Property MC Flashcards

Question

Tom devised Blackacre to Larry and Dahlia in equal shares. A year later, Larry conveyed his interest in Blackacre to Paul. Larry subsequently died, and Paul brought an action to partition Blackacre. The jurisdiction has no statute directly applicable to the relevant issues. What is the most likely reason why Dahlia would be declared the sole owner of all of Blackacre? (A) The estate created in Larry and Dahlia by Tom's will was a joint tenancy. (B) The estate created in Larry and Dahlia by Tom's will was a tenancy by the entirety. (C) The estate created in Larry and Dahlia by Tom's will included the right of survivorship. (D) The estate created in Larry and Dahlia by Tom's will was a fee rather than a life estate.

Answer 1

(B) The estate created in Larry and Dahlia by Tom's will was a tenancy by the entirety.

Answer 2

**The correct answer is:** There has been a change to the neighborhood which should prevent enforcement of the restriction. Discussion of correct answer: Under the "change of neighborhood" doctrine, when the neighborhood in which the burdened land is located has so changed that it would be inequitable to continue to enforce the restriction it will not be enforced. Here, it is clear that such changes have taken place so that the restriction should no longer be enforced.

Answer 3

(C) The buyer has a life estate for the life of the friend with a remainder in the son.

Answer 4

(D) The harm that the artist suffered would not have resulted but for the abnormal fragility of the artist's work.

Answer 5

(B) A life estate pur autre vie.

Answer 6

(B) Yes, because the covenant for quiet enjoyment runs with the land.

Answer 7

(D) This mortgage is a purchase-money mortgage, and as such, it has priority over all prior liens that attach to the property through the actions of the homeowner.

Answer 8

**The correct answer is:** No, because the librarian holds a fee simple subject to an executory interest. Discussion of correct answer: A fee simple subject to an executory interest is an estate that is automatically divested to a third person upon the occurrence of a named event. In this case, the professor deeded the property to the librarian, with the condition that the alma mater receives the property if the premises cease to be used for educational purposes. But in this case, the fact that the librarian served his friend a beer does not indicate that the premises have ceased to be used for educational purposes. The librarian will prevail because he holds the estate in fee simple subject to an executory interest and the named event that would cause transfer of the property has not occurred.

Answer 9

(A) No, because the cousin had actual notice of the conveyance to the niece.

Answer 10

C. The man was no longer a business invitee.

Answer 11

C. The court should find in favor of the investor, because the brother did not pay value for the property.

Answer 12

(C) The sale must result in a fair sale price that is not necessarily the fair market value of the property.

Answer 13

B. Yes, because, without warning known trespassers, the grandfather used more force than was reasonably necessary to protect his property.

Answer 14

B An at-will tenancy that may be terminated by either the lumberjack or by the truck driver. Discussion of correct answer: A tenancy that has no fixed duration and lasts only as long as the landlord and tenant desire is an at-will tenancy. In this case, the lease agreement had no fixed duration and provided that only the landlord would have the power to terminate the lease. However, most courts will interpret this language as creating an at-will tenancy that can be terminated by either party. Therefore, this answer choice is correct.

Answer 15

(B) The neighbor, because he recorded first.

Answer 16

(A) No, because they are entitled only to a rent abatement. Explanation The correct answer is: No, because they are entitled only to a rent abatement. Discussion of correct answer: Where the landlord fails to maintain the common areas used by all tenants such that the tenant breaches the covenant of quiet enjoyment, this will be considered a constructive eviction. When the tenants are only constructively evicted from part of the premises, there has been a partial constructive eviction. Under the majority rule, if a tenant is constructively evicted from part of the premises, the tenant may receive a rent abatement, but is not relieved of all liability for rent. Therefore, the tenants are not entitled to withhold their entire rent payment, but may receive an abatement. Discussion of incorrect answers: Incorrect. No, because they did not move out of the townhouse. For constructive eviction to exist: (1) the landlord's act must substantially and permanently interfere with the tenant's use and enjoyment of the premises; and (2) the tenant must move out. When there constructive eviction is only partial, though, the tenant need only abandon the part of the premises that he has been constructively evicted from; he does not have to move out of the property entirely. Incorrect. Yes, because they have been constructively evicted from part of the premises. Under the majority rule, when a tenant is constrictively evicted from only a part of the property, he is entitled only to a rent abatement, but not relieved of all liability to pay rent. Incorrect. Yes, because the landlord failed to maintain the kitchen in good repair. While this is relevant in a claim that the landlord breached the covenant of quiet enjoyment, and thus partially constructively evicted the tenants from the kitchen common area, it is not a reason for the tenants to be relieved from all liability for rent. They would be entitled only to a rent abatement, and possibly damages for breach of the covenant of quiet enjoyment.

Answer 17

**The correct answer is:** No, because the homeowner increased the principal amount owed to Bank No. 1. Discussion of correct answer: The senior mortgage was modified when the homeowner increased the amount owed. Where there is a modification, a junior mortgage holder prevails over the modification if the modification materially prejudices the holder of the junior mortgage. Increasing the amount of the principal is an example of a modification materially prejudicing the holder of a junior mortgage. Since the homeowner increased the amount owed, the modification materially affected Bank No. 2. However, since Bank No. 2 would prevail over the modification, Bank No. 2 should not feel undersecured.

Answer 18

(C) Yes, because the farmer intended for the dog to frighten the wife.

Answer 19

(C) The tenant may paint the office space himself and offset his subsequent rental payments by the cost of the paint and labor.

Answer 20

(A) Yes, because the customer conveyed the property by general warranty deed.

Answer 21

**The correct answer is:** The doctrine of equitable conversion means that the buyer is regarded in equity as the owner of the building. Discussion of correct answer: The doctrine of equitable conversion allocates the risk of loss in a land sale contract to the purchaser. Thus, if damage or destruction occurs to the real property after formation but before closing, the purchaser (whom equity considers the owner of the property) bears the loss. In circumstances such as those presented by this question, the buyer is considered the equitable owner of the building from the moment the contract of sale is formed, and the subsequent destruction of the building by the earthquake is the buyer's loss. The buyer must pay the full purchase price to the university even though the value of the property has been substantially reduced by the loss of the marble structure. A number of jurisdictions have altered the doctrine of equitable conversion so that the risk of loss remains on the seller until closing unless the purchaser takes possession. The Uniform Vendor and Purchaser Risk Act generally places the risk of loss upon the seller until the buyer has either taken possession or obtained legal title, at least as to physical damage to the property. The facts here indicate that this jurisdiction had not adopted any statute on the subject.

Answer 22

C. The renter should be held liable for negligence, because he caused the technician to fall.

Answer 23

**The correct answer is:** No, because the teacher has the right to redeem the property before foreclosure of the property. Discussion of correct answer: A mortgagor has the right at any time after default, but before foreclosure, to redeem the property by paying the debt due. Here, a few days prior to the public auction, the teacher found the funds to pay the amount due. The bank should have worked with the teacher to assist her with her redemption of the property.

Answer 24

C. The trucker and the taxi driver, because the assignment to the tax attorney was not valid. **_Discussion of correct answer:_** Under the Rule in Dumpor's Case, once the landlord waives the prohibition on assignments, it is waived forever. However, the majority rule is that a landlord can preserve the validity of the anti-assignment clause by stating that the waiver is one-time only. Because the lifeguard did so here, the clause remained valid after the one-time waiver to the taxi driver. As such, the assignment to the tax attorney was invalid, and he never entered privity of estate with the lifeguard. Therefore, the lifeguard could sue either the trucker, who remains in privity of contract, or the taxi driver, who remains in privity of estate.

Answer 25

**The correct answer is:** Title to Homestead is marketable. Discussion of correct answer: When Mamie devised Homestead to Sue and Ellie, they became joint tenants with right of survivorship. When Sue died in 2055, Ellie became the sole owner of Homestead. Ellie then conveyed marketable title to Burt by will. Burt subsequently conveyed marketable title by warranty deed to Ronnie. As such, Ronnie is the sole owner of Homestead and can convey marketable title to Fern.

Answer 26

(D) No, because it constitutes ameliorative waste.

Answer 27

D. No, if the friend agreed to purchase the property subject to the mortgage.

Answer 28

A No, because the landlord constructively evicted the tenant.

Answer 29

(A) The land and the hotel belong to the friend's son.

Answer 30

(C) The conveyance by the lawyer to his granddaughter was not effective.

Answer 31

The correct answer is: B. Against the executive for the full year's rent, and no judgment against the coworker. Discussion of correct answer: A sublease occurs when a tenant transfers to a third person (the subtenant, or sublessee) less than all of his rights, title, and interest in the leased premises. A subtenant does not come into privity of estate with the original landlord. Therefore, absent an express assumption of the duty to pay rent by the subtenant, the landlord may not sue the subtenant directly for unpaid rent. Here, the coworker was a sublessee, because his lease was for only one of the three years remaining on the lease term. As such, the landlord has no cause of action against the coworker, and must instead recover all of the unpaid rent from the original tenant, the business executive. Discussion of incorrect answers: Incorrect. Against the coworker individually for the full year's rent, and no judgment against the executive. Because the coworker was a sublessee, he was neither in privity of estate nor private of contract with the landlord. As such, the landlord has no cause of action against him. The landlord must instead recover any or all of the unpaid rent from the original tenant. Incorrect. Against the executive individually for three months' rent, and against the coworker individually for nine months' rent. While the fact that the coworker abandoned the premises may affect his liability for unpaid rent to the business executive, the coworker will not be directly liable to the landlord at all, because he was a subtenant, and so never came into privity with the landlord. Instead, the business executive, as the original tenant, will remain liable for the entire unpaid rent. Incorrect. Against the executive and coworker for the full year's rent, because they are jointly and severally liable. Because the coworker was a sublessee, he was neither in privity of estate nor private of contract with the landlord. As such, the landlord has no cause of action against him, either jointly or severally. The landlord must instead recover any or all of the unpaid rent from the original tenant alone.

Answer 32

**The correct answer is:** The landowner, because the purchaser repudiated the land sale contract. Discussion of correct answer: In land sale contracts, where the performance is to pay money rather than render services, the court's first reaction to a breaching purchaser was to allow the seller to retain any down payment, even if the amount so paid exceeded what the seller might have obtained in damages. There has been a movement to permit a defaulting buyer to obtain restitution of any payments made in advance to the extent that they exceed the actual damages suffered by the aggrieved seller. Even under circumstances where restitution was readily allowed, as in building construction contracts, restitution would be denied if the breach was willful, or for the convenience or financial advantage of the breaching party. In any case, the courts do not uniformly grant restitution to breaching buyers in land-sale contracts. In this question, the purchaser went into possession of the real property and without the knowledge of the landowner made improvements thereon. The purchaser then breached, for his own convenience (to pursue a business opportunity in another city), and now seeks to compel the landowner to pay for something the landowner never bargained for. Under these circumstances, the case for restitution to the purchaser is very weak.

Answer 33

**The correct answer is:** Yes, because the estate was a fee simple determinable with the possibility of reverter. Discussion of correct answer: A determinable estate terminates automatically on the happening of a named future event. A determinable estate is described with the following words: "for so long as," "during," "while," or "until." The language "to my daughter and her heirs for so long as the premises are used for a limousine business" created a fee simple determinable with the possibility of reverter. The estate automatically reverted to the owner when his daughter ended the limousine business.

Answer 34

C. Both the young man and his friend, because they were joint tortfeasors.

Answer 35

A. No, under the minority rule, because the tennis pro has a legal right to possess the premises.

Answer 36

**The correct answer is:** The husband and wife were able to sell their property to another buyer for $1,100,000 soon after the musician refused to perform. Discussion of correct answer: Even without a liquidated damages provision, a seller may elect to retain a down payment in the event of a breach by the buyer but the modern approach limits the amount to no more than 10% of the purchase price and courts may require the seller to return to the buyer the amount that the down payment exceeds the actual damages caused by the breach. In this case, the husband and wife did not suffer any damages as a result of the breach because they were able to sell the house in the same time frame as originally anticipated and for more than the original contract price. A court would likely require the couple to return the $10,000 to the musician for this reason.

Answer 37

B. The cause-in-fact of the cowboy's death, but not the legal cause.

Answer 38

B The landlord will win, because the professor was not constructively evicted.

Answer 39

D The bank's mortgage, because the uncle was not a bona fide purchaser.

Answer 40

(B) No, because the description of the property was not sufficient.

Answer 41

(A) No, because the covenant of quiet enjoyment has been breached. The correct answer is:No, because the covenant of quiet enjoyment has been breached. Discussion of correct answer:Every lease contains a covenant of quiet enjoyment (express or implied). A landlord is deemed to have breached this covenant if the landlord actually or constructively evicts a tenant. A constructive eviction occurs when: (1) the landlord's act substantially and permanently interferes with the tenant's use and enjoyment of the premises; and (2) the tenant moves out. In this case, both of these factors are present. When a tenant has been constructively evicted, he may treat the lease as terminated and withhold rent. Discussion of incorrect answers: Incorrect. No, because the tenant has been actually evicted from the property. The tenant here has been constructively, not actually, evicted from the property. An actual eviction occurs when the landlord, or someone claiming through him, disturbs the landlord in his possession of the property. In this situation, the tenant may treat the lease as terminated and withhold rent. However, when the doesn't actually evict the tenant, but instead, substantially and permanently interferes with the tenant's use and enjoyment of the property such that the tenant moves out, the landlord is considered to have constructively evicted the tenant. Incorrect. Yes, because although the covenant of quiet enjoyment has been breached, the tenant is only entitled to a rent abatement. When the tenant has been constructively evicted from only part of the property, there is still a breach of the covenant of quiet enjoyment, but the tenant will be entitled to receive only a rent abatement, and not to withhold rent entirely. However, when the interference is substantial and the tenant actually moves out, the tenant will be considered to have been constructively evicted from the entire premises. When this occurs, the tenant is entitled to treat the lease as terminated and withhold rent. Incorrect. Yes, because the landlord is working to repair the apartment. The fact that the landlord is working on repairing the restaurant is not relevant here. The landlord has constructively evicted the tenant from the property, and the tenant has actually moved out. As such, the tenant is entitled to treat the lease as terminated and withhold rent.

Answer 42

(C) Yes, because the helmet had a design defect.

Answer 43

(A) Treat the lease as terminated and withhold rent, because the covenant of quiet enjoyment has been breached.

Answer 44

(A) No, because preaching a sermon that talked about adultery was not outrageous conduct.

Answer 45

B The investor is now the landlord under the terms of the leases, because a landlord may assign his lease interest. The correct answer is:The investor is now the landlord under the terms of the leases, because a landlord may assign his lease interest. Discussion of correct answer:Only an at-will tenancy terminates when one of the parties attempts to assign his or her interest. By contrast, periodic leases, such as the year-to-year leases in this case, do not terminate upon a party's assignment. As such, absent a lease term to the contrary, it was permissible for the developer, as landlord, to assign his lease interests to the business investor, who then became the new landlord under the lease agreements. Discussion of incorrect answers: Incorrect. The developer remains the landlord under the terms of the leases, because the assignments are invalid. There is nothing in the facts to suggest that the developer's assignment of his lease interests to the business investor is invalid. The leases did not prohibit assignments, and the only type of lease that terminates upon a party's attempted assignment is an at-will lease. Because the year-to-year leases in this question are periodic leases, not at-will leases, it was permissible for the developer to assign his lease interests. Incorrect. The investor is the landlord under the terms of the leases, because the leases were commercial. The fact that the leases are commercial leases is not relevant to the question of whether the developer's assignments were valid. The only type of lease that is subject to termination when it is assigned is an at-will lease (although any lease may contain a prohibition against assignments). Because the leases in this question are periodic leases that do not contain any prohibitions against assignments, the developer's assignment of the leases to the business investor was valid. Incorrect. The leases terminated upon the developer's attempted assignment. The lease did not terminate upon the developer's assignment. Unlike an at-will lease, which terminates if either party attempts to assign his lease interest, periodic leases such as the year-to-year leases in this question do not terminate upon the landlord's assignment of his lease interest. As such, this answer choice is incorrect.

Answer 46

D The lawyer, because the lease term has not expired. Discussion of correct answer: Under the old common law estate theory, a tenant is still required to pay rent if the premises are destroyed during the lease term. In this case, given that the house was destroyed while the lease was still in effect, the travel agent will, under the old common law rule, be required to continue paying rent. Therefore, this is the correct answer choice.

Answer 47

(C) Title to Homestead is marketable.

Answer 48

(A) The nonmarital daughter held a valid possibility of reverter.

Answer 49

(D) Trespass to land and intentional infliction of emotional distress only, but not for a battery.

Answer 50

**The correct answer is:** The seller has the implied right to use the proceeds from the sale of the parcel of land to the buyer to satisfy the mortgage and clear title to the property. Discussion of correct answer: The existence of unpaid liens or mortgages will not constitute a breach of the purchase contract if the proceeds from the sale are sufficient and, in fact, used to pay off the encumbrance. The facts state that the proceeds from the sale of the parcel of land will be more than enough for the seller to pay off the mortgage and clear title to the property at closing.

Answer 51

**The correct answer is:** The seller will prevail, because the acceptance of the late performance did not waive the right to recover damages. Discussion of correct answer: As a general rule, time is not of the essence in a real estate contract unless the parties state otherwise. Here, the contract specifically stated that time was of the essence. This means that the buyer's late performance was a breach of the contract. The seller could have treated the late performance as a material breach of the contract, discharging his obligation to deliver the deed to the buyer. However, by accepting the late performance the seller is electing to treat the late performance as a minor breach, entitling the seller to delay damages.

Answer 52

**The correct answer is:** Dave and Sally took the property as tenants in common, hence the tenancy was not severed by Dave's actions. Discussion of correct answer: Tenancy in common is a form of concurrent ownership, where each co-tenant owns an undivided interest in the whole of the property with no right of survivorship. No special words are required to create a tenancy in common. Tenancy in common requires unity of possession only. Unity of possession means that each tenant in common has the right to possess the whole of the property. A tenant in common may transfer her interest through a conveyance, lease, mortgage, or other transfer of a present possessory or future property interest. Dave and Sally took as tenants in common because of the language of the deed "my house to both my children Dave and Sally." Dave has the right to rent a room and to mortgage the house. A co-tenant may seek partition through judicial action; however, the co-tenancy was not severed by Dave's actions (as opposed to a joint tenancy).

Answer 53

D. The linguist, because she withheld her consent to the second sublease.

Answer 54

(C) She lives in a jurisdiction that adheres to the lien theory of mortgage interests.

Answer 55

(A) Yes, because the statute period was tolled during the incompetency of the skier.

Answer 56

**The correct answer is:** The photographer has an implied right to rebuild the stairs. Discussion of correct answer: The building was held by a common grantor, who deeded part of it to one grantee and part of it to another grantee. An easement by necessity for the photographer to use the stairway can be implied, even if the deed does not specifically mention it, because that use of the stairway is necessary for the photographer to have access to his property, the top floor. This should be analyzed as analogous to the photographer's purchase of a landlocked piece of land.

Answer 57

B The coalition, because it purchased first and the neighbor had notice of its deed.

Answer 58

**The correct answer is:** No, because the debtor properly redeemed. Discussion of correct answer: A mortgagee is not allowed to "clog" the mortgagor's equitable right of redemption. Any such statement in a mortgage document that attempts to do so will be unenforceable. The debtor's equitable right of redemption exists until a foreclosure sale has taken place.

Answer 59

(D) Yes, because the tenant had a duty to pay rent while in possession of the premises.

Answer 60

B. The newscaster, because the neighbor had notice of the conveyance to the newscaster. ## Footnote B. The newscaster, because the neighbor had notice of the conveyance to the newscaster. Discussion of correct answer: Under a "pure notice" recording statute, an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchase for value and without notice. To prevail under a **_notice statute,_** a claimant of real property must prove the following three elements: 1) that the claimant took subsequent in time to another person claiming ownership of the real property in question; 2) that the claimant was a bona fide purchaser for value; and 3) that the claimant took the property without actual, constructive, or inquiry notice of a prior claim to the property. In this case, the neighbor's purchase of the studio did occur subsequent in time to the transaction between the artist and the newscaster, and the neighbor paid value for the studio. However, given that the neighbor overhead the transaction between the artist and newscaster and knew that the artist had delivered to the newscaster a deed to the studio, the neighbor had actual notice of the newscaster's prior claim to the property, and will not be protected under the pure notice recording statute. Therefore, the newscaster is the legal owner of the studio.

Answer 61

**The correct answer is:** The seller, because he conveyed a quitclaim deed to the buyer. Discussion of correct answer: Unless expressly stated to the contrary, every contract for the sale of real property contains an implied covenant requiring the seller to convey marketable title to the buyer. Marketable title generally means title that is free of all reasonable risk of attack. However, when the deal closes the contractual covenant to convey marketable title is said to "merge" into the deed, and it can no longer be the basis for legal action. Any action by the buyer against the seller after closing would have to be based on covenants of title contained in the deed. Here, the seller conveyed Redwood to the buyer by a quitclaim deed, which contains no covenants of title. Therefore, the buyer would not be able to recover against the seller based upon any failure by him to convey marketable title.

Answer 62

**The correct answer is:** When the daughter married, because that is what the deed stated. Discussion of correct answer: The father created a determinable life estate for his daughter, to be measured by his daughter's life, and conditioned upon her remaining unmarried. Her estate will automatically terminate and revert back to the father upon the daughter's marriage or her death, whichever comes first. While the daughter did commit waste, the father would be limited to monetary damages unless a statute granted him the right to seek forfeiture through a judicial action. Because no such statute was mentioned in the facts, this answer is correct.

Answer 63

D. Neither the truck driver's employer nor the farmer.

Answer 64

**The correct answer is:** The daughter should be given an additional amount of the proceeds attributable to the maintenance and upkeep of the property as well as the improvements she made if they generated increased profits. Discussion of correct answer: At common law, a co-tenant cannot seek contribution from another co-tenant for repairs performed on the property; however, in a partition suit, the costs of repairs may be credited in favor of the co-tenant who made repairs. Moreover, a co-tenant generally has no right to seek contribution or set-off for improvements made unless the improvements generate rents or profits, in which case the costs of improvements are recoverable via partition action. Finally, a co-tenant who pays a mortgage or taxes may seek contribution through partition; however, a co-tenant in sole possession will receive reimbursement only to the extent that his payment exceeds the market value of the property.

Answer 65

(C) The man, because he recorded his interest first.

Answer 66

C. A duty to warn of any known dangerous condition on the premises.

Answer 67

**The correct answer is:** The nephew can extract spring water from the property because he holds a fee simple defeasible in the quarry. Discussion of correct answer: The nephew holds a fee simple subject to an executory interest (one of the three kinds of defeasible fees) and may use the estate in the same manner as a person who holds a fee simple (that is, subject only to government power to impose land use restrictions or to bring a condemnation action). The language "but if the nephew dies without issue, then to his cousin and her heirs and assigns" is conditional language that limits the duration of the nephew's present fee simple estate such that it will automatically terminate if he dies without issue and title to the quarry will pass to the cousin. As owner of the present fee simple estate, the nephew can remove spring water from the quarry without consulting his cousin, who holds a future interest in the property.

Answer 68

(B) No, because the son has not wrongfully ousted the daughter from the property.

Answer 69

(C) The landlord will prevail, because the prohibition is enforceable against the friend.

Answer 70

B. The driver will recover only a portion of damages because the abandoned vehicle was in plain view.

Answer 71

(C) Yes, because she was struck by the umbrella.

Answer 72

**The correct answer is:** Yes, because the son-in-law holds a fee simple subject to an executory interest, so he may use Greenacre as he pleases. Discussion of correct answer: The son-in-law was granted a fee simple subject to an executory interest in Greenacre. The "heirs and assigns" language creates a fee interest, and the words of condition that require that the son-in-law die survived by children of himself and the rancher's daughter establish that the fee is defeasible; upon the occurrence of the specified condition (no children of the son-in-law and the rancher's daughter survive him), the fee interest in Greenacre passes to the rancher's nephew. The owner of a fee interest is not limited (except as specified in the grant of the fee) in the manner in which he may use the property. Holders of executory interests have no right to complain of "waste," as do remaindermen who follow a life estate. Therefore, the son-in-law may open a mine on Greenacre without regard for the nephew's interest.

Answer 73

**The correct answer is:** Judgment for the homeowner, because the restrictive covenant is enforceable against the construction company. Discussion of correct answer: This is the best answer because the restrictive covenants appear to meet the requirements for enforceability and running with the land: they touch and concern the land, there was intent and notice that the restrictions would run with the land, and there was horizontal and vertical privity. Even if they are not enforceable as covenants, they would be enforceable as implied reciprocal servitudes, because they were part of a common development plan that put the construction company on notice.

Answer 74

A. Yes, because the removal of the pull-up bar system caused damage to the concrete floor.

Answer 75

**The correct answer is:** The Lot 1 buyer, because the Lot 51 buyer effectively had notice of the restrictions in the other deeds. Discussion of correct answer: A party has inquiry notice of a deed restriction, even if it is not recorded in the deed. The inquiry notice would come from the appearance of the property. Because all of the nearby property was single-family residential, the Lot 51 buyer should have been on notice to inquire whether businesses would be allowed.

Answer 76

**The correct answer is:** Yes, because the buyer has been denied all reasonable, economically beneficial uses of his land. Discussion of correct answer: The Fifth Amendment provides that private property shall not be taken for public use without just compensation. This prohibition applies to the states through the Due Process Clause of the Fourteenth Amendment. The U.S. Supreme Court held that a property owner is categorically entitled to compensation for a "taking" when the owner has been deprived of all economically beneficial or productive use of the land [Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)]. The courts do not need to weigh the three prongs for a partial taking by a zoning law when the owner has clearly been deprived of all use of his property. Thus, here, the buyer is entitled to the full $1 million from the state.

Answer 77

(C) A periodic tenancy.

Answer 78

(B) Yes, because the neighbor failed to remove the kite.

Answer 79

(B) Yes, because the waiver of the right to redeem was invalid.

Answer 80

(B) No, because the loan modification did not materially prejudice Junior Bank’s interest.

Answer 81

(B) Fee simple subject to condition subsequent.

Answer 82

(A) Yes, because the bicycle producer is in the chain of distribution.

Answer 83

(A) No, because the customer gave his express consent to the tattoo.

Answer 84

(C) The landlord, because the tenant negligently caused the destruction. Explanation The correct answer is:The landlord, because the tenant negligently caused the destruction. Discussion of correct answer:At modern law, when leased property is destroyed, the tenant is relieved from the duty to pay rent, and there is no longer any distinction between a tenant who leases part or all of a building. However, there is an exception to this rule--where the tenant intentionally or negligently causes the destruction, the tenant will not be relieved from liability. Because the tenant here negligently caused the fire that destroyed the apartment, he will not be excused from paying rent. Discussion of incorrect answers: Incorrect. The tenant, because the property has been destroyed. At modern law, when leased property is destroyed, the tenant is relieved from the duty to pay rent, and there is no longer any distinction between a tenant who leases part or all of a building. However, there is an exception to this rule--where the tenant intentionally or negligently causes the destruction, the tenant will not be relieved from liability. Because the tenant here negligently caused the fire that destroyed the apartment, he will not be excused from paying rent. Incorrect. The tenant, because he has moved out of the property. This answer choice appears to be asserting a constructive eviction defense--that the tenant can no longer use the premises and has in fact moved out. However, the destruction here was caused by the tenant's negligence, and as a result, the tenant will not be relieved from liability for paying rent. Incorrect. The landlord, because the tenant leased only part of the property. This answer is incorrect because it is asserting the common law rule, not the modern law rule, and even then, is doing so incorrectly. At common law, a tenant who leased all of the premises was not relieved from liability when the property was destroyed because the tenant would still have possession of the land. However, a tenant who leased only a portion of the building was relieved if the property was destroyed. At modern law, however, there is no distinction between leasing all or part of the property; either way, the destruction of the property will relieve the tenant of his obligations. However, there is an exception to this rule where the tenant intentionally or negligently causes the destruction, which is the case here.

Answer 85

(D) Yes, because the rancher may redeem the ranch from the buyer within six months of the foreclosure sale.

Answer 86

D. The child, because it was reasonably foreseeable that he would be on the neighbor's property.

Answer 87

A. No, because the harm was not of the type that the statute was designed to prevent.

Answer 88

D. The jeweler or the customer, because both parties are personally liable for the mortgage payments. **_Discussion of correct answer:_** Under the facts presented, the jeweler was the original mortgagor of the strip mall, and the bank was the mortgagee. If a mortgagor transfers the property ***"subject to the mortgage"*** and mortgage payments are not made, the mortgagee may foreclose and force the property to be sold, _but the transferee does not have personal liability for the debt._ In contrast, if the transferee of mortgaged real property ***"assumes the mortgage"*** and mortgage payments are not made, the mortgagee may foreclose and force the property to be sold, and, in addition, the transferee is personally liable for any deficiency. Finally, in a novation, the transferee of real property and the mortgagee agree that the transferee will assume the mortgage and the mortgagor will be released from liability. In this case, the customer ***assumed the mortgage,*** and is therefore personally liable for payment of the amount still owed to the bank. However, given that the bank never agreed to release the jeweler from liability, no novation occurred, and the jeweler l**_ikewise remains personally liable for the remaining mortgage paymen_**ts. As such, the bank may pursue payment from either party, and this answer is correct.

Answer 89

**The correct answer is:** A contingent remainder. Discussion of correct answer: The future interest created in a third party that follows a life estate (or estate for years) created in a grantee is a remainder. Remainders may be vested or contingent. A vested remainder is one that is: (1) created in an ascertained person; and (2) is not subject to a condition precedent. A remainder not possessing these characteristics is contingent. In this problem, the colonel conveyed a life estate in the ranch to his dear friend, followed by a remainder to the unborn children of the colonel's son. Because those children of the son are unborn (and therefore unascertained), their remainder interest is contingent; as each child (if any) is born, that child's interest would vest, subject to open (i.e., subject to reduction by the birth of another child to the son).

Answer 90

(A) To find a new tenant.

Answer 91

(B) The daughter is obligated to pay the principal, and the wife is obligated pay the interest.

Answer 92

**The correct answer is:** The developer will prevail, because the actress-director land sale contract does not contain an essential term. Discussion of correct answer: The statute of frauds requires land sale contracts to be in writing, be signed by the party to be charged, and contain the essential terms of the contract, including the parties, a description of the property, and the terms and conditions of price and payment. Even if the actress-director agreement contains the signature of the party to be charged, the contract must comply with all of the other requirements of the statute of frauds. Here, the physical marking of the boundary of a tract purported to be conveyed by a land sale contract does not satisfy the statute of frauds.

Answer 93

(C) The uncle may evict the niece, because she is a tenant at sufferance.

Answer 94

A. The father owns Debtacre free and clear of any mortgage interest.

Answer 95

**The correct answer is:**For the construction company, because its pavement of the road is within the reasonable contemplation of the parties. Discussion of correct answer:The owner of an implied easement has a limited right to upgrade the easement, and generally may not develop or upgrade it beyond the reasonable contemplation of the parties at the time the property was divided. This answer is correct because the daughter sold the land to the construction company knowing that it would be used for townhouses and that the homeowners would need access to the public road. It was thus reasonably within the contemplation of the daughter and the construction company that the road would eventually need to be paved.

Answer 96

(A) No, because the biology student can successfully assert self-defense.

Answer 97

C The tailor, because his ownership of storage racks was not affected by the termination of the lease. Discussion of correct answer: A vacating tenant's ownership of trade fixtures is in fact affected by termination of the lease. If a vacating tenant does not remove trade fixtures from the leased premises within a reasonable time after the termination of the lease, ownership of the trade fixtures passes to the landlord. Here, given that the tailor attempted to remove the shelves one day after the termination date of the his lease, the tailor still owns the racks and may remove them. However, if the tailor had not attempted to remove the racks within a "reasonable time" after the termination of the lease, ownership of the shelves would have passed to the landscaper.

Answer 98

(B) $1,000 for the month of August.

Answer 99

**The correct answer is:** Covenant. Discussion of correct answer: Covenants are restrictions on the right to use land that run with the land. Here, the requirement that each purchaser of a lot in the development pay an annual fee to maintain the trail system is a restriction that is intended to run with the land and constitutes a covenant. As such, this is the best response.

Answer 100

(B) The father, but not the son.

Answer 101

**The correct answer is:** The dentist will prevail, because the roadway encroachment renders title unmarketable. Discussion of correct answer: An encumbrance is a legal interest or liability on property that affects the marketability of title. Some encumbrances, such as easements that benefit the land, do not render title unmarketable; others, such as covenants and easements that restrict the buyer's use and enjoyment of the land, do render title unmarketable. The roadway encroachment represents a potential lawsuit that the dentist could be forced to resolve if he purchases the doctor's land. The dentist's purchase of the land would include "purchasing a lawsuit." Because the doctor cannot assure him otherwise, title is unmarketable and the dentist need not perform his obligations under the purchase and sale agreement. As a remedy, the dentist can rescind the contract and recover any down payment.

Answer 102

(D) He will be liable to the bank if it obtains a judgment in foreclosure, but will not owe for a deficiency judgment the bank might obtain.

Answer 103

**The correct answer is:** No, because the caretaker properly recorded the deed to the property. Discussion of correct answer: This state recording act is designed to protect only those who take property "without notice." Each transaction must be examined to determine whether the purchaser had actual, inquiry, or constructive notice of any other claims to the same property. The caretaker promptly recorded the deed to the farm prior to the producer's judgment lien. The law charges a subsequent claimant with constructive notice of all prior conveyances affecting the subject property that have been properly recorded. Therefore, the producers cannot be protected by the recording act; they have constructive notice of the deed to the caretaker.

Answer 104

(C) The sister, because there is no evidence that the brother has performed sufficient acts to constitute her ouster.

Answer 105

(A) He warned the tenant of the glass door when she did a walkthrough the week before the tenant signed the lease.

Answer 106

C The landlord waived his right to object to the assignment by accepting and depositing the brother's check.

Answer 107

B. The accountant only.

Answer 108

C. The conduct of a reasonably prudent person with superior skiing knowledge and expertise.

Answer 109

D The basketball player allowed his friends to swim in the pool seven days a week and provided dry towels in exchange for a $10 per day towel fee.

Answer 110

**The correct answer is:** The mining company's conduct during the 15 years of non-use evidenced an intent to abandon the easement. Discussion of correct answer: Termination of an easement by abandonment requires non-use plus some act that demonstrates the easement holder's intent to abandon. The removal of the railroad ties and rails is the sort of additional act that evidences an intent to abandon and is the best explanation for why the man would be able to prevent the mining company from using the easement again.

Answer 111

**The correct answer is:** The seller will prevail, because he fulfilled the terms of the agreement by delivering marketable title on May 15. Discussion of correct answer: Even if title is unmarketable at the time of the purchase and sale agreement, the seller does not breach the contract unless he is unable to tender marketable title at the time of the closing. Thus, the seller met the obligations of the seller on May 15 when he tendered marketable title.

Answer 112

**The correct answer is:** The writ will be denied, because the mother does not own the property. Discussion of correct answer: Once accepted, title to land can only be returned to the grantor by way of a deed delivered to and accepted by the original grantor. In this case, the twins merely destroyed the deed. Regardless of their intent, there is no effect to merely destroying the physical deed. While the physical instrument may be helpful in proving ownership, it is not necessary, under common law, to support a claim of title. Since the twins did not convey title to their mother by way of a signed deed, she has no interest in the property.

Answer 113

(B) No, because under the common law estate theory, the tenant is required only to make minor repairs.

Answer 114

(A) The developer owns the property.

Answer 115

(B) The telemarketer and the hairstylist's sister own it as tenants in common.

Answer 116

(B) No, because she did not speak or understand English.

Answer 117

(A) The wife has a fee simple absolute.

Answer 118

**The correct answer is:** The stepbrother owns Stoneland, and the nephew owns Oceanside. Discussion of correct answer: The language in the deed conveying Stoneland "to my brother, until such time as the land is used for the mining of marble or other stone" created a fee simple subject to an executory interest, where the durational language "until" provided that the present fee simple estate would terminate automatically upon the occurrence of a specified event (the mining of marble or other stone) and title would pass to a third party ("my sister and her heirs"). Executory interests are subject to the rule against perpetuities. In this case, it is possible that more than 21 years would pass before the interest vested in the sister, that is, mining, might not occur within 21 years after some life in being at the creation of the interest. Thus, the executory interest in favor of the sister and her heirs violates the Rule Against Perpetuities and is void. With the executory interest stricken from the conveyance, the remaining language creates a fee simple determinable, that is, a present fee simple estate limited by durational language ("until") such that the estate terminates automatically if the property is used for mining purposes, at which time the property reverts back to the grantor or his successor. As the builder's successor, the stepbrother takes Stoneland, because the property was used for mining purposes. As to Oceanside, the language in the deed conveying Oceanside "to my nephew, on condition that the property is not used for commercial purposes" also created a fee simple subject to an executory interest, where the conditional language ("on condition that") provided that the present fee simple estate would terminate if the property was used for commercial purposes, at which point title would pass to a third party ("my niece and her heirs"). This executory interest, like the one in the Stoneland conveyance, violates the rule against perpetuities. It is possible that Oceanside could be used for more than 21 years after a life in being for purely noncommercial purposes. Voiding the executory interest in the conveyance of Oceanside, the remaining language creates a fee simple absolute in the nephew. The language does not create a fee simple subject to condition subsequent, because while the conveyance contains conditional language ("on condition that"), it does not contain an express statement that the grantor reserves the right of re-entry upon the occurrence of the designated event. A right of reentry cannot be implied. Thus, in a suit to quiet title, a court will find that the stepbrother owns Stoneland and the nephew owns Oceanside.

Answer 119

A The student, because the student took Blackacre first in time.

Answer 120

**The correct answer is:** Yes, because the ordinance is rationally related to a legitimate government interest. Discussion of correct answer: Economic and social legislation, including zoning ordinances, will be upheld if the ordinance is reasonable, not arbitrary, and bears a rational relationship to a permissible state objective [Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)]. In Village of Belle Terre, the U.S. Supreme Court held that, because the students were not a suspect classification, and because there was no fundamental right for unrelated people to live together, then the rational basis test applied. The zoning ordinance was rationally related to the village's interest in providing a quiet atmosphere for families to live in, as opposed to allowing boarding houses and fraternity houses.

Answer 121

(C) The restaurant owner has priority, because he recorded his interest first.

Answer 122

**The correct answer is:** The Statute of Frauds. Discussion of correct answer: The Statute of Frauds applies to conveyances (transfers) of real property. A conveyance of land must be memorialized in writing signed by the party to be charged. The writing must contain at least: (1) an adequate description of the land; (2) the names of the parties to the contract; and (3) the price set by the parties, but it need not be a formal contract. Part performance is an exception to the Statute of Frauds. Part performance generally requires payment of all or part of the purchase price and significant acts consistent with the existence of a land-sale contract. The facts presented provide no evidence of part performance, and the two parties (the baker and the employee) did not comply with the Statute of Frauds.

Answer 123

(A) A one-half interest as joint tenant.

Answer 124

(C) The grantor's sons are not protected by the recording statute.

Answer 125

**The correct answer is:** A fee simple subject to an executory interest. Discussion of correct answer: A fee simple subject to an executory interest is a present fee simple that is limited in duration either by durational language or by conditional language such that it will terminate automatically upon the occurrence of a specified event (or non-occurrence of a specified event by a specified date), and title passes to a third party instead of back to the grantor. The interest of the local organization is a fee simple subject to an executory interest, because it would automatically terminate upon the non-occurrence of a designated event by a specified date, in this case the failure to pass a term-limit amendment by 2009. The interest was further subject to the ophthalmologist's executory interest. Note that the Rule Against Perpetuities is not violated because of the charity-to-charity exception to the Rule.

Answer 126

(D) No, because the caretaker properly recorded the deed to the property.

Answer 127

B. The buyer, because the neighbor purchased Blackacre with notice of the buyer's deed.

Answer 128

(A) The stepbrother owns Stoneland, and the nephew owns Oceanside.

Answer 129

(C) Carlos, because Benita paid value and recorded without notice of the conveyance to Adam.

Answer 130

(B) No, because the recording act does not operate to void the hunter's acquisition of title to the parcel.

Answer 131

C. No, because the supermarket is not liable for the intentional torts committed by third persons.

Answer 132

(A) The sister holds a fee simple determinable.

Answer 133

(A) Yes, because the mother swatted the two girls on the back.

Answer 134

C No, because the property owner owed a duty of care to protect the homeless man.

Answer 135

**The correct answer is:** She lives in a jurisdiction that adheres to the lien theory of mortgage interests. Discussion of correct answer: In a lien theory jurisdiction, while the mortgage is being paid off, the mortgagee possesses only a lien on the property, while the mortgagor retains legal, equitable, and possessory interest in the property unless or until foreclosure occurs. If the home in question sits in a lien theory jurisdiction, the bank (as mortgagee) could not seek rent for the property for the period of time prior to the foreclosure, because technically, the bank's interest in the property during this time was simply that of a lienholder. The lien theory is relied upon in a majority of U.S. jurisdictions.

Answer 136

(B) No, because the law does not permit the mortgagor to delegate duties under this type of a property transfer.

Answer 137

B A periodic tenancy.

Answer 138

**The correct answer is:** The neighbor will recover damages for breach of the covenant of quiet enjoyment, but only if he paid consideration for his deed and if the sister is actually using the easement. Discussion of correct answer: A breach of a deed covenant can only give rise to an action for damages, and recovery is almost always limited to the amount the grantor received for the property. The presence of an encumbrance that the grantee did not agree to take subject to is a breach of the "present" covenant against encumbrances (assertable only by the immediate grantee), and may be a breach of the "future" covenant of quiet enjoyment (also assertable by remote grantees). The covenant of quiet enjoyment, like the other "future" covenants of warranty and further assurances, is breached only when the grantee is actually disturbed by the holder of the encumbrance. Since the question gives a choice of only the covenant of right to convey, which is not breached by an encumbrance, and the covenant of quiet enjoyment, this choice must be the best answer, since it identifies the correct covenant and mentions both the fact that the sister must have begun using her easement, and that the neighbor must have paid consideration for the deed in order for the neighbor to recover damages.

Answer 139

(B) The mortgagee may foreclose on the property and sue the man for the balance of the mortgage debt.

Answer 140

**The correct answer is:** No, because no negative appurtenant easement for light and air was conferred on the gardener's property by the chiropractor or a previous owner of his property. Discussion of correct answer: If the chiropractor or a previous owner of his property had conferred a negative appurtenant easement on the gardener's property, it would pass to the new grantee of the dominant estate, and the gardener could enforce the easement against the chiropractor. Express negative easements for light and air are recognized by the courts and can run with the land. However, there is no evidence of such an easement in these facts. The facts also do not show that the chiropractor's proposed addition violates the town's building code. Therefore, the court will not grant the gardener's requested injunctive relief.

Answer 141

(D) No, because the son has a fee simple absolute in the home.

Answer 142

A No, because the right to redeem may not be waived at the time a mortgage agreement is executed.

Answer 143

(D) A month-to-month periodic tenancy has been formed.

Answer 144

D. No, because the florist used self-help to evict the football player.

Answer 145

(D) Tom has a possibility of reverter, which becomes possessory automatically if liquor is served.

Answer 146

(C) The buyer did not sign a promissory note.

Answer 147

D No, because the freelance anchor dispatched the acceptance before the station manager attempted to revoke her offer.

Answer 148

(D) Yes, because the quitclaim deed provided constructive notice of the claim.

Answer 149

(A) The investor owns the property, and the financier's wife is entitled to damages of $1 million from the original owner.

Answer 150

(D) No, because although the ranch foreman is the owner of the ranch, the foreman's title is not marketable.

Answer 151

C Yes, because the classmate is in privity of estate with the condo owner.

Answer 152

(B) Yes, because the estate was a fee simple determinable with the possibility of reverter.

Answer 153

The correct answer is:The university will recover, because the student remains liable. Discussion of correct answer:When a tenant subleases the premises, the sublessee does not come into privity of contract or privity of estate with the landlord. The tenant remains in privity with the landlord, and the sublessee is only in privity with the tenant/sublessor. Therefore, the student remains liable to the university for the unpaid rent, because she is in privity with the university. Discussion of incorrect answers: Incorrect. The university will recover, because they did not object to the assignment or sublease. Whether the university objected to the assignment or sublease or not, the university still can recover against the student because the student is in privity of estate with the university. However, the university could not recover from the friend, because the friend is not in privity with the university. Incorrect. The university will not recover, because the friend is the party that is liable. When a tenant subleases the premises, the sublessee does not come into privity of contract or privity of estate with the landlord. The tenant remains in privity with the landlord, and the sublessee is only in privity with the tenant/sublessor. Therefore, the student remains liable to the university for the unpaid rent because she is in privity with the university. The student could then sue the friend for the rent (as well as to evict the friend), because she is the sublessor and in privity with the friend. Incorrect. The university will not recover, because the professor remains liable. It is true that, absent a novation, the professor remains liable to the university, because they are in privity of contract with each other. However, that will not prevent the university from holding the student liable for the unpaid rent that accrued during the student's possession, because she, as assignee, is in privity of estate with the un

Answer 154

**The correct answer is:** The sister and cousin as joint tenants, because no final judgment was rendered on the brother's partition action before his death. Discussion of correct answer: It is important to point out that the filing of a complaint for partition does not result in the severance of a joint tenancy. The rationale for this rule is that the complaint may be withdrawn at any time before the equity court compels partition. Moreover, the right of survivorship will attach if a joint tenant dies prior to that time. Accordingly, the sister and cousin will inherit the brother's interest in Blackacre through the right of survivorship, and the brother's heirs will have no interest in the property. Discussion of incorrect answers: **Incorrect.** The sister and cousin as tenants in common, because no final judgment was rendered on the brother's partition action before his death. While it is true that the brother's partition action will have no effect on the property, because no final judgment was rendered on it before his death, this answer choice incorrectly describes the sister and cousin as owning Blackacre as tenants in common.

Answer 155

B The landlord will be entitled to the replacement value of the original elevator.

Answer 156

(B) No, because the rescheduling of installment payments did not materially prejudice the city.

Answer 157

**The correct answer is:** The seller was unlikely to be able to tender good and marketable title within any reasonable period. Discussion of correct answer: Generally, the seller in a land sale transaction need not actually possess marketable title until the time for closing, when he is called upon to convey the property to the buyer. Thus, a defect in title existing at the time of formation but which is discovered afterward and which the seller has a reasonable chance of remedying does not give the buyer any cause for rescission prior to the date set for closing. However, there is a modern trend to grant the purchaser a right of immediate rescission if it appears unlikely that the seller will be able to cure her title problems. In this problem, the circumstances demonstrate that the seller may never be able to repurchase the easement; an easement is an encumbrance that renders title unmarketable. Therefore, the buyer's strongest argument is to rely on the modern notion that he need not wait for the date set for performance, or a reasonable time after, to discover that the seller will never be able to perform.

Answer 158

D The tenant may treat the lease as terminated and withhold rent, because she has been constructively evicted. Discussion of correct answer:A constructive eviction occurs when: (1) the landlord acts to substantially and permanently interfere with the tenant's use and enjoyment of the premises; and (2) the tenant moves out. Withholding something required by statute will constitute constructive eviction. In this example, while a requirement to provide running water was not included within the terms of the lease itself, it was required by statute. Therefore, the landlord's failure to properly supply running water for the specified number of days constitutes a constructive eviction. In most jurisdictions, a tenant who has been constructively evicted may treat the lease as terminated and withhold the entire rent. Discussion of incorrect answers: Incorrect. The only remedies available to the tenant are those provided for in the statute, because the landlord has not violated the lease. Every lease contains a covenant of quiet enjoyment (express or implied), the breach of which may constitute actual or constructive eviction of the tenant. Here, the landlord withheld something required by statute, causing the tenant to move out. Therefore, although the lease agreement itself did not contain a provision requiring the landlord to supply running water, the landlord's failure to comply with the statutory requirement constitutes a breach of the covenant of quiet enjoyment contained in the lease. As such, under the facts presented, the landlord has in fact violated the lease agreement, and the tenant is entitled not only to whatever remedies are available under the statute, but also to the usual remedies for violation of the covenant of quiet enjoyment--namely, treating the lease as terminated and withholding rent. Incorrect. The only remedies available to the tenant are those provided for in the statute, because the tenant vacated the apartment. A landlord violates the covenant of quiet enjoyment contained in every lease and constructively evicts a tenant when: (1) the landlord acts in a way that substantially and permanently interferes with the tenant's use and enjoyment of the leased premises; and (2) the tenant moves out. Withholding something required by a statute, such as heat or running water, constitutes a violation of the covenant of quiet enjoyment. Here, given that the landlord violated the statute and the tenant vacated the apartment as a result, it is clear that the landlord has breached the covenant of quiet enjoyment contained in the lease agreement. Therefore, the tenant is entitled to the normal remedies available for breach of this covenant. In most jurisdictions, a tenant whose landlord has breached the covenant of quiet enjoyment is entitled to treat the lease as terminated and withhold rent. Incorrect. The tenant is entitled only to a rent abatement, because she has been constructively evicted. It is true that the tenant has been constructively evicted, because the landlord withheld something required by statute and the tenant moved out as a result. However, under the majority rule, a tenant who has been constructively evicted from the entire property is not entitled to merely a rent abatement, but may treat the lease as terminated and withhold the entire rent. Therefore, this answer choice is incorrect.

Answer 159

C No, because the tenant is under a duty to repair the premises, including keeping the building wind and water tight.

Answer 160

**The correct answer is:** Yes, because the parties had a binding purchase and sale agreement. Discussion of correct answer: Under the doctrine of equitable conversion, the buyer bears the risk of loss when the parties have a binding land sale contract. The parties entered a valid land sale contract (there being no evidence to the contrary), and at the time the contract was executed, the heiress retained legal title to the property while the investor acquired equitable title to the property and the risk of loss. Because the hurricane struck and destroyed the restaurant after a binding land sale contract had been executed, the investor must bear the risk of loss under the doctrine of equitable conversion.

Answer 161

**The correct answer is:** Yes, because the banker conveyed Brownacre to her by general warranty deed. Discussion of correct answer: The singer should recover, because the banker conveyed Brownacre to her by general warranty deed. A warranty deed is a deed in which a grantor explicitly makes one or more assurances or covenants to the grantee regarding the quality of the title of the property conveyed. A general warranty deed contains six different covenants of title, including the covenant of seisin, the covenant of right to convey, the covenant against encumbrances, the covenant of quiet enjoyment, the covenant of warranty (which is virtually identical to the covenant of quiet enjoyment), and the covenant of further assurances. The first three of these covenants are considered "present" covenants in that they are violated, if at all, at the moment the grantor delivers the deed to the grantee. The remedy for the breach of covenants of title is recovery of damages. The banker used a general warranty deed in his attempt to convey Brownacre to the singer. He breached at least two covenants of title, and the singer is entitled to reject the after-acquired title and sue the banker for damages.

Answer 162

**The correct answer is:** The teacher, because her option was valid and enforceable against the librarian's executor. Discussion of correct answer: The option is valid and enforceable against the librarian's executor. A lease does not automatically terminate upon the death of either the landlord or the tenant. The librarian's death has no effect on the teacher's lease or the purchase option, which is valid for the term of the lease. The librarian's rights and obligations under the lease passed to her executor.

Answer 163

(A) Vested remainders subject to open.

Answer 164

**The correct answer is:**The buyer, because the zoning violation renders the title unmarketable. Discussion of correct answer:Title to property currently in violation of zoning regulations is unmarketable. It is true that it is the business that is in violation of zoning regulations here, and not the property. However, the seller knows that the buyer intends to continue the business after purchasing the property, and that the business is currently in violation. Because the seller sought to sell property currently in violation, which he knew the buyer intended to continue to use in the same manner, he did not have marketable title to convey. The seller is essentially selling what he knows will be a lawsuit for the buyer, because he knows the business violates zoning regulations and knows that the buyer intends to continue the business. Therefore, the buyer will be entitled to rescission of the contract and a return of her down payment.

Answer 165

**The correct answer is:** No, because the herbalist's obligation to make rental payments to the landowner ceased when she reassigned her interest to the banker. Discussion of correct answer: After the herbalist reassigned her interest to the banker, the herbalist was no longer in privity of estate with the landowner. She was not in privity of contract with the landowner because there was no novation, substituting the herbalist for the farmer. Because the herbalist was no longer in privity of estate with the landowner, and was never in privity of contract with him, she was no longer liable to the landowner for the rent.

Answer 166

(C) The restaurant owner has priority, because he recorded his interest first.

Answer 167

(C) Whether the landlord has met his burden of showing that he attempted to find a replacement tenant.

Answer 168

(D) Yes, because as holders of a remainder interest, they are entitled to receive the land in a state no worse than that in which the grantor left it.

Answer 169

(D) In favor of the yoga instructor, because the teacher did not meet the time requirement for adverse possession.

Answer 170

**The correct answer is:** File an application for an area zoning variance, showing practical difficulties in meeting the window requirement. Discussion of correct answer: A variance is an exception to the zoning code for a single piece of property. When the variance is sought from an area restriction, the petitioner must show that there are practical difficulties in meeting the requirements of the zoning code or that the requirements are unreasonable or create an undue hardship. Here, the woman must show that it is not practical to secure the premises against criminal break-ins and vandalism without installing glass block in the window space.

Answer 171

**The correct answer is:** The covenant regarding height is in the record chain of title as to Lot 1. Discussion of correct answer: So long as a deed is considered within the chain of title of a particular piece of real property, any prospective buyer is charged with constructive notice of the contents of that deed. The facts of this question present the difficulties created where an interest in land affecting one parcel is mentioned only in a deed concerning a different parcel of land. A grantee is charged with constructive notice of the contents of deeds of adjacent properties when all of the properties are derived from a common grantor. Thus, the sociologist must examine the title record at least forward from the point in time where the common grantor sold one of the adjacent parcels to determine whether there are any interests--such as the equitable restriction at issue here--that affect her property but are contained only in the deed to adjacent properties. An additional reason for considering the equitable restriction in the landowner-accountant deed within the chain of title to Lot 1 is the fact that the jurisdiction maintains a tract index. This means that all recorded instruments affecting a particular parcel are listed in one place as pertaining to that parcel, greatly facilitating a search for interests such as the height restriction, which should have been noted on the Lot 1 index when the landowner-accountant deed was recorded as to Lot 2. For all of these reasons, the sociologist will be charged with notice of the equitable restriction mentioned in the accountant's deed, and the recording act will not protect her later-acquired interest (because she cannot purchase in good faith when she has notice, constructive or otherwise, of the height restriction).

Answer 172

D For the woman, because the English rule requires the landlord to provide her with both the right to possess and actual possession of the apartment. Discussion of correct answer:The majority rule is the English rule, which requires that a landlord provide not just the right to possession, but also actual possession of the leased property. Therefore, it is the landlord's responsibility to evict the former tenant and deliver actual possession of the ranch to the woman. Discussion of incorrect answers: Incorrect. For the landlord, because the American rule requires him to provide only the right to possess the apartment. The American rule is not the majority rule, but rather, the minority rule. Had the question indicated that the American rule was to be followed, then the landlord would prevail. The American rule provides that the landlord's duty is merely to transfer the right to possess the land. This is the minority rule, and if applicable, then the landlord has fulfilled that obligation, and the woman would have to force the former tenant out of the apartment through an eviction action in order to take her rightful possession. However, the majority rule, which is the English rule, requires that the landlord must also deliver actual possession of the property. Therefore, it is the landlord's responsibility to evict the former tenant and thereby deliver possession of the apartment to the woman. Incorrect. For the landlord, because the English rule requires him to provide only the right to possess the apartment. This is only a partial application of the English rule. The English rule requires the landlord to deliver both the right to possess and actual possession of the property, not merely the right of possession. As such, this answer choice is incomplete. Incorrect. For the woman, because the American rule requires the landlord to provide her with both the right to possess and actual possession of the apartment. The American rule is the minority rule, not the majority rule. Because the facts do not state that the minority rule would apply, the majority English rule would apply instead. Additionally, this answer choice incorrectly applies the American rule. The American rule requires only that the landlord deliver the right to possess the property; it does not require the landlord to deliver actual possession.

Answer 173

B. The bakery will win because the landlord is required to provide actual possession on the first day of the lease term. **_Discussion of correct answer:_** All jurisdictions require that legal possession of leased premises be given to a tenant on the first day of the lease term. However, jurisdictions differ regarding ***actual possession.*** In jurisdictions following the **_English rule, the landlord is responsible for providing actual as well as legal possession to his tenant, which means that it is his job to eject any holdover tenants._** In some American jurisdictions, ***_the landlord is not responsible for providing actual possession, so the new tenant would have to deal with the holdover._*** Since the question clearly identifies this as an English jurisdiction, the bakery will win because landlord failed to provide them with actual possession on May 1.

Answer 174

**The correct answer is:** The student, because he had an enforceable purchase contract with the professor. Discussion of correct answer: After the backgammon match, the student and the professor entered into an oral agreement for the purchase of the professor's beachfront property. Key to the student's success in this case is the written documentation of the agreement in the note from the professor. The written documentation contained a signature by the party to be charged, a description of the parties, a description of the property, and the price. This writing is sufficient to satisfy the Statute of Frauds. By trying to get out of the agreement with this writing, the professor proved the existence of the agreement.

Answer 175

(A) Against the tenant individually for $24,000, and no judgment against the student.

Answer 176

(D) The chef owns the restaurant in fee simple.

Answer 177

**The correct answer is:** The son, because the lease agreement presupposes that the man's possession was no longer adverse. Discussion of correct answer: In order to acquire title to property by adverse possession, the possession must be: (1) exclusive; (2) open and notorious (meaning not secret or clandestine); (3) continuous for the statutory period; and (4) hostile and adverse (meaning without the dispossessed owner's permission). The period of adverse possession of one possessor can be "tacked" to the period of adverse possession of another possessor when there is privity between the two. However, this question does not involve tacking. Rather, during the period of adverse possession, the man entered into a lease agreement with the son. The two- year lease was with the owner's permission, and so the possession during the leasehold was neither adverse nor hostile.

Answer 178

**The correct answer is:** For the buyer, because the land conveyed has been adequately described despite the discrepancy in area. Discussion of correct answer: There is no precise standard for assessing the sufficiency of a description of land that must be contained in a deed or a contract for the sale of land. Many different systems are used and are acceptable. Extrinsic evidence is generally admissible to clear up ambiguities. The test is essentially whether a court can effectively identify the land so as to enforce the contract or effectuate the conveyance. Since Blackacre was described by name and location, the description was sufficient to effectuate the conveyance despite the relatively minor discrepancy in the area of the land involved.

Answer 179

**The correct answer is:** No, because although the ranch foreman is the owner of the ranch, the foreman's title is not marketable. Discussion of correct answer: The ranch foreman is the owner of the ranch by adverse possession because his possession was open, visible, and notorious; actual; exclusive; hostile; and continuous for the statutory period. Title acquired by adverse possession may become marketable if the adverse possessor quiets title before attempting to convey it. However, because there is no evidence that the ranch foreman had brought an action to prove his adverse possession claim and quiet title, the ranch foreman's title was not marketable. Modern courts might still find that title acquired by adverse possession is marketable if the adverse possession has been for a very long time; the record owner is unlikely to sue; and the record owner is unlikely to prevail if she did. The facts do not suggest that the niece, as title holder of record, would be unlikely to sue. Therefore, the ranch foreman would not prevail.

Answer 180

(D) Yes, because a tenant in common may convey his interest freely.

Answer 181

(A) The farmer.

Answer 182

C. The tenant, because a trade fixture may be removed by a tenant during the tenancy as long as the tenant repairs any damage caused by its removal. Discussion of correct answer: When a tenant annexes a chattel to the land during his tenancy to advance his trade or business, it becomes a trade fixture. In general, a tenant is free to remove a trade fixture during the tenancy (and in many states, for a brief period after the termination of the tenancy) but must repair any damages caused by the removal. Therefore, the owner of the office supplies store may indeed remove the shelves as long as he repairs any damages that causes.

Answer 183

**The correct answer is:** No, because not all economically beneficial uses have been prohibited. Discussion of correct answer: The Fifth Amendment provides that private property shall not be taken for public use without just compensation. This prohibition applies to the states through the Due Process Clause of the Fourteenth Amendment. The U.S. Supreme Court held, in Penn Central Transportation Co. v. New York City [438 U.S. 104 (1978)], that there were at least three factors to consider when deciding whether a zoning ordinance or other land-use regulation created a "taking" under the Fifth Amendment: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation interferes with investment-backed expectations; and (3) the character of the governmental action. Applying these factors, the Court found that the economic impact was minimal and the investment-backed expectations remained the same because the railway station would go on being used as a railway station, as it had for the past 65 years. The character of the governmental action was a proper designation of historical landmarks for the benefit of the public. Thus, because the plaintiffs could still make economically beneficial use of the railway station, there was no compensable taking.

Answer 184

(D) The bank's mortgage, because priority is unaffected by the modification agreement.

Answer 185

(C) $5,000.

Answer 186

(C) Yes, because the brakes failed because of a defect present when the consumer purchased the car.

Answer 187

B. No, because the boy's actions must be judged according to the standard of care for adults.

Answer 188

(A) The tenant is relieved of all liability for rent, because he has been actually evicted.

Answer 189

(D) Yes, because the son-in-law holds a fee simple subject to an executory interest, so he may use Greenacre as he pleases.

Answer 190

(D) The daughter has a duty to pay the interest on the mortgage.

Answer 191

The correct answer is: B. The landlord will prevail, because the lease was terminated when the tenant assigned it. Discussion of correct answer:A tenancy that has no fixed duration and lasts only as long as the landlord or tenant desire is an at-will tenancy. In this case, the lease agreement had no fixed duration and provided that only the landlord would have the power to terminate the lease. However, most courts will interpret this language as creating an at-will tenancy that can be terminated by either party. An at-will tenancy is terminated automatically if: (1) either party dies; (2) the tenant commits waste; (3) the tenant attempts to assign his interest; (4) the landlord transfers his interest; or (5) the landlord transfers the premises to a third party for a term of years. Because the tenant transferred his interest to a new tenant, the lease was terminated at that time. Discussion of incorrect answers: Incorrect. The landlord will prevail, because the landlord had the discretion to terminate the lease at any time. It is true that this was an at-will tenancy, and as such, the landlord had the discretion to terminate the lease at any time, by providing the notice as required by the lease agreement. However, because this was an at-will tenancy, it was terminated when the tenant assigned his interest to a new tenant. As such, the landlord did not need to provide notice, because the lease had already ended. Incorrect. The new tenant will prevail, because the lease did not prohibit assignments. As a general rule, leases are transferable unless there is a lease term prohibiting assignments or subleases. However, this is not the case for at-will tenancies, such as the one in this question. An at-will tenancy will terminate if either party attempts to transfer their interest. Therefore, when the tenant tried to assign his interest in the property, the lease was terminated. Incorrect. The new tenant will prevail, because the landlord did not provide the required notice. The lease agreement in this question was an at-will tenancy. At modern law, where a lease provides only the landlord with the discretion to terminate the agreement, most courts will find that an at-will tenancy was created pursuant to which either party could terminate the lease. According to the terms of this lease, therefore, either party could terminate the lease by providing 30 days' notice. However, an at-will tenancy is terminated when either party attempts to transfer their interest. Therefore, when the tenant assigned the lease, the tenancy was terminated, and the landlord did not need to provide any notice.

Answer 192

(A) A description of the property with sufficient detail to put a subsequent bona fide purchaser on notice of the mortgage.

Answer 193

**The correct answer is:** No, because the uncle did not ask for timely payment in writing. Discussion of correct answer: In an installment contract, if the seller has permitted the buyer to make late payments, the seller may be deemed to have waived the right to timely payment. To regain the right of timely payment, the seller must inform the buyer, in writing, of the timeliness requirement and give the buyer reasonable time to make back payments owed. So in this case, the uncle accepted very late payments on a regular basis. To establish a timely payment schedule again, the uncle's phone call was not enough. The uncle needed to provide written notice to the soccer player and give the soccer player a reasonable amount of time to catch up on his payments. Therefore, this is the correct answer choice.

Answer 194

(C) Yes, because either daughter has the power of termination for condition broken.

Answer 195

**The correct answer is:** The resident will take the purchase money as personalty because the nurse will have to honor the sale. Discussion of correct answer: If a seller dies after executing a valid contract for the sale of land, but before the closing date, legal title passes to the seller's devisee but the devisee will have to honor the sale and the purchase money passes as personalty. Therefore, in this case, the resident will take the money from the sale of the land because he was devised the doctor's personal property.

Answer 196

**The correct answer is:** A shifting executory interest, valid under the Rule Against Perpetuities. Discussion of correct answer: Both shifting and springing uses pass title to a third party upon the occurrence of a designated event or condition, but a shifting use cuts off an interest conveyed to a grantee, whereas a springing use cuts off an interest retained by the grantor. Here, the medical group's executory interest cuts off the political group's estate, not the businessman's. The medical group's interest is not void under the Rule Against Perpetuities. It must vest, if at all, by 2049, which is less than 21 years from the date of the creation of the interest (2029). Note that it could be longer if a measuring life were involved (because the Rule Against Perpetuities allows an interest to vest or fail within 21 years of a measuring life), but that does not seem to be the case here.

Answer 197

B. The excavator will recover 20% of the total damages, because he and the paleontologist are jointly liable for the volunteer's injury.

Answer 198

**The correct answer is:** For the developer, because its pavement of the road is within the reasonable contemplation of the parties. Discussion of correct answer: The developer has an implied easement by necessity, since there is no other access to the property. (In this case, there was some use of the road before the properties were divided, so "strict" necessity is not required.) The owner of an implied easement has a limited right to upgrade the easement and generally may not develop or upgrade it beyond the reasonable contemplation of the parties at the time the property was divided. This choice is correct, because the daughter sold the land to the developer knowing that it would be used for townhomes and that the homeowners would need access to the public road. It was thus reasonably within the contemplation of the daughter and the developer that the road would eventually need to be paved.

Answer 199

**The correct answer is:** The optician and the editor are jointly and severally liable for $4,000. Discussion of correct answer: Absent an express provision in the lease prohibiting or restricting transfers, a tenant may freely transfer his leasehold interest in whole or part. If he makes a complete transfer of his entire remaining estate, he has made an assignment. If he retains any part of his leasehold interest, the transfer is a sublease. The original tenant is still liable for rent even after making an assignment, and assignees are bound to perform original covenants that run with the land. Here, the lease prohibited subleases. When such a restriction is present, it will be strictly construed. As such, while the optician will be prohibited from subleasing, he will be free to assign his interest. The facts state that the optician signed a five-year lease and that after one year he signed an agreement with the editor for the editor to move into the apartment and pay the rent for the remaining four years. As the optician transferred his entire remaining estate, he has created an assignment. Because the lease did not prohibit assignments, the optician's assignment to the editor is valid. However, the duty of a tenant to perform those obligations for which he covenanted in his lease is not ended when he assigns away his leasehold. Thus, if the assignee fails to make the rental payments, the landlord can recover against the original tenant. Assignees are bound to perform the original covenants in the lease if either they assume them or the covenants run with the land. Covenants to pay rent always run with the land. As such, the optician and the editor are jointly and severally liable for the $4,000.

Answer 200

(A) No, because the right to redeem may not be waived at the time a mortgage agreement is executed.

Answer 201

(A) No, because the pet owner exercised due care in trying to keep the cat away from other people.

Answer 202

D For neither breach of the lease nor the tenant's injuries. Discussion of correct answer:The tenant is entitled to damages for neither breach of the lease nor the tenant's injuries. The landlord here agreed only to make repairs for damages beyond ordinary wear and tear. There is nothing in the fact pattern to indicate that this windstorm was anything out of the ordinary; the area experienced them every year. As such, this is most likely ordinary wear and tear, for which the tenant, and not the landlord, was responsible. Because the tenant was responsible for making the repairs, the landlord will not be liable for the tenant's injuries that resulted from the damage not being repaired, either. Discussion of incorrect answers: Incorrect. For breach of the lease, but not for the tenant's injuries. In general, a tenant is entitled to money damages for a landlord's breach of the lease. However, this was ordinary wear and tear, for which the tenant was responsible for making repairs. Thus, the landlord will not be liable for breach of the lease or the tenant's injuries that resulted from the damage not being repaired. Incorrect. For the tenant's injuries, but not for breach of the lease. Generally, a landlord is not liable for the injuries of tenants or their guests caused by the conditions of the premises. However, a landlord is liable for such injuries if the landlord has contracted to repair the premises. In this case, though, the damage was caused by ordinary wear and tear, and so the tenant was responsible for repairing it, not the landlord. As such, the landlord will not be responsible for the tenant's injuries. Incorrect. For breach of the lease as well as for the tenant's injuries. A tenant may seek money damages for a landlord's breach of the lease. In addition, although the general rule is that a landlord is not responsible for the injuries of a tenant or the tenant's guests caused by conditions of the premises, there exists an exception to this general rule where the landlord has covenanted to repair. However, in this case, the tenant is responsible for making repairs because this was ordinary wear and tear. As a result, the landlord will be liable for neither breach of the lease nor the tenant's injuries.

Answer 203

(A) Yes, because Owner 2 did not make the mortgage payments.

Answer 204

C The carpenter, because the baker was a bona fide purchaser without notice who recorded first.

Answer 205

**The correct answer is:** Yes, because she bought a new house from the builder. Discussion of correct answer: The townhouse here is new, so the implied warranty of quality applies in any jurisdiction. The implied warranty of quality requires houses not to have significant latent defects caused by the builder or remodeler's poor workmanship. It requires that the homeowner discover the defects within a reasonable time, which seems to be the case here. Note that some jurisdictions apply this warranty to resold homes as well.

Answer 206

(D) Harvey and Larry, as tenants in common.

Answer 207

The correct answer is:From the tenant or the medical practice for six months' rent, and from the tenant or the publisher for one year's rent. Discussion of correct answer:Where a tenant assigns all of his leasehold interest to an assignee, such assignment does not release the original tenant from his contract obligations to the landlord under the terms of the lease absent a novation, which is a separate agreement discharging a contractual party from liability. This is true even when the assignee subsequently reassigns the lease to a new assignee. As such, the tenant will be liable for any unpaid rent. However, the medical practice will only be liable for the unpaid rent that accrued during its one year of possession. When a lease is assigned to a new tenant, the assignee comes into privity of estate with the landlord, but not privity of contract. If the assignee then reassigns the property to someone else, the middle tenant is no longer in privity with the landlord at all, and is therefore not liable for any unpaid rent of the subsequent assignee unless the assignor expressly assumed the duty to pay rent. Therefore, the medical practice will not be liable for the publisher's unpaid rent; only the original tenant and the publisher will be liable for this amount. Discussion of incorrect answers: Incorrect. From the tenant or the medical practice for six months' rent, and from the tenant, medical practice, or publisher for one year's rent. When an assignee subsequently reassigns the leasehold interest to a new tenant, the assignee will no longer be in privity with the landlord, because the original tenant will be in privity of contract and the current tenant will be the party in privity of estate. As such, unless there was an express assumption of the duty to pay rent, an assignee who reassigns the property will not be liable for any unpaid rent owed by the subsequent assignee. This answer choice is therefore incorrect, because it states that the medical practice will be liable for the publisher's unpaid rent. Incorrect. Only from the tenant for six months' rent, and only from the publisher for one year's rent. This answer choice is incorrect for several reasons. First, the tenant, as the original tenant to the lease, will be liable for all of the unpaid rent absent a novation discharging him from liability. This means that the tenant will be liable for both the six months' rent and the one year's rent. Second, even though the medical practice reassigned the lease to the publisher, they will still be liable for any unpaid rent that accrued during their tenancy. Thus, the tenant and medical practice will both be liable for the six months' rent that the medical practice failed to pay. Incorrect. Only from the tenant, for all of the unpaid rent. It is true that, absent a novation, the tenant will be liable for all of the unpaid rent. However, this answer choice fails to take into account the fact that the medical practice will also be liable for the six months' rent that accrued during their tenancy, and the publisher will be liable for the one year's unpaid rent that they failed to pay.

Answer 208

**The correct answer is:** The daughter is obligated to pay the principal, and the wife is obligated pay the interest. Discussion of correct answer: A life tenant is generally obligated to pay current expenses relating to the property, such as mortgage interest. The remainderman is responsible for repaying mortgage principal. Thus, the wife as life tenant must pay the mortgage interest and the daughter, as the remainderman, must repay the mortgage principal.

Answer 209

(D) Charlotte owns 50% and Alvin owns 50% as joint tenants.

Answer 210

(B) No, the shifting executory interest violates the Rule Against Perpetuities, so the friend has a fee interest in the property.

Answer 211

**The correct answer is:** The mortgagee may foreclose on the property and hold the woman personally liable for any debt remaining after the foreclosure sale. Discussion of correct answer: When property is sold "subject to the mortgage," as opposed to "assuming the mortgage," the mortgagee may foreclose on the property, but liability for any remaining debt after the foreclosure sale remains with the original mortgagor. Here, the woman sold the house to the man subject to the mortgage. The man subsequently sold the house to the investor by an installment land-sale contract that was silent as to the mortgage. Given these terms, the mortgagee will be permitted to foreclose and the original mortgagor, the woman, will be personally liable for any debt remaining after the foreclosure sale. The installment land-sale contract entered into by the last purchaser does not have any effect on the existing mortgage on the property.

Answer 212

**The correct answer is:** The architect will prevail, because she acquired title to the cottage before the nephew. Discussion of correct answer: A grantee who acquires title to real property by devise is not protected by a notice recording act against prior claimants who failed to record. As devisee of the cottage (and not a *bona fide* purchaser), the nephew cannot invoke the recording act to defeat the architect's claim. With the recording act inapplicable, the court will apply the common law rule of "first in time, first in right" to find the architect the owner of the summer cottage.

Answer 213

D No, because as a judgment creditor, the woman is not considered a "subsequent purchaser for value" under a recording statute of this type.

Answer 214

**The correct answer is:** Anne retains a life estate, Anne's widower will take for life after Anne dies if he survives Anne, and Oliver retains a reversion, because the grant is partially subject to the Rule Against Perpetuities. Discussion of correct answer: Anne's life estate is presently possessory, and therefore is not subject to the Rule Against Perpetuities. The remainder for life in Anne's widower is contingent because there cannot be a widower of a living person, and therefore is subject to the Rule Against Perpetuities. The remainder in Anne's children living at the death of A's widow is contingent because there is a condition precedent to vesting, and therefore is subject to the Rule Against Perpetuities. Oliver and Anne are express lives in being. Anne's widower is not a life in being because he has not yet been identified. Anne's children, even if some are already born, may not be lives in being because their class is open. Therefore, Oliver and Anne are the only possible measuring lives. Anne's widower will take (or not take) at Anne's death; hence, her interest is valid. However, Anne's children may well take more than 21 years after Oliver and Anne die; hence, their interest violates the Rule Against Perpetuities. Anne retains a life estate. Anne's widower will take for life after Anne dies if he survives Anne. Because the interest in Anne's children is void, Oliver retains a reversion, which will vest when Anne's widower dies. Thus, this answer is correct.

Answer 215

A. No, because the man's breach of duty in not keeping his brakes properly serviced was not the cause-in-fact of the boy's injuries.

Answer 216

**The correct answer is:** Yes, because the covenant for quiet enjoyment runs with the land. Discussion of correct answer: A general warranty deed includes the covenant for quiet enjoyment. A covenant for quiet enjoyment is a covenant by the grantor that the grantee will not be disturbed in his possession or enjoyment of the property by a third party's lawful claim of title. The covenant for quiet enjoyment is continuous in nature and may be enforced by remote parties on the basis of privity of estate. In this case, the bank is making a lawful claim of title. The benefit of the covenant for quiet enjoyment "runs with the land," giving the dentist a basis for recovery against the developer.

Answer 217

(C) The investor, because he is protected by the recording statute.

Answer 218

**The correct answer is:** The woman is a bona fide purchaser and the developer is estopped from recovering title from her. Discussion of correct answer: Once the developer actually gave the deed to the investor, there was a presumption that a valid delivery had occurred, and an argument can be made that the developer could not restrict the agency that he had given the investor to record the deed. Moreover, even if the developer could prevail against the investor, the woman reasonably relied on the deed and the land records and appears to be a bona fide purchaser and, therefore, is protected by the law. The developer would likely be estopped from pursuing a claim against her.

Answer 219

**The correct answer is:** Judgment for the first purchaser, because the restrictive covenant is enforceable against the construction company. Discussion of correct answer: A covenant that runs with the land is a promise that runs with the land. In that covenant, the promisor promises to do or refrain from doing something on his land. Unlike easements, most running covenants are negative in nature, as they require the parties not to do something. The restrictive covenant here meets the requirements to be enforceable and to run with the land: it touches and concerns the land in that it restricts style of structures and size of lots, there was intent and notice that the restrictions would run with the land as shown by the deeds, and there is privity. Horizontal privity is the relationship that exists between the original covenantor and covenantee; here, the developer and the buyer. Vertical privity is the relationship that exists between the original party to the running covenant and the successor in interest to the original party. A plaintiff must show the successor "stepped into the shoes" of the original party to show vertical privity. If for some reason the covenant is unenforceable, the original restriction would be enforceable as an implied reciprocal servitude, since the lots purchased by the construction company were part of a common development plan that put the construction company on notice. As such, this is the best response.

Answer 220

**The correct answer is:** The professor's prior recorded deed is deemed to be outside the chain of title to the property so far as the sailor is concerned. Discussion of correct answer: In the majority of jurisdictions (including the one in this fact pattern), the professor's deed is considered a "deed recorded late" and is outside the chain of title. When the sailor searched the title records, the lawyer would appear as record holder of title, having obtained ownership from the dentist and having not conveyed to another person. The dentist-professor conveyance would not have appeared in the records until after the dentist-lawyer conveyance, meaning the sailor would have no constructive notice of the conveyance. The sailor had no actual notice of the professor's interest, and because the land was vacant, no basis for inquiry notice. Having no actual, inquiry, or constructive notice of the professor's claims, the sailor is a bona fide purchaser and should prevail in the litigation over title to the land.

Answer 221

B The sophomore, because the friend was a subtenant. The correct answer is:The sophomore, because the friend was a subtenant. Discussion of correct answer:Absent an express provision in the lease prohibiting or restricting transfers, a tenant may freely transfer his leasehold interest in whole or part. If he makes a complete transfer of his entire remaining estate, he has made an assignment. Where the tenant retains any part of the leasehold interest, the transfer is a sublease. The tenant-sublessor remains both in privity of estate and in privity of contract with the landlord, and thus continues to be obligated to pay the rent. A sublease creates no legal relationship between the landlord and the subtenant, so the sublessee is not liable to the landlord. As such, the sublessee is not liable to the landlord to pay rent. Here, the sophomore only conveyed her lease interest to her friend for five months. As such, this was a sublease, not an assignment. Though the lease prohibited assignments, it did not prohibit subleases, making the sublease valid. Accordingly, the sophomore is liable to the landlord for the unpaid rent; the landlord could not collect directly from the friend. Discussion of incorrect answers: Incorrect. The sophomore, because assignments were prohibited under the terms of the lease. If a lease does not expressly prohibit transfers, a tenant may freely transfer his leasehold interest in whole or part. A complete transfer of one's entire remaining estate is an assignment; where the tenant retains any part of the leasehold interest, the transfer is a sublease. Restrictions on assignment are strictly construed. As such, given the restriction, the sophomore was prohibited from assigning her interest, but was free to sublease the apartment. Because she only conveyed her interest for five months to her friend, this was a sublease, not an assignment, and therefore a valid transfer. However, a sublease creates no legal relationship between the landlord and the subtenant. Because the friend was not in privity with the landlord, he does not share the liability. Incorrect. The sophomore and the friend, because they are jointly and severally liable. It is not true that the sophomore and her friend are jointly and severally liable. The sophomore here subleased the apartment to her friend for five months. However, a sublease creates no legal relationship between the landlord and the subtenant. While the friend will owe the rent to the sophomore, the sophomore is nevertheless the only one liable to the landlord for the rent. Incorrect. The friend, because he agreed to take over the lease. A sublease creates no legal relationship between the landlord and the subtenant. The friend will be liable to the sophomore for the unpaid rent, but only the sophomore will be directly liable to the landlord.

Answer 222

(A) A term of years. The correct answer is:A term of years. Discussion of correct answer:A tenancy for a term of years has a definite beginning and end, and no notice is required to terminate the lease. The initial lease was such a tenancy, terminating at the end of the calendar year with no notice required. When the landlord and tenant agreed to another one-year lease on the same terms, the parties either extended the duration of the lease or created another term of years for the following calendar year. Either way, the lease remained one for a term of years, which will terminate at the end of the lease with no notice required. Discussion of incorrect answers: Incorrect. A periodic tenancy. This answer choice is tempting, because it may appear as if the parties here may have created a periodic tenancy for a period of one year, which simply renewed at the end of the lease term when neither party gave notice to terminate the lease. However, the parties here actually have a lease for a term of years, which expires at the end of the lease term without any notice required. When the landlord and tenant agreed to renew the lease for another year, they did not convert the tenancy to a periodic tenancy, but instead, either extended to lease term for another year or entered into a new lease for a term of years on the same lease terms. In either case, the current arrangement is still a lease for a term of years, and not a periodic tenancy. Incorrect. A tenancy at-will. An at-will tenancy has no fixed duration and lasts only as long as the landlord and tenant desire. This is not the case here, as the lease has a specific duration and will terminate at the end of the time period. Incorrect. A tenancy at sufferance. When a tenant remains in possession of the property ("holds over") after the expiration of the lease term, the tenant is considered a tenant at sufferance, and the landlord will be entitled to recover the reasonable rental value for the holdover period. However, this is not the case here, because the tenant is not remaining in possession after the duration of the lease term. Instead, the landlord and tenant have agreed to a lease for another year.

Answer 223

D The twins failed to record their deed, and the investor had no other notice of their interest.

Answer 224

C. July 31.

Answer 225

**The correct answer is:** No, because the option is unenforceable as violative of the Rule Against Perpetuities. Discussion of correct answer: The Rule Against Perpetuities states that no interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being (the measuring life) at the creation of the interest. If there is any possibility that the interest might vest more than 21 years after a life in being, it is void. The application of the Rule Against Perpetuities has raised persistent problems with options and rights of first refusal. Cases that apply the rule generally hold that an option is similar to a springing executory interest, and thus is void unless it may be exercised no later than 21 years after some life in being at its creation. A human life (i.e., a measuring life) is usually not involved in determining an option's duration. Thus, in most cases, an option that can be exercised more than 21 years after the date of its creation will be void. In this question, the seller's option is for 25 years, and will therefore be void because it can be exercised more than 21 years after the date of its creation.

Answer 226

(B) No, because the trespasser acquired title to only the five acres of land that he had cleared and used.

Answer 227

(A) No, because it was unforeseeable that the doctor's injury would result from the type of harm threatened.

Answer 228

(B) Yes, because the estate was a fee simple determinable with the possibility of reverter.

Answer 229

**The correct answer is:** The owner, because his actions were reasonable under the circumstances. Discussion of correct answer: This difficult question deals with an interrelationship of fixtures, mortgages, and remedies. Clearly, the trust company has a construction mortgage interest in the stadium complex. The seats are fixtures that have been affixed or annexed to the structure. The mortgagor, the owner, wishes to remove part of the seating in order to enhance the value of the stadium to make it adaptable for football (as well as baseball) games. A mortgagor is permitted to do such acts on the mortgaged property that are considered usual and proper, including remodeling structures and removing fixtures in a reasonable manner. An injunction will not be granted for the removal of fixtures as long as there remains adequate security for the mortgagee.

Answer 230

**The correct answer is:** Yes, because the waiver of the right to redeem was invalid. Discussion of correct answer: At any time after default but before foreclosure, the mortgagor has the right to redeem the property by paying the debt due. The right to redeem may not be waived ("clogged") at the time the mortgage is created. Even though he signed the document, and had an attorney present, a person may not waive his right to redeem. Since he tendered the full amount due, the bank must accept payment. Thus, the motion to dismiss should be granted.

Answer 231

**The correct answer is:** Nothing. Discussion of correct answer: To be valid, a contract for the sale of land must be in writing, signed by the party to be charged, and contain essential terms, including an adequate description of the property to be sold. Here, the description written on the napkin ("half of my lot fronting County Lake") is an insufficient description of the land to satisfy the statute of frauds. Likewise, the buyer's oral agreement to sell his friend the south half of the land is unenforceable. As such, the buyer will be able to bar specific performance of this agreement by raising the statute of frauds as a defense.

Answer 232

(C) No, because the day trader was not in fear of harmful contact.

Answer 233

C. No, because the spa owner remained in the leased space. **_Discussion of correct answer:_** Every lease contains a covenant of quiet enjoyment whereby the landlord promises not to disturb the tenant's possession of the property. If the landlord breaches the covenant of quiet enjoyment by constructive eviction of the tenant, the tenant can treat the lease as terminated and withhold rent. Constructive eviction requires that the landlord substantially and permanently interfere with the tenant's use and enjoyment of the premises, and the tenant must move out. Here, it is arguable that the building owner's act in not keeping the parking lot clear of ice and snow substantially interfered with the spa owner's use and enjoyment of the premises. However, the spa owner did not move out of the space, so the spa owner cannot claim breach of the covenant of quiet enjoyment by constructive eviction. (Further, the non-removal of ice and snow would not be a permanent interference with the spa owner's use of the space because the ice and snow would eventually melt, so the constructive eviction theory would fail for that reason as well.) Test tip: When the question asks "Did the landlord breach the covenant of quiet enjoyment?" it is usually asking you to decide if the landlord constructively evicted the tenant, which requires the tenant to move out before bringing an action. In this case, the tenant never moved out and continued to keep her business open, so her motion would fail.

Answer 234

(B) No, because the shelter rule allows the charity to have superior title even though it does not qualify under the race-notice statute.

Answer 235

A. The teacher may not withhold the entire rent, because she remained in the chalet. **_Discussion of correct answer_**: Under the majority rule, a tenant may treat a lease as terminated if the landlord breaches the covenant of quiet enjoyment (express or implied in every lease) by constructive eviction of the tenant. In order for a constructive eviction to exist: (i) the landlord must substantially and permanently interfere with the tenant's use and enjoyment of the premises; and (ii) the tenant must move out. In this case, given the teacher did not move out, she has not been constructively evicted and may not withhold the rent.

Answer 236

(D) No, because the babysitter believed that the boy needed to be confined.

Answer 237

(A) The tenant may treat the lease as terminated and withhold rent, because he has been constructively evicted.

Answer 238

(D) The bank's mortgage, because priority is unaffected by the modification agreement.

Answer 239

**The correct answer is:** The landlord will prevail, because the therapist's possessory interest in the apartment was not terminated by the adjudication of her incompetency, but passed to her estate. Discussion of correct answer: In most jurisdictions, a lease does not terminate upon the death or incapacity of either party to the lease. Rather, the deceased or incompetent party's interest passes to his or her estate. The therapist's estate will be liable for the lease. Thus, this is the correct answer.

Answer 240

**The correct answer is:** No, because the gas company has shown no intent to abandon the easement. Discussion of correct answer: An easement is not abandoned just because it is not being used. Instead, abandonment of an easement requires intent to abandon it and an act in furtherance of that intent. Neither is present here, so the easement is still effective.

Answer 241

B. No, if the employee was acting outside the scope of his employment.

Answer 242

(A) The grower will be arrested for theft.

Answer 243

**The correct answer is:** The sister was not a bona fide purchaser. Discussion of correct answer: Recording statutes are designed to protect only subsequent bona fide purchasers. Because the sister received the property as a gift, she would not qualify as a subsequent bona fide purchaser who could claim protection under the recording statute. The sister's boss, as mortgagee, would qualify as a giving value, though. However, the buyer recorded before the sister took out the mortgage with her boss. As a result, the buyer's best friend would be able to shelter under the buyer's deed and claim higher priority over the sister's boss.

Answer 244

**The correct answer is:** No, because the assistant had the authority to convey title by warranty deed. Discussion of correct answer: A landowner may give written permission to another person to act as an agent in the sale of land. Here, the astronomer clearly gave her assistant permission to sell her property. Thus, the authority she granted to her agent, the assistant, binds her under the sale agreement.

Answer 245

(B) The coalition, because it purchased first and the neighbor had notice of its deed.

Answer 246

(B) To give the landlord proper advance notice of the tenant's intent to terminate the lease.

Answer 247

C Yes, because the lease did not specify that the landlord had the burden of making repairs. Discussion of correct answer:Under the common law rule, in the absence of contractual terms to the contrary, a tenant has a duty to make minor repairs to keep the leased premises wind and water tight. This responsibility arises from the tenant's duty not to commit waste. In this case, given that the lease did not state which party would be responsible for making repairs, the default common law rule applies, and the tenant is responsible for repairing the window. Because liability for the broken window lies with the tenant, the tenant may not deduct the cost of making the repair from the rent payment. Discussion of incorrect answers: Incorrect. No, because deduction of the cost of repairs was the appropriate remedy for breach of the warranty of habitability. A broken window does not make a house uninhabitable. Consequently, the warranty of habitability was not breached, and the tenant cannot deduct the cost of the replacement. Incorrect. No, because the broken window constitutes a partial, constructive eviction. The broken window does not constitute a constructive eviction because it is not a substantial and permanent interference with the tenant's enjoyment of the property, forcing him to move out. Incorrect. Yes, because the tenant did not notify the landlord of the damage and give the landlord a reasonable time to make repairs. Responsibility for repairing the window lies with the tenant, not the landlord. Under the common law rule, a tenant has a duty not to commit waste, which includes a duty to make minor repairs to keep the leased premises wind and water tight. Therefore, it is the tenant's duty, rather than the landlord's, to repair the broken window.

Answer 248

**The correct answer is:** The investor's sons will succeed because, by tacking their possession with their mother's possession, they have been in possession of the land for the required statutory period. Discussion of correct answer: In order to fulfill the statutory period for adverse possession, there need not be continuous possession by the same person. The period of adverse possession of one possessor can be tacked to the period of adverse possession of another possessor when there is privity between the two. Because the investor's sons took possession after a voluntary transfer from the investor, they are in privity and can tack their period of possession to her period of possession. In addition, they can claim open, hostile, and continuous possession for the statutory period of 20 years, satisfying all the requirements for adverse possession.

Answer 249

(A) Bank No. 1 can extinguish Bank No. 2's mortgage.

Answer 250

**The correct answer is:** No, because the widow manifested a present intent to create a future interest when she gave the deed to the attorney. Discussion of correct answer: An escrow involves the deposit of a properly executed deed by the grantor with a third party who is to deliver the deed to the grantee upon the happening or performance of a named event. When the widow gave the deed to the attorney with the instructions to deliver the deed to her bridge partner upon his return from his cruise, the widow (the grantor) manifested a present intent to create a future interest in her bridge partner (the grantee). Once the widow gave the deed to her attorney (a third party), she could not retrieve the deed to prevent the transfer to the bridge partner upon the occurrence of the stated condition. In cases such as this, the courts have held that the grantor's intent at the time of the transfer to the third party was to create a "springing future interest" in the grantee, making delivery irrevocable.

Answer 251

(C) In favor of the wife and the investor as tenants in common.

Answer 252

**The correct answer is:** The purchaser, because the easement to the neighbor was created after the contract of sale was executed. Discussion of correct answer: When a contract for the sale of land specifies that the land is to be conveyed "subject to easements, covenants, and restrictions of record," unless there is a contrary provision, it is reasonable to imply that the parties are referring to such encumbrances as exist at the time the contract is entered into. It is generally held that the seller need not possess marketable title until the time for closing, which means that an encumbrance existing on the property after formation but before closing does not constitute a breach of the contract; the seller has until closing to remove the offending encumbrance. In this question, however, the facts provide that the seller created a new encumbrance after the contract had been formed. Thus, when the landowner tendered the deed at closing, the lakefront property was subject to an encumbrance that did not exist at the time the contract was formed and could not be discovered by the purchaser during a search of the records. The easement was not "of record" at the time the parties executed the contract, and it is the type of easement that reduces the value of the property. The existence of such an encumbrance renders the landowner's title unmarketable, a violation of the express contract provision that marketable title will be conveyed. The purchaser will be able to rescind the contract.

Answer 253

**The correct answer is:** No, because the sister's granddaughter has no interest in the land. Discussion of correct answer: The sister and the daughter received the property as joint tenants with right of survivorship. The conveyance to them had the four unities of time, title, interest (equal shares), and possession (each having the right to possess the whole). As a result, the death of one of them caused the other to have sole ownership of the whole. The sister did not have the right to devise any part of the property to her granddaughter.

Answer 254

C. The sailor owns the property, because he recorded first without notice of the businesswoman's agreement. **_Discussion of correct answer:_** In a race-notice jurisdiction, the person who records first without notice of a prior claim on the property is the rightful owner of that property. Here, because he had no notice of any prior claim on the property, paid value, and recorded first, the sailor owns the property. The businesswoman's earlier agreement with the teacher is irrelevant.

Answer 255

**The correct answer is:**The buyer, because the zoning violation renders the title unmarketable. Discussion of correct answer:Title to property currently in violation of zoning regulations is unmarketable. It is true that it is the business that is in violation of zoning regulations here, and not the property. However, the seller knows that the buyer intends to continue the business after purchasing the property, and that the business is currently in violation. Because the seller sought to sell property currently in violation, which he knew the buyer intended to continue to use in the same manner, he did not have marketable title to convey. The seller is essentially selling what he knows will be a lawsuit for the buyer, because he knows the business violates zoning regulations and knows that the buyer intends to continue the business. Therefore, the buyer will be entitled to rescission of the contract and a return of her down payment.

Answer 256

A The owner, because the transaction with the entrepreneur was not in writing. Discussion of correct answer: The Statute of Frauds requires that a contract for the sale of real property be evidenced by a writing, signed by the party to be charged thereby, and containing all the essential terms of the transaction, such as identification of the parties, a description of the property, and the terms and conditions of the deal. Therefore, the oral agreement to sell the warehouse is unenforceable.

Answer 257

C. The conduct of a reasonably prudent person with superior skiing knowledge and expertise.

Answer 258

(D) The purchaser takes the property subject to the bank’s mortgage, but not subject to the equity company’s mortgage. B1, can foreclose on the house, after the foreclosure sale F2-defaults, foreclosure, notified E3 E3-defaults, because notice provided, exterminated

Answer 259

(A) Yes, because the investor conveyed Cityacre to him by general warranty deed.

Answer 260

(C) The optician and the editor are jointly and severally liable for $4,000.

Answer 261

(B) No, because the lease is a commercial lease.

Answer 262

(D) Yes, because the manufacturing defect in the brakes caused her injuries.

Answer 263

D. The customer, because the owner knew the man planned to use the building as a theater. Discussion of correct answer: Generally, the lessor of real property is not liable for injuries resulting from conditions on the land. The lease is considered a transfer of all rights and responsibilities with regard to conditions on the land. There are a number of exceptions to this rule, however. One exception involves dangerous conditions existing at the time of transfer of possession of the property when the lessor knows the lessee will be holding the property open to the general public and knows that the lessee will not fix the dangerous conditions before the opening. The interest in protecting the public is considered so important that the lessor continues to be liable. The intent is to motivate lessors to transfer property in safe condition. Here, the owner knew the man intended to use the premises as a theater, open to the general public, and knew that the man would not have the necessary two months to make the necessary repairs before he opened the theater during his one month lease. Therefore the owner remains liable for the condition of the lighting.

Answer 264

(A) The mechanic only.

Answer 265

(B) The architect will prevail, because she acquired title to the cottage before the nephew.

Answer 266

C The proceeds will be distributed first to cover the costs of the foreclosure sale.

Answer 267

B To find a new tenant.

Answer 268

(D) There was no valid delivery of the deed conveying title to the instructor.

Answer 269

????A. The ballerina, because she is permitted a reasonable period of time in which to remove any fixtures she installed. **_Discussion of correct answer:_** ***A trade fixture is a chattel that is annexed to land by a tenant to further his business or trade during his tenancy, and is treated differently than fixtures annexed to property by the property owner himself.*** Under the modern law approach, if a tenancy is for a certain term and ends on a certain day, the tenant need not remove the trade fixtures by the lease's expiration or risk forfeiting the item. Instead, the tenant is permitted a reasonable amount of time after the lease's termination to remove the fixtures. Here, the ballerina installed the mirrors to help her ballet studio business, and as such they are trade fixtures. Her lease was for a certain term and expired on a specific day, and she therefore has a reasonable amount of time after the lease's expiration to remove the mirrors. She arrived at the studio two days after the lease's expiration, which is certainly a reasonable period of time. Therefore, the ballerina is entitled to the mirrors. Test tip: Very tricky. A tenant running a business and wanting to remove an item indicates that the question is asking about trade fixtures. The common law rule is the tenant can take the trade fixture away, but only before the new tenant's lease begins. That seems fair because it is the tenant's fault for not removing the item before its removal would inconvenience the new tenant. However, the question is asking the outcome under the modern rule. If you do not know the modern rule, make an educated guess that is the opposite of the outcome of the common law rule.

Answer 270

A. Judgment for the farmer, if the congresswoman was the first person ever to enter upon his farm without permission. **_Discussion of correct answer:_** One who enters the defendant's land without his permission or without a privilege to do so is a trespasser. The defendant is not liable to a trespasser whose presence is unknown to him, nor has he any duty to inspect his land to attempt to discover such trespassers. The defendant has a duty to exercise reasonable care to warn a known trespasser of hidden dangers known to the defendant and unknown to the trespasser. Where the defendant knows or reasonably should know that a portion of his land is frequently used by trespassers, he must take the same precautions to avoid injury to persons utilizing that portion of his land as if they were known trespassers, even if a particular plaintiff was not known to defendant and that plaintiff had never trespassed before. In this question, if no one had ever taken a shortcut across the farmer's farm before the congresswoman, there was no basis to classify her as anything other than an unknown trespasser. As such, the farmer has no duty to warn her of any dangers.

Answer 271

Discussion of correct answer:A tenant may seek money damages for a landlord's breach of a term or covenant in the lease. Traditionally, a tenant may vacate the premises and terminate the lease if the tenant has been evicted by the landlord, actually or constructively. Today, statutes in many jurisdictions provide the tenant with the following statutory remedies: (1) withholding rent; or (2) repairing the premises and deducting the cost of repair from subsequent rent payments. Therefore, under the circumstances, this is the best answer choice. Discussion of incorrect answers: Incorrect. The tenant may not make the repairs, because doing so would constitute ameliorative waste. Ameliorative waste occurs if an act of a life tenant increases the value of the premises by permanently altering it. Traditionally, ameliorative waste was prohibited, but this is no longer the case under the modern rule. A tenant's duties in respect to waste are similar to those owed by life tenants. A tenant (except possibly a tenant for a long term) may not commit ameliorative waste (which a life tenant may do). Here, making the repairs would probably not rise to the level of waste, because it does not increase the property value, nor is it a permanent alteration (as, for example, building a pool would be). Thus, this is not the best choice. Incorrect. The tenant may refuse to pay rent due to the landlord's breach of covenant. A tenant may treat the lease as terminated and withhold rent if the landlord, or someone claiming through him, breaches the covenant of quiet enjoyment by actual eviction of the tenant. The breach of the landlord's covenant to make annual repairs would likely not rise to the level of evicting the tenant, either actually or constructively. Rather, the tenant can seek money damages as his remedy. Incorrect. The tenant may treat the lease as terminated if he vacates the premises. A tenant may treat the lease as terminated and withhold rent if the landlord breaches the covenant of quiet enjoyment by constructively evicting the tenant. For a constructive eviction to exist: (1) the landlord's act must substantially and permanently interfere with the tenant's use and enjoyment of the premises; and (2) the tenant must move out. The landlord's failure to perform annual maintenance and repairs would likely not rise to the level of constructive eviction, unless the property has fallen into such disrepair that the tenant's use and enjoyment was affected, which is not clear on these facts. Therefore, this is not the best answer.

Answer 272

(B) The option is violative of the Rule Against Perpetuities.

Answer 273

B Yes, because the professor fraudulently misrepresented the condition of the townhouse.

Answer 274

(D) This mortgage is a purchase-money mortgage, and as such, it has priority over all prior liens that attach to the property through the actions of the homeowner.

Answer 275

**The correct answer is:** Vested remainders subject to open. Discussion of correct answer: A remainder is a future interest created in a third party following a life estate. Here, the scientist's testamentary trust created a life estate in his sons, with the remainder to his grandchildren upon the termination of the life estate by death. The interests of the scientist's existing grandchildren (the son's two sons) are vested remainders, because the interests were created in ascertained persons and are not subject to a condition precedent (other than the death of the sons). The grandchildren's vested remainders are subject to open because if more grandchildren are born, the existing grandchildren's vested remainders will be reduced by the subsequent vesting of the interests of other class members. Thus, the grandchildren's interests are future interests created in ascertained persons who are in a class that may change with the addition of class members.

Answer 276

(B) The executive, because the dentist was a subtenant.

Answer 277

**The correct answer is:** The buyer, because the neighbor had already obtained an easement by prescription. Discussion of correct answer: 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: (1) adverse as distinct from permissive in derogation of right, rather than in subordination to the rights of the landowner; (2) open and notorious; (3) continuous and without interruption; and (4) for the period of prescription. Because the neighbor openly and notoriously used the northeast portion of Blackacre to gain access to Whiteacre for the 20-year period, as required by statute, he obtained an easement by prescription. This easement will pass on to the buyer, who was in privity with the neighbor by means of the land-sale contract. Therefore, the buyer's rights are enforceable against the whole world, and he will prevail against the wife.

Answer 278

**The correct answer is:** The investor owns the property, and the financier's wife is entitled to damages of $1 million from the original owner. Discussion of correct answer: A purchaser is charged with inquiry notice of any prior claims to the property if he is aware of facts or circumstances that would lead a reasonable person to inquire further. In this case, the financier was on notice that the investor had just met with the owner, and his suspicions were raised; as such, the financier was obligated to make further inquiries regarding prior claims to the property. Furthermore, because the financier never had title to the property, he could not pass title to his wife. As such, the investor, not the financier's wife, owns the property. Nevertheless, the financier's wife is entitled to damages, because the owner breached the covenant of quiet enjoyment when he purported to sell the property to the financier. The covenant of quiet enjoyment runs with the property, permitting remote grantees to sue for its breach.

Answer 279

(B) No, because no power of termination was reserved.

Answer 280

**The correct answer is:** Yes, because she purchased the dominant estate and acquired all the rights that belonged to the artist. Discussion of correct answer: The artist had an express easement appurtenant by grant, which transferred to the waitress. An express easement appurtenant requires a dominant and servient tenement. The artist gained an easement for purposes of ingress and egress across the writer's yard. Artist's easement was the dominant estate because the easement benefited the artist in the use of his property. Conversely, the writer had the servient estate because his land was burdened by the easement. Transfer of title to a dominant estate includes the transfer of any easements appurtenant attached to the estate, regardless of whether the instrument of transfer expressly mentions the easement. A driveway for ingress and egress to and from the parcel is clearly appurtenant, since it is attached to a piece of land and benefits the owner of such land in her use and enjoyment thereof. As the purchaser of the dominant estate, the waitress has acquired the appurtenant easement and will prevail in her effort to compel the pharmacist to remove the obstruction.

Answer 281

**The correct answer is:** Covenant. Discussion of correct answer: A covenant is a contractual obligation that is created in connection with the transfer of real property. If done properly, the covenant will bind and benefit not only the original obligor and obligee, but will "run with the land" to bind and benefit successors to the original parties. A covenant may be either negative (a promise not to do something, such as not to use land for industrial purposes) or affirmative (a promise to do something, such as make payments toward an annual operating deficit). Thus, a covenant is the best way to assure that each condominium owner, even those who did not buy directly from the owner, will have to make payments toward the maintenance of the common areas.

Answer 282

(B) The estate created in Larry and Dahlia by Tom's will was a tenancy by the entirety.

Answer 283

**The correct answer is:** Yes, because the development corporation showed the newspaper ad to every prospective buyer. Discussion of correct answer: When a landowner owns a large parcel of land and subsequently divides it into smaller parcels for purposes of development (e.g., a subdivision), that landowner may place restrictions in the deed of the parcels. Occasionally, the landowner will place the restrictions in the deed of some parcels, but not in all. However, where the developer intends a common scheme for the entire parcel of land, including all of the plots, a landowner whose deed does not contain the restriction may be bound by the restriction if the other deeds of the adjacent properties contain the restriction. Here, the development corporation intended a common scheme, as manifested by the newspaper advertisement shown to all of the prospective buyers, including the businesswoman. Thus, the businesswoman had constructive notice of the single-family residence requirement, and the court will likely enjoin her from opening the store.

Answer 284

**The correct answer is:** The doctrine of equitable conversion means that the buyer is regarded in equity as the owner of the building. Discussion of correct answer: The doctrine of equitable conversion allocates the risk of loss in a land sale contract to the purchaser. Thus, if damage or destruction occurs to the real property after formation but before closing, the purchaser (whom equity considers the owner of the property) bears the loss. In circumstances such as those presented by this question, the buyer is considered the equitable owner of the building from the moment the contract of sale is formed, and the subsequent destruction of the building by the earthquake is the buyer's loss. The buyer must pay the full purchase price to the museum even though the value of the property has been substantially reduced by the loss of the marble structure. A number of jurisdictions have altered the doctrine of equitable conversion so that the risk of loss remains on the seller until closing unless the purchaser takes possession. The Uniform Vendor and Purchaser Risk Act generally places the risk of loss upon the seller until the buyer has either taken possession or obtained legal title, at least as to physical damage to the property. The facts here indicate that this jurisdiction had not adopted any statute on the subject.

Answer 285

(B) Yes, because the homeowner increased his loan obligation by $50,000. B1 $50,000; modifies the principal balance by $50,000, B1, $100,000 B2 $40,000 B2 is now prejudiced by B1 Priority: B1 first $50,000; B2 $40,000; B2 is a judgment $10,000 (not a deficiency judgment), and B1 has a deficiency judgement because they foreclosed of $50,000. If instead of increasing principal amount, increased interest rate, the entire B1 mortgage moves into 2nd priority place.

Answer 286

(D) A fee simple determinable.

Answer 287

C Yes, because the family notified the landlord of the hazardous chemicals within a reasonable time. Discussion of correct answer:In order to have a valid claim against a landlord for breach of an implied warranty of habitability, the tenant must notify the landlord of defect, and the landlord must fail to repair the defect within a reasonable time. Only residential leases contain an implied warranty of habitability. While the doctor's lease was a commercial one, the family has a residential lease, and is therefore owed the implied warranty. Because the family notified the landlord of the defect and the landlord refused to make the necessary repairs, the family will prevail. Discussion of incorrect answers: Incorrect. No, because the landlord did not know about the chemicals at the time it entered into the lease with the family. Whether the landlord knew of the latent defect or not may have a bearing on other tort liabilities, but not in regard to the implied warranty of habitability. The landlord's knowledge of the latent defect is irrelevant for a determination of whether the landlord breached the implied warranty of habitability. Incorrect. No, because the doctor's lease was a commercial lease. It is true that the doctor had a commercial lease, and as such, the landlord did not owe the doctor an implied warranty of habitability. However, the family has a residential lease, and as such is owed the implied warranty. Incorrect. Yes, because the lease is not a long-term lease. This answer reaches the correct conclusion, but for the wrong reason. Some jurisdictions exclude long-term leases from having an implied warranty of habitability, which is the opposite of the reason stated here. Additionally, there is nothing in the facts to indicate whether this lease is a long- or short-term lease.

Answer 288

(A) The nephew has a fee simple absolute.

Answer 289

D The landowner, because the written agreement reducing the size of the daycare center was not supported by consideration.

Answer 290

B. No, because the rescheduling of installment payments did not materially prejudice the city.

Answer 291

(C) Yes, because the girl exercised dominion and control over the CDs.

Answer 292

C. The defense of constructive eviction applies only to residential leases.

Answer 293

(A) The girlfriend will be awarded title, because she never transferred title back to the young man.

Answer 294

**The correct answer is:** No, because the trespasser acquired title to only the five acres of land that he had cleared and used. Discussion of correct answer: Under the doctrine of adverse possession, the occupation of only a portion of the property will confer title to the whole only if the claimant enters under color of title (constructive adverse possession). In this case, the trespasser did not enter under color of title. However, the trespasser will still be able to claim possession of the five-acre portion of the property that he inhabited and used, because his possession was open, visible, and notorious; actual; exclusive; hostile and under a claim of right; and continuous for the required statutory period.

Answer 295

**The correct answer is:** In favor of the yoga instructor, because the teacher did not meet the time requirement for adverse possession. Discussion of correct answer: It is true that the teacher did not meet the time requirement for adverse possession. The facts do not state the time period used in the jurisdiction, but the common law requirement is generally 20 years, with statutory periods of five, seven, or 10 years being common. Therefore, it is not necessary to examine whether the teacher intended to claim the land as her own, making possession sufficiently hostile to meet the standards of adverse possession under the majority rule.

Answer 296

**The correct answer is:** The hotelier will win, because there is no easement for light, air, and view benefiting the jeweler's lot. Discussion of correct answer: To preclude an adjacent landowner from constructing a building that will interfere with his view, the jeweler must have some right or interest, such as an easement for light, air, or view, or an equitable restriction governing the maximum height of buildings on which to base his claim for judicial intervention. The hotelier granted the jeweler no such easement when he sold the lot, and it is not possible to gain an easement for light, air, or view by prescription, since the "use" of the supposed servient estate is not sufficiently actual, open, and notorious to put the owner of the servient estate on notice. Since the jeweler has no legal basis upon which to compel the hotelier not to build the large house, the jeweler will not obtain an injunction.

Answer 297

A The chef, because he is not obligated to pay the landlord. Discussion of correct answer: This is a straightforward property question dealing with subleases. A subtenancy is where the tenant transfers his right of possession for a time shorter than the balance of the leasehold, so that he retains a reversion within the leasehold. Therefore, the subtenant is neither in privity of estate nor privity of contract with the landlord. Lacking privity, a subtenant is not liable to the landlord to pay rent. There was a five year lease. After two years, the instructor transferred his "entire interest for two years." Since there is still a year remaining on the lease, the transfer amounts to a sublease, not an assignment.

Answer 298

**The correct answer is:** The estate created in Larry and Dahlia by Tom's will was a tenancy by the entirety. Discussion of correct answer: The circumstances of this problem require that the estate devised to Larry and Dahlia be one that includes a right of survivorship and cannot be unilaterally severed by one of the co-tenants. There are two common law estates that include among their characteristics a right of survivorship: the joint tenancy and the tenancy by the entirety. The latter estate may only be held by a married couple. A joint tenancy may be unilaterally severed (and a tenancy in common created thereby) by one joint tenant conveying his interest in the property to a third person. A tenancy by the entirety may not be severed by unilateral conveyance; the tenants must mutually agree to convey to a third party or one must convey to the other. A tenancy by the entirety may also be severed by execution on the property by a joint creditor and by divorce. Because Dahlia was adjudged sole owner of Blackacre even after Larry had purportedly conveyed his interest to Paul, the Larry-Paul conveyance must have been void; that is possible on these facts only if Blackacre was held as a tenancy by the entirety.

Answer 299

**The correct answer is:** No, because although the ranch foreman is the owner of the ranch, the foreman's title is not marketable. Discussion of correct answer: The ranch foreman is the owner of the ranch by adverse possession because his possession was open, visible, and notorious; actual; exclusive; hostile; and continuous for the statutory period. Title acquired by adverse possession may become marketable if the adverse possessor quiets title before attempting to convey it. However, because there is no evidence that the ranch foreman had brought an action to prove his adverse possession claim and quiet title, the ranch foreman's title was not marketable. Modern courts might still find that title acquired by adverse possession is marketable if the adverse possession has been for a very long time; the record owner is unlikely to sue; and the record owner is unlikely to prevail if she did. The facts do not suggest that the niece, as title holder of record, would be unlikely to sue. Therefore, the ranch foreman would not prevail.

Answer 300

(B) The college student and the visiting professor.

Answer 301

(C) No, because the copper mine was on the property originally and excavating it would not constitute waste.

Answer 302

(C) That the owner knew that the dog had a tendency to bite.

Answer 303

A The boyfriend's presence had been discovered by the maintenance worker before he was injured by the goblin. Think Like a Lawyer A land-occupier has no duty of care as to a trespasser whose presence is unknown to him. Step by Step Walkthrough Step 1: A landowner’s duty to known trespassers is to exercise reasonable care to protect them from injuries deriving from activities conducted on the land and to warn of hidden dangers. Step 2: A defendant has no duty of care as to a trespasser whose presence is unknown to him. The defendant also has no duty to inspect his land to attempt to discover unknown trespassers. Step 3: If the worker had discovered the boyfriend's presence, then the boyfriend would be a known trespasser, rather than an unknown trespasser to whom a much lesser duty of care is owed. This would help his case. As an unknown trespasser, he will collect nothing. Step 4: Select the answer stating that the argument that would be most helpful to the boyfriend is that the boyfriend's presence had been discovered by the maintenance worker before he was injured by the goblin. Step 5: Notice that the other answer choices do not provide any duty of care for an unknown trespasser. The boyfriend must try to become a known trespasser to have any chance of success in his suit.

Answer 304

(D) No, because the saleswoman has no duty to make any repairs to the premises. Explanation The correct answer is:No because the saleswoman has no duty to make any repairs to the premises. Discussion of correct answer: Under the common law estate theory, the landlord had no duty to make any repairs to the premises during the lease term. By contrast, the tenant had a duty not to commit waste, which included a duty to repair the premises (including minor repairs to keep the building wind tight and watertight). Discussion of incorrect answers: Incorrect. Yes, because under the common law, the landlord has a duty to repair without exception. It is not true that under common law the landlord had a duty to repair without exception. In fact, at common law, the landlord had no duty to repair the premises during the course of the lease. The tenant, on the other hand, had a duty not to commit waste, which included a duty to repair the premises. Incorrect. Yes, because a leaky faucet constitutes ordinary wear and tear. It is questionable whether a leaky faucet constitutes ordinary wear and tear. Even if a leaky faucet did constitute ordinary wear and tear, there was no rule at common law that required a landlord to make ordinary wear-and-tear repairs; in fact, the landlord had no duty to make any repairs whatsoever at common law. The tenant, however, had a duty not to commit waste, which included the duty to repair the premises. Incorrect. No, because the failure to repair a leaky faucet does not constitute waste. Waste is an act that adversely affects a future interest in the estate. Allowing a leaky faucet to go unrepaired would constitute waste, because it would adversely affect the value of the rental property.

Answer 305

(B) No, because the seller is personally liable for the deficiency.

Answer 306

B The photographer, because he is personally liable for the mortgage. Discussion of correct answer: This is the correct answer choice. If a mortgagor transfers his interest in a property "subject to the mortgage," the mortgagor still remains personally liable for the mortgage; the original mortgage remains intact, and the transferee does not assume personal liability for the obligation. Here, the photographer transferred the property to the soap opera star "subject to the mortgage." When the soap opera star defaulted on the mortgage payments, the bank may attempt to collect the debt from photographer either by initiating foreclosure proceedings or by any other lawful means.

Answer 307

**The correct answer is:** Yes, because the nephew holds a fee simple defeasible. Discussion of correct answer: As holder of a fee simple defeasible, the nephew may use Blackacre as he pleases. Upon Sally's death without children, the nephew can no longer avoid the condition that will cause ownership of Blackacre to shift to the county hospital. However, the grant specified that the county hospital would take upon the nephew's death, so the nephew retains ownership of Blackacre during his life. While this might technically be termed a life estate, most commentators characterize it as a fee simple subject to an executory limitation, because the original grantor obviously intended that the nephew should have the use and enjoyment of Blackacre commensurate with a fee ownership. As owner of a fee, even a defeasible one, the nephew is not subject to the doctrine of waste, and possesses the legal right to use the property as he pleases.

Answer 308

(C) The first mortgagee will recover based on the newly negotiated thirty-year mortgage; then the second mortgagee will recover on the second mortgage; the lienholder will recover thereafter, and the plaintiffs will recover later if they win judgment.

Answer 309

B. The newscaster, because the neighbor had notice of the conveyance to the newscaster. **_Discussion of correct answer:_** Under a "pure notice" recording statute, an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchase for value and without notice. To prevail under a ***notice statute,*** a claimant of real property must prove the following three elements: 1) that the claimant took subsequent in time to another person claiming ownership of the real property in question; 2) that the claimant was a bona fide purchaser for value; and 3) that the claimant took the property without actual, constructive, or inquiry notice of a prior claim to the property. In this case, the neighbor's purchase of the studio did occur subsequent in time to the transaction between the artist and the newscaster, and the neighbor paid value for the studio. However, given that the neighbor overhead the transaction between the artist and newscaster and knew that the artist had delivered to the newscaster a deed to the studio, the neighbor had actual notice of the newscaster's prior claim to the property, and will not be protected under the pure notice recording statute. Therefore, the newscaster is the legal owner of the studio.

Answer 310

(D) Yes, because the estate created by the deed was not a tenancy by the entirety.

Answer 311

A) Both the homeowner and the buyer.

Answer 312

B) The lender may foreclose on the land and it may sue the owner on the underlying debt.

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