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.
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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?
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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.
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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?
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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?
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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
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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,
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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
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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?
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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
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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?
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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.
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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
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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