PROPERTY QUIZ THREE

Fall 2009DAY CLASS

Professor Peter M. Malaguti

September 25, 2009

ANSWERS AND EXPLANATIONS

Questions 1 through 5 are based on the following fact pattern:

In 1970, Oliver, the owner of Blackacre in fee simple absolute, conveyed the property “to Alice and her heirs, but if Blackacre is used for commercial purposes, I retain the right to reenter and repossess the estate.” Oliver then left to start a vineyard in Argentina. Alice, a missionary in Sri Lanka, did not immediately take possession of Blackacre

In 1975, Branford, who owned no interest in the land, entered into possession of Blackacre. He did not know Oliver or Alice, and had never spoken with either. Immediately, Branford constructed a house within plain view of the public street on which Blackacre sat. He erected a mail box, started to pay the real estate taxes on the property, introduced himself to the neighbors as the owner, and continued to occupy and maintain about half of the land area of Blackacre as would a normal homeowner.

In 1987, Branford, by validly drafted deed, sold to Carson “all my right, title and interest in Blackacre.” The deed properly described Blackacre as being all of the same property that Oliver had conveyed to Alice in 1970. Carson immediately moved onto Blackacre and began using the property in the same manner as had Branford.

In 1994, Carson died with a valid will devising “my beloved Blackacre to my daughter, Delilah.” Delilah immediately moved in and used Blackacre without interference in the same fashion as had her father. She had no knowledge that her father and Branford had been trespassers. Then, in 2006, Delilah opened an ice cream stand on the property and began selling “the best tasting and richest ice cream in the county.” Thousands flocked to Blackacre to buy Delilah’s excellent ice cream.

In 2008, Alice returned from her mission, found Delilah on Blackacre, and has brought an action to eject her from the property. Oliver filed a motion to intervene, and was added into the law suit as a plaintiff.

1.Immediately after Oliver’s grant in 1970, the following people owned interests in Blackacre:

  1. Only Alice.
  1. Alice and her heirs.
  1. Oliver, Alice and Alice’s heirs.
  1. Oliver and Alice.

The best answer is “D.”Alice owns a fee simple subject to condition subsequent. She has a present estate. It is a fee simple: “and her heirs.” It is conditional, and thus not a fee simple absolute. If Alice forfeits it goes back to the grantor, and thus isn’t a fee simple subject to an executory limitation. The forfeiture doesn’t happen automatically; instead, Oliver must take some action to effect the forfeiture. It therefore is a fee simple subject to condition subsequent rather than a fee simple determinable. Although you don’t know the types of future interests yet, you should know that Oliver, the grantor, owns a future interest. It is a right of entry for condition broken. Oliver and Alice are the only two persons owning interests in Blackacre. If you chose “B” or “C” thinking that Alice’s heirs owned something, you were asleep in the class involving “words of purchase” and “words of limitation.” You laughed when I warned you that I would catch some of you answering that “and her heirs” results in an interest in the heirs, but I saw many scantron cards with either “B” or “C” marked as the correct answer.

2.One of the issues raised in the law suit was whether Branford could and did transfer his possessory interest to Carson and whether Carson, in turn, could and did transfer his possessory interest to Delilah. The court should rule:

  1. The named adverse possessors were mere trespassers and accordingly had no interest to transfer.
  1. The named adverse possessors had the right to transfer their title under the doctrine of “color of title.”
  1. Branford had the right to transfer his possessory interest by deed but Carson did not have the right to transfer his interest by will.
  1. The named adverse possessors had the right to transfer their possessory interests, and had met the legal requirements to do so.

The best answer is “D.” This is a straight “tacking” question. Adverse possessors can “tack” their time together if they are in “privity of title,” which is caused when one conveys/devises/descends to another by deed, will or intestate distribution. Here, Branford conveyed to Carson by deed, and Carson devised to Delilah by will. Both transactions involved privity of title, and the parties could properly tack. “A” is incorrect because, as we discussed in class on numerous occasions, under “relativity of title” even trespassers are deemed to have rights they can transfer. “B” involves a misplaced concept. “Color of title” is a sub-category of “constructive adverse possession,” and has nothing to do with tacking. “C” incorrectly applies the concept of “privity of title,” which is possible through a will as well as a deed or intestate distribution.

3.After extensive discovery the parties brought cross motions for summary judgment. If the court rules that Delilah had obtained title by adverse possession in 1995, that title would be:

  1. A fee simple absolute.
  1. A fee simple determinable.
  1. A fee simple subject to a condition subsequent.
  1. A fee simple subject to an executory limitation.

The best answer is “C.” See the explanation for Question 1. This involved a simple application of the methodology we repeatedly performed in class. In terms of difficulty, it is a low-level estates in land question that everyone should be getting correct.

4.If the court rules that Delilah had obtained title by adverse possession in 1995, the amount of Blackacre that Delilah obtained was:

  1. All of it because Carson’s will was defective and Delilah believed she was obtaining all of Blackacre as described in her father’s will.
  1. None of it because Carson could not devise property through a will that he did not own.
  1. Only the amount of property that had been used by Branford, Carson and Delilah because an adverse possessor only obtains the property s/he actually possessed.
  1. Only the amount of property that had been used by Branford, Carson and Delilah because Delilah should not obtain a windfall as a result of her wrongful activities.

The best answer is “A.” This is a straight “constructive adverse possession” question. If someone commences an adverse possession under a defective deed or will that s/he believes in good faith conveyed the property at issue, constructive adverse possession will allow the adverse possessor to “boost” the acreage from what s/he actually possessed to that described in the defective deed or will. One can only employ constructive adverse possession if s/he has first met all five elements of adverse possession. The facts say that Delilah did not know her father and Branford were trespassers without title, and thus didn’t realize that the will conveying Blackacre to her was defective.

5.Ultimately, the court should rule that:

A.Alice and Oliver cannot eject Delilah because Delilah had already obtained title by adverse possession.

B.Only Alice can eject Delilah and resume ownership because, although Delilah obtained title by adverse possession, Delilah had breached a condition stated in the original grant.

C.Only Oliver can eject Delilah and resume ownership because, although Delilah obtained title by adverse possession, Delilah had breached a condition stated in the original grant.

D.Alice and Oliver cannot eject Delilah because neither had the right of exclusive possession.

The best answer is “C.” An adverse possessor only obtains the title of the person who could have ejected him or her. Accordingly, Branford, Carson and Delilah were working an adverse possession against Alice, the person with the right of possession, and, hence, the only person who could have ejected them. Alice only owned a fee simple subject to condition subsequent, which is the title that Delilah obtained in 1995. Delilah’s adverse possession deprived Alice of any further ownership in the property. Oliver, the owner of a future interest (right of entry for condition broken), never obtained the right of possession and thus never had the right to eject Branford, Carson and Delilah for their trespass. However, Oliver did have the right to declare a forfeiture of the fee simple subject to condition subsequent if Blackacre were used for commercial purposes. Delilah undeniably breached the condition of her fee simple subject to condition subsequent when she opened the ice cream stand. Only Oliver had the right to eject Delilah, as properly reflected in “C.”

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