Spring 2022 Final Flashcards
O acquired the possessory fee simple absolute title to a parcel of land commonly known as Greenacre. In time, O devised Greenacre “to A for life, then to B for life, then to B’s children and their heirs.” O devised the rest and residue of O’s testamentary estate to R. A, B, and R were alive when O died. A, B, and R are still alive. B does not have any children. Greenacre is located in a state in which all common law rules furthering marketability are in force. Which one of the following statements is the most accurate statement?
A. The future interest O devised “to B’s children and their heirs” is invalid per the Rule against Perpetuities using B as the measuring life.
B. O devised a vested remainder to the fee simple absolute title to Greenacre to B.
C. O devised an alternative contingent remainder to the fee simple absolute title to Greenacre to R.
D. The future interest O devised “to B’s children and their heirs” is valid per the Rule against Perpetuities using A as the measuring life.
C
O had the power to devise the FSA title to Greenacre or any other estate recognized under the law. O devised a possessory life estate to A, a vested remainder to a life estate to B, and a contingent remainder to the FSA to B’s children. The residue of O’s testamentary estate to O devised to R included a contingent remainder to the FSA title to Greenacre to R. The remainder to B’s children will vest if B has a child or children. The vesting of the remainder to B’s children, if that were to occur, would terminate R’s remainder. In the event that B dies without ever having a child, the contingent remainder to “B’s children” would fail to vest and R’s remainder would vest and become possessory. The two contingent remainders are alternative contingent remainders because the event that would result in one of the reminders becoming vested will terminate the other remainder.
Statement A is not an accurate statement. B was alive at the time of O’s devise. Therefore, B’s life can be used as a measuring or relevant life regarding the application of the common law RAP. It is certain that the contingent reminder to B’s children will either vest prior to B’s death if B has a child, or fail to vest as of B’s death if B never has a child.
Statement B is not an accurate statement. Although O devised a vested remainder to B, the estate O devised to B is a life estate; not the FSA estate. [“…then to B for life…”]
Statement D is not an accurate statement. It is possible that the contingent remainder to B’s children will either vest or fail to vest at a point in time that is beyond 21 years after A’s death.
Brownacre is land located in California. The possessory fee simple absolute title to Brownacre was granted to X and Y as tenants in common. In time, X and Y subscribed a deed that reads in part: “X and Y hereby grant to X and Y as joint tenants.” Three years later, X died intestate survived by Y and by H who is X’s sole heir at law. Which one of the following statements is the best description of the state of the title to Brownacre?
A. H and Y own Brownacre as tenants in common.
B. H is the sole owner of the fee simple absolute title to Brownacre.
C. H and Y own Brownacre as joint tenants.
D. Y is the sole owner of the fee simple absolute title to Brownacre.
D
X and Y created a valid joint tenancy between them. CA statutory law does not require the use of a straw person in order for X and Y to have created a joint tenancy between the two of them. Therefore, when X died, Y became the owner of X’s undivided interest in Brownacre per the right of survivorship.
The name of a 20-lot subdivision is Mesa Marron. A single-family residence is located on each lot in the Mesa Marron subdivision Ann purchased Lot 3 of the Mesa Marron subdivision. Bonnie purchased Lot 6 of the Mesa Marron subdivision. The Developer’s deeds to 17 of the lots in the Mesa Marron subdivision, including the Developer’s deed to Lot 3, contain express provisions that require all homes in the subdivision to be painted in “earth tones, such as beige or brown.” The Developer’s deed and subsequent deeds to Lot 6 do not contain the paint color restriction. Nevertheless, the house located on Lot 6 is painted in brown and beige tones. Bonnie has leased Lot 6 to Laura for a term of 99 years. Laura has begun to paint the house located on Lot 6 bright blue. Ann and owners of other lots in the subdivision have sued Laura to enjoin her from being able to paint the house located on Lot 6 in a color that is not an “earth tone, such as beige or brown.” Applying the implied reciprocal servitudes theory, it is probable Laura:
A. will be enjoined because Bonnie and Laura are in privity per the any estate test.
B. will not be enjoined because the Developer did not establish a common scheme and plan.
C. will be enjoined because Laura had notice of the paint color restriction.
D. will not be enjoined because touch and concern is obsolete.
C
Ann and the other plaintiffs are attempting to enforce the paint color restriction as an equitable servitude because they are pursuing an injunction. Statement A is not probable because privity is not required for the burden of an equitable servitude “to run.” Statement B is not probable because it is not a foregone conclusion that the Developer did not establish a common plan and scheme. Statement D is not probable because it presupposes that the Restatement approach is in effect in the jurisdiction. Statement C adds to the probability that Laura will be enjoined because applying the implied reciprocal servitudes theory to the stated facts, it is probable Developer established a common plan and scheme, the paint color restriction touches and concerns applying the impact on physical use test or the restriction is deemed reasonable if touch and concern is not a requirement, and Laura had notice because the deeds to every other lot in the subdivision are regarded as part of the land record regarding Lot 6. Review the case of Sanborn v. McLean.
O owned the possessory fee simple absolute title to Blackacre. O devised Blackacre “to E and her heirs, but if E does not marry, then to F and his heirs.” O devised:
A. Fee simple title to Blackacre to E.
B. A contingent remainder to F.
C. An executory interest to E.
D. A vested remainder subject to complete divestment to E.
A
This problem is based on Problem (4) on page 296 of the text. O devised a possessory fee simple estate to E. If required, the common law words of limitation as to inheritance are included in O’s devise to E. If, as is likely the case, the modern law rule is in force whereby words of limitation as to inheritance are not required for a transferor to manifest the intent to transfer a fee simple estate, the words “and her heirs” are surplusage. The words “but if E does not marry, then to F and his heirs” are words of limitation as to duration of the fee simple estate O devised to E. The fee simple estate O devised to E is a fee simple subject to an executory limitation and O devised an executory interest to the FSA to F.
Omar and Oscar own the possessory fee simple absolute title to a wooded parcel of land. Omar sent an email to his friend, Frank. The email bears Omar’s electronic signature. The email reads: “Hey Frank, you can go hiking on my wooded parcel of land for as long as I own that property.” Omar:
A. Transferred a license to Frank because Omar’s email does not satisfy the requirements of the Statute of Frauds.
B. Transferred a determinable easement to Frank.
C. Transferred an irrevocable easement.
D. Neither transferred an easement nor a license to Frank.
B
Statement A is not accurate because the writing (the email) meets each of the requirements of the Statute of Frauds: (1) a writing; (2) the writing is a sufficient memorandum; and (3) the writing was signed by Omar—the party to be bound. Statement B is a truer statement than Statement C because the writing does not evidence that Frank reserved the power to revoke Frank’s right to go hiking on the PIQ and, therefore, Omar granted an easement to Frank. However, an easement can be created as an irrevocable, defeasible right. Here, the easement will terminate automatically when Omar is not the owner of the PIQ any longer. Determinable interests are defeasible interests that terminate automatically upon the happening or non-happening of a state event.
City plans to use its eminent domain power to acquire title to a number of old homes and then sell the homes to a private company that plans to raze the houses and construct a manufacturing plant on the properties acquired by the City and sold to the private company. Many of the current owners of the old homes have sued to enjoin the City from carrying out its planned use of its eminent domain power. Which one of the following statements is the most accurate statement?
A. City will prevail because the provisions of the 5th and 14th Amendments to the Constitution of the United States grant the power of eminent domain to City.
B. City will prevail if it establishes that it will pay “just compensation” to the current owners of the older homes.
C. City will not prevail because will not be able to establish that the planned takings are for a “public use.”
D. City might prevail because it is possible City can establish the planned takings are for a “public use.”
D
This problem is based on problem (1) on page 857 of the text. Statement A is not accurate because the 5th and 14th Amendments to the U.S. Constitution are not the source of the City’s eminent domain power. Statement B is not accurate because the constitutional limitations on City’s eminent domain power are a taking for “public use” and payment of “just compensation.” Statement B does not address the “public use” requirement. Statement C is not supported by the stated facts. It is possible that City can establish a public purpose that is recognized as satisfying the “public use” requirement. Therefore, the words “will not prevail” are not supported by the stated facts. Statement D is accurate for the reason that Statement C is inaccurate. The words “might prevail” accurately reflect the weight of the stated facts.
The common law Rule against Perpetuities does not apply to:
A. A vested remainder that is subject to partial divestment.
B. A possibility of reverter.
C. An option to purchase not included as part of a lease agreement.
D. An executory interest.
B
The RAP does not apply to vested interests. Each of the future interests in favor of a transferor is deemed to be a vested interest. Those future interests are reversions, possibilities of reverter, and rights of entry (a.k.a., powers of termination). The RAP applies to options to purchase that are not included as a provision in a lease agreement. Review the course text and Future Interests Supplement 12.
Which one of the following statements is the least accurate statement?
A. According to the statutory law of California, a common interest community land use restriction is reasonable unless it is unreasonable.
B. The Restatement of Property Third expands the number of tests to determine whether a covenant does or does not touch and concern.
C. The intent for the benefit of a covenant “to run” may be implied.
D. The traditional remedy for a breach of a real covenant is money damages.
B
Statement B is a false statement because touch and concern is regarded as obsolete under the Restatement approach. The Restatement tests replace the common law touch and concern requirement. The Restatement tests are not an expansion of the common law touch and concern tests which are the impact on physical use test and the impact on economic value test. Statements A, C, and D are true statements.
Which one of the following is not required for a landowner to obtain a zoning variance?
A. Proof of undue hardship to the landowner.
B. Proof that undue hardship was not caused by the landowner.
C. Proof the variance will not cause hardship to the public.
D. Proof the variance will result in a conforming use.
D
Statements A, B, and C are requirements for a landowner to obtain a zoning variance. The conforming use doctrine does not apply to facts based upon which a landowner would seek a zoning variance. Therefore, proof the requested variance will result in a conforming use is not required for a landowner to receive a zoning variance (i.e., permission to use the landowner’s property in a manner that varies from the restrictions imposed by the applicable zoning law).
F owns the possessory fee simple absolute title to a parcel of land commonly known as Farmacre. F granted an easement to E, the owner of a parcel of land located immediately to the south of Farmacre, “for the passage of water from the Chance canal through the earthen ditch across the easterly portion of Farmacre to” E’s property. E and F also entered into a written agreement pursuant to which E has the responsibility “to make repairs and to maintain the easement” that F granted to E. Yesterday, E informed F that E plans to divert the flow of the water while E gunites the ditch. F objected to E’s plan to gunite the ditch:
A. Should be allowed as an intensification of a permitted use.
B. Should be allowed as a permissible repair of the easement.
C. Should not be allowed because E’s plan would be a surcharge of the easement.
D. Should not be allowed because E’s plan would be an impermissible relocation of the easement.
C
This problem is based on the Servitudes-Easements Supplement 8 hypothetical. The permitted use is the receipt of water through an earthen ditch. The plan to gunite the ditch would be a use of the servient property that would be beyond the permitted use (a surcharge), not an intensification of the permitted use, because the gunite will result in the water passing over a concrete like channel as opposed to an earthen ditch. Statement A is not accurate for the foregoing reasons. Statement B is not accurate because placing gunite over the ditch would not be a repair (i.e., not restoring the earthen ditch to its original condition). Statement D is not accurate because E does not plan to change the location of the easement.
S acquired the possessory fee simple absolute estate in the PIQ. In time, S conveyed the PIQ “to A, B, and C for their joint lives.” Subsequently, A conveyed A’s interest in the PIQ to D and E “as joint tenants, not as tenants in common, with right of survivorship.” A few months later, E died. Which one of the following statements is the most accurate statement?
A. D is a tenant in common with B and C.
B. S’s reversion to the fee simple absolute estate became possessory when E died.
C. D owns a life estate for the joint lives of A, B, and C.
D. Neither Statement A, nor Statement B, nor Statement C is an accurate statement.
C
A conveyed a joint life estate pur autre vie to D and E for the joint lives of A, B, and C. E’s ownership of a joint life estate pur autre view passed to D when E died. D continued to own a life estate for the joint lives of A, B, and C. Statement A is not accurate for the foregoing reasons. Statement B is not accurate because the joint life estate for the joint lives of A, B, and C has not expired due to the fact that A, B, and C are still alive. Statement D is not accurate because Statement C is an accurate statement.
Three years ago, Erin owned fee simple title to Eastacre and Wes owned fee simple title to Westacre. A public highway abuts a portion of the westerly boundary of Westacre. The shore of a large lake abuts the easterly boundary of Eastacre. Erin and Wes entered into a written agreement signed by both of them in which Erin promised that any building constructed on Eastacre would not exceed a height of 30 feet and Wes promised to grant a roadway easement over Westacre for access to and from Eastacre and the public highway to the west. Wes granted the promised roadway easement to Erin. A few months later, Erin sold Eastacre to Ernest who constructed a building on Eastacre that is 40 feet tall. Wes has sued Ernest claiming Ernest is liable for payment of money damages to Wes. Among other elements, Wes must prove horizontal privity between Erin and Wes. Which of the following will best enable Wes to establish horizontal privity?
A. The common law test.
B. The mutual interest test.
C. The successive interest test.
D. The Restatement test.
B
The common law landlord/tenant requirement for horizontal privity is not satisfied because Erin and Wes did not occupy the relationship of a landlord and a tenant. The successive interest test cannot be satisfied here because Erin and Wes did not occupy a transferor/transferee relationship with the covenant created by terms included in the instrument of transfer. There is no Restatement test for horizontal privity because horizontal privity is not required to establish a running covenant per the Restatement approach. The mutual interest test will best enable Wes to establish horizontal privity for reasons detailed in the course material regarding the Court of Appeals of Washington decision in the case of Deep Water Brewing, LLC v. Fairway Resources Ltd.
O purchased the fee simple absolute estate in and to land commonly known as Pineacre. O paid 80% of the purchase price to the seller. O executed a promissory note regarding O’s promise to pay the remaining 20% of the purchase price to the seller. To secure O’s promise to pay the seller, O delivered a mortgage against Pineacre to the seller. The seller recorded the mortgage. Subsequently, O sold a right of way over the southerly 20 feet of Pineacre to E for access to E’s property. The deed O delivered to E reads, in part, “I hereby grant a right of way over the southerly 20 feet of Pineacre to E for perpetual access to E’s property.” E recorded the deed. Six month later, O borrowed money from L. O delivered a mortgage against Pineacre to L to secure O’s promise to repay the loan to L who recorded that mortgage. Recently, L foreclosed the mortgage O delivered to L because O defaulted on O’s promise to repay the loan L made to O. The foreclosure of L’s mortgage:
A. Revoked E’s right of way.
B. Terminated E’s right of way.
C. Did not terminate E’s right of way.
D. Reduced the scope of E’s right of way.
C
O granted an express easement to E after O delivered a mortgage to Seller, but before O delivered a mortgage to L. Seller’s mortgage is first in priority. E’s easement is second in priority. L’s mortgage was third in priority. The controlling rule is that the foreclosure of a mortgage terminates all interests that were junior or subordinate to the mortgage. Here, E’s easement was senior, not junior or subordinate, to L’s mortgage. Therefore, E’s easement was not terminated by the foreclosure of the mortgage that O delivered to L.
Which one of the following statements is the least accurate statement?
A. An easement by necessity arises when a necessity arises either before, at the time of, or after the severance of common ownership.
B. According to the Restatement of Property, the owner of servient real property has a conditional, unilateral right to relocate an easement that burdens the servient real property.
C. Intensification of a permitted use is not a surcharge.
D. If a person becomes the owner of land burdened by an easement and the land to which the easement is appurtenant, the easement is terminated under the merger doctrine.
A
Statement A is false because an easement implied by necessity is created if and only if the required necessity existed at the time of the severance of common ownership. Statements B, C, and D are accurate statements.
Redacre is land located in California. T acquired the fee simple absolute estate in and to Redacre prior to T’s death. T died testate. The following language is included in T’s will: “I leave Redacre to A and the heirs of A’s body.” Which one of the following statements is the most accurate statement?
A. T devised the fee simple absolute estate in and to Redacre to A.
B. T devised a fee tail estate in and to Redacre to A.
C. T devised a life estate to A.
D. T’s devise to A is void.
A
The common law rule is that words of limitation as to inheritance that read “…and to the heirs of A’s body” create a fee tail estate. The fee tail has been abolished in 46 states. California is one of the states in which the fee tail estate has been abolished. California is also among the states in which words that would create a fee tail at common law result in the conveyance of a fee simple estate. The laws of a minority of states that have abolished the fee tail provide that language that would create a fee tail per the common law create a life estate instead. California is not among that minority of states. Review pages 308 – 310 of the course text and Estates and Future Interests Supplement 9.
