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Practice Problems

First Acquisition


1.  Archer claims title to a parcel of land in Florida dating back to a 1858 grant from the Seminole Indian Tribe. Barry claims title to a parcel of land in Florida dating back to a 1896 grant of land from the State of Florida.

Who has superior title to the land?


1.  Recall the facts of Pierson v. Post. Suppose that instead of intending to capture the fox, Pierson (the farmer) intends to deny Post (the hunter) the ability to capture it. 

Same result as Pierson?

2.  A group of friends go on a hunting trip on a piece of private property that one of the friends owns. During the hunting trip, one of the friends shoots and kills a fox. However, upon returning to camp, another member of the group claims that the fox was actually shot on a neighboring piece of property which they own and that they should be the rightful owner of the deer. 


Who is the owner of the fox, the person who killed the fox or the person who owns the land?

3.  A wealthy real estate developer, Malory, purchases a large tract of land in rural western Miami Dade County to build a luxury housing community bordering the Everglades. As part of the landscaping for the development, Malory dredges a small lake stocked with fish located near a public nature trail. To stock the lake, Malory hires a company to capture and transport wild fish from the Everglades.


A group of fishers, thinking they are within the boundaries of the national park, fish Malory’s lake, taking fish worth $3,500.


What remedies, if any, does Malory have against the fishers?

4.  Suppose that instead of stocking the lake, Malory leaves the lake empty. After flooding from a Hurricane, the lake is stocked with fish. The fishers then unintentionally trespass and fish the lake.


What remedies, if any, does Malory have against the fishers?

5.  Archer is at a bar on South Beach. Drunk, he goes to the shore and pours his drink into the ocean. He loudly proclaims himself King and sole owner of the Atlantic Ocean, as he mixed his labor with the ocean.


Does Archer now legally own the Atlantic Ocean through his accession?

6.  Cheryl owns unimproved land with a large deposit of clay worth $100. Pam enters Cheryl’s land, thinking it is part of a National Park. She harvests Cheryl’s clay, and kiln fires it into bricks worth $5,000.


What are Cheryl’s remedies?

What if Pam instead was a willful trespasser?

How much is Cheryl entitled to if she sues for conversion?

7.  Malory contracts with Ramon to remodel her South Beach Condo while she is vacationing in Paris. Instead of remodeling Malory’s condo, the building superintendent lets her into Rudy’s condo, who is away in Cuba. Rudy returns from his trip aghast at Ramon’s actions and Malory’s tastes in interior décor.


What are Rudy’s remedies?

What are Ramon’s remedies?

8.  Ghen is a whaler pursuing a whale off Cape Cod. He shoots the whale with a special whale hunting device, and the whale instantly dies. The whale sinks and two days later is discovered on a beach by Ellis, who sells it to Rich.


Whaling is a major industry in the area, and the custom is that the finder of the dead whale is entitled to a salvage fee upon returning the slain whale to the whaler.


Who is the owner of the whale? 

Note: these are the basic facts of Ghen v. Rich.

9.  The water of the Colorado River is subject to competing claims. Seven states have signed the Colorado River Compact, which allocated more water to themselves than is in existence in the River. Mexico and various Native American Tribes are not part of this agreement. In 2023, a twenty plus year drought threatens to completely dry the river out.


Who has superior title to the water from the Colorado River?

What regulatory tools best address the drying of the Colorado River?

What moral tools are available?

10.  Ray, a simple country farmer, harvests 500 tons of wheat. Ray deposits the grain into his grain silo. The next day, Archer accidently deposits 500 tons of wheat into Ray’s grain silo instead of his own. Ray mills all of the wheat into flour and sells the flour for $500,000. 

What is Archer entitled to recover from Ray, if anything?

What if instead Archer intentionally mixed the grains, and then fraudulently sold the entire harvest as his own?


1.  A property owner has a "no trespassing" sign posted on their land, but a group of hikers frequently ignore the sign and use the property for recreational activities. 


Can the property owner contact the local authorities to issue a citation to the hikers for trespassing?

2.  A landlord includes a clause in a lease agreement stating that tenants are not allowed to have pets in the rental property. A tenant moves in with a dog. 


Can the landlord evict the tenant for violating the lease agreement?

3.  A property owner installs a fence around their property to keep out unwanted visitors. A neighbor regularly climbs over the fence to access a path that runs through the property, despite the property owner's objections. 


Can the property owner take legal action to stop the neighbor from trespassing?

4.  A developer wants to build a housing project on a piece of land, but the land is home to a protected species of animal. 


Must the developer obtain a special permit from the government in order to exclude the animals from the land before starting construction?

5.  A property owner rents out their vacation home on a short-term, monthly basis on AirBnB. They post signs in the home that renters are not allowed to have parties or gatherings on the property. The renter throws a loud party.


Can the owner terminate the rental agreement and have the renters arrested for trespassing?

6.  In 1971, two employees of a nonprofit charity enter upon private farm land to provide medical and legal aid to migrant farm workers living on the land. The farm owner has them arrested for trespass.


Did the employees commit trespass to the farmer’s land?

Are their actions excused by necessity?

Note: these are the facts of State v. Shack

7.  Malory owns a beachfront mansion on Palm Beach Island worth $35 million. According to her title, her home includes the front yard, a small grass back yard, a sea wall, and the dry sand (the backshore) extending to the high water line.

Can Malory build a fence around the dry sand to exclude the public from her land?

8.  Malory owns a beachfront mansion on Palm Beach Island worth $35 million. According to her title, her home includes the front yard, a small grass back yard, a sea wall, and the dry sand (the backshore) extending to the high water line.


In 2022, a Tropical Storm hits Palm Beach County, and the foreshore is eroded such that high tide now comes up to her sea wall. Under Florida law, the foreshore is held in the public trust.


In 2024, the Federal government spends $35 million dollars to renourish the beach her property sits own. 


Does Malory regain ownership over the newly renourished backshore?


(Intellectual Property I)

1.  Alicent posts a video of an large fiery explosion at a factory on her Snapchat. A news organization discovers the video and republishes it on their website without giving proper credit or obtaining permission from the original source. Alicent’s video is the only know footage of the explosion.


Alicent, an independent journalist, had spent considerable time and effort to report and verify this video, and did not give permission for the news organization to use her story. 


Does Alicent have a claim against the news organization?

2.  Privacy Right Hypos

A.  Malory posts that her neighbor “Trudy seems like the kind of person who would abuse animals” on a Neighborhood Facebook page.

B.  Cyril takes a photo of Burt Reynolds in public. Archer then uses that picture to promote a whiskey, claiming that Mr. Reynolds is a pleased customer.

C.  Barry installs a Ring camera in his backyard. Barry intentionally points the so that it can see into his neighbor Katya’s bathroom. Barry’s camera records Katya while she is getting dressed, in addition to his backyard.

D.  Archer and Lana get into a loud argument about their intimacies in public.

E.  Cheryl tells her best friend, Pam, in confidence, that she was just diagnosed with HIV. Pam then posts “thoughts and prayers, my girl got the AIDS” on her Instagram page. She tags Cheryl in the post.

F.  A TV station runs a news story on corrupt slumlords. The station has their news reporter, Lana, film her story in from of some apartments owned by Woodhouse, despite Woodhouse being a law-abiding landlord. 

Do any of the individuals in the prior hypos have a claim for a violation of a right to privacy? If so, which one?

3.  A person makes a YouTube deepfake of a celebrity to raise awareness of the advances in technology.

Does the celebrity have a claim that their right of publicity has been violated?

Does it matter if the video disclaims the identity of or relationship to the celebrity?

4.  The right of publicity is most commonly used as a way for celebrity's to stop others from profiting off the hard work they expended becoming a person of celebrity status.

Could the same rule be used to stop companies or the government from harvesting massive quantities of biometric data?

Should private members of society have a right of publicity in their own face?


(Intellectual Property II)

1.  Patent Hypos

A.  A medical device for treating diabetics.

B.  A method for treating diabetics using a medical device.

C.  A drug for treating diabetes.

D.  A manufacture of peanuts to form a flavoring-paste from said peanuts and a composition of matter to form sweetness and candy using a grind-milling machine.

E.  A method for inducing cats to exercise consisting of directing a beam of invisible light produced by a laser unto the floor or wall or other opaque surface in the vicinity of the cat.

F.  A manufacture for protecting the ears of dogs from exposure using two cylinders attached to the dogs head by means of a elastic band.

Which of the prior examples are patent eligible?

2.  Copyright Hypos

A.  A picture of the moon you took with a telescope

B.  A recipe cookbook

C.  A trivia book about the Harry Potter movies

D.  Memorizing the script of a Harry Potter movie

E.  A song recording of a music composition in the public domain

F.  An ornamental buckle on a dress

G.  An ornamental buckle on a briefcase

H.  A parody book called Mary Rotter and the Chamber of Toilets

I.  A discovered bacterium

J.  A picture of a discovered bacterium in a book 

K.  The Four Chord Song

L.  An oral performance of the Four Chord Song

M.  A cover of the Four Chord Song

Which of the prior examples are copyright eligible?

3. Trademark Hypos

A.  Exxon

B.  Kleenex

C.  Dunkin Donuts

D.  Apple

E.  Netflix

F.  Delta

G.  Best Buy

H.  Pepsi

I.  Lexus

J.  Microsoft

K.  Aspirin

L.  Coppertone

M.  Coca-Cola

Which of the prior examples are trademark eligible?

What is the Abercrombie strength of each mark?

How many of the prior examples are marks that refer to multiple products or services?

How many of the prior examples are marks that have become or are generic terms for products or services?


1.  Barry steals a valuable watch from Cheryl. At an office meeting, Len learns of Barry’s theft and takes it from him. Barry sues Len for replevin.



Can Len defend himself on the grounds that Barry is a thief?

2.  Malory purchased a painting to hang in her office. Malory gives the painting to Archer, her son, with the note “if and when you don’t have a place to hang it, I want it back.” Malory keeps the bill of sale for the painting. 


Archer moves overseas and can’t take the painting with him. He gives it to an art dealer on consignment. Barry steals the painting and sells it to Pam. The police recover the painting from Pam.

Who should the police return the painting to?

3. Finders Hypos

A.  An old briefcase containing papers in a classroom.

B.  An old briefcase containing a laptop on a park bench.

C.  An old and empty briefcase in a trash can.

D.  An antique clock found in the attic of a recently purchased home. The clock is covered in cobwebs.

E.  A chest with old coins buried in a back yard.

F.  Spanish gold bullion found in a 17th century shipwreck off the coast of Florida.

G.  A chest with old coins sealed behind the drywall of a home.

H.  An Apple watch found on the floor of a doctor’s office.

I.  An Apple watch found in a trash can at school.

In the previous examples, which are lost, mislaid, abandoned, or trove?

4.  Cheryl collects Pokémon cards. Her collection is worth $50,000.00. Last year, she donates a dresser to charity. Barry finds Cheryl’s Pokémon cards in the dresser and advertises them for sale on a nationwide Facebook marketplace page.


Cheryl sees the ad and demands the cards be returned to her. Barry refuses. Cheryl sues, and Barry raises the venerable defense of “finders keepers, losers weepers.



Is Cheryl’s action one for replevin or trover?

Who gets the Pokémon cards?

5.  Krieger is paranoid and doesn’t trust the government. He buries a small chest containing $20,000 in cash and a flash drive wallet with 30 BTC in his backyard. He dies several years later, leaving his property to his son, Krieger Jr.


Krieger Jr. sells his property to Archer. Archer hires Woodhouse to re-landscape the backyard. In re-landscaping  the property Woodhouse finds the chest.


Krieger Jr., Archer and Woodhouse all claim the chest. Who wins?

(Hint: who is the true owner of the chest?)

Was the money lost, mislaid, abandoned, or a treasure trove?

Assume Krieger Jr. cannot be found. Who gets the chest, Archer or Woodhouse?

6.  Lana is diving off the cost of Fort Lauderdale when she finds a shipwreck of a 17th century Spanish Galleon. Inside the ship are gold coins worth $25m. Without damaging the ship, Lana removes the coins and leaves the wreck. She then notifies the State of Florida so the State can preserve the wreck.


Florida Law vests title to submerged shipwrecks in the State and prohibits salvage without a permit. 


Who is the owner of the gold coins?

Should the law be changed to reward salvage?

Adverse Possession

1.  Archer and Barry are neighbors. A cave runs under their land, but the only entrance is on Archer’s property. Barry is unaware that any portion of the Cave is under his land.


In 2000, Archer starts charging an admission fee for a tour of the entire cave system. In 2023, Archer sues Barry, claiming he has adversely possessed Barry’s portion of the Cave. Assume the statutory period has ran.


What Result?

2.  Malory learns of a vacant office building sitting on federal land. She decides to open a headquarters for her spy agency in 2010. In 2023, she sues the federal government to quiet title on the land. Assume her possession satisfies the statutory period.


What result?

3.  Archer brings his Dodge supercharger to Ron's car dealership for repairs. The car dealership mixes up its paperwork, and, instead of repairing it, sells the car to Pam. (Pam is an infamous underground street racer). Archer learns of this, and demands the car back from Pam. Pam refuses, and three days later, wrecks the car while running from the Yakuza


What type of title does Pam receive from Ron Cadillac?

What claims does Archer have against Ron Cadillac?

What claims does Archer have against Pam? 


1.  Lana gives Archer a copy of a book, thinking she has an extra copy of it. She returns home and realizes she doesn’t.


  • Did Lana have intent to delivery the book?

  • Can Lana revoke her gift?

2.  In September, Malory hands Lana a signed paper promising that Malory will give Lana 10,000 shares of Profit Corporation as a Christmas present. Malory dies in November, devising all her “stocks and bonds” to Archer. 

Archer and Lana both claim the stocks, who wins?

3.  Krieger, contemplating suicide because of recent business and personal problems, executes a gift letter of the contents of his van to Archer. 


Is suicide a life-threatening illness justifying a gift causa mortis?

4.  Woodhouse is a member of the armed forces and is about to go to war.


Is he contemplating death as required to make a gift causa mortis?

Possessory Estates

1.  Eddard Stark is Lord and owner of Winterfell. He dies. (Review the House Stark Family tree here).


  • Who is his spouse?

  • Who are his issue?

  • Who are his ancestors?

  • Who are his collaterals?

2.  Eddard Stark is Lord and owner of Winterfell. He owns Winterfell in fee tail. He dies intestate. 


Under the feudal laws of intestacy, who takes Winterfell?

3.  Eddard Stark is Lord and owner of Winterfell. He owns Winterfell in fee simple absolute. He dies intestate. 


Under the modern laws of intestacy, who takes Winterfell?

Defeasible Estates

1.  Ned wants to transfer ownership of Winterfell to his son, Robb, but wants to make sure that the property stays within the family after Ned's death. Eddard decides to transfer the property as a fee tail to Robb. 


  • What are the key differences between a fee tail and a fee simple estate in this scenario?

  • How would you advise Eddard in a jurisdiction that does not recognize the fee tail?

2.  Aegon wants to provide for his aging mother, Alicent, by transferring ownership of High Tower to Alicent for the rest of her life. Aegon decides to transfer the property as a life estate to Alicent. 

  • How does a life estate differ from a fee simple estate and a fee tail estate in this scenario?

  • How would you advise Aegon to convey the property?

3. Stannis wants to transfer ownership to the island of Dragonstone to his brother, Renly, but wants to retain the right to live on the property for the rest of his life. 


  • What words of purchase and limitation must Stannis use?

  • What obligations does Stannis owe Renly as the life tenant of Dragonstone?

  • Can Stannis demolish the family’s small one-room childhood home and replace it with apartment buildings after transferring the property to Renly?

  • What interest does Renly have in the property, if any?

Future Interests

Identify all present and future interests:

1.  Ned Stark conveys Winterfell “to Cat for life. Ned then conveys his interest to Robb.

Answer (highlight):

  •  Ned has a reversion. Cat has a life estate.


2.  Ned Stark conveys Winterfell “to Robb and his heirs, but if Winterfell’s Weirwood tree falls, Ned make enter and take the property.”


Answer: Robb has a fee simple subject to condition subsequent. Ned has a right of reentry in fee simple.

3.  Ned Stark conveys Winterfell “to Cat for life, then to Robb, with both estates to continue only as long as Arya does not get married.”

Answer: Cat life estate determinable as there is no grantee designated to take upon condition. Robb has a vested remainder in fee simple determinable. Ned has a possibility of reverter in fee simple. 

4.  Ned Stark conveys Winterfell “to Robb and his heirs, but if Robb uses Winterfell to host a joust, then to Bran for life.”

Answer: Robb has a fee simple subject to executory limitation. Bran has a contingent executory interest in a life estate. Ned has a possibility of reverter in fee simple.

5.  Ned Stark conveys Winterfell “to Sansa for life, then to Arya for life if Arya gets married.”

Answer: Sansa has a life estate. Arya has a contingent remainder in a life estate. Ned has a reversion.

6.  Ned Stark conveys Winterfell “to Cat for life, then to Robb or his children" Robb has no children.

  • Robb then has a child, Rickard.

  • Assume that Robb dies after Rickard is born while Cat is still alive. 


  • Robb’s children have a contingent remainder in fee simple that vests if Robb survives Cat and dies before the children. There is an implied condition precedent for Robb, who must survive Cat. 

  • Rickard has a contingent remainder in fee simple absolute. Robb may still die before Cat does.

  • Rickard now has a vested remainder in fee simple absolute. It is not open because Robb cannot have more children.

The Rule Against Perpetuities

1.  Ned conveys Winterfell “to Cat for life, then to Robb.”

Answer: Does not violate RAP. Cat has a life estate. Robb has a vested remainder. Vested remainders are not subject to RAP.

2.  Ned conveys Winterfell “to Cat for life, then to the oldest of Robb’s children.”

Answer: Does not violate RAP. Robb has a Contingent remainder in  which will vest when Cat dies. It is impossible for the interest to vest 21 years after Cat’s death, saving it from RAP. 

3.  Ned conveys Winterfell “to Cat for life and then to the oldest of Robb’s children when he or she reaches 30 years old.”

Answer: Violates RAP. All of Robb’s children could die, and then Cat could have another child. Or, Cat could then die when that child is on years old. Cat is the only measuring life, and the interest could vest 29 years later the triggering event.

4.  Ned conveys Winterfell “to Robb, so long as Winterfell is not used for hosting jousts.” 

Answer: Does not violate RAP. The interest is a possibility of reverter in Ned, which is not subject to RAP.

5.  Ned conveys Winterfell “to Robb, so long as Winterfell is not used for hosting jousts, and then to Sansa.”

Answer: Violates RAP. Sansa has an executory interest. The condition could be violated 21 years after the death of all the measuring lives, making the conveyance void.

6.  Alicent is 80 years old. She has three children, Aegon, Aemond and Helena, who are all in their 50s. Viserys conveys Dragonstone “to Alicent for life, and then to the oldest of Alicent’s children who survive her when he or she reaches the age of 30.”

Answer: Void under RAP. Alicent is presumed to be capable of having more children after her three living children die and then could dying after. This could result in a child reaching the age of 30, more than 21 years after her death. (i.e. the fertile octogenarian).

7.  Otto conveys Hightower “to Alicent, but if Hightower ceases to be used for agricultural purposes, to Aegon.”

Answer: Void under RAP. The condition may occur 21 years after Alicent and Aegon and all other lives in being are dead.

8.  Viserys conveys the Red Keep “to Rhaenyra for life, then to the children of Alicent who reach twenty-two for the life of the survivor, then to the heirs of Rhaenyra.” Alicent has two children, Aegon and Aemond. Three years later, Rhaenyra dies, leaving Jace as her only heir. 

Answer: Void under RAP. Alicent’s children may reach age twenty-two outside the period; she may convey her interest to someone born after the conveyance, resulting in vesting outside the period; she Alicent may have another child and then die; or all lives in being may die. Everything merges into Rhaenyra’s interest, who takes in fee simple.

9.  Otto conveys Hightower “to Alicent for life and then, one day later, to Aegon for the life of Aemond, then if Aemond dies in fewer than thirty years after the time of the conveyance, to Helaena.”

Answer: Does not violate RAP. Alicent has a life estate; Otto has a reversion in fee simple subject to executory limitation; Aegon has a springing executory limitation in a life estate pur autre vie followed by a possibility of reverted in Otto. Helaena has an executory interest in fee simple. There is no possibility Helaena’s interest vests too late because:

  • Aemond may die after one day after Alicent’s death and before 30 years after the conveyance

  • OR Aemond may die thirty years after the conveyance, in which case Helaena’s interest never vests

10.  Tywin conveys Casterly Rock ”to Tyrion for twenty-five years, then to Jamie as long as he does not use Casterly Rock as a mine; otherwise to Cersei.”

Answer: Valid under RAP. Tyion has a term of years; Jamie has a fee simple subject to executory limitation; Cersei has an executory interest in fee simple absolute. Cersei’s interest is valid because it must vest no later than Jamie’s death.

11.  Viserys devises Dragonstone “to my grandchildren.” Viserys has two children, Rhaenyra and Aegon. At the time of the conveyance, Rhaenyra has two sons, Jace and Luke. Two years later, Aegon’s son Maegon is born.

Answer: Valid under RAP. Viserys' unborn grandchildren have an executory interest in fee simple absolute until they are born, then, once ascertained, have a vested interest subject to open a a fee simple subject to a shifting executory limitation. Each grandchild’s interest will vest no later than birth to a life in being (Rhaenyra and Aegon), and will closes naturally upon the death of Rhaenyra and Aegon.

Cotenant & Marital Estate

The Concurrent Estates

1.  O conveys Blackacre “to A, B, and C as joint tenants.” Subsequently, A conveys his interest to D. Then B dies intestate, leaving H as his heir.

  • What is the state of the title?

  • What if B had died leaving a will devising his interest to H?

Answer: 1. the conveyance created a joint tenancy. Thus A, B, and C are joint tenants, each with an undivided one-third interest. The conveyance from A to D severs the joint tenancy, but only as to the interest conveyed. After the conveyance, then, the joint tenancy remains as between B and C in respect to an undivided two-thirds interest. So B and C are joint tenants as between themselves as to two-thirds, and tenants in common with D as to one-third. D has an undivided one-third as tenant in common with B and C. When B dies intestate H takes nothing; rather the right of survivorship as between B and C governs. After all is said and done, then, the state of the title is as follows: D owns an undivided one-third as tenant in common with C, and C owns an undivided two-thirds as tenant in common with D.


2. B’s will would be ineffective to work a severance or convey any interest to H. A will, because it is effective only at death, does not sever a joint tenancy; an inter vivos conveyance — a severance during life — is necessary. At the moment of death, the right of survivorship prevails and the will cannot defeat it.

2.  T devises Blackacre “to A and B as joint tenants for their joint lives, remainder to the survivor.”


  • What interests are created by the devise?

Answer: A life estate in A and B, measured by the life of the first to die, with a contingent remainder in fee simple in the survivor, and a reversion in T’s heirs.


A and B are tenants in common for their joint lives; there is no survivorship interest in the life estate, which ends upon the death of either A or B.


A and B, acting together, could convey a fee simple to a buyer, but if A does not sign the deed, and A survives, A owns Blackacre by himself.


Hypo 1, John, Sansa and Bran are joint tenants of Winterfell. Sansa mortgages her interest to the Iron Bank, who records. Thereafter, Sansa dies and Iron Bank seeks to enforce her mortgage on an undivided one-third interest in the property.



  • What is the consequence in a lien theory state?

  • What is the consequence in a title theory state?

Answer: 1.Lien theory: bank loses. Mortgage is not severance

2.Title theory. Bank wins. Severance occurred. Bank is now a tenant in common. Some jurisdictions will have John and Bran remain joint tenants as to each other

Hypo 2. John, Sansa and Bran are joint tenants of Winterfell. Sansa mortgages her interest to the Iron Bank, who records. Thereafter, Sansa dies and Iron Bank seeks to enforce her mortgage on an undivided one-third interest in the property.



  • What is the consequence in a lien theory state?

  • What is the consequence in a title theory state?

Answer:1.Lien theory: bank loses. Mortgage is not severance

2.Title theory. Bank wins. Severance occurred. Bank is now a tenant in common. Some jurisdictions will have John and Bran remain joint tenants as to each other

1.  O, a widower, opens a joint bank account with his niece, A. O tells A, “I’ll want your name on this account so that in case I am sick you can go and get the money for me.” O dies.


  • Is A entitled to the money in the bank account?

Answer: The court held that the depositor had made his sister-in-law a signatory for his own convenience, and did not intend a present gift to her.

Suppose that O also gives A a right of access to O’s safe deposit box by adding A’s name to the signature card giving access; the lease agreement signed with the bank provides that the contents of the box are owned in joint tenancy with right of survivorship. The box contains $324,000 in U.S. savings bonds and $4,000 in cash.



  • Is A entitled to the bonds and cash?

AnswerIn Davison the court held that the lockbox lease and the testimony of the cotenants were insufficient to establish cotenants’ ownership of lockbox contents; in the case of a lockbox, some specific written reference that decedent intends a gift of contents to cotenants is needed. The cotenants were good friends and neighbors of the decedent, who took care of her prior to her death. The cotenants never went into the box during the decedent’s lifetime. Because lockboxes usually contain property of much greater value than a bank account, courts are more demanding of strong evidence that a gift was intended.

2.  H and W and their son, S, open a joint savings account. H and W are in their sixties. The money deposited in the savings account comes from savings from H’s salary that H formerly had in a separate savings account. H dies. W, claiming that the entire amount in the savings account is hers, withdraws the balance.



  • Does S have any rights to the money?

Answer:In Alien v. Gordon the court held that H intended a gift to W when the joint account was opened, but that S’s name was added to the joint account for the convenience of H and W. Thus W owns the account at H’s death.

3. A and B have a joint savings account of $40,000.

  • How much of the account can A’s creditor reach?

AnswerIt depends. The Maloy case cited in the Problem says that the majority rule is as follows:


A creditor can reach the joint account only in proportion to the debtor’s ownership of the fund, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other.


All of the fund is initially considered to be subject to the creditor’s claims, and the burden is on each joint depositor to show what portion of the funds he or she actually owns. This is considered the best approach because depositors are in a much better position than are creditors to know the pertinent facts.

 and then could dying after. This could result in a child reaching the age of 30, more than 21 years after her death. (i.e. the fertile octogenarian).

Landlord Tenant


1.  Malory leases to Lana at a rent of $3,000 payable monthly in advance.


  • Term of years or periodic tenancy?

  • What is the term, monthly or yearly?

Answer: 1.Periodic tenancy

2.Month to month

Note: if the lease reserved as an annual rent, payable monthly ($36,000.00 per annum, payable $3,000 on the first day of every month commencing January 1, the majority view is that this creates a periodic tenancy from year to year.

2.  A homeless shelter opens in Miami, Florida. The homeless shelter only allows men who are the victims of domestic violence.


  • Has the homeless shelter violated the FHA?


Answer: Ninth Circuit case ruling that the single-sex policy of a men-only shelter violated the FHA. See Community House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007).

3.  Malory owns an apartment building with 100 first come first served parking spaces. There is no handicap parking.



  • CRA violation?

  • FHA violation?



4. (a) Ms. Smith has an apartment to rent in her home. She puts the following advertisement in a local newspaper:

For rent: Furnished basement apartment in

private White home. Call 376-7410.

An African American couple applies and is rejected by Ms. Smith because of race.


a)Are there any violations of 42 U.S.C.A § 1982 or § 3604?

b)Suppose the advertisement had not contained the word “white.” What result?

c)Suppose the advertisement had not said “in private White home,” but had said “rented only to persons speaking Polish, German, or Swedish.”

Answer(a)The Problem states that a black couple applies and is rejected because of race. This would violate the 1866 legislation. It would not violate the FHA, by virtue of the exemption in §3603(b)(2). But the advertisement would violate §3604(c). The exemptions of §3603(b) do not apply to §3604(c). The Hunter case held that an advertisement like that in the question violates §3604(c) because it indicates a racial preference or an intention to make such a preference.

(b)This presents an advertisement worded such that it would not violate the FHA; the 1866 act does not have a provision regarding ads. Our hypothetical states that the discrimination by Ms. Smith was based on race; hence there would be a violation of the 1866 act but not of the FHA (because of the exemption in the latter)

(c)This presents a wording that probably violates the FHA. The Holmgren case held that such language shows a preference for certain national origins and thus is unlawful. Would rejection of the couple be unlawful? Not under the FHA, for again the exemption applies.

4. (b) Suppose Ms. Smith discriminates against, say, German people in renting the apartment in her home.



a)This would not violate the Fair Housing Act. Why?

b)Would it violate the Civil Rights Act of 1866, 42 U.S.C.A § 1982?

AnswerMs. Smith could discriminate against German people because of the exemption, even though she couldn't use discriminatory ads. Would such discrimination violate the 1866 act's prohibition against racial discrimination? It appears that the answer is yes. In the Shaare Tefila case (and in a companion case reported at 481 U.S. 604) the Supreme Court held that for purposes of the 1866 act "race" means what "race" meant at the time the legislation became law, and the Court noted that a century ago people commonly talked of, for example, the "German race."

4. (c) Suppose that L places the following advertisement in a campus newspaper:


“Wanted: Female to share 2-bdrm. 2-bath apt. near campus. $500/mo. plus p. half utilities. Call Pat at 917-4513.”


a)Does this language violate the federal Fair Housing Act (should it matter whether Pat is a single woman looking for a roommate)?

b)The advertisement aside, may Pat discriminate in selecting someone with whom to share the apartment and the rent?

c)Does the answer turn on whether the “2-bdrm. 2-bath apt.” is in a large multi-unit complex or, instead, is one of two apartments in an owner-occupied duplex?

AnswerThere are several questions to be considered: First, does Pat’s ad violate the FHA prohibition on discriminatory advertising? Second, the ad aside, is Pat free to discriminate, under the Mrs. Murphy exception? As we discuss these, bear in mind that we assume — the name hardly makes it clear — that Pat is a woman. At first blush Pat’s ad would seem to violate the FHA prohibition on discriminatory advertising. The courts have made it clear time and again that the Mrs. Murphy exemption does not apply to the prohibition on discriminatory advertising.


The court reached this conclusion by discussing how forbidding discrimination in choosing roommates might violate constitutional values of privacy and associational freedom. While it did not find such a violation, the court used the principle that where an otherwise acceptable construction of a statute avoids serious constitutional problems it will adopt that construction as long as it is not plainly contrary to the intent of Congress. In doing so, the court held that the FHA does not apply to the sharing of housing units. Therefore, neither the ad nor the decision by Pat to select a female roommate would seem to violate the FHA.


But here is a twist. While the FHA prohibits discriminatory ads, the federal Communications Decency Act (CDA) immunizes Internet service providers from liability in publishing discriminatory ads. The Klein & Doskow article discusses the interplay between these two pieces of legislation, which end up in different places. The courts are split on whether the CDA provision loosens the FHA prohibition. Klein & Doskow think it should not, because this would help implement the goal of fair housing.

4. (d) Suppose the owner of a large apartment complex reserves a certain number of units exclusively for white applicants, the objective being to guard against “white flight” and thus maintain integrated housing conditions.


a)Does the practice violate the Fair Housing Act?

Answer:The purpose was to maintain an integrated racial mix so as to prevent white flight that would transform Starrett City into a minority development. (Experts testified about a "tipping point," a point of minority concentration at which white flight would likely start to occur.) In a suit brought against Starrett by the U.S. government, the district court found a violation of the FHA because tenant selection was based solely on race, enhanced housing opportunities for whites, and limited them for minority applicants through the use of "ceiling quotas." Holding that Starrett had to treat minority applicants on the same basis as whites, the court granted summary judgment in favor of the government. The court of appeals affirms.


Congress had two sometimes conflicting goals in mind in enacting the FHA: integration and antidiscrimination. Ceiling quotas promote the first policy but violate the second, and there is no legislative history on how to resolve the conflict. Looking to other federal civil rights legislation for guidance on the permissible limits of race-conscious affirmative action programs, the court concludes that Starrett's practices are unlawful.

5. Malory owns an apartment building with 100 first come first served parking spaces. There is no handicap parking.



a)CRA violation?

b)FHA violation?

Answer: FHA Violation

Subleases and Assignments

1. Tywin leases property to Gregor for a 10 year term. One month later, Gregor transfers his interest to his brother, Sandor, with Tywin’s consent.



Does this create an assignment or a sublease?

Answer: Assignment

2. (a) L leases to T for a term of three years at a monthly rent of $1,000. One year later T “subleases, transfers, and assigns” to T1 for “a period of one year from date.” Thereafter neither T nor T1 pays rent to L.

  • What rights has L against T? Against T1?

Answer: Because this is a sublease. Landlord can only go after the original tenant. There is no privity of estate between the landlord and the subtenant

2. (b) L leases to T for a term of three years at a monthly rent of $1,000; the lease provides that “T hereby covenants to pay said rent in advance on the first of each month.” The lease also provides that “T shall not sublet or assign without the permission of L.” Six months later T, with the permission of L, transfers to T1 for the balance of the term. Thereafter T1 pays the rent directly to L for several months, then defaults.



  • L sues T for the rent due. What result, and why?

Answer: 1.L may sue T for rent due, because in the event of a sublease the landlord and the original tenant are still in privity of estate and T is liable for the rent obligation arising from the landlord-tenant relationship. Under the common law rules, though, L could not proceed against T1 where, as here, T1 is a sublessee. L and T1 are not in privity of estate; rather T1 is in privity of estate with T. Nor are L and T1 in privity of contract, for T1 has not assumed any covenants in the lease. L could evict T1 for nonpayment of rent, however.

2.Main lessor cannot sue subleassor.

2. (c) 

Answer: A reading of the sections of the American Law of Property cited in the Problem suggests the following solution. (ALP §§9.4 and 9.5 concern when covenants touch and concern the land and run to assignees; this is a subject we take up in detail in Chapter 10, but we can note here that both a covenant to pay rent and a covenant to keep in repair run with the lease.)  

T is liable to L for T3's defaults, on privity of contract; there was no novation of the original lease and its covenants.


T1 is liable to L for T3's defaults on privity of contract, by virtue of T1’s assumption of the covenants in the lease. See ALP §3.61: "If . . . the assignee in taking an assignment from the lessee assumes the covenants of the lease, he becomes liable to the lessor in contract wherever third-party beneficiary contracts are recognized, and his liability then survives a further assignment. But the assumption generally must be expressed in the assignment; no assumption is implied merely from the taking of an assignment, nor from the fact that the assignment states that it is subject to the covenants of the lease."



T2 is not liable. There were no breaches on his part while he was in privity of estate with L (T2's privity of estate with L ended when T2 assigned to T3), and T2 was never in privity of contract with L because he did not assume the covenants of the lease.



T3 is liable to L for his breaches, on privity of estate arising from the assignment. One in privity of estate with the landlord is liable for his breaches of all covenants in the lease that run with the land, and the covenants in the Problem are of the sort uniformly held to run, because they touch and concern the land.


Understand that if L proceeds against T, T can then proceed against T1 on privity of contract (because T1 assumed the covenants in the lease; T2 and T3 did not) or against T1 and/or T3 on a subrogation theory — T stands in the position of a surety who, having had to pay L by the virtue of the breaches of another or others, stands in L's place. Similarly, if T proceeds against T1, T1 may proceed against T3 on the same (subrogation) basis.

3. Suppose the following situations arise in a jurisdiction following the rule in Kendall, or in any jurisdiction under a lease providing that “there shall be no sublease or assignment without landlord’s consent, and such consent shall not be unreasonably withheld.” What result?


(a) L leases to T for a term of five years. After two years, T wishes to transfer the lease to T1. L refuses consent because T1 is a tenant in another of L’s buildings under a lease that is about to expire; L and T1 have been actively negotiating a new lease, and L wants to avoid losing T1 as a tenant in the other building.

Answer: L is being unreasonable.

Must L mitigate by renting the abandoned premises to one of his own tenants? Krieger implies that the answer is yes, but we think that result is wrong. Behind the mitigation requirement is the idea that ordinarily the tenant's breach enables a gain by the landlord, who can now rent the vacated premises to someone else. But the landlord realizes no net gain when that someone else is already a tenant of his in another unit. Hence the duty to mitigate should not ordinarily entail an obligation on the landlord's part to rent a vacated unit to another of his tenants. By the same token, a landlord should not ordinarily be regarded as acting unreasonably in withholding consent to a transfer, when the proposed transferee is again another of his tenants.

Suppose instead that T1 is not already a tenant of L, but rather is a prospective tenant who wants to use the leased property for a business that will compete with L’s business in the same area.

Answer: The decision says that a legitimate reason for a landlord to prevent subletting of the premises is 'to protect the lessor's interest in the preservation of the property and the performance of the lease covenants.' It is reasonable to argue that protection from competition which diminishes the landlord's business is not general economic protection but is specific protection in his ownership of the particular property. That is particularly true here where the subleased property is in the same shopping center where the landlord has his business and the landlord might have validly included a restricted use clause in the lease for the very purpose of protecting the business interests of other tenants in the shopping center."

(b) L, a Christian evangelical organization, owns a building that it uses as its headquarters. No religious services are held in the building. L leases space in the building to T for a term of three years. After one year, T wishes to transfer the lease to T1, an organization that proposes to use the leased space as a counseling center providing information on birth control and abortion. L refuses consent on the sole ground that it is fundamentally opposed to the aims and activities of T1.

Answer: L is being unreasonable. T1 was acceptable by objective criteria — financial considerations, intended use of space, legality of business. What made T1 objectionable was a subjective consideration arising out of the identity of L, "who urges that immiscible doctrinal differences render peaceful coexistence in the same building impossible, or at least uncomfortable." To let L refuse would be to give into arbitrary matters of personal taste, sensibility, and convenience.


So said the judge, who held "that when a religious or religiously affiliated or educational institution operates a commercial enterprise or owns commercial

property, it is to be held to the established standards of commercial responsibility, its acts and conduct being vested with no greater and no lesser sanctity than those of any other owner."

(c) What if in any given situation L demands a fee in exchange for consenting to a transfer of the lease?

Answer: If no fee provision in lease, unreasonable.

3.  L leases to T for a term of five years at a monthly rent of $900; in the lease, T covenants to pay the rent and further covenants not to sublet or assign without L’s permission. Thereafter T, with L’s permission, assigns to T1 (T1 does not expressly assume the obligations of the lease); then T1 assigns to T2 without first obtaining L’s permission. T2 defaults in rent payments, and L sues T1 for the amount due.



What result?

Answer: The rule in Dumpor's Case terminates the prohibition against assignment when the landlord consents unless the landlord specifically reserves the right to prohibit future assignments.


Although it is disapproved by the Restatement, Dumpor's Case still survives in some jurisdictions.


If Dumpor's Case applies here, T1 wins:


T1's assignment is good even without L's permission.


T1 did not assume the covenants of lease, so he is no longer liable once he transfers.


If Dumpor's Case does not apply, L wins, because L and T1 still are in privity of estate.


Dumpor's Case does not apply to subleases.

Landlord Tenant

Tenant's Duties

1.  Malory leases her South Beach condo to Lana. An accidental electrical fire occurs, causing significant fire damage to the kitchen. Their lease is silent as to who is responsible for repairing the condo.


  1. Did Lana commit waste by not maintaining the wires during her lease?

  2. What if Lana has instead failed to put up hurricane shutters before a storm, which caused water damage to the interior of the condo?

Answer: 1.  Lana has not committed any waste. Destruction without fault of either party is not waste.

2.  Lana has committed affirmative waste by negligently damaging the premises.


2.  Malory leases her South Beach condo to Archer. Archer has a legal, state issued medical marijuana card. He uses prescribed marijuana as a cancer treatment. Possession of marijuana, however, remains illegal at the federal level. The DEA conducts a raid and arrests Archer. The front door is destroyed in the raid.


  1. Can Malory terminate the lease?


Answer: 1.  Probably not. Malory’s best remedy would be a suit for damages caused by the raid, but it is unlikely a state court would evict when Archer’s conduct was lawful under state law.


3.  Stannis leases Dragonstone to his brother Robert so long as Robert doesn’t drink at Dragonstone. Robert drinks.


  • Can Stannis change the locks so that his brother cannot access the alcohol in the kitchen?

  • Can Stannis cut the power so that his brother’s booze is spoiled?

  • What must Stannis do to remove Robert from the property?


Answer: No, No, He needs to bring a partition action

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