Model Answer (Short Answer)
Dave owns the iPhone after Joe’s death. While alive, Joe made a valid causa mortis gift (a
conditional inter vivos gift made in contemplation of imminent death that is revoked if the donor
recovers). Joe’s statements demonstrate his intent to make a causa mortis gift of the phone, he
made a valid constructive delivery of the phone by instructing Dave where the phone was
(manual delivery may have been impossible in his condition), and Dave accepted the gift (by
retrieving the phone and saying “Thanks”).
Joe’s parents own the home. One can transfer land by sale or gift only by virtue of a written deed
that satisfies the statute of frauds. Even though Joe may have had the intent to transfer his home
as demonstrated by his dying statements, he did not execute and deliver a valid deed of the home,
no transfer occurred, and thus Joe’s parents inherited the home as Joe’s legal heirs.
Note: When I gave this question on a previous exam, I scored it on a 10 point scale (5 points
relating to the gift of the iPhone, 5 points related to the attempted gift of the home). The
average of the students who took the question on the actual test was 7.2.
Model Answer (Essay)
1.
Horace and Angela may argue that Erika cannot eject them because the deed granted them
a fee simple absolute, either because (a) the language “unless either Horace or Angela consumes
alcohol on the land” was not sufficient to create only a defeasible estate or (b) because the attempt
to limit them to a defeasible estate consistuted an unreasonable restraint on alienation was thus void
as contrary to public policy. This argument will likely fail. While it is true that courts generally
disfavor forfeitures, and will construe ambiguous language to avoid a defeasance, the granting
language manifests Erika’s intention that Horace and Angela are to have title “unless” either of them
consumes alcohol on the land, and courts have traditionally interpreted the term “unless” to reflect
either a durational limit on the grantee’s estate or a condition divesting the grantee’s estate. Further,
Erika’s motivation for the gift was beneficent (her desire to support Horace and Angela’s sobriety),
and the restriction does not unreasonably restrain alienation because it is time-limited (it is personal
to Horace and Angela and thus will apply only during their lives) and because a buyer of the land
from them could prevent the triggering condition (Horace or Angela drinking on the land) by
excluding Horace and Angela from the land.
2.
Horace and Angela may argue that Erika cannot eject them because she waited too long to
take action to recover possession.
If the deed created a fee simple determinable estate, that estate terminated immediately when Horace
first violated the condition. [The fact that Angela and Horace divided the estate is irrelevant; each
would have taken their individual portion subject to the defeasance restriction under the derivative
title principle.] By remaining in possession, Horace and Angela could argue that they had acquired
title by adverse possession. Their possession was actual (they occupied the land), open (it would
have been visible to Erika; her being in South America would not excuse her obligation to be
vigilant), continuous (no evidence of an interruption in their respective possessions) and exclusive
(they occupied the land as a typical homeowner and business owner would do). The question is
whether their possession satisfied the statutory period (unknown) and whether it was hostile.
Generally speaking, possession of another’s land is presumed hostile, and the burden is on the true
owner to demonstrate a grant of permission. Erika may argue that their possession was permissive,
as manifested by her statement that “I could kick you out of here right now … If I catch you drinking
again, you’re out.” However, this statement does not unequivocally demonstrate that Erika believed
that the estate was terminated and that she was granting express permission; in fact, her statement
to Angela that “your half is your half” suggests that Erika did not view their respective estates as
having terminated. Thus, a court would likely conclude that their possession was hostile. As a
result, if the statutory period was satisfied, Erika could not now recover possession.
The court might also conclude that the deed created a fee simple subject to condition subsequent,
based upon the ambiguity in the language of the deed (the term “unless” is indicative of a divesting
condition but is not the explicit “durational” language customarily associated with a determinable
estate) and the fact that courts tend to favor the “subject to condition subsequent” construction so
as to avoid an automatic forfeiture. If the court concludes that the deed created a fee simple subject
to condition subsequent, that estate would not have terminated when Horace violated the covenant
until Erika took action to eject Horace and Angela. Erika would have held a right of entry, but would
now be unable to exercise it for one of two reasons. First, courts have held that a right of entry must
be exercised within a reasonable time following breach, and more than 10 years have passed since
Horace’s breach. Because courts favor alienability and thus disfavor forfeitures, a court would likely
view this as an unreasonable delay. Second, because courts favor alienability and disfavor
forfeitures, if Angela tries to exercise her right of entry based upon Horace’s second “violation,” the
court may conclude that her failure to exercise the right of entry after the first violation constituted
a waiver of the right of entry.
3.
If the statutory period for adverse possession has not been satisfied (or a reasonable time has
not yet run for Erika to exercise a right of entry), then Horace and Angela may try to argue that Erika
should be equitably estopped from recovering possession. Estoppel in this situation would requires
Horace and Angela to demonstrate reasonable and detrimental reliance upon Erika’s conduct and
irreparable injury if Erika was allowed to recover possession. Angela’s estoppel argument will be
successful; Erika’s statement “your half is your half” would have reasonably induced Angela to
believe that Horace’s conduct would not affect her title, and she spent $400,000 in reliance upon this
statement. Therefore, Erika could not eject Angela, at least not without first compensating Angela
for her reliance by reimbursing Angela for (at a minimum) the money Angela invested in improving
the land.
By contrast, Horace’s estoppel argument would be unsuccessful; he knew or should have known
when he built his home that he had a defeasible estate, and had no reason to believe Erika would not
enforce the covenant if it were breached. Thus, he did not improve the land in reasonable reliance
upon the belief that his estate was indefeasible.
Note: When this question was given on the 2010 exam, the class mean raw score was 25.2 out
of 50 points. The standard deviation was 8.3. [Approximately 68% of the raw scores fell
between 17 and 33, with 95% of the scores between 9 and 41, and a high score of 42.]