Answers to Summer 2011
California Bar Exam Questions

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Summer 2011 Bar Question 5

Real Property

Prior to 1975, Andy owned Blackacre in fee simple absolute. In 1975, Andy by written deed conveyed Blackacre to Beth and Chris “jointly with right of survivorship.” The deed provides: “If Blackacre, or any portion of Blackacre, is transferred to a third party, either individually or jointly, by Beth or Chris, Andy shall have the right to immediately re-enter and repossess Blackacre.”

In 1976, without the knowledge of Chris, Beth conveyed her interest in Blackacre to Frank.

In 1977, Beth and Frank died in a car accident. Frank did not leave a will and his only living relative at the time of his death was his cousin Mona.

In 1978, Chris and Andy learned that Beth had conveyed her interest in Blackacre to Frank. When Mona approached Chris a day later to discuss her interest in Blackacre, Chris told her that he was the sole owner of Blackacre and she had no interest in Blackacre. Chris posted “No Trespassing” signs on Blackacre. He also paid all of the expenses, insurance, and taxes on Blackacre. Andy and Mona have never taken any action against Chris’ possession of Blackacre.

1. What right, title, or interest in Blackacre, if any, did Andy initially convey to Beth, Chris, and himself? Discuss.

2. What right, title, or interest in Blackacre, if any, are held by Andy, Chris, and Mona? Discuss.

All questions © 2011 California State Bar Exam. All rights reserved

Real Property
Question 5, Summer 2011

1. A to B and C—Joint tenancy?
A joint tenancy form of title automatically conveys one joint tenant’s undivided half interest to the other upon death, called a right of survivorship. Courts disfavor joint tenancy and require the grantor’s intent is clear by use of precise wording in the title.

That wording is “as joint tenants with right of survivorship.”
Here, the grant said “jointly with right of survivorship.” This is not the precise wording, so the question is whether the court can be sure of A’s intent to create a joint tenancy.

The word, “jointly” would not have been enough, standing alone. However, here A added “right of survivorship.” This may be close enough to convince a court that a joint tenancy was intended.

Four unities. A joint tenancy requires the four unities of title, possession, interest, and time. When there is a single grant to both grantees, who take the same share, the four unities of title are met.

Condition. A court may examine whether A’s condition is further proof he intended a joint tenancy. The condition occurs when B or C or both of them—individually or jointly-- conveys all or part of Blackacre to a third party. Arguably, this is further proof of A’s intent that B and C retain a joint tenancy, since conveyance by either of them or both of them would sever the joint tenancy. However, A’s condition may simply mean A wants to keep Blackacre in the family or among people he knows; it may have nothing to do with maintaining a joint tenancy. Certainly, if that were the condition A intended, there were more direct ways of expressing it.

Therefore, the condition does not add weight to A’s intent to grant a joint tenancy. The language is imprecise, but is quite close. A court could find either a joint tenancy or a tenancy in common, a title with no right of survivorship.

“If B or C or both transfer...”—Fee Simple subject to condition subsequent. When the grant is followed by “if” or “but if” and names an occurrence or a nonoccurrence, there is a condition subsequent on the deed. Here, A said “if B or C or both transfer Blackacre or any part to a third party.” This makes the grant subject to a condition subsequent.

“A shall have the right to immediately reenter and repossess”—Right of re-entry. Language of reentry in a condition subsequent does not automatically defeat the grantee’s interest, but requires the affirmative action of the grantor to retake the land after the condition occurs.

Conclusion as to deed
The deed is either a joint tenancy with right of survivorship, subject to a condition subsequent requiring A’s action to reenter or a tenancy in common subject to a condition subsequent requiring A’s action to reenter.

1976. B conveyed her interest to Frank.
A transfer of the interest of one joint tenant severs the joint tenancy and creates a tenancy in common. If B and C had a joint tenancy, B’s transfer to Frank severs B’s joint tenancy, and F and C have a tenancy in common.

If B and C had a tenancy in common, B’s conveyance to F results in C and F having a tenancy in common.

Regardless of which form of title A created initially, B has conveyed her interest and has no further interest in Blackacre.

A’s right regarding condition subsequent. The grantor’s right to reenter and retake is not automatic but requires his action to reenter and retake within the statutory period. B transferred her interest in 1976. In 1978, A learned that B had conveyed her interest to F. A has taken no action from 1978 to the present, so he no longer has any rights in Blackacre.

1977. B and F die.
B conveyed her interest, so her death has no effect on the title to Blackacre.

F has a tenancy in common with C to an undivided half interest in Blackacre. A tenancy in common contains no right of survivorship, so the property passes by will or intestacy. Here, F had no will and his only relative is his cousin, Mona. Therefore, Mona will take an undivided half interest in Blackacre as a tenant in common with C.

1978. C’s possession of Blackacre—adverse possession.
Co-tenants have undivided interest in the entire estate. Each co-tenant has the right to occupy the entire estate. However, it is possible for one co-tenant to oust another via adverse possession. Because each tenant has the right to occupy the whole estate, occupying the land alone, even for the statutory period, does not establish adverse possession. Possession ust be combined with acts so inconsistent with concurrent ownership as to be notice of adverse possession.

Generally adverse possession requires that the possessor’s actions be: adverse and hostile, open and notorious, and continuous.

Adverse and hostile.
Belief of ownership even if mistaken is proof of adversity. Here, Chris told Mona he was the sole owner of Blackacre and she had no interest. Chris may have mistaken believed that the property was still owned in joint tenancy. When he learned in 1978  that Beth conveyed to Frank, he may have thought that Frank took Beth’s interest and that Chris and Frank were joint tenants. When Frank died, under Chris’ mistaken belief, his interest automatically would have passed to Chris.

Chris may also have believed that Andy’s restriction in the deed prevented either of them from conveying Blackacre at all, so that Beth’s attempt to convey to Frank was null and void. Chris might have thought Beth was still his joint tenant and when she died, her interest automatically passed to Chris.

In fact, Beth’s conveyance to Frank was valid and destroyed the joint tenancy, and, with it, the right of survivorship. However, Chris’ mistakenly held belief that he was entitled to sole ownership of Blackacre is proof of occupancy hostile to Mona.

Payments Chris made may also establish hostility.
Expenses. The tenant in possession is responsible for ordinary repairs and maintenance and he can demand no contribution from co-tenants. So, the expenses Chris made do not help his claim of adverse possession.

Insurance. The rule of thumb is whether the payment benefits only the enjoyment of the tenant in possession or whether it benefits the cotenancy. It may depend on the type of insurance Chris paid. For example, earthquake insurance would benefit the cotenancy. But homeowner liability insurance would benefit only the occupant. Insurance on property generally protects the property from damage or destruction, so it is likely that this benefits the cotenancy as a whole and would not help Chris establish adversity.

Taxes. Payment of property taxes along with occupancy is strong evidence of hostility.

Open and notorious. This requires that the cotenant be aware of the adverse possession. Chris living on the land by itself is not notice of adversity. The best proof would be written notice to Beth. Here, Chris posted “No Trespassing” signs, but he could have intended those for strangers and not for Mona. However, Chris told Mona in 1978 right after Frank died that he was the sole owner and she had no interest. Therefore, Mona had notice of Chris’ intent to adversely possess Blackacre I 1978.

Continuous. The adverse possessor must possess the land for the statutory period, generally, 21 years. Here, Chris lived on Blackacre exclusively from 1978 to the present, well over 21 years.

Therefore, Chris’ express notice to Mona, together with paying taxes and his exclusive possession for 33 years ousted Mona, and Chris is the sole owner of Blackacre in fee simple absolute 

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