Three friends acquired a lake house under a deed conveying the property “to Alex, Blair, and Casey as joint tenants with right of survivorship.” Several years later, Alex executed and delivered a valid deed conveying Alex's entire interest to Dana. Blair and Casey neither consented to nor learned of the conveyance until after delivery. Alex then died. Dana asks a lawyer whether Alex's death caused Dana's interest to pass to Blair and Casey by survivorship. No agreement restricts any owner's power to transfer an interest. Which of the following best states the parties' ownership interests after Alex's death?

The buyer holds a one-third tenancy-in-common interest, while the two remaining original owners remain joint tenants with each other.

The buyer becomes a joint tenant with both remaining owners because the conveyed interest retains its original survivorship feature.

All three owners become tenants in common because one joint tenant's conveyance severs the entire joint tenancy.

The conveyance is ineffective unless both remaining joint tenants consented to the transfer before the deed was delivered.

An owner held adjoining front and rear parcels. For 15 years, the owner reached the rear parcel by using a paved driveway across the front parcel. The driveway was visible and was the only practical route for ordinary vehicles, although a steep alternative driveway could be constructed on the rear parcel for substantial expense. The owner sold the rear parcel without mentioning the existing driveway in the deed. Before buying, the purchaser inspected the property and saw the driveway connecting the rear parcel to the public road. After the sale, the owner placed a barrier across the driveway and told the purchaser to construct a new route. Which of the following is the purchaser's strongest argument for continued use of the existing driveway?

An easement based on prior use likely arose because the visible, continuous use was reasonably necessary when the parcels were severed.

No easement arose because the driveway was not described in the deed conveying the rear parcel.

No easement arose because another access route could be constructed, even though construction would be unusually expensive.

An easement by necessity arose because any inconvenience in reaching a public road establishes strict necessity.

Real estate sales contracts — Bar Exam Lessons

The Bargain Takes Shape: The Fast Floor for a Signed Deal

The governing framework is the common law of contracts as modified by applicable state real-property statutes, especially the Statute of Frauds. A land-sale problem usually begins with a proposed writing, signature, deposit, counteroffer, contingency, inspection, financing failure, or disagreement about what must be delivered at closing.

The formation checklist is:

Statute of Frauds. A contract for the sale of land ordinarily must be evidenced by a writing signed by the party to be charged or an authorized agent. The writing should identify the parties, the land, and the price or an ascertainable method for determining it. If an essential term is missing and cannot be supplied objectively, enforcement may fail.
Offer and acceptance. Ask whether the communication was a definite offer, a rejection, a counteroffer, or merely negotiation. A counteroffer ordinarily terminates the original offer. Acceptance must follow the offer’s required method and must not add materially different terms. A signed writing can satisfy the Statute of Frauds even though the parties later dispute whether a contract was formed.
Contingencies. Separate a condition from a promise. “Buyer’s obligation is contingent on a satisfactory inspection” makes the inspection result a condition to performance. “Buyer will obtain an inspection” is a promise. A condition that does not occur may excuse performance without a breach, unless the party seeking to rely on the condition wrongfully prevented it.
Financing. A financing contingency protects the buyer only to the extent its language does so. Determine the required loan amount, interest rate, application deadline, documentation, and good-faith efforts. If the buyer simply refuses to apply, the buyer may have prevented the condition. If the contract has no financing contingency, loan denial ordinarily does not excuse the buyer.
Modification and partial performance. A material modification to price, land, closing date, or other land term ordinarily requires a signed writing when the modified agreement remains within the Statute of Frauds; common-law consideration may also be required. A waiver, reliance, or an accepted course of performance can affect whether a party may insist on the original term. Payment, possession, or improvements may support enforcement through partial performance, but the effect varies by jurisdiction and usually depends on a combination of acts that reliably point to the alleged agreement.

Run the facts in this order: identify the alleged agreement, test the writing and signatures, determine offer and acceptance, list essential terms, classify each contingency as condition or promise, then test modifications and partial performance. Only after an enforceable bargain exists should you analyze breach or a closing objection.

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The chart’s floor is what you must recognize without help. Exact statutory wording, detailed exceptions to the Statute of Frauds, and jurisdiction-specific partial-performance rules are the materials you should locate when supplied.

Failure and Fixes: Match the Event to the Remedy

First classify the event: ordinary breach, anticipatory repudiation, failed condition, casualty, condemnation, or financing failure. Then ask what the contract says, whether the nonbreaching party is ready and able to perform, and which remedy fits the land’s value and the parties’ conduct.

Event before closing	Main question	Typical consequence
Seller refuses to convey	Can buyer prove an enforceable contract and readiness to perform?	Damages or specific performance, often with restitution of the deposit
Buyer refuses to close	Did buyer breach or did a financing condition fail?	Seller may claim damages, retain enforceable liquidated damages, or seek specific performance
Party repudiates early	Has repudiation been clearly communicated?	Innocent party may treat it as breach, sue, and mitigate, or sometimes await performance
Condition fails	Was the condition a true condition and was it prevented?	Contract duty may end without breach, or prevention may create breach
Casualty or condemnation occurs	Who bears the risk and what does the contract provide?	Termination, closing with an adjustment, or performance if the contract allocates the risk

A buyer’s expectation damages generally measure the property’s market value at breach minus the contract price, plus appropriate consequential or incidental losses that are foreseeable and provable. A seller’s damages generally measure the contract price minus the property’s market value at breach. The injured party must avoid avoidable loss.

Specific performance is especially available because land is treated as unique, but the contract must be sufficiently definite and the claimant must show readiness, willingness, and ability to perform. A court may deny it when supervision would be impractical or the claimant acted inequitably. A seller may sometimes obtain specific performance against a buyer, but damages or an agreed deposit remedy is more common.

Rescission unwinds the bargain for a material breach, fraud, or another recognized basis for cancellation. Restitution returns benefits already transferred, such as a buyer’s earnest money or a seller’s payment. Rescission is different from expectation damages: it seeks to restore the parties rather than give the injured party the contract’s expected gain.

An earnest-money clause may operate as liquidated damages. The agreed amount is generally enforceable when it was a reasonable estimate of difficult-to-measure anticipated loss and not a penalty. If the clause is unenforceable, the seller may still pursue proven damages. A deposit does not automatically belong to the seller merely because the buyer fails to close.

A clear anticipatory repudiation permits the innocent party to treat the contract as breached and pursue an available remedy, subject to mitigation. Mere doubt, delay, or a request to renegotiate is not necessarily repudiation. A party may also retract before the other party materially changes position unless the contract or governing law provides otherwise.

For casualty, condemnation, and financing, begin with the contract. A casualty clause may give the buyer a termination right, require insurance proceeds to be credited, or require closing despite damage. Under traditional equitable-conversion principles, the buyer may bear the risk after an enforceable contract, but modern statutes and the agreement may place it on the seller until closing. Condemnation may give the buyer a right to terminate or to receive the condemnation award if the promised property cannot be delivered. A financing failure excuses the buyer only when the contract makes financing a condition and the buyer complied with its application and cooperation duties.

Condition of the Premises: Hidden Damage and the Inspection Clause

Caveat emptor generally places the burden of discovering defects on the buyer, particularly for a used property when the seller has not made a misleading statement. It does not protect active concealment, fraudulent misrepresentation, or a seller who has a duty to disclose a known latent material defect. A latent defect is not reasonably observable by ordinary inspection; a patent defect is observable.

A seller’s disclosure duty may arise from statute, the parties’ contract, or common law. The key questions are whether the seller knew, whether the defect materially affects value or safety, whether it was hidden, and whether the seller disclosed it accurately. A seller need not volunteer every unpleasant fact, but may not answer a direct question falsely or conceal a material hidden danger.

An inspection provision usually gives the buyer an inspection right and may create a termination or repair process. It does not automatically erase a seller’s duty to disclose known latent defects. An “as-is” clause can allocate the risk of unknown or discoverable conditions, but it ordinarily does not immunize fraud, intentional concealment, or a disclosure duty that the supplied rule makes nonwaivable. Read the exact clause.

New construction commonly carries an implied warranty that the home was built in a workmanlike manner and is suitable for ordinary habitation. The warranty generally concerns construction defects, including latent defects that emerge after purchase. A builder’s disclaimer may be effective only if applicable law permits it and the language is sufficiently clear; supplied authority controls.

A seller of a used dwelling must disclose to the buyer any known defect that is both latent and material to the dwelling’s value or safety. A buyer’s inspection provision does not waive that duty unless the contract expressly states that the buyer accepts the property as-is and waives disclosure. The seller is not liable under this rule for a defect the buyer actually discovered or that ordinary inspection would reveal, absent fraud or intentional concealment.

Buyer agreed to purchase a ten-year-old house from Seller. Before signing, Seller discovered a concealed foundation crack that could allow water into the basement and materially reduce the house’s value. Buyer asked Seller whether the foundation had problems, and Seller answered, “No.” The contract gave Buyer a right to conduct an inspection but contained no as-is language and no express waiver of disclosure. Buyer’s inspector did not discover the crack. After closing, water entered through the crack.

Practice

Under the supplied provision, which conclusion is most appropriate?

Marketable Title at the Table: Cure the Reasonable Objection

Marketable title is title reasonably free from a substantial probability of litigation. It need not be perfect or insured against every theoretical claim. Test the title promised by the contract, then ask whether a reasonable buyer could be compelled to accept a title dispute or a material restriction.

A transactional checklist asks:

Does the seller have the title the contract requires at closing?
Is there an unpaid mortgage, judgment lien, tax lien, mechanic’s lien, or other monetary charge?
Is there an undisclosed encumbrance that materially interferes with use or value?
Do zoning violations, prohibited uses, or restrictions create a substantial legal risk?
Did the buyer timely and specifically object, and did the contract waive or accept the objection?

A listed easement, restriction, or zoning limitation may not defeat marketability if the buyer expressly agreed to take title subject to it. An ordinary minor restriction may be acceptable, while a restriction that prevents the contracted-for use or creates serious enforcement risk may be material. A title insurance policy does not necessarily satisfy a promise to convey marketable title if the contract separately requires marketability.

The seller ordinarily must cure a reasonable objection before or at closing by paying liens, obtaining releases, correcting the record, or otherwise delivering the promised title. If the seller cannot cure within the contract’s time, the buyer may have a right to terminate and recover the deposit, seek damages, or seek another contract remedy. The buyer may not manufacture an objection based on a merely technical or speculative concern.

Buyer signed a contract requiring Seller to convey marketable title. At closing, a recorded judgment lien against Seller remained attached to the property. Seller offered a title insurance policy but did not pay or release the lien. Buyer timely objected and refused to close.

The buyer may reject the tender or allow the contract’s cure period to run because an unpaid judgment lien creates a reasonable litigation and enforcement risk; title insurance alone does not cure the contractual title defect unless the agreement makes it sufficient.

Closing and Merger: Which Promises Cross the Deed

At closing, identify what the parties actually delivered and accepted, then classify each promise. The merger doctrine generally absorbs into the deed those contract terms concerning the title, quantity, or quality of the estate conveyed. After the deed is accepted, the deed ordinarily becomes the controlling expression of those conveyance terms.

Promises that are collateral to the conveyance may survive. Examples include a promise to repair a roof, remove personal property, pay a specified expense, complete agreed work after closing, or deliver documents later. An express survival clause strongly supports enforcement after closing. The promise’s subject and timing matter: a promise naturally performed after closing is less likely to merge than a promise that merely describes the estate conveyed.

Use this decision procedure:

Identify the alleged promise and the contract language.
Ask whether it concerns the estate or title being conveyed, or a separate performance.
Check the deed and any express survival clause.
If the promise merged, examine the deed and any remedy supplied by that instrument.
If the promise is collateral and survives, apply the contract’s breach remedies.

Do not assume that closing erases every contract claim, and do not assume that a buyer can preserve a deed-related objection simply by labeling it a contract promise.

High-Yield Points - ⚡ Biggest Takeaways

A land-sale writing needs parties, land, price, and signature by the party charged. A financing contingency excuses failure only when its conditions and good-faith application duties are satisfied. A known latent material defect triggers disclosure despite an inspection clause without an express waiver. Marketable title tolerates minor matters but not substantial litigation risk or uncured material liens. Merger absorbs deed-related promises while distinct post-closing promises can survive.