ANSWERS TO PROBLEMS
1. Arthur was the father of Bridgette, Clay, and Dana and the owner of Redacre,
Blackacre, and Greenacre.
Arthur made and executed a warranty deed conveying Redacre to Bridgette. The deed
provided that “this deed shall become effective only on the death of the grantor.” Arthur
retained possession of the deed and died, leaving the deed in his safe deposit box.
Arthur made and executed a warranty deed conveying Blackacre to Clay. This deed also
provided that “this deed shall become effective only on the death of the grantor.” Arthur
delivered the deed to Clay. After Arthur died, Clay recorded the deed.
Arthur made and executed a warranty deed conveying Greenacre to Dana. Arthur
delivered the deed to Lesley with specific instructions to deliver the deed to Dana on
Arthur’s death. Lesley duly delivered the deed to Dana when Arthur died.
a. What is the interest of Bridgette in Redacre, if any?
b. What is the interest of Clay in Blackacre, if any?
c. What is the interest of Dana in Greenacre, if any?
Answer: Deeds: Delivery.
(a) Bridgette has no interest in Redacre. There has been no delivery of the deed. “To
constitute the valid delivery of a deed the grantor must absolutely divest himself of all
control over the same, and if he retains any custody or control over it, if it is not actually
delivered but is to become effective only upon the grantor’s death, there is no valid
2. Arkin, the owner of Redacre, executed a real estate mortgage to the Shawnee Bank and
Trust Company for $100,000. After the mortgage was executed and recorded, Arkin
constructed a dwelling on the premises and planted a corn crop. After Arkin defaulted in
the payment of the mortgage debt, the bank proceeded to foreclose the mortgage. At the
time of the foreclosure sale, the corn crop was mature and unharvested. Arkin contends
(a) that the value of the dwelling should be credited to him and (b) that he is entitled to
the corn crop. Explain whether Arkin is correct.
Answer: Transfer of Real Property.
(a) The dwelling became a part of the realty and passed to the purchaser. Arkin would not
be entitled to the value of the improvement. The mortgagee had an estate in the
3. Robert and Stanley held legal title of record to adjacent tracts of land, each consisting of
a number of five acres. Stanley fenced his five acres in 1989, placing his east fence
fifteen feet onto Robert’s property. Thereafter, he was in possession of this fifteen-foot
strip of land and kept it fenced and cultivated continuously until he sold his tract of land
to Nathan on March 1, 1994. Nathan took possession under deed from Stanley, and
continued possession and cultivation of the fifteen-foot strip that was on Robert’s land
until May 27, 2014, when Robert, having on several occasions strenuously objected to
Nathan’s possession, brought suit against Nathan for trespass. Explain whether Nathan
has gained title by adverse possession.
Answer: Adverse Possession. Decision for Robert. In order to gain title by adverse
possession of the 15-foot strip there would have to be an open and notorious use of the
4. Marcia executed a mortgage of Blackacre to secure her indebtedness to Ajax Savings
and Loan Association in the amount of $125,000. Later, Marcia sold Blackacre to
Morton. The deed contained the following provision: “This deed is subject to the
mortgage executed by the Grantor herein to Ajax Savings and Loan Association.”
The sale price of Blackacre to Morton was $150,000. Morton paid $25,000 in cash,
deducting the $125,000 mortgage debt from the purchase price. On default in the
payment of the mortgage debt, Ajax brings an action against Marcia and Morton to
recover a judgment for the amount of the mortgage debt and to foreclose the mortgage.
Can Ajax recover from Marcia and Morton? Explain.
Answer: Transfer of Mortgage Interests–Assumption. Ajax can recover against both
Marcia and Morton. When Morton purchased the property and deducted the amount of
5. On January 1, 2014, Davis and Hershey owned Blackacre as tenants in common. On
July 1, 2014, Davis made a written contract to sell Blackacre to Grigg for $250,000.
Pursuant to this contract, Grigg paid Davis $250,000 on August 1, 2014, and Davis
executed and delivered to Grigg a warranty deed to Blackacre. On February 1, 2015,
Hershey quitclaimed his interest in Blackacre to Davis. Grigg brings an action against
Davis for breach of warranty of title. What judgment?
Answer: Warranty Deed. Judgment for Dibbert. Since the deed of conveyance from Davis
6. Barker operated a retail bakery, Davidson a drugstore, Farrell a food store, Gibson a
gift shop, and Harper a hardware store in adjoining locations along one side of a single
suburban village block. As the population grew, the business section developed at the
other end of the village, and the establishments of Barker, Davidson, Farrell, Gibson, and
Harper were surrounded for at least a mile in each direction solely by residences. The
village adopted a typical zoning ordinance, the provisions of which declared the area
including the five stores to be a “residential district for single-family dwellings.”
Thereafter, Barker tore down the frame building that housed the bakery and began to
construct a modern brick bakery. Davidson found her business increasing to such an
extent that she began to build an addition that would extend the drugstore to the rear
alley. Farrell’s building was destroyed by fire, and he started to reconstruct it with the
intention of restoring it to its former condition. Gibson changed the gift shop into a
sporting goods store and after six months of operation decided to go back into the gift
shop business. Harper sold his hardware store to Hempstead. The village building
commissioner brings an action under the zoning ordinance to enjoin the construction
work of Barker, Davidson, and Farrell and to enjoin the carrying on of any business by
Gibson and Hempstead. Assume the ordinance is valid. What result?
Answer: Nonconforming Uses. Injunction granted against Barker, Davidson, Farrell and
Gibson; no injunction against Hampstead. Nonconforming uses existing at the time of
7. Alda and Mattingly are residents of Unit I of Chimney Hills Subdivision. The lots owned
by Alda and Mattingly are subject to the following restrictive covenant: “Lots shall be for
single-family residence purposes only.” Alda intends to convert her carport into a beauty
shop, and Mattingly brings suit against Alda to enjoin her from doing so. Alda argues
that the covenant restricts only the type of building that can be constructed, not the
incidental use to which residential structures are put. Will Alda be able to operate a
beauty shop on the property? Why or why not?
Answer: Type and Construction of Restrictive Covenants. Decree for Alda. Restrictive
8. The City of Boston sought to condemn land in fee simple for use in constructing an
entrance to an underground terminal for a subway. The owners of the land contend that
no more than surface and subsurface easements are necessary for the terminal entrance
and seek to retain air rights above 36 feet. The city argues that any building using this
airspace would require structural supports that would interfere with the city’s plan for
the terminal. The city concedes that the properties around the condemned property could
be assembled and structures could be designed to span over the condemned property, in
which case the air rights would be quite valuable. Can the city condemn the property?
Answer: Eminent Domain. No, the city cannot condemn the property, but has the right to
an easement. The fact that the city has authority to condemn in fee simple pursuant to a
9. In May 2004, Fred Parramore executed four deeds, each conveying a life estate in his
land to him and his wife and a remainder interest in one-fourth of his land to each of his
four children: Alney, Eudell, Bernice, and Iris. Although Fred executed and
acknowledged the four deeds as part of his plan to distribute his estate at his death, he
did not deliver them to his children at this time. Instead, he placed the deeds with his will
in a safe deposit box and instructed the children to pick up their deeds at his death. Fred
later conveyed Alney’s deed to Alney, thereby vesting Alney’s interest in that parcel, but
Eudell, Bernice, and Iris’s deeds were never handed over to them during Fred’s lifetime.
Fred, however, acted as if the land was beyond his control, and on one occasion told a
prospective buyer that the land had already been deeded away. When Fred died in
November 2014, Alney brought this action, claiming that the deeds to Eudell, Bernice,
and Iris were ineffective because they had never been handed over during Fred’s lifetime.
Accordingly, Alney argued the remaining land should pass in equal shares to each of the
four children under the residuary clause of Fred’s will. Who will prevail? Why?
Answer: Delivery. Judgment for Eudell, Bernice, and Iris affirming the validity of their
deeds. The appellate court affirmed. Delivery is “the life of a deed;” without it no deed
10. The Gerwitz family resides on a piece of land known as Lot 24 of the Belleville tract,
which they acquired by deed in 1995. Shortly thereafter, the Gerwitzes began to use the
adjacent vacant Lot 25. At various times they planted grass seed, flowers, and shrubs on
the land and used it for picnics and cookouts. In 2014, Gelsomin acquired Lot 25 and
constructed a foundation on it so that he could place a house there. The Gerwitzes then
brought this action to stop him, claiming title to Lot 25 by adverse possession. Discuss
whether the Gerwitzes have obtained title by adverse possession.
Answer: Adverse Possession. Judgment for Gelsomin. The appellate court affirmed
because the possession was not hostile to the owner and under a claim of right. Before a
claimant may acquire land by adverse possession, he must prove by clear and convincing
evidence that his possession of the premises has been (1) hostile and under a claim of
11. Leo owned a one-story, one-family dwelling in a single-family residential zoning district
in Detroit. He attempted to sell the house with its adjoining lot for $138,500. Houses in
the neighborhood generally sold for $120,000 to $125,000. Immediately to the west of
Leo’s property was a gasoline service station. In addition, Leo’s property was located on
a corner frequented with heavy traffic. After he received no offers from residence-use
buyers during the period of more than a year that the property was listed and offered for
sale, Leo applied to the board of zoning appeals for a variance to permit the use of the
property as a dental and medical clinic and to use the side yard for off-street parking.
The variance would be subject to certain conditions, including the preservation of the
building’s exterior as that of a one-family dwelling. Puritan-Greenfield Improvement
Association, a nonprofit corporation, filed a complaint against Leo’s variance request.
Discuss whether the variance should be granted.
Answer: Zoning Variance. Judgment for Puritan-Greenfield. Under the Detroit statute, a
board of zoning appeals is authorized to grant a variance only upon a showing of
practical difficulties or unnecessary hardship. The unnecessary hardship, however, must
be unique or peculiar to the property for which the variance is sought rather than due to
general conditions in the neighborhood. Furthermore, one seeking a variance must show
12. The Glendale Church purchased a 21-acre parcel of land in a canyon along the banks of
Mill Creek in Angeles National Forest. The church used the 12 flat acres next to the
stream to operate a campground for disabled children. This area had a number of
improved buildings located on it. In July, a forest fire destroyed all ground cover
upstream from the church’s campground, and a subsequent flood destroyed all the
buildings. In response, the county of Los Angeles enacted an interim ordinance that
temporarily prohibited the church from constructing new buildings. Is the church entitled
to compensation for a temporary taking of its property? Why?
13. Robert V. Gross owned certain land on which he proposed to construct an
eighty-three-unit apartment house. The land, however, was subject to a restriction
imposed by a 1973 deed to a predecessor in title that provided that no part of the
premises could be used for business purposes other than raising, growing, and selling
live bait, fishing tackle, and sporting goods. Explain whether the restriction prohibits the
construction and operation of an apartment house?
Answer: Restrictive Covenants. Judgment for Gross. The restriction itself gives no
significant guidance as to what constitutes a forbidden business purpose other than
14. For seven years, Desford Potts had owned a 6-acre tract of land within the corporate
limits of the city of Franklin. The tract contained a livestock barn in which Potts stored
lumber and other building materials. Bricks were also stored in stacks 4 or 5 feet high
outside and behind the barn. Franklin passed a zoning ordinance by virtue of which
Potts’s lot was classified as residential property. Soon afterward, Potts moved some sawn
logs onto his back lot, and the city complained that Potts’s use of his property for storage
of building materials was a “nonconforming use.” Potts then brought an action to enjoin
interference by the city of Franklin. Explain whether Potts will prevail.
15. Sam and Eleanor Gaito purchased a home from Howard Frank Auman, Jr., in the spring
of 2011. Auman had completed the construction of the house in November 2006. In the
interim, three different parties had lived in the house for brief periods, but Auman had
retained ownership. The last tenants, the Ashleys, experienced difficulties with the home’s
air-conditioning system. Repairs were attempted, but no effort was made to change the
capacity of the air-conditioning unit.
When the Gaitos moved into the house in June 2011 they too had problems with the
air-conditioning. The system created only a 10-degree difference between the outside and
inside temperatures. The Gaitos complained to Auman on a number of occasions, but
extensive repairs failed to correct the cooling problem. In May 2014, the Gaitos brought
an action against Auman, alleging that the purchase price of the home included central
air-conditioning and that Auman had breached the implied warranty of habitability. At
trial, an expert in the field of heating and air-conditioning testified that a 4-ton
air-conditioning system, rather than the 3.5-ton system originally installed, was
appropriate for the Gaitos’s house. The jury returned a verdict in favor of the Gaitos in
the amount of $3,655. Explain whether this decision is correct?
Answer: Implied Warranty of Habitability. Judgment for Gaitos affirmed. The theory of
implied warranty of habitability of a recently completed dwelling relaxes the rigid
common law rule of caveat emptor. The theory was originally stated in North Carolina as
follows: “[I]n every contract for the sale of a recently completed dwelling, . . . the
16. In 1972, South Carolina enacted a Coastal Zone Management Act requiring any person
using land in a “critical area” to obtain a permit for any uses other than those to which
the critical area was devoted when the act went into effect on September 28, 1977. In
1986, Lucas paid $975,000 for two residential lots on the Isle of Palms in Charleston
County, South Carolina, on which he intended to develop a residential subdivision
known as “Beachwood East.” Because no portion of those lots was included in a
“critical area” at that time, Lucas was not required to obtain a permit. In 1988,
however, South Carolina enacted the Beachfront Management Act, which established a
“baseline” for the landward-most points of erosion and in effect barred the erection of
any permanent habitable structures on his two parcels. Lucas filed suit in state court,
claiming that the new statute violated his Fifth and Fourteenth Amendment rights by
taking property without compensation. Explain.
Answer: Takings. Judgment for Lucas. At the time Lucas acquired his lots, the Coastal
Zone Management Act protecting the beaches was already in effect. Under this
legislation, Lucas was not limited as to the development of his lots, and the adjacent lots
ANSWERS TO “TAKING SIDES” PROBLEMS
Playtime Theaters and Sea-First Properties purchased two theaters in Renton, Washington,
with the intention of exhibiting adult films. About the same time, they filed suit seeking
injunctive relief and a declaratory judgment that the First and Fourteenth Amendments were
violated by a city of Renton ordinance that prohibits adult motion picture theaters from
locating within one thousand feet of any residential zone, single- or multiple-family
dwelling, church, park, or school.
(a) What are the arguments that the city has the right to enforce such an ordinance?
(b) What are the arguments that the city does not have the right to enforce such an
ordinance?
(c) What result? Explain.
ANSWER:
(a) The city would argue that adult theaters need to controlled and limited as to where
they can locate. It is only natural to limit them away from residential areas, schools,
places of worship, and areas that are likely to attract children. The city is not
preventing adult theaters from existing but merely restricting their location. The