Property I Class Website

Section 3

Prof. Scott B. Ehrlich
Fall 2017


Welcome to the Property Class Website

This website provides updated information about the course and assignments. It also contains links to the handouts and materials used in the course, as well as links to sites on the web.  Feel free to contact me if you have any questions.

Please note: All materials on this web site are protected by copyright and intended for use only by students enrolled in Property II at California Western School of Law. Students enrolled in the class may copy these materials to their own computers. However, these materials may not be transferred to others or posted on publicly accessible web sites.



Password for Documents: There is a password for most documents on this website.  It will be announced in class and emailed to you.  Some web browsers (such as Safari & some versions of Internet Explorer) will not open password protected PDF files.  To open the files, download them to your computer and use Adobe Acrobat or a PDF-compatible browser.


Class Assignments: Below are the day-to-day assignments for the course.  They are updated often so hit the “Refresh” button on your browser to assure you are viewing the most recent updates. Many browsers will use a cached version of the website & may not reveal the most recent updates unless you hit the refresh button.  All of the Assignments for the course are on-line via this link: Assignments for the entire Semester.  As the semester moves forward, you can find earlier assignments previously posted here by clicking on this link: Past Assignments.


Reminder – Midterm Exam: Midterm Exam: Information about the exam is posted here: Midterm Exam Info


1.    Thursday, October 19

a.    Brief Introduction to Leasehold Estates: Page 244.

b.    Adverse Possession & Life Estates

(1)  Grant deeded land “To Ann for life, then to Bob.”  The deed was defective.  Ann took possession for 45 years.  After 45 years, Ann brings an action alleging that she has gained title to the FEE by adverse possession.  Should Ann succeed in this action?

(2)  Grant deeded land “To Ann for life, then to Bob.”  The land was vacant.  Grantor then executed a deed: “To Xavier in fee simple absolute.”  Xavier did not know about the prior grant to Ann & Bob.  Xavier took possession and built a home.  He lived there for 45 years.  Ann died 3 weeks ago.  Today Bob brings an action alleging that he is the rightful owner.  Xavier alleges that he has gained title by adverse possession.  Who will succeed in the action of Bob v. Xavier?

c.     Defeasible Estates:

i.      Review hypothetical 12 at page 38 of the Supplement.  On line copies of the hypotheticals: PDF, Word

ii.     Mahrenholz v. County Board of School Trustees at pages 248-256 and notes 1-4 following the case.

(1)  Note that this case is a mid-level appeals court.  Carefully note the cases referred to in the opinion, which are opinions of the Supreme Court of Illinois. 

(2)  This mid-level appellate court is clearly wrong in applying Illinois law about interpretation of deeds and wills.  Why? Concentrate on the middle of page 250 (starting with “The difference . . .”) through the second paragraph on page 251.  Is the intent of the grantor to create a fee simple determinable clear – or is the court engaging in speculation about the intent?

iii.    Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano at pages 258-264 and notes 1-2 following the case.  Also read the note on page 243. The will in Mountain Brow Lodge stated:

(1)  "Said property is restricted for the use and benefit of [Mountain Brow Lodge], only; and in the event the same fails to be used by [Mountain Brow Lodge] -- or -- in the event of sale or transfer by the [Mountain Brow Lodge] of all or any part of said lot  --  the same is to revert to the first parties herein, their successors, heirs or assigns."

iv.   Why should both provisions be unenforceable as restraints on alienation?

v.     Read Defeasible Life Estates at pages 271-273.

d.    Modern Curtailment of Defeasible Fees:  Read the statutory provisions of the California Civil Code at pages 39-41 of the Supplement.  Be prepared to explain the purpose of each statutory section.  Prepare, in writing, a short explanation of the purpose of each statutory section. 

2.    Tuesday, October 24

a.    Future Possessory Estates

i.      Possibilities of Reverter, Rights of Entry (Powers of Termination): Pages 42-43 of the Supplement.

ii.     Dukeminier pages 275-281.

iii.    Remainders: Pages 281-285. Do all notes, examples and problems.

iv.   Executory Interests: Pages 286-292.

b.    Remainders, Reversions & Executory Interests: Answer, in writing, the hypotheticals at pages 44-47 of the Supplement. Make sure you bring your answers to class. This is a required writing assignment.  On line copies of the hypotheticals:  PDF, MSWord

3.    Thursday, October 26

a.    Review the answers to the remainder hypotheticals:  Answers to Remainder Hypotheticals (available on line after class on Tuesday)

b.    Do the “Estates In Land Worksheet”: PDF, MSWord

i.      The answers to the Worksheet are also available online.  Answer the Worksheet hypos first, then check your answers against the answers: Answers to Estates in Land Hypos

4.    Tuesday, October 31

a.    Some Anomalous Doctrines - Preventing Limitations on Marketability

i.      Read about the Destructibility of Contingent Remainders, and the abolition of the Rule, at pages 303-306.

ii.     Read about the Rule in Shelley's Case, and the abolition of the Rule, at pages 306-307.

iii.    Read about the Doctrine of Worthier Title at page 307

b.    The Rule Against Perpetuities

i.      Read Supplement pages 48-49.

ii.     Read Dukeminier pages 307-312. Do problems 1-4 on pages 312-313.

iii.    Grantor’s Interests: pages 314-315.

iv.   Answer the following Rule Against Perpetuity hypos:  PDF, MSWord

v.     The answers to the Rule Against Perpetuities Hypos are online.  Answer the hypos first, then check your answer against these: Answers

5.    Thursday, November 2 – No Property Class

6.    Friday, November 3: -- Midterm Exam, 8:00-9:25 am

a.    Room 2B: Last Name A-K

b.    Room LH2: Last Name M-Z

c.     Midterm Exam: Information about the exam will be posted here as we get closer to the exam.

i.      The exam will cover material assigned in Part 2 of the Assignments (Estates in Land). The material on the exam will focus on the material as it was covered in class.  You will receive more detailed information and sample questions prior to the exam.

d.    Below are links to all the assigned hypotheticals, with answers.

i.      Hypotheticals from pages 35-38 of the Supplement.  PDF, Word,

(1)  Answers to hypotheticals from pages 35-38.

ii.     Remainder hypotheticals at pages 44-47 of the Supplement. PDF, MSWord. 

(1)  Answers to Remainder Hypotheticals

iii.    “Estates In Land Worksheet”: PDF, MSWord

(1)  Answers to Estates in Land Worksheet

7.    Tuesday, November 7

a.    Introduction to Concurrent ownership

i.      Pages 343-348.

b.    Joint Tenancy

i.      Respond to the following questions:  Ann & Bob own Blackacre as JTWROS.  Ann executes a lease to Carl for 10 years.  Ann dies, devising (by will) her interest in Blackacre to her daughter, Annette.

(1)  Has the survivorship feature been severed by the lease?

(2)  What happens to Carl if the lease has 9 years remaining in the term?        

(3)  If you were Carl, what would you demand before signing the 10-year lease with Ann.  Suppose the property is a house and the rent is $5,000 per month.

(4)  What does Annette get upon Ann’s death?

ii.     Read Riddle v. Harmon and notes 1-2 following the case at pages 348-354.

(1)  Challenge Question:  In Riddle v. Harmon, the co-owners took title as Joint Tenants With Right of Survivorship.  Either co-owner could easily sever the joint tenancy survivorship feature at any time prior to death by a new conveyance of his or her 50% interest to a strawman (such as a lawyer), who then immediately conveyed it back to him or her.  This would break the four unities.  Write a simple grant to Ann and Bob in a manner that the survivor will take 100% when the other co-owner dies, and no co-owner can unilaterally change that outcome.

8.    Thursday November 9

a.    Partition & Relations Among Concurrent Owners:

i.      Harms v. Sprague and notes 1-3 following the case at pages 354-359.

(1)  Respond to this Hypothetical:  Ann & Bob own Blackacre, as joint tenants with right of survivorship. Blackacre is worth $1 million.  Ann needs to borrow $100,000 so she applies to Bank for a loan.  Bank requests a mortgage lien on Ann’s 50% interest in Blackacre as collateral for the loan.  Ann executes a “mortgage” of her 50% interest to Bank.  Does the granting of the mortgage to Bank sever the survivorship component of the JTWROS between Ann and Bob?  Should it sever? If we apply the hyper-technical “4 unities” then the answer will depend on whether or not we are in a “Lien Theory” state or a “Title Theory” States.  In lien theory states, the lien is just an encumbrance on the fee and does not sever.  In title theory states, the mortgage is seen as a conveyance in trust to the Bank and will sever the right of survivorship.  Why are both points of view problematic?

ii.     Pages 361–362.

iii.    Delfino v. Vealencis at pages 362-371 and notes 1, 2, 4 and 5 following the case.

9.    Tuesday, November 14

a.    Partition

i.      Review notes 1, 2, 4 and 5 following Delfino v. Vealencis at pages 367-371. 

(1)  Read note 1 very carefully.

(2)  Pay careful attention to the discussion of Johnson v. Hendrickson at pages 369-370.  Would the court in Johnson reach the same result as the court in Delfino?

b.    Relations Among Concurrent Owners:

i.      Note “b” at page 371.

ii.    Spiller v. Mackereth at pages 372-375 and notes 1-3 following the case.

c.     Accounting & Contribution:

i.      Swartzbaugh v. Sampson and notes 1-3 following the case at pages 375-380.

(1)  It is helpful to note that Mrs. Lola Swartzbaugh is the plaintiff and there are two defendants: Sam Sampson (the lessee) and Mr. John Swartzbaugh (Lola’s husband and co-owner).

(2)  Read the notes at pages 380-382.

ii.     Read the following interesting excerpt from Powell on Real Property

iii.   Read & answer the hypos at this link:  Accounting & Contribution Hypos.  Pay special attention to Hypo #5.  Many treatises state that Ann is liable to her cotenants for all of the profits received by Ann.  Why are the treatises probably wrong?

10.  Thursday, November 16

a.    Accounting & Contribution:

i.      Consider the following hypothetical.  What should the outcome be?

(1)  Ann, Bob & Carol own land in Montana.  Ann builds an $80,000 ranch house without consent from Bob & Carol. Five years later, the land is sold for $300,000.  Is Ann entitled to contribution for the cost of improvements she constructs without co-owner consent?  Consider three scenarios:

(a)  The land value without the house is $300,000?  Can Ann get contributions from her co-owners?

(b)  The land value without the house is $220,000?

(c)   The value without the house is $250,000?

b.    Marital Interests: 

i.      Introduction: Pages 383-385. Do not do the problem on page 385.

ii.     Tenancies by the Entireties: Sawada v. Endo at pages 385-393 and notes 1-2 following the case.

iii.    Protecting Spouses Upon Death or Dissolution: Pages 393-395 and pages 407-410.

iv.   Community Property: Pages 410-415.

11.  Tuesday, November 21:

a.    Final Exam Information: 

i.      Information about the Final Exam is now online.  I will discuss the information in class on Tuesday.

b.    Marital Interests: 

i.      Community Property: Review pages 410-415.

c.     Introduction to Easements:

i.      Part IV(A)(1): Pages 809-814.

d.    Creation of Easements:

i.      Willard v. First Church of Christ, Scientist notes 1-4 following the case at pages 814-820. Read about licenses on page 820.

12.  Thursday, November 23 – Thanksgiving

13.  Tuesday, November 28

a.    Easements Created by Estoppel

i.      Holbrook v. Taylor and notes 1-3 at pages 820-825.

(1)  Why were the Taylors unsuccessful in establishing an easement by prescription?

(2)  Why were the Taylors successful in establishing an easement by estoppel?

(3)  What are the elements required to establish an easement by estoppel?

b.    Easements Created by Necessity:

i.      Othen v. Rosier at and notes 1-4 following the case at pages 833-842.

c.     Easements by Prescription: 

i.      Notes 1-3 at pages 842-847. Respond to the following two hypotheticals:

(1)  Hypo #1: In 1978 Sam, owner of Lot A, expressly granted a 20' wide access easement, in writing, to Donna, owner of Lot B, as follows: “A non-exclusive, appurtenant access easement for the benefit of Donna and Donna’s successors over the following described strip. . .” Unfortunately, the deed was technically invalid due to a failure to comply with statutory formalities. Donna used the road for 30 years for access & right of way to her parcel.  Over the years, Donna maintained the road, re-graded the road and used it continuously to gain access to Donna’s land. In 2010, Sam’s successor, Rose, discovered the defect in the deed and brought an action to enjoin Donna’s use and quiet title to Rose’s land in fee, free of the easement. Donna has responded that an easement was created by prescription. What should the outcome of the case be?

(2)  Hypo #2: 30 years ago, Dante owned two adjacent lots, Lot 1 and Lot 2. In 1988, Dante granted Lot 1 to Sally but retained Lot 2.  In the deed to Sally, Dante expressly reserved an appurtenant easement for the benefit of Lot 2 over the land granted to Sally described in the deed as “an easement over the northerly 20 feet of Lot 1.”  Both Dante and Sally intended the easement to traverse the southerly 20 feet of Lot 1 but mistakenly stated the “northerly 20 fee” in the deed.  Dante built and used a road over the southerly 20 feet of Lot 1 and used it for 6 years before conveying his land to Dana, who continued to use the southerly 20 feet of Lot 1 for access to Lot 2.  After 20 years, can Dana claim title to an easement by prescription over the southerly 20 feet?

14.  Thursday, November 30

a.    Easements Created by Implication:

i.      Van Sandt v. Royster at pages 825-831.

ii.     Notes at pages 831-833.

b.    Creation of Easements:  Respond to this hypothetical:

i.      In 1904 Laura Bailey sold Lot 19 to John Jones, retaining Lots 20 & 4.  No easement by implication was established because there was no pre-existing use. In 1905, the sewer is installed when John Jones grants “permission” to Laura to install.  No deed of easement was executed.  Laura installed the sewer line and used it for Lots 4 and 20.  In 1938, Van Sandt (John Jone’s successor to Lot 19) brought an action to enjoin use of the sewer line, claiming no easement exists in favor of Lots 20 & 4. Could Royster & Gray (owners of Lots 20 & 4) assert some other method(s) of easement creation?  Be specific as to the possible success of each method of creation.  You should come up with at least 3 methods of easement creation.

c.     Scope of Easements:

i.      Brown v. Voss at pages 865-874 and notes 1-5 following the case.

ii.     Formulate responses to the following hypos:  Scope Hypos

d.    Termination of Easements: Pages 50-52 of the Supplement.

e.    "Negative" Easements: Pages 887-889.

15.  Tuesday, December 5

a.    Scope of Easements:

i.      Formulate responses to the following hypos:  Scope Hypos

b.    Reminder about Backups: This is the magical time of year when students’ laptops break down, get lost or are stolen.  It’s always a good idea to back up essential data like outlines, briefs, notes, papers, etc.  Two backups are better than one: USB flash drives, cloud storage, etc.

c.     Evaluations & Feedback

d.    Review of Multiple Choice Questions:  Questions

e.    Essay Question review.  We will review the following essay question:  Sample Essay Question

f.      Additional practice essays & model answers:

i.      Essay 1

ii.    Essay 2

Links and Reference Materials    

There is a password for some documents on this website.  It will be announced in class and emailed to you.

1.    California Adverse Possession Statutes

2.    California Codes. This link connects you to the official site of the State of California and allows you to search any of the California Codes.  For instance, to find out about tenant security deposits, click “Civil Code” and insert “tenant security deposit” in the search block.

Questions & Answers

If you have a question that you would like answered, e-mail Prof. Ehrlich at: Your name will not be posted, just the question & answer. We have powerful & enthusiastic junk email filters. If you send me email from an outside account (not your law school email account) make sure you put the word “Property” in the Subject line.


The following links will take you to a compilation of questions posed by prior students, and answers posted by Prof. Ehrlich:  


General Questions & Answers

Estates in Land Questions & Answers

Contact Prof. Ehrlich

E-mail: sbe@cwsl.eduPlease put the word “Property” in the Subject line.
Tel: 619-525-1416
Office: Room 309, Administration Building (225 Cedar St.)


Office Hours







Other Times:

I’m often available, please knock.