PROPERTY EXAM REVIEW

I have some suggestions set forth below that will allow you to review the exam on
your own. After you have reviewed the answers, you are welcome to come to see me. If
you do, I expect to you to come prepared to discuss the issues set forth below.
Law school exams measure two factors: how many issues do you spot and how
well do you develop them. The adverse possession question is the easier of the essays to
use for self-diagnosis. Everyone in the class understood that the central issue was
adverse possession, and everyone at least mentioned the elements of adverse possession.
So the things to look for go beyond that. To review:
1. Reread the question and my answer.
2. Use my answer to identify the issues in the question.
3. Review your answer, and see if you discuss the issues in the outline. In
particular, look for:
a. Did you discuss the characterization of the deed? It might be a fee
simple determinable, a fee simply subject to a condition subsequent or
both. I thought it was both, and that would then set up discussion of
whether or not there was a violation.
b. Did you discuss whether the lot was one lot or two? Since there was
no issue of color of title, possession of the lot as a whole if there was
only one lot is pretty straightforward. If there were two lots, however,
whether there was sufficient possession of the second lot to establish
possession of the whole was a significant issue.
c. Did you consider each element for the two lots separately? Whether
possession of the second lot was open and notorious, for example,
required discussion.
d. Did you discuss estoppel and balance of the hardships? And did you
discuss them separately for the two possible lots?
Overall, with respect to issue spotting, the big differences in the class were
between those who recognized that the characterization of the deed, the
existence of one or two lots, and estoppel and balance of the hardships
were worth discussing and those who did not.
4. After you have identified the issues you missed, think about why you missed
them. The estoppel and balance of the hardships issues are largely the product of
having a good outline. They are part of the outline I presented in class, and they
come up frequently on my exams. The issues are relatively weak in this question,
but worth raising in the alternative. If you missed them, try to remember whether
you had them in your outline, and whether you thought about discussing them
during the exam. An important part of law school exams involves looking for
alternative causes of action, and comparing them.
The characterization of the deed is a different kind of issue. Your adverse
possession outline would not include this issue. Instead, it should come from
training yourself to think like a property lawyer. You can see from the way the
question is worded that the condition is likely to be an issue. Without ever having
studied Property, a good lawyer would know that the condition is going to be an

issue. You should then think about alternative constructions of the language, and
arguments on both sides with respect to whether it has been violated. In the
process, you should recognize that the conditions take the form of interests you
have studied (and which have been combined with adverse possession issues on
past exams). On this exam, the formal parts of estates (the rule against
perpetuities, etc.) are not at issue, but the form of the interests may affect their
construction (e.g., is the requirement of maintenance separate from the
requirement of residence?).
5. After you have reviewed the issues identified, consider whether you are
getting maximum credit for each. I recommend circling the one sentence for each
issue that you believe is most critical to your answer. Many students spend a long
time describing the law, or the facts without getting around to the analysis that
gets the most credit. The best students go immediately to the heart of the issues.
E.g., many students noted that the statutes apply claim of title to a single lot. The
best students then argued that the lot might be characterized as either a single lot
or two separate lots. On what basis? The analysis that set up an answer to this
question was worth a fair amount of credit. See if you can figure out what part of
your answer to each issue was worth the most points.
6. My comments: I wrote on the exams if I thought your answer was
characterized by a consistent pattern. If I mentioned a systematic presentation of
the issues, you are probably doing a good job at issue spotting. If I mentioned
development, then you might need more analysis of the issues you spot. Issue
spotting and development are related, however. You are unlikely to develop the
distinction between one lot or two unless you see that it is important to the
answer.
7. Appointments: if you want to discuss the exam with me, I expect you to come
prepared to identify what adverse possession issues you missed, which sentences
of each issue you believe got the most credit, what part of the exam you believe
was the strongest part for you, and why you were more successful on that part of
the exam. (Dont just tell me that you got a higher grade on that part of the exam;
identify the part of your approach that was the most successful.)
QUESTION II. A
I.

Nature of the deed

The deed is ambiguous, and there are three possible interpretations:
A.
Fee simple determinable (the deed clearly uses the language so
long as) and the Marenholz case treated similar language as a fsd
B.
Fee simple subject to condition subsequent, which is preferred in
some jurisdictions
C.
Both. There could be a fee simple determinable, conditioned on
a residence on the property, and a fee simple subject to a condition subsequent,
conditioned on maintenance of the property, whether or not there is a residence.
D.
Has the deed condition been violated? This one was open to
argument and it was important to develop the answer.

II. Adverse Possession

Adverse possession arises only if the deed is invalid. It could be invalid either
with respect to CDGH only, or entirely invalid. If the deed is valid, no adverse
possession issue arises; A and P are the owners. If the deed is invalid, the
Association would still be said to have conveyed any interest they possess via the
deed. So the adverse possession claim is necessary to assert a claim against the
true owners, not the Association.
A. One lot or two? A and P clearly have color of title. The statute limits the
constructive possession to a single lot. The deed describes a single lot (ABGH),
but the original neighborhood plat, which should be a matter of record, describes
two separate lots. The key issue here, aside from the question of statutory
construction, is notice to the true owners. If there were originally two lots, and
the true owner owns only CDGH, possession of ABCD would not necessarily put
the true owner on notice of a claim against CDGH. [The facts say two lots, and
suggested that CD, the site of the old fence, was the most likely dividing line.
Actual use then distinguishes between CDEF and EFGH, but does not suggest
that there were treated as separate lots.]
B. Actual or Constructive: Since entry is under color of title, A and P have
constructive possession of the relevant lot in its entirety. [Note again:
constructive possession is important only if the deed is invalid. If the deed is
valid, they own the property and dont need possession. If they lack title, then the
fact that they entered into possession in accordance with a defective deed
indicates an intent to possess (and constructive possession of) the entire area
described in their deed.] They clearly possess all of ABCD anyway; the issue is if
there are two lots, do they have possession of any of CDGH? They clear away the
remains of the fence and the old boundary line, and the facts suggest murkily that
they may have cleared some of the area that extends over the CD border. Is this
enough for constructive possession of all of CDGH? Quite possibly not if it must
be cultivation or improvement; merely clearing a small area is unlikely to be
enough. The construction of the garage is substantially more of an improvement,
but the garage construction doesnt begin until much later and cant meet the five
years test. So its not clear that they have enough possession of any portion of
CDGH to give them constructive possession of the whole for five years.
C. Open and Notorious: This builds on B. Possession of ABCD is clearly open and
notorious; clearing the area around the CD border probably isnt open and
notorious possession of CDGH.
D. Exclusive/Continuous: many students correctly noted that the trespasser does not
have title or a claim to title through adverse possession. He does, however,
interfere with a claim of exclusivity or continuity. The two are not the same. If a
trespasser with no right to be there has possession of the property, then the
adverse possessor cannot be said to be in possession of the same part of the
property, breaking the run of exclusive possession. So the issues are:
i. Does his possession affect just EFGH or all of CDGH? Arguably, the lack of
exclusivity is only re: that portion of the land actually used by the trespasser
since he doesnt have color of title.

ii. Can A and Ps action in having him arrested be considered the actions of true
owners asserting title? Yes, but this still raises the issue of the split in the
authorities about whether it still constitutes a break in possession.
iii. Is he actually in possession or he is littering? He doesnt have to live on the
premises to possess them in a way that interferes with exclusivity. But putting
debris on an empty lot is not enough to interrupt A and Ps possession. The
characterization of his actions as trespass is probably sufficient, however, to
establish them as possession and not merely littering. [The criminal action is
not, however, res judicata since the true owner was presumably not a party,
and did not have an opportunity to contest the characterization of the actions.]
E. Hostile and Adverse: Not an issue because under color of title.
III.
Estoppel
Note: the issue is estoppel against the true owner, not the Association. The
Association is clearly estopped by issuance of the deed. If the deed turns out to be
invalid, then it must be because someone other than the association had title. Two
issues for estoppel:
A. Reliance: Can A and P reasonably rely on the true owners inaction? Possibly.
They have a strong claim that with respect to ABCD; they have built a house.
Surely, the true owner should have said something. With respect to CDGH,
they have begun construction of a garage. That may have been enough to
compel a response, but it raises the issue of whether there is still time to stop
construction without too much of a loss.
B. Detriment: Again, strong argument with respect to the house and ABCD; less
so re: the garage and CDGH.
C. Remedy: the true owner would be estopped from claiming the property while
the house lasts, but its not clear the garage can be completed, which would
make the estoppel action pointless.
IV. Balance of the Hardships
A. Reliance not needed here. Instead, assuming an injunction requiring removal
of the house, there could be a balance of the hardships defense. House stays;
A and P damages equal to the value of ABCD. They have a claim for unjust
enrichment against the Association, but they do have to pay damages to the
true owners.
B. The argument for the garage is a little stronger here than the estoppel issue. If
the true owners isnt using the land, and the garage encroachment does not
substantially affect the value of the remaining portion of the lot, then a court
may limit the remedy to damages even if the garage is not completed or even
substantially under way. The emphasis here is on the balance between A and
P, not the extent of the reliance on the true owners actions.
Comment: The secret to this question as with prior AP questions was to divide the lot
into pieces, ABCD, CDEF, EFGH, and consider whether the elements were met for each
section separately as well as as part of a single lot.
QUESTION B
I. Lease

A. Offer to enter into new lease

Accepted?
B. Holdover: new year term or month-to-month?
There are really two issues here. First is a contract question. A offers to enter into
a new one year lease. LL says if you dont hear from me in a couple of weeks assume its
okay. Does this become an acceptance creating a new one year contract when the time
passes and nothing happens or do the parties anticipate that no deal will be final until they
sign a new written agreement?
It may not matter because even if they entered into a new agreement, that
agreement too has expired. So A clearly became a holdover and the LL clearly accepted
rent from here. The only question then becomes whether the default term is a new lease
on the same terms as the last lease (i.e., one year) or the creation of a month-to-month
tenancy.
Note that a year-to-year tenancy is not an option. The common law rule would
have created a new lease on the same terms as the old one, and the newer rule favoring
month-to-month tenancies does so to shorten the period in which the parties may be
involuntarily committed to a new lease; no jurisdiction would extend the period of the
existing lease.
A number of students argued that the landlord could choose the holdover term.
This is incorrect; the period is a default term supplied by law. The better argument is that
both parties may have thought they were simply continuing the lease on the same terms
as before. This is probably not enough to create a new lease as a matter of contract,
however; instead, it is a good reason for the jurisdiction to favor the old common law
rule: holdovers should be on the same terms as the previous lease.
II. Grounds to Terminate Lease
A. CQE probably not
1.
Substantial Interference? Possibly
2.
Due to landlord unlikely
3.
Constructive eviction if she actually leaves
A wishes to leave. If she does so, can she claim constructive eviction and
terminate the lease? The LL would argue that he is not responsible for criminal activity
taking place off the premises in places he cannot control. A would respond that the LL
has the obligation to do what he can to secure the premises. He is responsible for the
common areas, and security measures appropriate to the circumstances in the
neighborhood. The LL has refused to do anything; but what more should he have done?
The facts are sketchy enough to set up any number of possibilities. As scary encounter
occurs when the vendor follows her through the locked front door of the building. The
door is locked, and there is no description of a problem with lighting. Given the
circumstances of the neighborhood, should the landlord has hired a doorman? a security
guard? Under what circumstances are such measures compelled? The fact that A had a
scary experience in the building may suggest that the LL should take greater precautions
unless there is a reason to believe that this is an isolated incident. But the facts arent
clear enough to indicate that the LLs failure to do so before the incident breached the
covenant of quiet enjoyment.
A would have to leave to claim constructive eviction.

Note: The issue of building safety could also have been raised as part of the discussion of
IWH. I gave it equal credit however labeled. Noting the need to leave to claim
constructive eviction, however, garnered additional credt.
B. IWH broken lock on door, broken window enough?
Validity of repair clause shift of responsibility for IWH?
LLs responsibility?
An argument for breach of the IWH might also allow A to terminate the lease, or
to stay and withhold rent. Breach of the IWH might stem from the failure to take the
security measures described above, but it may also follow the state of the apartment with
a broken front door latch and broken window. The broken latch is clearly more critical.
The issue arose in the Hilder case in the text, and it goes to a basic issue of security. The
broken window might be a serious issue in a cold climate in December or January, but
both ultimately turn on who has the duty of repair.
The more significant issue is who has the duty of repair? The clause in the lease
clearly says the tenant does unless the landlord is responsible. This leads to a series of
issues:
1. Some students argued that the landlord is responsible if his failure to provide
adequate security measures can be said to have caused the damage.
2. Many argued that it was invalid as a waiver of the IWH. The jx has not
actually adopted the IWH, but presumably it will. There is no indication whether it
would permit waivers. This isnt a classic waiver, though; instead, it is an agreement that
tenant will assume responsibility for repairs. The issue then become one of
interpretation. Taken to its logical conclusion, it means that the tenant would be
responsible for a furnace that broke down, damage from a hurricane etc. Such a clause
would clearly be invalid. So a court is likely to either strike this clause, or interpret it
narrowly to preserve its validity. If the latter, the court might distinguish between minor,
everyday repairs, and major structural damage. Fixing a broken window, however, might
easily qualify as an everyday repair; fixing the front door latch might or might not.
3. If the court interpreted it narrowly to uphold its validity, but nonetheless
concluded that windows and door latches are everyday repairs, is this the end of the
matter? Not necessarily. If the result is that the tenant cannot deal with a breach of the
IWH, the landlord might still be responsible. If he fixed the problems, and tried to
withhold the tenants security deposit, could he do so?
4. Maybe. This is a new jx with no security deposit statutes. If the lease provides
that its the tenants responsibility, and if the LL had to step in to avoid building code or
other violations, then presumably he can take the money out of the security deposit. The
CA statute might arguably be interpreted as precluding this result, but applying it here
requires discussion of whether the courts are likely to limit the landlords ability to
enforce such lease provisions.
III. Proposed Transfer to Peter
A. Are the statutes applicable?
B. Validity of clause on assignment and subleasing
C. Sublease rather than assignment
As many students noted, the statutes are only applicable to commercial leases.
These statutory provisions are the California ones we discussed in class, and they were

designed to prompt the issues of statutory construction we mentioned. In CA, the statute
applies only to commercial realty because the legislation was prompted by the desire to
limit Kendalls retroactive effect, and Kendall only addressed commercial realty.
What would you conclude from a new jurisdiction adopting such legislation? If
they are simply copying California, then they might not want to reach a legislative
judgment on residential leases. Alternatively, the legislature may be intentionally
indicating that it views the residential market differently. If so, how?
If the provisions apply, what then? The provisions embrace freedom of contract,
and permit blanket prohibitions on transfer. So the statute is likely not to interfere with
the enforceability of the provision anyway. Many students argued that the statute
indicates such clauses will only be upheld where they provide a standard for exercise of
the LLs discretion to refuse consent, and this clause provides no standard. Others argue
that saying the LL can withhold consent for any reason whatsoever is a standard. I
graded the discussion based on presentation of both sides and persuasiveness.
If the statute doesnt apply, the courts are very likely to uphold the clause given
that it is the majority rule for commercial leases, and the close to universal rule for
residential leases.
A, however, has a clear out. The clause in the lease only refers to assignments.
The clause will be strictly construed against the drafter. So all A has to do is change the
proposed transfer to a sublease, and she doesnt need the LLs consent. How does she do
so? She has not actually transferred anything at the time of the problem. She had
wanted to transfer her entire interest, but that would be an assignment. Peter wishes to
hedge his obligations until he clears up his immigration status, but what does that mean?
It could be a condition, or it could be an offer to enter into a lease determinable. The
latter is probably a sublease since A retains a possibility of reverter, but then the common
law mind did not view a possibility of reverter as a substantial interest Is it? How would
you advise A to draft the terms of the agreement to give her some security and to insure
its a sublease and not an assignment.
D. Discrimination
1. Accent discrimination
2. Prima facie case
3. Good reason?
The LL may not have had to state a reason for his refusal consent, but he did. Is it
valid? This raises two separate issues. First, is it illegal discrimination? This is actually
a difficult question. Several cases have raised the issue of whether accent discrimination
in the selection of applicants to be TV weather announcers or DMV employees is
discrimination. The standard is whether accent serves as a proxy for ethnicity, with some
arguing, for example, that British accents are viewed as cultured while Spanish accents
may be viewed less favorably. In this case, the LL is saying that he has trouble
understanding Peter, not all Russians or all people with accents, and he has rented to A,
an immigrant from Eastern Europe. The employment cases did not find accent
discrimination in itself to be a violation of Title VII, and the statement here about accent
in itself is unlikely to be actionable.
Peter could also argue that the statement about his accent cloaks animus for more
general discrimination in the selection of tenants. The problem is that to do so he must be
able to establish a prima facie case. Arguably, the statement itself creates an inference of

discrimination. Who would Peter then compare himself to? The landlord rejects him in
favor of keeping A on the hook. Their circumstances are quite distinct, however. If A
leaves, Peter applies, is rejected again, and a non-accented, non-Russian is selected,
Peters chances would be greater.
The landlord, however, could give other reasons at that point for the selection.
Finally, note that the LL might also have to give good reasons to satisfy the
common law rule applied in Kendall if the jurisdiction were to adopt such a rule. The
discussion would be the same, but the legal standard would be different. Kendall
required commercially reasonably reasons, but its not clear what such a standard would
mean in the residential context. The LL may be within his rights selecting a tenant with
whom he feels better able to communicate.
E. Mitigation of damages: If A were to leave, and the LL kept the place empty
and then sought back rent, the duty to mitigate would arise. Note that jx are split over
whether to impose such a duty. If they do, and the LL had rejected Peter, he might be
said to have failed to mitigate the loss of rent. [If he were seeking future rent, mitigation
would be built into the formula for calculating damages, and accepting or rejecting Peter
would be irrelevant.]