Roger's Property Quiz 1. Explain the social utility theory of private property rights. 2. A subterranean cave lies directly below two separate farms. Dick owns one farm, and Jane owns the other. However, there is only one entrance and it is on Dick's farm. Dick has invested a great amount of effort in fixing up the cave into a tourist attraction. Jane, claiming that she owns the part of the cave beneath her property, seeks to exclude Dick from her portion of the cave. Should Jane be allowed to exclude Dick from the portion of the cave under her property? Why? What theories of property best describe your answer? 3. Why should the finder of a meteorite be allowed to take possession of it from the owner of the land in which it fell and was buried? 4. Explain the doctrine of accretion. What is the policy behind it? 5. (T/F) A valuable pool of oil lies partly under land owned by Dick, and mostly under land owned by Jane. Dick has the money to build an oil derrick, and drills straight down into the oil and begins pumping. As he pumps, the oil that was previously under Jane's land moves under Dick's land and gets pumped out. Dick has stolen Jane's oil. 6. While riding his motorcycle in the desert on the outskirts of Glamis National Park, Dick discovered a covered wagon partially sticking out of the side of a sand dune. Apparantly it had been buried by some hundred year old storm, and was only now being exposed due to constant wind erosion. In the back of the wagon was a locked chest which was so heavy, that Dick suspected it was full of gold. Unable to open the chest, Dick rode back to camp intending to come back with tools in the morning. Unfortunately, tools are hard to come by in the desert, and due to his work schedule, it was several weeks before he could return to get the chest. However, when he arrived at the wagon, Dick found Jane placing the chest in her dune buggy. Does Dick have title to the chest? Why or why not? 7. Why should the person who discovers lost, abandoned, or previously unowned property not obtain title to the property if he cannot reduce it to possession? 8. (T/F) Physical touching required to satisfy the requirement of actual taking when attempting to obtain title to newly discovered property. Roger W. Martin 1 Roger's Property Quiz Printed: February 17, 2016 9. Dick is an avid mountain biker. While riding through the Peñasquitos Canyon Preserve, Dick found what appeared to be a stolen VCR behind a bush. Thinking to himself, "finders keepers", Dick took out a classified ad in the newspaper offering it for sale. Jane replied to his ad, and came over to see it. While looking it over, Jane noticed that the serial numbers had been removed, and figured that it was stolen. Figuring that she had just as much right to the VCR as Dick, Jane refused to give the VCR back, and instead drove off with it. Which of the following is true: A. Jane was right in taking the VCR because the original owner was unknown, and so she had just as much right to it as Dick. B. Dick has exclusive rights to the VCR against the world because he found it in a public place. C. Dick has exclusive rights to the VCR against all but the original owner because he discovered it and reduced it to possession. D. Jane has exclusive rights to the VCR against all but the original owner because possession is 9/10ths of the law. 10. Why should a person who has "found" a ring be allowed to possess it against all but the rightful owner, even if it suspected stolen? 11. If the owner of the ring in Armory v. Delamirie shows up after the court has given judgement for the chimneysweep, does the owner have an action against anyone? Who? Why? 12. Dick frequently takes the bus between San Diego and Los Angeles. One day as he is getting up from his seat, he notices an expensive watch on the floor at his feet. He asks around the bus, but nobody knows who the real owner is. Satisfied that he has done all he should do to find the owner, Dick pockets the watch. However, the bus driver refuses to let Dick leave the bus without turning over the watch to him, and says, "I'm the guy in charge of this bus. Whatever is found in it belongs to me." Who should retain possession of the watch? Why? 13. Why is it better to give possession of lost articles which have been found in private areas to the landlord of the premises as opposed to the finder? Roger W. Martin 2 Roger's Property Quiz Printed: February 17, 2016 14. Dick sells antique furniture at the swap meet. One day, a customer, Jane finds a Mickey Mantle rookie baseball card in mint condition which appeared to have fallen into a slot in between the drawers of a child's dresser. Jane, realizing the value of the card, attempts to slide it quietly into her purse, but Dick notices and demands the card back. The police come and take custody of the card pending a court determination of possessory rights between Dick and Jane. How should the court rule? Why? 15. Dick is 10 yrs old. While walking through an alley on his way home from school, Dick notices a plain envelope on the ground. He picks it up and opens it, and finds several one hundred dollar bills inside. Because he is afraid that he will get in trouble, he hides it in a trash can and then runs back to school to ask his teacher what he should do. The teacher asks to see the money, and Dick leads him to it. The teacher helps Dick to bring the money into the police station according to the local estray statute. If the money goes unclaimed, who should get the money? 16. How does mislaid property differ from lost property, and what policy implications does the difference have on the possessory rights of the finder? 17. Match the following bailments with their respective duties of care: A. Gratuitous bailment B. Bailment for benefit of bailee C. Bailment for mutual benefit 1. Diligent care 2. Reasonable care 3. Slight care 18. Dick and Jane are shopping at Nordstrom during their Christmas break. While shopping, Jane inadvertently leaves her purse near the piano player. When the piano player goes on break, he notices the purse and takes it to the lost and found where it is put in a cubby hole behind the counter to await claiming. Near the end of the day, Jane comes to the lost and found and sees her purse. At first she is relieved that it has not been carried off by strangers, but soon she is horrified because the gold nuggets that she had found in the desert (back in question 6) were missing. Should Jane be able to recover against Nordstrom for the missing gold? Why or why not? 19. (T/F) Dick and Jane go to the beach. Dick gives Jane a ring to hold while he goes surfing. Jane, however, is unaware that the stone is a valuable opal, and so lays it on Dick's beach towel while she goes for a walk. When Jane returns, she notices the ring is gone just as Dick comes in from the surf. However, Jane has nothing to fear; she is not liable for the loss because she did not know the ring was valuable. Roger W. Martin 3 Roger's Property Quiz Printed: February 17, 2016 20. Dick is too shy to propose to his girlfriend Jane in person, so he hands the diamond engagement ring to his friend Bob to deliver to Jane on his behalf. Bob has never seen Jane before, but Dick says, "There are two blond girls named Jane at the ∆∆∆ house. She's the prettier one." Bob apparently has a different idea about beauty than Dick because he gives the ring and the proposal message to the wrong Jane, who promptly accepts. Dick sues Bob for conversion. Should Bob be liable even though he was innocent in his intentions? 21. (T/F) An involuntary bailee is not liable for intentional damage to the bailed property. 22. Which of the following is NOT a characteristic of a bona-fide purchaser? A. The purchase must be in the ordinary course of business from a person who deals in the sale of that commodity. B. The purchaser must have no knowledge that the property has voidable title. C. The purchaser must take reasonable steps, based on the surrounding circumstances, to verify the title before buying. D. None of the above. 23. Dick grew tired of the watch that his father gave him 20 years ago, and wished to buy a new one. Dick went to Jane's Watch Shop to purchase a new watch. He was so excited about the new watch that he bought, that he forgot to take his old watch with him when he left the shop. Jane discovered the watch on the counter, and immediately realized that it was a valuable antique. She placed it in the sale display case, and it was bought by Bob, a customer, the next week. Later on that month, Dick's new watch broke, and it was then that he realized that "the good old watch that Dad gave him" was missing. When he returned to the shop, Jane offered him the money she made from the sale, but Dick demanded the watch. Can Dick recover the actual watch from Bob? Why or why not? 24. Jane owns a baseball card shop. Dick enters the shop as a customer and charges $500 to a MasterCard to buy back the Mickey Mantle rookie card of question 14. The following day, Jane finds out that the credit card had expired, and feels foolish for not validating Dick's credit at the time he "bought" the card. She goes to the swap meet and finds Dick, who says that he already sold the card to the car audio guy who sets up next to him. Can Jane recover the card from the car audio guy? Why or why not? Roger W. Martin 4 Roger's Property Quiz Printed: February 17, 2016 25. How do recording statutes affect rights between original owners who were defrauded and subsequent purchasers? 26. Jane inherits an antique chair from her grandmother. Assuming it to be valuable, she takes it to Dick's Antique Furniture Store to have it appraised. Dick says he's busy, but that she should leave it out on the floor where he can take a look at it later. Jane does so, and leaves to get her hair done. Bob, one of Dick's salesmen, sees the chair and assumes that it is part of the delivery that came in this morning, and happily sells it to a customer. When Jane returns, she sees the customer walking out of the store with "her" chair. Can Jane recover the chair from the customer? 27. (T/F) A person who has lost the ability to recover property due to adverse possession still has the right of "self-help" to retake by peaceable means if he can. 28. Name the requirements of adverse possession. 29. Why should an adverse possessor be given good title to a property? 30. Every morning for the past 20 years, Dick has driven his beat up old VW-bus onto Jane's beachfront property in San Clemente. He eats breakfast, changes clothes, and goes for a 2 hour surf session. When he returns, he eats lunch, brushes his teeth, and goes to law school. One day, Jane becomes tired of waking up every morning to the sound of his car, and decides to block his access across her land to the beach. Dick brings her to court claiming that he has good title to the access way by adverse possession. Assume the statute of limitations in California is 15 years. Should Dick win? Why or why not? 31. Dick is a reclusive hermit. He would rather spend time alone than suffer the inconveniences of society. He hatches a slick plan to build himself a cabin in the middle of a forest owned by Jane. According to his calculations, if he can come and go under the cover of darkness for the next 20 years, although it may be inconvenient, he can obtain title to the land in and around the cabin by adverse possession. Is Dick correct? Roger W. Martin 5 Roger's Property Quiz Printed: February 17, 2016 32. Old Mac Riley owns an avocado grove in Fallbrook. For as many years as he can remember, groups of migrant workers have camped in the southwest corner of his grove year-around while they work the avocado harvest in the general area. Being a compassionate man, Riley never took any action to remove them, and even brought them extra clothing every year during the winter. One day, Riley got an offer to sell his land for a large profit, and so he did. The new owners were not as tolerant, and ordered the sheriff to have the workers removed. Assuming the statute of limitations has run, can the workers avoid ejectment by claiming adverse possesion? 33. About 20 years ago, Riley owned a pair of garden gnomes that he set out in his garden, near the edge of his property. He always liked those cute little gnomes, and was disappointed the day he discovered that they were missing. He reported them stolen to the police, but that was the end of his search. One day last week, while walking through the neighborhood, he noticed out of the corner of his eye that Amber, whose house was across the street from his, had his gnomes set up in her garden. He brought suit to recover the gnomes. Amber claimed that although she could not remember where the gnomes came from, she should have title by adverse possession because she had displayed them in her garden for the last 20 years. Assuming the statute of limitations is 6 years, should Riley be able to recover the gnomes? 34. What is the difference between ejectment and quiet title? 35. Explain the concept of "tacking". 37. Which of the following is NOT a transaction between parties that would qualify as "privity": A. Sale or transfer of property by legal document. B. Inheritance. C. Devise. D. Abandonment. 38. Why should tacking be allowed in cases where parties are in privity with eachother, and not allowed when they are not in privity with eachother? 39. Dick is a struggling artist. Although he is confident that he can make money from his art, he is too poor to buy the materials that he needs. Jane owns a small art supplies Roger W. Martin 6 Roger's Property Quiz Printed: February 17, 2016 store which has also struggled in the last few years. Out of desperation, Dick smuggles a canvas, paint and brushes out of Jane's store by hiding them in his long overcoat. Using the stolen goods, Dick proceeds to paint a brilliant piece of work, which is sure to make him a few hundred dollars. On her way home, Jane's sees the painting. Recognizing her price tag stuck to the back of the canvas, Jane demands the painting claiming that the materials are hers. Although Dick admits that he took the materials wrongly, he insists that he should retain ownership of the painting because he has transformed her raw art supplies into a valuable work of art. Who should have title to the painting? Why? 40. What is the policy behind accession? 41. Dick is a house painter. He has subcontracted a job to paint a house located at 1123 Camino Del Mar. However, Dick is in a hurry and reads the address as 1132 Camino Del Mar. Dick proceeds to paint the entire house, and does a very professional job. When Jane, the owner of the house, returns from work that day, she is surprised to see a new coat of paint on her house, but she thinks it looks very nice. Dick asks for payment, but Jane refuses, claiming that since she never ordered the paint, she owes him nothing. Should Jane have to pay? Why or why not? 42. Jane owns the painting that Dick created in question 39. One day while she is walking to her store, she passes Dick laying in the gutter, and feels a twinge of compassion. She decides to give Dick the painting, but it is still back at her house. So she writes a note claiming to "transfer said painting to Dick, out of the goodness of my heart, to own forever." She hands the note to Dick, who is hardly sober enough to understand what it says. As Jane walks home to get the painting, she is tragically struck and killed by a car. Jane left a will that left all of her personal property to her mother. Who has better title to the painting, Dick or mother? Why? 43. (T/F) A person can make a valid inter-vivos gift of a future interest in such intangibles as stocks and bonds, even though he cannot physically deliver the stock certificates at the present time because he is still using them as leverage in a stock buyout of his business. 44. Riley wished to give his son Bob a graduation present, so he wrote a letter stating, "Bob, I am so proud of you that I am giving you my prized garden gnomes. However, since I went through so much to regain them, I wish to keep possession of them in my garden until my death." However, several years later when Riley became deathly ill, Roger W. Martin 7 Roger's Property Quiz Printed: February 17, 2016 Bob could not get away from his law firm to come visit his father. Resenting Bob's lack of loyalty, Riley took out a pen and wrote the following will. "I hereby revoke my gift of the garden gnomes to my son Bob, and bequeath them to my neighbor Amber who was the only person besides myself who really appreciated them." The will was witnessed, and Riley died a short time later. Who gets the garden gnomes? Why? 45. Would there be any difference in outcome in question 44 if the will came before the gift? 46. A gift causa-mortis is based on a condition ___________. (precedent or subsequent). 1. Elvis wills his Graceland estate to Michael and Lisa. Michael and Lisa are married at the time the will is written, and at the time of Elvis' death. Michael and Lisa get into an argument over how best to use Graceland, and out of spite, Michael decides he wants to sell it and take his share. Can Michael can compel a partition sale without Lisa's permission if the language of the grant reads: A. "To Michael and Lisa and their heirs" B. "To Michael and Lisa as joint tenants, and not as tenants in common, with rights of survivorship." C. "To Michael and Lisa as tenants by the entireties, with rights of survivorship." 2. Describe the four "unities" of a joint tenancy. 3. How does a joint tenancy differ from a life estate with a contingent remainder to the survivor? 4. Noah willed a 1/3 undivided interest in Israel Farm to each of Abraham, Isaac and Jacob as tenants in common. The farm has lost money lately, so the tenants have decided not to pay the mortgage. The bank forecloses on the farm and holds an auction to sell it. During the course of the auction, Abraham becomes aware of non-public information concerning a developer's desire to construct a golf course on part of Israel Farm, and realizes that the land is suddenly valuable. Abraham successfully bids on the property, and is given sole title. Two months later, after the Abraham has struck a deal with the developer and construction of the golf course has begun, Isaac and Jacob both become aware of the value of the land. Isaac and Jacob offer contribution to Abraham to Roger W. Martin 8 Roger's Property Quiz Printed: February 17, 2016 reclaim their 1/3 interest, but he refuses. Do Isaac and Jacob have a valid claim to Israel Farm? 5. Chip and Dale were law students who each own a 1/2 undivided interest in a La Jolla condominium as tenants in common. For the last several years, they have each been paying one half of the $800/mo. mortgage. Last summer, Chip graduated from USD and became a successful lawyer, so he moved out to a nicer house, and eventually stopped paying his portion of the mortgage so that he could concentrate on paying off his student loans. Starved for cash, Dale was forced to move out to a cheaper apartment and rent the condo. He managed to rent the condo for $900/mo., and used the extra $100/mo. toward his new apartment's rent. A year later, Chip has paid off his student loans, and comes back to check on the condo. Can Chip bring an action against Dale to recover his share of the condo's rent for the last year, even though Dale was forced to rent out the condo because Chip was not paying his share of the mortgage? 6. Beavis and Butthead each own a 1/2 undivided interest in an abandoned warehouse in Burbank. Every few weeks, they go to the empty warehouse (which has great acoustics) and play air guitar, pretending to be rock stars. Unbeknownst to Beavis, Butthead signs a multi-million dollar contract with MTV to lease the warehouse and transform it into a west coast MTV studio. When the remodeling is about 3/4 of the way finished, Beavis finds out about the deal and is totally against it because it ruined the best air guitar studio he ever had. What remedies might be available to Beavis? What are the policy reasons behind them? 7. Homer wills Springfield Acre "to Bart and Lisa, and to the survivor of them." Sometime after Homer's death, Bart executes a document that purports to sell "all of my interest in Springfield Acre to Krusty the Clown" and then promptly dies. What is the resulting state of the title in Springfield Acre? 8. Sylvester, Tweety and Bob each own a 1/3 undivided interest in Warner Brothers Studios as joint tenants, not as tenants in common. Bob sells his entire interest in Warner Bros. to Fred, who in turn sells it back to Tweety. What is the resulting state of the title in Warner Brothers Studios? 9. What is the difference between severance and partition? Roger W. Martin 9 Roger's Property Quiz Printed: February 17, 2016 10. In which of the following concurrent ownerships does a mortgage taken out by one tenant become collectable against the estate upon the death of the mortgagee: A. Tenancy in common; B. Joint Tenancy; C. Tenancy by the entireties; D. All of the above; E. None of the above. 11. Abagail is a resident in Shady Acres convalescent hospital. When she became a resident, she signed a document prepared by the management which "entitled [her] to occupy room #515 (subject to relocation to another room at the discretion of the management), food service, laundry services, and use of the recreational facilities for a period of 1 year with installment payments to be made monthly." After 3 months, the management decides to kick her out because she is a trouble maker. While she is out for a walk, they pack up her clothes and call her kids to come pick her up. Does Shady Acres have a right to this self-help, or must they go through the existing statutory summary eviction procedure? 12. Bob agrees orally to rent a house for a period of 2 years to Emily. They do not write the lease down. Emily moves in and begins to pay rent. Two months later, Bob gets a better offer from another potential tenant. In trying to find a way out of the existing lease with Emily, Bob realizes that the statute of frauds requires a lease for greater than 1 year to be in writing. Apparently Emily's 2 year lease is void. Bob changes the locks and moves her furniture out in the yard while Emily is away on vacation. Does Bob have the right to this self-help? Why or why not? 13. Stewart rents a house on a year-to-year periodic tenancy. His lease term expires every September 1st. On October 1st, 1995, Stewart decides he wants out of his lease, and so he gives his six month statutory notice of termination. On what day would the lease expire? 14. Make a policy argument that a commercial tenant should be required to bring action to evict a holdover tenant, while a residential tenant's landlord should bring the action to evict a holdover tenant. 15. Tom and Jerry enter into a lease whereby Tom agrees to lease Cheeseville Estates to Jerry, on a year-to-year basis, with Jerry having the option to renew the lease at the end Roger W. Martin 10 Roger's Property Quiz Printed: February 17, 2016 of each yearly term "for as long as Jerry might desire to remain in Cheeseville." After several years of peaceful cohabitation, Tom realizes that he is a cat and should be terrorizing Jerry the mouse. To this end, Tom decides to evict Jerry. Jerry claims that he can not be evicted because his lease gives him the right to stay as long as he desires. How might a court rule on the validity of this lease. 16. Fred owns a commercial property that he rents to Ethel to run a shoe store. 1st National Bank has a mortgage lien on the property and Fred defaults. 1st National forecloses and sells the property to Lucy. What are the rights and liabilities of each party? 17. The State of California decides that Berretta's house is built on top of a wetland area that should be protected as a state park. The State proceeds with an action of imminent domain to condemn a portion of the property. However, to complicate matters, Berretta has leased the house to Colombo, who is in present possession. How much should the State pay to Berretta and Colombo, respectively, to satisfy their requirement for "just compensation"? What additional risks would this put on Berretta as the landlord? 18. Tommy owns a commercial property that he leases to Angelica for a period of five years for $10,000/yr. After 2 years, Angelica goes out of business and defaults on her rent. Tommy then evicts Angelica and re-lets the property to Chuckie for the remaining 3 years at $9,000/yr. At the end of Chuckie's lease, Tommy brings an action against Angelica to recover the $3,000 difference between the rent he would have got from Angelica, and the rent he actually got from Chuckie, together with incidental damages from the cost of finding another tenant. Angelica claims that she is not liable because her leasehold estate, and therefore her obligation to pay rent, ended when Tommy evicted her. Who is right? 19. Greg rents a condo to Marsha on a month to month basis. The condo owner's association, of which Greg is one of 100 members, votes to perform some major landscaping work on the common areas. This work entails significant grading and heavy machinery work which is very loud. The landscaping noise persists over the whole summer, and at the end of the summer, Marsha refuses to pay the next month's rent claiming that she was "constructively evicted" from the condo during the summer months due to the noise. Should Greg be able to maintain an action for non-payment of rent? Why or why not? Roger W. Martin 11 Roger's Property Quiz Printed: February 17, 2016 20. Charlie is an apartment complex owner in Bakersfield, CA. He rents mostly to migrant families who follow local crop harvests. In order to keep his rents low, each one of his apartment leases contains an express clause that states that the tenant's covenant to pay rent is independent from the landlord's covenant to make repairs. So although the tenants may have to put up with a certain amount of squalor, Charlie argues that their inconvenience is reflected in the low rent. Linus is one of Charlie's tenants. Linus' toilet has been plugged for months, and he has been using the restroom at the corner gas station. Linus has notified Charlie several times of the problem, but Charlie claims that he doesn't have enough money to fix it right now. Linus is afraid of losing his apartment if he causes any legal trouble for Charlie. What issues must you address as Linus' pro-bono legal counsel if you wish to help him keep his apartment, but get his toilet fixed. 21. Assume the same facts as in question #20. If Charlie can show that making the required repairs to come up to code would be economically unfeasible, meaning that he would be required to invest substantially more money in the building to fix it than it was worth, what happens to Linus' retaliation defense? 22. What is the standard for determining whether a rent control statute is unconstitutional? 23. How much return is a landlord of a rent controlled apartment complex allowed to make on his building? 24. Why might a landlord not be able to exclude families with children from renting in his apartment complex? 25. What is the difference between privity of estate and privity of contract when dealing with the transferability of leasehold estates? What effect does this distinction have on the ability of a landlord to collect rent from subsequent possessors of the leasehold after assignment or sublease? 26. Describe the difference between an easement, a license, and a covenant. 27. What is the difference between an easement in gross and an appurtenant easement? Give a brief example of each. Roger W. Martin 12 Roger's Property Quiz Printed: February 17, 2016 28. Cain tells his neighbor Able that he can use an old paved road over Cain's land as a shortcut to get to his own house (there is another main route available but it takes longer). After months of use, the road becomes rutted and in need of repair. Since Cain does not use the road, he tells Able that if he wants it fixed, he will have to fix it himself. Able spends $1,000 in labor and materials to fix the road and continues to use it. A few months later, Cain and Able get in a fight and Cain tells Able that he can no longer use the road. Able sues Cain claiming that he has an easement over the road that can not be revoked by Cain because of the repairs Able made in reliance on the continued use. How should the court decide? 29. Fred owned a farm which was bounded on the east and west by rivers, and on the south by a neighboring farm owned by Kazoo. The only road adjoining his property ran along the north boundary. Fred split the farm in half, and sold the southern half to Barney. The grant to Barney did not contain an easement across Fred's land to the north road. However, since Barney and Kazoo were such good friends, Kazoo allowed Barney to use a road across Kazoo's land to get to and from the south road. After five years, Fred sold his farm to Wilma who noticed that Barney was using the road across Kazoo's land. Wilma did a title search of Fred's land before buying and (of course) found no indication of any easement to Barney. Shortly thereafter, Kazoo and Barney get into a fight, and Kazoo tells Barney he can no longer use Kazoo's road to go cross his land to get to the south road. Does Barney have any action against Kazoo to continue to use Kazoo's road? Does Barney have any action against Wilma to establish a right of way over her land to get to the north road? Why or why not? There is no mention in the facts that Kazoo granted Barney an easement. It was probably a license. Thus, Barney would not have an action against Kazoo for revocation of the license unless Barney had expended significant resources in reliance on the license's continuation. As for Barney's action against Wilma, according to Finn v. Williams, where an owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a way by necessity exists over the remaining lands of the grantor. The policy is to infer from the circumstances that the grantor had the intent to create an appurtenant easement, even though it somehow was omitted from the deed. Thus, Barney seems to have an implied easement by necessity over Fred's land, regardless of any other license. Because the easement by necessity is appurtenant to Barney's land, it can lay dormant and then spring up against a subsequent bona fide purchaser, even though it was never recorded. If Wilma can show that it was not Fred's intention to grant an easement, then she can avoid the burden on her land. Otherwise, Barney can begin to use the previously dormant implied easement by necessity over Wilma's land to the north road. However, even if both parties could successfully defend against Barney's respective Roger W. Martin 13 Roger's Property Quiz Printed: February 17, 2016 actions, there is probably a local statute that would give Barney the delegated right to condemn an easement across either (but only one) property as long as he paid just compensation for the use. 30. Assume that Barney won his suit against Wilma in question 29. What would be the size and duration of the easement by necessity across Wilma's land? 31. What are the requirements for the creation of an implied easement by pre-existing use? What is the duration of such an easement? 32. Every morning for the past 20 years, Dick has driven his beat up old VW-bus onto Jane's beach front property in San Clemente. He eats breakfast, changes clothes, and goes for a 2 hour surf session. When he returns, he eats lunch, brushes his teeth, and goes to law school. One day, Jane becomes tired of waking up every morning to the sound of his car, and decides to block his access across her land to the beach. Dick brings her to court claiming that he has established an easement by prescription to the access way. Should Dick win? Why or why not? 33. Clark owns a house that is one street back from the beach. He has a neighbor, Lois, who owns the property directly between Clark's lot and the beach. For 20 years, Lois' lot has been vacant. There have been no buildings on it, and Clark has enjoyed the view and the sea breezes. Lois decides to build her retirement house on the vacant lot, and begins construction. Realizing that this will block his view and sea breezes, Clark immediately brings an action to enjoin her from the construction based on the theory of an easement by prescription to the air and light passing over Lois' land. Should he be successful? Why or why not? 34. Many years ago, Bonnie established an easement by prescription for the use of a driveway that extends 12 inches across the common property line into her neighbor Clyde's land. The easement was granted because Bonnie had used the driveway for 20 years to get to and from her guest house in the rear. A few weeks ago, Bonnie decided to turn the guest house into an antique parlor, and business has been good. In fact, business has been so good that Clyde has counted 30 to 40 vehicles using the driveway on a daily basis. Annoyed by Bonnie's success, he brings an action to enjoin her from using the easement for business access, and limit it to personal use. How should the court decide? Roger W. Martin 14 Roger's Property Quiz Printed: February 17, 2016 35. Ronald and George own adjoining farms. In order to allow them greater access to and from remote areas of their land, they decide to build a road across both lands, and grant each other reciprocal easements on their half of the road. In the same document that created the easements, there is a clause that states "both Ronald and George covenant on behalf of themselves, their heirs and assigns to share the costs of reasonable maintenance of the road." Some years later, George sells his farm to Bill, who promptly refuses to pay for road maintenance, claiming that he has no contractual privity with Ronald. Ronald brings an action to recover Bill's share of the maintenance costs. How should the court decide? Why? 36. What are the policy arguments for and against requiring horizontal or mutual privity before the burden of a covenant can run with the land at law? 37. Marnie is an old woman who spent a large portion of her waking hours tending an ornamental garden in her back yard. As she got older, her health started to dwindle, and she was forced to sell her home to get money to live the rest of her years in a nursing home. However, before she sold the house, she insisted that the deed included a covenant by the purchaser, on behalf of himself, his heirs and assigns, to maintain the garden in a proper condition. The original purchaser, Mike, fulfilled the covenant while he owned the house. However, Mike sold the house to Steve who no longer wishes to keep up the garden, but instead wants to put in a pool. When Marnie's children find out about Steve's plans, they bring an action to enjoin him from destroying the garden. What are their chances of success? 38. In a residential subdivision, name two separate ways to create a covenant to use a lot for residential purposes can be enforced against subsequent purchasers. Roger W. Martin 15