2023 Final Flashcards
O acquired the possessory fee simple absolute title to a parcel of land commonly known as Orangeacre. Last year, O deeded Orangeacre “to A, B and, C for their joint lives.” B died in March of this year. In April of this year, C delivered a deed to Orangeacre to D. Which one of the following statements is the most accurate statement regarding the current state of the title to Orangeacre?
A. O owns the possessory fee simple absolute title to Orangeacre.
B. A owns a possessory life estate and D owns a vested remainder to a life estate.
C. A owns a possessory life estate and D owns a possessory life estate.
D. A owns a possessory life estate, D owns a possessory life estate pur autre vie, and O owns a reversion to the fee simple estate in and to Orangeacre.
A
O conveyed a joint life estate to A, B, and C; and O retained a reversion to the fee simple absolute estate in and to Orangeacre. The joint life estate that O conveyed to A, B, and C expired when B died. O’s reversion to the fee simple absolute estate in Orangeacre became possessory when B died. C’s deed to D did not convey an interest in Orangeacre to D because C did not have an interest in Orangeacre when C delivered the deed to D.
Which one of the following statements is the least accurate statement?
A. Per the Restatement of Property, the owner of servient land may relocate an easement provided the utility of the easement will not be lessened, and the rights of easement owner will not be unduly impaired, and the purpose for which the easement was created will not be frustrated.
B. An express easement may be created by grant or by reservation.
C. A person’s adverse use of the land of another person might become an irrevocable right to use the other person’s land.
D. Use of servient land for the benefit of non-dominant land is a surcharge of an easement that will automatically result in the termination of the easement.
ANSWER D
Statement A is an accurate statement of the Restatement rule regarding the scope of the right of the owner of servient real property to relocate an easement that burdens the servient real property. Statement B is an accurate statement regarding the ways in which an express easement may be created. Statement C is an accurate statement that alludes to creation of an easement by prescription. Statement D is partly accurate and partly inaccurate. While it is true that use of servient land for the benefit of non-dominant land is a surcharge, it is not true that a surcharge of an easement automatically terminates the easement. Statement D is the least accurate statement among the four statements because the surcharge of an easement does not automatically terminate the easement. A severe surcharge of an easement might result in the easement being declared terminated by a court of competent jurisdiction.
A zoning ordinance that regulates the use of real property to control density is a:
A. Non-cumulative zoning ordinance.
B. Cluster zoning ordinance.
C. Bulk zoning ordinance.
D. Floating zoning ordinance.
ANSWER: C
Zoning Supplement 2 at page 1.
O owned the possessory fee simple absolute title to Blackacre. O devised Blackacre “to E but if E does not marry, then to F.” Words of inheritance are not required to devise a fee simple estate. O devised:
A. A vested remainder to F.
B. A contingent remainder to F.
C. An executory interest to F.
D. A possibility of reverter to F.
ANSWER: C
O devised a defeasible fee simple to E. The defeasible fee simple O devised to E is designed to terminate automatically “if E does not marry.” If E marries, the estate O devised to E would become the possessory fee simple absolute estate in and to Blackacre. If E does not marry, F or F’s successor or successors will own the possessory fee simple absolute estate in and to Blackacre. O devised a fee simple subject to an executory limitation to E and an executory interest to the fee simple absolute to F because F’s future interest is designed to become possessory upon a divestment of E’s vested estate. The executory interest is valid per the common law Rule against Perpetuities using E as the measuring life because the executory interest will either fail to vest during E’s lifetime if E marries, or it will vest as of E’s death if E dies without ever having married.
O owns the possessory fee simple absolute title to Greenacre which is a wooded parcel of land. Recently, O sent an email to O’s friend, F. The email bears O’s electronic signature. The email reads: “F, while I own Greenacre, you have my permission to go hiking on Greenacre.” O granted:
A. A license to F because O’s email does not satisfy the requirements of the Statute of Frauds.
B. A determinable easement to F.
C. An easement for years to F.
D. An appurtenant ingress and egress easement to F.
ANSWER: B
The right “to go hiking on Greenacre” that O granted to F was in writing (i.e., the email); the writing included sufficient terms (i.e., identifying the scope of F’s use of Greenacre as “permission to go hiking on Greenacre”); and the writing was signed by O (i.e., “O’s electronic signature”). O’s grant to F does not include a manifestation that the right O granted to F is revocable. Rather, F was granted the right for as long as O owned Greenacre. Statement B is an accurate statement because the easement that O granted to F is to come to an automatically when O does not own Greenacre any longer. Statement A is not an accurate statement because O’s electronic signature satisfies the signing required by the Statute of Frauds. Statement C is not accurate because the easement O granted to F was not for a fixed, calculable period of time. Put another way, the length of time that O will own Greenacre after the grant of the easement to F is not set forth as a fixed or calculable period of time. Statement D is not accurate because O’s grant does not identify F’s right to go hiking on Greenacre being for the purpose of ingress and egress to and from real property that may be owned by F. Hence, O granted an easement in gross to F; not an appurtenant ingress and egress easement.
Which one of the following statements is the truest statement?
A. An easement implied by prior use is an appurtenant easement.
B. A life estate pur autre vie terminates when the owner of the estate dies.
C. The Restatement of Property (Third) expands the methods by which touch and concern may be proven.
D. The common law prohibition against an inter vivos transfer of a right of entry that is not a release is in force in California.
ANSWER: A
Statement A is true. The first element of an easement implied by prior use is common ownership (i.e., one person, or one set of persons, owned both the alleged servient land and the alleged dominant land). The second element is the severance of common ownership resulting in a person or set of persons owning the alleged servient land and another person or set of persons owning the alleged dominant land. The third element is the required scope of use of the alleged servient land for the benefit of the alleged dominant land by the common owner or owners during the period of common ownership. Consequently, an easement implied by prior use is inherently an appurtenant easement. Statement B is false. A life estate pur autre vie terminates when the person by whose life the duration of the estate is determined dies. For example, X owns a life estate pur autre vie for the life of Y. X dies. Y is still alive. The life estate pur autre vie continues to exist until Y dies. Statement C is false. The Restatement of Property (Third) supersedes touch and concern. Statement D is false. California adheres to the modern view regarding the transferability of future interests. Per the statutory law of California, future interests can be transferred in the same way and to the same extent that possessory interests can be transferred.
Which one of the following statements is the least accurate statement?
A. Unity of interest is not required between tenants in common.
B. The Uniform Statutory Rule against Perpetuities abolishes the common law Rule against Perpetuities.
C. The default form of concurrent ownership between spouses regarding property located in California is community property.
D. According to the majority view, absent an ouster, a concurrent owner in possession does not owe rent to a concurrent owner who is not in possession.
ANSWER: B
Statement B is a false statement. Hence, Statement B is inaccurate. The first section of the USRAP is a codification of the common law RAP. Hence, the USRAP does not abolish the common law RAP. The second section of the USRAP applies if the interest would be void per the common law RAP. The second section of the USRAP is the 90-year “wait-and-see” perpetuities period in gross. Statement A is an accurate statement. Unity of interest does not have to exist between tenants in common. Statement C is an accurate statement. Statement D is an accurate statement.
Which one of the following statements is the most accurate statement?
A. The Rule in Shelley’s Case is in force in most of the states of the U.S.
B. The owner of a future interest has the right to exclude others.
C. An easement cannot be terminated by the foreclosure of a senior lien.
D. Real property located within a subdivision to which the third-party beneficiary theory is applicable can be a benefited property, but not a burdened property.
ANSWER: D
Statement D is an accurate statement. Statement A is not an accurate statement because the Rule in Shelley’s Case has been abolished in most of the states of the U.S. Statement B is not an accurate statement. A person who has possession of property has a right to exclude. A future interest is an interest that is yet to become a possessory interest. Hence, the owner of a future interest does not have a right to exclude others. As an aside, an adverse possessor cannot adversely possess against the owner of a future interest. More in that regard next semester. Statement C is not an accurate statement. A properly conducted foreclosure proceeding results in the termination of all junior and subordinate interests. Hence, an easement that is a junior or subordinate encumbrance in relation to a lien that is superior in priority is terminated (i.e., “wiped out”) by the foreclosure of the senior encumbrance.
Which one of the following statements is the least accurate statement?
A. According to the statutory law of California, a common interest community land use restriction is deemed reasonable unless it is proven to be unreasonable.
B. The Rule against Perpetuities applies to a vested remainder that is subject to open.
C. Horizontal privity between a covenantor and a covenantee may be established by applying the any interest test.
D. If O devised the PIQ “to L for life, then to O’s heirs,” the Doctrine of Worthier Title would not apply to O’s devise.
ANSWER: C
Statement C is an inaccurate statement. The “any interest test” is a test for vertical privity; not horizontal privity. Statement A is an accurate statement. Statement B is an accurate statement. Statement D is an accurate statement. The transfer is a devise. Thus, O is deceased and heirs of O are ascertainable. Consequently, the remainder to “O’s heirs” is a vested remainder. The Doctrine of Worthier Title does not apply to vested remainders to the transferor’s heirs.
Goldacre is real property located in the state of California. T owned the possessory fee simple absolute title to Goldacre when T died. A provision in T’s will reads: “I leave Goldacre to L for life, then to L’s widow for life, then to each child of L who is alive at the time of the death of L’s widow.” L’s spouse is S. C is the child of L and S. T devised a:
A. Vested remainder “to L’s widow.”
B. Contingent remainder “to each child of L who is alive at the time of the death of L’s widow.”
C. Vested remainder subject to open to C.
D. Contingent remainder to S.
ANSWER: B
Principles of law in force in CA apply because “Goldacre is real property located in the state of California.” CA statutory law replaces the common law “unborn widow rule” with the “unborn spouse rule.” T devised a possessory life estate to L, and a contingent remainder to a life estate to “L’s widow,” and a contingent remainder to the fee simple absolute estate in Goldacre to each child of L “who is alive at the time of the death of L’s widow.” The intended contingent remainder to each child of L “who is alive at the time of the death of L’s widow” is void per the common law RAP applying law “unborn widow rule” because the common law presumption is that “L’s widow” was not alive at the time of T’s devise. The certainty test cannot be satisfied using L, or S, or C as a measuring life. However, the presumption that is part of the “unborn spouse rule” is that “L’s widow” can be used as a measuring life to determine whether the common law RAP is or is not satisfied. It is certain that a child of L will either be alive or not alive at the time of the death of L’s widow. Hence, the contingent remainder to each child of L “who is alive at the time of the death of L’s widow” is a valid contingent remainder. Statement B is an accurate statement for the foregoing reasons. Statement A is not accurate. Although the future interest to “L’s widow” is a remainder because it is designed to become possessory immediately upon the expiration of L’s life estate, it is not a vested remainder. “L’s widow” would have to be an ascertained person for the remainder to “L’s widow” to be a vested remainder. There cannot be a widow of L until L dies. L is alive. Hence, “L’s widow” is yet to be ascertained. Statement C is not accurate. Even though C is an ascertained child of L, C must satisfy the condition precedent of being alive at the time of the death of L’s widow in order for the remainder to C to become a vested, possessory interest. Statement D is not accurate. Although S is L’s spouse, S is not the widow of L. To be the widow of L, S would have to be married to L at the time of L’s death. It is not certain that S will become L’s widow.
Which one of the following is not a regulatory takings test?
A. The average reciprocity of advantage test.
B. The “distinct investment-backed expectation” test.
C. The prohibition of a public nuisance test.
D. The non-conforming use test.
D
The average reciprocity of advantage test, and the “distinct investment-backed expectation” test, and the prohibition of a public nuisance test, are regulatory takings tests. The non-conforming use test is a principle of zoning law.
Which one of the following statements is the truest statement?
A. The way in which an easement was created determines the set of rules that apply to the determination of the scope of the easement.
B. A possibility of reverter can be inherited, but a possibility of reverter cannot be devised if the devise is not a release.
C. When included as part of an instrument of conveyance, the words “but if” traditionally create a determinable estate.
D. A conservation easement is a type of affirmative easement.
ANSWER: A
Statement A is a true statement. If necessary, review page 38 of the Week 7 Panels. Statement B is true according to the common law, but Statement B is not true according to the modern law regarding transfer of ownership of a possibility of reverter. Statement C is false. The words “but if” traditionally create an estate subject to a condition subsequent. (Page 312 of the course text.) Statement D is false. A conservation easement is a type of negative easement. (Page 682 of the text.)
Redacre is a parcel of land located in the state of California. O acquired ownership of the possessory fee simple absolute estate in and to Redacre. O deeded Redacre “to X for life, then to Y if Y has become an attorney.” X died last week survived by Y and by O. Y is a third-year law student. Which one of the following statements is the most accurate statement?
A. O owns the possessory fee simple absolute estate in and to Redacre.
B. Y owns a contingent future interest in and to Redacre.
C. Y owns a vested future interest in and to Redacre.
D. O owns a possessory fee simple subject to a condition subsequent estate in and to Redacre.
ANSWER: B
Principles of property law that are in effect in CA apply because “Redacre is a parcel of land located in the state of California.” The common law destructibility of contingent remainders rule is abolished in CA. O deeded a possessory life estate to X and a contingent remainder to the possessory fee simple absolute estate in and to Redacre Y. The contingent remainder was validly created using Y as the measuring life to apply the common law RAP provisions that are part of the USRAP adopted by CA. It is certain that Y will either become an attorney before Y dies, or Y will not have become an attorney before Y dies. When X died, Y’s remainder did not become possessory because Y has yet to satisfy the condition precedent of becoming an attorney. If the common law rule of destructibility of contingent remainders doctrine was in force in CA, Y’s remainder would have been destroyed as of the time of the death of X. However, because the destructibility doctrine has been abolished in CA, and because it is still possible for Y to satisfy the condition precedent of becoming an attorney, Y continues to have a future interest. The future interest now owned by Y has transmuted to a common law executory interest because if Y becomes an attorney, that event will result in a divestment of the possessory fee simple estate that is now subject to Y’s executory interest. Recall that pre CA statutory law, Y’s future interest may still be called a remainder even though it now has the characteristics of a common law executory interest. Statement B is most accurate statement of the four statements for the foregoing reasons.
Redacre is land located in California. T acquired the fee simple absolute estate in and to Redacre prior to T’s death. T died testate. The following language is included in T’s will: “I leave Redacre to A and the heirs of A’s body.” Which one of the following statements is the most accurate statement?
A. T devised the fee simple absolute estate in and to Redacre to A.
B. T devised a fee tail estate in and to Redacre to A.
C. T devised a life estate to A.
D. T’s devise to A is void.
ANSWER: A
The words “and the heirs of A’s body” create a fee tail estate at common law. The fee tail estate has been abolished in all but four states of the U.S. California is one of the states that has abolished the fee tail. Per the statutory law of CA, words that would transfer a fee tail at common law transfer a fee simple estate. Here, the fee simple estate is the fee simple absolute estate in and to Redacre that T owned as of the time of T’s death. Statement A is an accurate statement for the foregoing reasons. Statement B is an accurate statement in only four states. Hence, Statement B is not accurate in forty-six states. Statement C is accurate in a small minority of states that have abolished the fee tail. Hence, Statement C is not as accurate as Statement A. Statement D is not an accurate application of law.
Ashland is a 100-lot residential subdivision. Ashland was created 10 years ago. The Developer of Ashland recorded a Declaration of Covenants, Conditions, and Restrictions (“CC&R’s) as part of the record title to each of the 100 lots before the Developer sold each of those lots. The CC&R’s include a covenant by each lot owner that green ash trees are to be cut down and eradicated from Ashland so that blue ash trees can flourish. No property owner of a lot in Ashland is in full compliance with the covenant. Only 26 owners have taken substantial steps toward compliance. Plaintiff purchased one of the Ashland lots a few months ago. Plaintiff has sued the owners of the other lots in Ashland seeking a court order to require all owners to comply fully with the covenant. Which one of the following statements is the most accurate statement?
A. Plaintiff will not prevail because Plaintiff cannot enforce the covenant due to waiver by acquiescence.
B. Plaintiff will not prevail because Plaintiff’s lot is a burdened lot, but not a benefited lot.
C. Plaintiff’s lawsuit is not timely per the doctrine of laches.
D. Neither Statement A, nor Statement B, nor Statement C is an accurate statement.
ANSWER: D
Statement A: To prevail on the defense of waiver by acquiescence, defendants would have to prove that plaintiff ignored violations of the covenant by some owners, while seeking enforcement of the covenant against others. Here, plaintiff has sued all of the owners of each of the other lots in the subdivision “seeking a court order to require all owners to comply fully with the covenant.” That statement of fact establishes that plaintiff has not ignored violations by some owners while seeking to enforce the covenant against other owners. Thus, the stated facts do not support a defense of waiver by acquiescence. Statement B is not an accurate statement. The covenant in question was created as part of a Declaration of CC&R’s recorded as part of the “record title to each of the 100 lots” of the Ashland Subdivision. As such, each lot in the subdivision is a burdened lot and a benefited lot. Statement C: The words “will not” indicate it is certain that Plaintiff’s lawsuit is not timely per the doctrine of laches. The stated facts indicate that it is more probable that Plaintiff did not wait an undue period of time before filing the lawsuit. Plaintiff became an owner of a lot in the Ashland subdivision “a few months ago.” Hence, Plaintiff commenced the subject lawsuit after only “a few months” had elapsed from the time of the accrual of Plaintiff’s cause of action.
