby entitling the covenantee to recover damages. (C) Vincent, since the covenant against encumbrances may only be breached, if at all, at the time of conveyance. (D) Vincent, unless the covenantee is disturbed in his actual enjoyment of the land thereby conveyed.

87. (B) Here, it is clear that Vincent's covenant against encumbrances was breached the very instance he conveyed Breezyacre to Baggett because the encumbrance of the 1898 mortgage burdened Breezyacre at that time. Students should note that, in this regard, even though the mortgagee never forecloses or threatens to foreclose and the subsequent purchaser is never called upon to pay off the encumbrance, there is, nevertheless, a breach of covenant and the covenantee may recover damages.

Question 88 is based on the following fact situation. Amos is the owner in fee simple of Blackacre, a 7-acre tract, on which he maintains a dwelling house for himself and his fam¬ily. Adjoining Blackacre is Whiteacre, a 10-acre tract, owned by Andy. In order to gain access to the highway, Amos has an ease¬ment to cross over Whiteacre. Amos has recently purchased Greenacre, a 12-acre tract, which abuts Whiteacre but is not appurtenant to Blackacre. Amos has begun constructing a farmhouse on Greenacre and is using the existing easement (across Whiteacre) to gain access to the 12-acre tract. Amos has never received permission from Andy to use the road across Whiteacre to gain access to Greenacre. 88. In an appropriate action by Andy to enjoin Amos from using the existing easement to gain access to Greenacre, the plaintiff will most likely (A) succeed, because Amos is making use of the servient tenement beyond the scope and extent of the easement as it was originally created (B) succeed, because Amos has no right to use the servient tenement in connection with a tract of land which is not part of the dominant tenement (C) not succeed, because Amos has an easement by necessity (D) not succeed, because Amos has a right to use the easement in a manner not inconsistent with the rights of the owner of the servient tenement

88. (B) According to Smith and Boyer, every easement appurtenant requires two pieces of land which are owned by two different persons. The two pieces of land involved are: (1) the dominant tenement, which is the land whose owner is benefited by the easement and (2) the servient tenement, which is the land whose owner is burdened by the easement. The owner of the dominant tenement is called the dominant tenant and the owner of the servient tenement is called the servient tenant. Second, when an easement appurtenant is created (either by conveyance or prescription) over a servient tenement the boundaries and extent of such easement become fixed and are binding on both the servient and the dominant tenants. It is important to remember that neither tenant has the right to change the location of such easement or change the boundaries of the servient or dominant tenement(s). In this example, many students will incorrectly choose choice (A). Here, choice (B) is the best answer because Amos has an easement appurtenant between Blackacre (the dominant tenement) and Whiteacre (the servient tene¬ment). He is attempting to use Whiteacre in connection with Greenacre, another tract of land that is not part of the dominant tenement. If, on the contrary, Amos attempted to make excessive use of Whiteacre in relationship to Blackacre, then choice (A) would be correct. For example, if Amos had a right of way for crossing Whiteacre (from Blackacre) on foot or by bicycle, then it would be beyond the scope of the easement for him to cross Whiteacre (from Blackacre) by automobile. This, however, is nor the situation. Therefore, choice (B) is the correct answer.

Mays owns Whiteacre, a 10-acre tract used for agricultural purposes, in fee simple. On Whiteacre Mays maintains a dwelling house for himself and his family. Mantle is the fee sim¬ple owner of Blackacre, a 5-acre tract, which abuts Whiteacre. In 1964 Mays began to erect a concrete wall along the bound¬ary line appurtenant to Blackacre. After Mays started to build the wall, Mantle informed him that he believed the wall was pro¬truding onto his property. Mays informed Mantle that he paid $500 to have the boundary line surveyed. Mays said that the sur¬veyor indicated that the wall did not encroach on Blackacre. Mantle accepted Mays' assurances and in 1980 devised Blackacre to Snider. After Snider entered into possession of Blackacre, he had the boundary line surveyed. The survey conclusively showed that the concrete wall extended two feet onto Blackacre. Although the encroachment does not interfere with Snider's use of Blackacre, he nevertheless demanded that Mays remove the wall. Upon Mays' refusal, Snider brought an appropriate action to have the wall removed. 89. The most likely result is that (A) Mays must remove the wall at his own expense (B) Mays must remove the wall but at Snider's expense (C) Mays may leave the wall without being liable to Snider for money damages (D) Mays may leave the wall but he will be liable to Snider for money damages

89. (C) This is a classic Multistate Property example where a substantial number of students will incorrectly choose choice (D). The test maker knows that many students will be led astray by viewing this as a trespass-type question. In trespass, of course, the plaintiff is entitled to relief if he (or she) shows an intentional unprivileged entry. If he (or she) does so, the plaintiff is then entitled at least to nominal damages and possibly an injunction prohibiting further trespass. This example, however, does not really deal with the issue of trespass. Rather, what we have here is a boundary line agreement between Mays and Mantle. As a general rule, judicial recognition is extended to boundary line agreements even if not executed with the formalities prescribed by the Statute of Frauds. Burby notes that application of the doctrine usually requires proof that the parties were not informed as to the true boundary line, that there was an express or implied agreement as to its locations and possession that conformed to the agreement. As such, Snider's (i.e., the grantee's) proper cause of action is not against Mays for trespass, but rather it is against Mantle (as grantor) for breach of covenant against encumbrances. An encumbrance that affects ownership but does not interfere with the use of land constitutes a breach of covenant against encumbrances. This is even true if the grantee knew of the encumbrance at the time he (or she) acquired ownership. Real Property, pg. 310.

9. Assume for the purposes of this question only that Wanda and Hugo are married and own Blackacre as tenants by the entirety. If Wanda transfers her interest in Blackacre by quit¬claim deed to Louis, without Hugo's knowledge, what inter¬est, if any, does Louis have? (A) no interest (B) an undivided one-half interest with right of survivorship (C) an undivided one-half interest without right of survivorship (D) a lien against the entire property

9. (A) A tenancy by the entirety, unlike a joint tenancy, does not allow either party to convey away his or her interest in the property without the other's consent. As a result, Louis would not have any interest in Blackacre.

92. The provision in the 1950 agreement between Oscar and Groves Mining Co. granting "the use of the pathway" to Groves may best be described as a (an) (A) license (B) easement in gross (C) easement appurtenant (D) prescriptive easement

92. (C) An easement is deemed appurtenant when the right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land. For an easement appur¬tenant to exist, there must be two tracts of land. One is called the dominant tenement (which has the benefit of the easement). The second tract is the servient tenement (which is subject to the easement right). In the present case Oscar granted Groves an express easement to use the roadway as an access to Groves' adjacent property. Choice (A) is incorrect since a license is a revocable privilege to enter upon the lands of the licensor. Choice (B) is wrong because an easement in gross is created where the holder of the easement interest acquires his right of special use in the servient tenement independently of his ownership or possession of another tract of land. Alternate (D) is erroneous since a prescriptive easement is not in writing, but arises through the long continued use of the property (as analogous to adverse possession).

93. Assume for the purposes of this question only that in 1954, after the conveyance from Babson, Callahan informed Groves Mining Co., that he would no longer honor the 1950 agreement permitting Groves to use the pathway. Groves brought an action for specific performance. Judgment for (A) Groves, since their property interest would "run with the land" (B) Groves, since the possessor of a servient interest would prevail against subsequent owners (C) Callahan, since Groves' interest was extinguished by the subsequent conveyance (D) Callahan, since there was no privity of estate between Callahan and Groves

93. (A) The provision in the 1950 agreement, whereby Groves was granted an easement appurtenant would "run with the land" and, thus, be enforceable against successors of the original parties. An easement appurtenant is, for purposes of succession, an incident of the possession of the dominant tenement. Even though an easement appurtenant is a property interest in the servient tenement rather than an interest in the dominant tenement, the easement privilege passes with the possession of the dominant tenement. As a consequence, the fact that Groves remained in possession of his adjacent dominant tenement is sufficient to establish his right to use the servient tenement in a manner consistent with the easement right.

In 1992, Johnson conveyed 100 acres of his Red Oak farm in Dallas County to Williams. The deed contained the following covenants: (1) seisin, (2) right to convey and (3) against encum¬brances. Subsequently, Williams conveyed the property to Allen by warranty deed. However, Allen is later evicted by Davidson because of paramount title. 94. Allen now brings suit against Johnson for breach of covenants in the deed. Judgment should be for: (A) Allen, because the covenants contained in the deed run with the land (B) Johnson, since no privity of estate exists between Allen and him (C) Allen, but only for the covenants of seisin and right to convey (D) Johnson, because the covenants are personal in nature and do not run with the land

94. (D) The covenants of seisin, right to convey and against encumbrances are personal covenants which, from their nature, must be broken instantaneously on the delivery of the deed or they are never broken. It follows that such personal covenants never run with the land and, there¬fore, the subsequent grantee may not maintain a cause of action against the original grantor.

95. For the purposes of this question only, suppose that Johnson conveyed the property to Williams and there was an out¬standing mortgage. The deed contained the above-mentioned covenants. Williams took possession, and shortly thereafter, threatened with foreclosure, he paid off the mortgage with interest. Williams now sues for breach of covenant against encumbrances. The court will most likely allow recovery for: (A) the amount in principal and in interest thereon from the time of the mortgage payment (B) only the principal which Williams paid on the mortgage (C) the measure of value between the value of the land with and without such an encumbrance (D) no recovery, since Williams should have brought suit against Johnson immediately upon notice of the out¬standing mortgage

95. (A) Since the covenant against encumbrances (i.e., existence of mortgage) was breached at the instant of the delivery of the deed, Williams will succeed in his action because the encumbrance of the mortgage burdened the property at the time of conveyance, entitling him to recover the amount he was compelled to pay in principal and in interest with interest accruing from time of payment.

Questions 96-98 are based on the following fact situation. Scenicacre is a twenty acre tract of open meadowland with numerous streams running through. In 1965 Ohner had good record title to Scenicacre in fee simple absolute. In 1966 Ohner delivered to Son, with intent to make a gift of Scenicacre to Son, a deed signed by Ohner, naming Son and his heirs grantee and appearing valid on its face. Son neglected to record the deed. In 1970, Buyer, aware of the existence of the Ohner-to-Son deed, sought out Ohner and asked to buy for $10,000 a deed of Scenicacre from Ohner to Buyer and his heirs. Ohner executed such a deed and Buyer promptly recorded it. Buyer's intent was to acquire color of title and obtain ownership of Scenicacre by adverse possession, In 1970, Buyer constructed a fence around Scenicacre. In 1971, Son presented his deed of Scenicacre to Purchaser and, for $1 5,000 paid by Purchaser, signed and delivered a deed of Scenicacre in favor of Purchaser and his heirs. After receiving the deed, Purchaser made no effort to search the title, to exam¬ine the property or to record the deed. In 1975, Vendee paid Buyer $20,000 and Buyer delivered to Vendee a deed of Scenicacre in favor of Vendee and his heirs. Vendee had examined the property, had searched the title, and had no knowledge of Buyer's awareness of the prior Ohner-to-Son instrument. Although Vendee did not reside on the prop¬erty, he regularly visited Scenicacre twice a week. Vendee recorded his deed. In 1979 for $25,000 paid by Oscar, Purchaser signed and delivered a deed of Scenicacre naming Oscar and his heirs as grantees. Oscar obtained from Purchaser the Son-to-Purchaser deed, and from Son the Ohner-to-Son deed and took all three documents to the Recorder's Office to be recorded. At Oscar's request, all three instruments were recorded in the following order: (1) Ohner-to-Son; (2) Son-to-Purchaser; (3) Purchaser-to-Oscar. Before Oscar had paid Purchaser and taken his deed, Oscar visited Scenicacre and observed the fence. However, Vendee was not present when Oscar visited the property and nothing suggested who, if anyone, was using it. In any case, Oscar did not attempt to search the title before making his purchase. NOTE: This jurisdiction uses Grantor-Grantee Indices and has no Tract Index. 96. In 1980, what is the present state of title to Scenicacre if the jurisdiction's recording act provides: "Every conveyance of real property shall be invalid as against any person, except the grantor, his heirs, and assigns, having actual notice thereof, unless it is recorded as provided by Statute?" (A) In a notice jurisdiction, Oscar, as a subsequent bona fide purchaser, is only chargeable with notice of what appears in his chain of title and therefore would acquire record title to Scenicacre. (B) In a race-notice jurisdiction, Buyer would acquire equitable title to Scenicacre, since he erected the fence and failed to inform Vendee of the prior Ohner-to-Son instrument. (C) In a race-notice jurisdiction, Vendee, as subsequent bona fide purchaser without notice of prior Ohner-to-Son instrument, would acquire record title to Scenicacre. (D) In a notice jurisdiction, purchaser would acquire record title to Scenicacre even though he failed to record his deed.

96. (A) First of all, students should note that the aforementioned recording act is a pure notice type statute. Under this type of statute the subsequent bona fide purchaser prevails over any prior interests whether the subsequent purchaser records or not. The subsequent purchaser's priority is determined by his status at the time he acquires his deed; there is no premium on his race to the recorder's office. Secondly, in referring to our factual situation, Oscar has a superior right in the property. At the time Oscar purchased Scenicacre, Purchaser had not recorded. Consequently, Oscar as a subsequent bona fide purchaser for value, had established his priority as soon as he purchased the property. Moreover, note that a subsequent bona fide purchaser in a notice jurisdiction is charged with notice of every recorded instrument of conveyance which is a link in his chain of title.

97. In 1980 what is the present state of title to Scenicacre if the jurisdiction's recording act provides: "Every conveyance of real estate which is not recorded is void against a subse¬quent purchaser in good faith for valuable consideration, whose conveyance shall be first duly recorded?" (A) In a race-notice jurisdiction, Oscar, as a subsequent bona fide purchaser, would acquire record title to Scenicacre, since he was the last in time to record. (B) In a pure race jurisdiction, Buyer would acquire record title to Scenicacre, since he purchased the property for value and recorded first in time. (C) In a race-notice jurisdiction, Vendee, as a subsequent bona fide purchaser without notice of the prior Ohner-to-Son instrument, would acquire record title to Scenicacre, since he recorded his deed first in time. (D) In a pure race jurisdiction, Vendee, as a subsequent bona fide purchaser without notice of the prior Ohner-to-Son instrument, would acquire record title to Scenicacre, since he recorded his deed first in time.

97. (C) The recording act referred to in this question is a race-notice type statute. Under such a statute, an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser for value without notice, who records "first." In effect, a race-notice statute combines the essential features of both the notice and race type recording statutes. In order for a subsequent party to prevail in a race-notice jurisdiction, he must be both a bona fide pur¬chaser for value without notice of the prior interest and record first. In our hypothetical, Vendee was a subsequent BFP for value and without notice of the prior Ohner-to-Son deed. Moreover, Vendee purchased Scenicacre in 1975 and immediately recorded the deed. Vendee recorded his deed first in time. (Note: Oscar did not purchase the property until 1979). Thus, Vendee is the record titleholder of Scenicacre in 1980 under this race-notice recording statute.

98. Assume for the purposes of this question only, that (in question 97), when Vendee purchased Scenicacre from Buyer in 1975, he was aware of the Ohner-to-Son instrument. In 1980, in an action to quiet title to Scenicacre, which of the following parties would have priority of title? (A) Oscar (B) Buyer (C) Vendee (D) Purchaser

98. (A) In 1980 Oscar would succeed in an action to quiet title to Scenicacre under a race-notice type recording statute. To reiterate, the recording act in the previous question is a race-notice type statute. In order to gain priority of title in a race-notice jurisdiction, a subsequent party must be (1) a BFP for value without notice of any prior interests and (2) record first. Since Buyer and Vendee were both aware of the existence of the prior Ohner-to-Son deed, the notice requirement could not be met as to them. Furthermore, Purchaser, who was unaware of any prior interests, failed to record first in time. Therefore, Oscar would prevail since he was the only party to satisfy both requirements; he was a subsequent BFP for value without notice (paying $25,000 for the property) and was the first to record (between Purchaser and himself).

On February 1, 1956, Williams conveys his farm known as "The Oaks" to Adams, and Adams duly records the conveyance. The following day, Adams conveys the property to Betty; she does not record her deed. Then on February 4th, Adams executes an identical conveyance of "The Oaks" to Clyde. Clyde gives Adams a check for $100,000 for the property and records the conveyance even though he has actual knowledge of Betty's prior conveyance. Betty however, records her deed on February 6th. Clyde then conveys his interest in the farm to Dave, who gives a purchase price of $115,000 to Clyde. On February 5th, Dave purchases the farm without notice of the conveyance to Betty and duly records the deed. 99. In conducting a title search, Dave should pursue his inves- tigation by looking in the: (A) Grantor Index under Clyde's name to ascertain if Clyde acquired title (B) Grantee Index under Clyde's name only (C) Grantee Index under Clyde's name, then Grantor Index under Clyde's name, and then look in Grantee Index again, this time under Adams' name to discover if he acquired title (D) Grantee Index under Betty's name, then to the Grantor Index also under Betty's name to find out if she made any prior conveyances

99. (C) Betty's recording is "out of the chain of title" and therefore it is not notice to Dave.

PACIFIC OCEAN House MALIBU PROPERTY VOGEL PROPERTY PACIFIC COAST HIGHWAY UNDEVELOPED TRACT WHERE THE LANDSLIDE ORIGINATED. PROPERTY OWNED BY SEABREEZE REALTY CO. Question 59 is based on the following fact situation. The following incident occurred during the heavy rains that battered Southern California in the winter and spring of 1995. On February 12, 1995, a violent storm struck the Los Angeles basin area. Triggered by heavy rains and wind gusts of over 50 mph, a mudslide caused Velma Vogel's house to be swept down¬hill into a home owned by Marilyn Malibu. After the Vogel home crashed into Malibu's, the mudslide then carried both of them into the ocean. Undisputed evidence revealed that the mudslide started when a large plot of land, situated on an uphill slope, owned by the Seabreeze Realty Co., slid downward across Pacific Coast Highway towards the ocean. The landslide then caused the Vogel dwelling to dislodge, rotate and press against the home of her neighbor, Marilyn Malibu, and both homes then slid into the sea. 59. Malibu asserts a claim against Vogel to recover damages to her home caused by the mudslide. Judgment for whom? (A) Malibu, because a landowner has the absolute right to have his land supported laterally by the neighboring land. (B) Malibu, because one who withdraws lateral support from his neighbor's land is liable for the injury done to such land in its natural condition, regardless of negligence. (C) Vogel, because although Malibu may recover for injury to the land in its natural condition, she cannot recover for injury to the artificial structures thereon. (D) Vogel, because Malibu's proper cause of action should be against Seabreeze Realty Co.

C) If there are artificial structures on the land and the land in its natural condition would be injured by the taking away of lateral support, then there are two distinct views as to the dam¬ages recoverable: (a) in some states the recovery will include both the damages to the land and the damage to the artificial structures thereon (called the English rule, (b) but in the majority of states the recovery is limited to damage to the land in its natural condition and may not include any damage to the artificial structures on the land (called the American rule). The the¬ory of the American rule is that to permit the wronged landowner to recover for damage to his buildings is in substance a requirement that the adjoining landowner's land furnish lateral sup¬port for both the land and the buildings of the plaintiff.