THE QUIZ

Question 1

What is real property?

Answer 1

Land

Question 2

T/F - Each state has its own property law, though most states have similar rules

Answer 2

True.

Question 3

What is “blackletter law?”

Answer 3

Law that is free from doubt and generally well known.

Question 4

What is the relationship between law and policy?

Answer 4

Policy is the rationale behind law - law is backed by power

Question 5

What is meant by the “bundle of sticks” metaphor in property law?

Answer 5

A piece of property can have multiple individuals and entities with rights to it – each may have some rights but not possess the full “bundle”

Question 6

What is NOT one source of property law? (Just name one)

Answer 6

Restatements????

Question 7

T/F - The laws of the Oregon Territory prohibited slavery but also prohibited free black people from coming to the territory

Answer 7

True

Question 8

T/F - Property rights can never be held by a sovereign; they are exclusively held by individuals and corporations.

Answer 8

False

Question 9

T/F - A person with property rights has full entitlement to do whatever they want on the property.

Answer 9

False - they have certain rights and responsibilities

Question 10

T/F - All people share one set of property rights to public resources as members of the public within a jurisdiction.

Answer 10

True.

Question 11

What is the Doctrine of Discovery in property law?

Answer 11

Right of discovery against all competing nations by conquest or purchase

Question 12

What best describes Indian title in the US under the law announced in Johnson v. M’Intosh?

Answer 12

Right of occupancy subject to doctrine of discovery

Question 13

T/F - In the Pacific Northwest, the treaty fishing tribes have property rights in the form of easements extending off their reservations to usual and accustomed fishing sites.

Answer 13

True

Question 14

T/F - The property rights that tribes have were granted to them by the federal government after the tribes were defeated in war.

Answer 14

False - Tribes retained their pre-existing right of occupancy

Question 15

T/F - Tribes have only the right to fish at usual and accustomed sites and no right to a fair share of the harvest.

Answer 15

False - they have a right to their fair share of the harvest up to a living standard.

Question 16

If a tribe wants to sell a piece of land within its reservation to a private property, what must it do?

Answer 16

Get permission from the federal government

Question 17

T/F - Americcan property law has a basis in medieval Catholic doctrine

Answer 17

True - Papal Bulls - Discovery doctrine is Catholic

Question 18

T/F - Stevens treaties afford an easement for tribes to access usual and accustomed fishing sites located on private property.

Answer 18

True.

Question 19

T/F - Terms in Indian treaties are interpreted according to definitions in Black’s Law Dictionary.

Answer 19

False - they are interpreted according to how the tribes understood them at the time of signing.

Question 20

T/F - The public trust doctrine has roots predating the US.

Answer 20

True - Roman origins - by law of nature these things are common to humankind

Question 21

T/F - Courts have found it beyond legislative authority to convey a streambed to a private property.

Answer 21

True.

Question 22

The court in Robinson found that the public trust originates in what?
A) statute
B) the social compact with government

Answer 22

B) The social compact with government

Question 23

The duty of a trustee under the public trust is called ___________

Answer 23

Fiduciary duty to prevent substantial impairment of public trust resource

Question 24

T/F - The Lake Michigan case found that conveyance of public trust land to a private party was prohibited where the primary purpose of the action is to benefit a private party.

Answer 24

True. The government is trustee for a class of beneficiaries, the public.

Question 25

What describes the defining characteristic of resources subject to the public trust doctrine?

Answer 25

They are resources of public concern

Question 26

What was the traditional geographic footprint of the public trust?

Answer 26

Navigable waterways, streambeds, tidelands, and submerged land under them –
“Fishing-navigation-commerce”

Question 27

What doctrine was invoked to provide public access to the dry sand beaches of Oregon?

Answer 27

Doctrine of Custom

Question 28

T/F - Private property owners that have title to submerged lands along navigable waters must allow public access below the mean high water mark.

Answer 28

True - this is exactly how public trust doctrine interfaces with private property.

Question 29

If a person adversely possesses a corner of a lot covered by a flawed deed, do they gain ownership of just that corner or the whole lot?

Answer 29

They gain the entire lot under Color of Title.

Question 30

What is ‘ferae naturae’?

Answer 30

Wild animals – the government holds them as part of the public trust; they are transferred to individual ownership when that individual deprives them of their natural liberty.

Question 31

What is the time period for determining adverse possession?

Answer 31

It depends on the state/statute

Question 32

Do courts ever look to the subjective state of mind of the possessor in determining an adverse possession claim?

Answer 32

Yes – courts may apply a test of Good Faith; Bad Faith; or Claim of Right (possessor acts as a normal owner would)

Question 33

What can (nearly) always defeat a claim for adverse possession?

Answer 33

Permission

Question 34

Which implied easement requires a showing of reasonable reliance?

Answer 34

Easement by estoppel

Question 35

An easement by estoppel begins with revocable permission to cross or use land. This permission is called a ________.

Answer 35

License

Question 36

T/F - An easement by necessity could arise 20 years after a parcel was sold without access to a public highway.

Answer 36

True – easements by necessity can arise at any time.

Question 37

T/F - An easement by prior use requires a showing that, after partition, the use remained “absolutely and strictly necessary” for the enjoyment of the dominant estate.

Answer 37

False - the use must be REASONABLY necessary, not ABSOLUTELY AND STRICTLY necessary

Question 38

A has an easement along a road traversing B’s land. Who has the servient parcel?

Answer 38

B has the servient parcel.

Question 39

T/F - Conservation easements, to be valid, must be recognized by statute.

Answer 39

True – it is a form of negative easement, and all negative easements other than lateral support must be recognized in statute.

Question 40

T/F - A downslope owner is strictly liable to the upslope owner for removing lateral support, causing the hill to slide (assume no house upslope)

Answer 40

False – the downslope owner is only strictly liable if there is a house upslope that they have undermined.

Question 41

T/F - An easement in gross benefits a particular parcel

Answer 41

False - easements in gross benefit a particular individual.

Question 42

An easement holder may improve an easement if the improvement is reasonably calculated to promote the easement purpose and ______ and ________.

Answer 42

1) doesn’t create an undue burden on the servient estate
2) doesn’t infringe upon the rights of others

Question 43

A person seeking to terminate an easement for frustration of purpose must show ________.

Answer 43

That the easement has become impossible to use; OR
That the easement no longer serves the intended purpose

Question 44

A is the owner of Parcel A, which has an easement over Parcel B. What happens to the easement if the Parcel A owner buys Parcel B?

Answer 44

Merger doctrine - the easement is terminated

Question 45

A has an easement across B’s property. B puts up a fence preventing A from using their easement. What doctrine might apply to terminate the easement, and when would it be terminated?

Answer 45

Adverse Possession or Prescription may apply. The time frame depends on statute.

Question 46

A owns 20 acres of land (Parcel A) and is contemplating sale of 10 acres to B. B will need to have an easement across A’s land to access a public highway. In advance of the sale to B, A (WHO IS A VERY EFFICIENT AND PROACTIVE PERSON) conveys an easement to herself over Parcel A for the benefit of the 10 acres to be sold. Then A sells the 10 acres to B (in a deed that does not mention the easement). Is the easement valid?

Answer 46

No - With doctrine of merger, one cannot convey an easement to oneself; it can only be retained. B would still get an easement because their parcel is landlocked.

Question 47

On a walk, A crosses property owned by B but is unaware the property is private. A thought it was a public park. Is A potentially liable for trespass?

Answer 47

Yes, because they intentionally entered the land. Mistake is not a defense to trespass.

Question 48

The holding in State v. Shack is premised on what grounds?

Answer 48

The scope of the underlying property right – the farmer’s property rights did not extent to the right to exclude government employees from giving aid to workers.

Question 49

T/F - A fire crew knocks down a door of a burning house to rescue a baby inside. What defense applies to trespass in this situation?

Answer 49

Defense of Necessity.

Question 50

The doctrine of trespass enforces what property right?

Answer 50

The right to exclude

Question 51

Some courts are relying on which Constitutional provision to bar enforcement of trespass and loitering laws against the unsheltered?

Answer 51

The 8th Amendment prohibition against cruel and unusual punishment; also the defense of Necessity

Question 52

T/F - Slavery cases are still being prosecuted in the US

Answer 52

True

Question 53

What is the majority rule for imposing liability on a property owner for channeling diffused water onto a neighbor’s property?

Answer 53

Reasonable Use rule - land owner is entitled to dispose of surface water in a reasonable manner

Question 54

The civil law doctrine imposes what standard of liability for channeling diffused water onto a neighbor’s property?

Answer 54

Strict liability

Question 55

The definition of a private nuisance is:

Answer 55

Substantial unreasonable interference with the use and enjoyment of property

Question 56

What doctrine generally prevents an aggrieved property owner from suing for a nuisance prior to the harm occurring?

Answer 56

Anticipatory nuisance.

Question 57

A public nuisance is defined as an unreasonable interference with ________.

Answer 57

A right common to the general public

Question 58

What is the doctrine of displacement as it relates to nuisance law?

Answer 58

Federal statute displaces (preempts) common law

Question 59

Who can bring an action for public nuisance?

Answer 59

In SOME states, private persons can bring a public nuisance action IF they have a particularized harm different from that of the general public. Otherwise, the government must bring the action.

Question 60

Where a property owner builds a house next to a long-established pig farm, what principle might hinder the property owner’s ability to bring a nuisance action?

Answer 60

The principle of “Coming to the nuisance”

Question 61

What is the standard of liability for ultrahazardous activities?

Answer 61

Strict liability

Question 62

What is an example of an ultrahazardous activity? (give just one example)

Answer 62

Disposing of nuclear waste

Question 63

Is “coming to the nuisance” a determinative factor in the nuisance inquiry, or is it just one of many factors?

Answer 63

One of Many

Question 64

What is the major difference between the joint tenancy (JC) and tenancy in common (TIC)?

Answer 64

Joint tenancy has the Right of Survivorship

Question 65

A tenancy in entirety, largely abolished in most states, was for the particular situation of joint ownership for _______.

Answer 65

Legally married couples

Question 66

What are the four unities required to establish a Joint Tenancy (JT)?

Answer 66

Time
Title
Possession
Interest

Question 67

T/F - A JT and TIC can lease without the permission of other co-tenants

Answer 67

True

Question 68

There are three joint tenants, A, B, aned C. A sells to D. What is the relationship between B and C after the sale?

Answer 68

Joint Tenants. But D is a Tenant in Common with B and C.

Question 69

Does a sublease operate to transfer the covenant to pay rent to a subtenant?

Answer 69

No - the covenant does not transfer; it must be assigned.

Question 70

Can a landlord terminate a lease to get rid of a tenant who complains to the housing authority about poor conditions?

Answer 70

No – that would be a retaliatory eviction

Question 71

T/F - The warranty of habitability is designed to protect quiet enjoyment of a leased property

Answer 71

FALSE - it protects basic living conditions of health and public safety

Question 72

Can a tenant be responsible for damage beyond the security deposit?

Answer 72

Yes.

Question 73

If a tenant leaves before the end of the lease, and the landlord accepts surrender of the lease, the landlord is due what amount of money?

Answer 73

The landlord is always due the costs for finding a new tenant AND the difference between the rent and fair market value. If the fair market value goes DOWN, LL gets the difference. If it goes UP, LL gets nothing.

Question 74

Landlords may not be able to evict tenants in what circumstances?

Answer 74

Cannot evict tenants on retaliatory grounds but those grounds are limited to when a tenant asserts their rights to be complaining to a housing authority. LL also can’t evict tenants for discriminatory reasons. Other statutory protections, and rent control provisions may also apply.

Question 75

Traditionally, the defense of “Constructive Eviction for Failure to Pay Rent” required a showing of ________

Answer 75

Substantial interference with living conditions
In restatement second, position is more than insignificant interference with habitation

Question 76

The doctrine of partial constructive eviction allows what?

Answer 76

The T doesn’t have to move out – they just have to pay less rent

Question 77

Can a month-to-month tenancy that was never put in writing be valid under the statute of frauds if it exceeds a year in duration?

Answer 77

Yes, because each agreement is only one month at a time and not for a duration longer than a year.

Question 78

Tenants may not ________ withhold consent to a landlord’s request to enter to make repairs.

Answer 78

Unreasonably.

Question 79

T/F - Racially restrictive covenants were found to violate the constitution in Shelley v. Kraemer.

Answer 79

False - It wasn’t the covenants that violate the Constitution but the judicial enforcement of racially restrictive covenants.

Question 80

T/F - Restrictive covenants constitute state action that violates the constitution

Answer 80

False - only enforcement of them by the state violates the constitution

Question 81

The difference between covenants and equitable servitudes is that _______.

Answer 81

CCR = damages
Equitable servitude = Injunctive relief;
CCR requires Privity
Equitable Servitude does not require Privity

Question 82

What are some bases for invalidating a CCR?

Answer 82

Unreasonable
Public policy
Violates constitution
Unreasonable restraint of trade
Violates Fair Housing Act

Question 83

T/F - When evaluating whether a CCR is reasonable, a court looks to the particular effect on the burdened party challenging the CCR

Answer 83

False - they look at the entire community, not the particular party. If restriction is stated in the originating documents for the common interest community, then there is a presumption of validity. Test: Only invalid if found arbitrary, or if the burden imposed substantially outweighs the benefits gained. If restriction is enacted by HOA, then look to whether it was reasonable.

Question 84

T/F - Covenants are enforceable in damages

Answer 84

True

Question 85

What types of notice suffice in enforcing a covenant or servitude?

Answer 85

Actual
Inquiry
Constructive

Question 86

What is a necessary finding to impose an IRNE (Implied Reciprocal Negative Easement?

Answer 86

Common scheme of development, AND
Similarly Situated Lots

Question 87

A sells 20 acres to B. One day after the sale, A presents documents to B obligating them to maintain a fence between the properties. Is the privity element met?
A) If A had reserved an easement in original sale, it could meet requirements of mutual horizontal privity.
B) It meets requirement of horizontal privity because the fence obligation touches and concerns both parties.
C) It meets requirements of horizontal privity when either A or B sells to a successor and passes entire estate to that person.
D) It fails to meet instantaenous horizontal privity because they failed to include the easement in the sale.
E) A and D are correct.

Answer 87

Correct answer is E - A and D are both correct.
A - correct because the easement in the original sale is the prior relationship
D is correct if A did not reserve easement in original sale.
B is wrong because it fails to meet instantaneous horizontal privity - Instantaneous privity is where you convey a deed to someone and the covenant is in the deed, so the moment you convey it to somebody it is valid.

Question 88

What is a prior non-conforming use?

Answer 88

Use that is not conforming to CURRENT standards but conformed to PRIOR standards. It is a way to not obey a covenant.

Question 89

What characterizes Oregon’s land use law?

Answer 89

Urban growth boundaries - urban areas are restricted in geographic growth to preserve farmland and natural areas.

Question 90

What is the standard for allowing a prior non-conforming use to continue?

Answer 90

No substantial change in the use or intensity of the use

Question 91

What test do courts use in determining whether the grant of a variance is legal?

Answer 91

Undue hardship standard
In some states: as long as proposed use was reasonable, undue burden factor met.
In other states: Must show there is not reasonable use of the property without the variance.

Question 92

T/F - a conditional use (sometimes called special exemption or exception) requires a permit to begin operating

Answer 92

True

Question 93

Are state and local governments subject to constitutional takings restrictions, or do they apply only to the federal government?

Answer 93

Both

Question 94

Name the three instances in which government does not have to compensate for physical takings

Answer 94

Necessity
Public nuisance
Public servitude (2 types - PTD or tribes)

Question 95

T/F - When the government seeks to condemn an easement across private property, rather than condemn the full parcel, no compensation is required.

Answer 95

False

Question 96

In Kelo, what showing would Justice O’Connor have required to allow the taking?

Answer 96

A showing that the taking was to prevent a public harm - property can be taken from private owners for public use if it causes actual affirmative social harm or blight, and the harm has to be direct.

Question 97

T/F - Takings law has evolved so as to broadly interpret “public use” in the Fifth Amendment to mean “public purpose,” thereby eliminating the literal requirement of public use.

Answer 97

True.

Question 98

Name the 3 factors to consider in determining whether there has been a regulatory taking in the Penn Central framework

Answer 98

Economic Impact of Regulation
Extent of Interference with Reasonable market-backed Investment Expectations
Character of Government Action – conferring benefit or preventing harm

Question 99

T/F - Regulatory Takings has not always existed in the 5th Amendment Jurisprudence

Answer 99

True - it was introduced by Pennsylvania Coal Co. v. Mahon

Question 100

The Lucas case did what?

Answer 100

Created per se categorical taking when a regulation deprives land of all economically beneficial use - Carves out from Penn Central test, and requires compensation in that instance unless one of the background exceptions applies

Question 101

T/F - Where a property poses a nuisance to the public, action to regulate it amounts to a regulatory taking

Answer 101

False - there is no property right to create a nuisance, therefore ameliorating a nuisance is not a taking

Question 102

The Just court set forth what principle?

Answer 102

Natural use rule:
1. Use consistent with character of land
2. Use cannot harm others
3. No private property owners can make a non-natural and non-indigenous use of the land if it harms others
4. Not a taking, never had right to make non-natural non-indigenous use of the land to harm others. Has to meet both criteria.

Question 103

Where the Just “natural use” principle is followed, how does it fit into Lucas? How does it fit into Penn Central?

Answer 103

Lucas - the Lucas rule sets forth a categorical exception for denial of all economically viable use. That categorical per se takings is subject to exceptions where the regulation would have been in the background principles of property or nuisance law. There is no compensable taking. The Just natural use principle is an iteration of that public trust exception to Lucas. Consider it an interpretation of Public Trust Doctrine. Penn central: 3 factor test. A restriction that prohibits a non-natural use is preenting a harm to society. It also fits into another factor – reasonable investment backed expectations – a property owner doesn’t have any reasonable expectations to make use of property that is not natural.

Question 104

Can people who purchased property after a regulation was in place (post-enactment purchasers) pursue a takings claim even though they bought the property with the expectation that the regulation restricted development?

Answer 104

Yes - see Pazzolo case. But courts will take into account the fact that the restriction was already in place when applying the 2nd Penn Central factor.