25 borbrl' PRACTICE ESSAY QUESTIONS 1. REAL PROPERTY QUESTION 1 On June 1, Owens contracted to sell his residence to Byer for $100,000 cash with a deposit of $10,000. The contract provided that the seller would convey \"good and marketable title, free and clear of all liens and encumbrances.\" A closing of title was to take place \"on or before September 1,\" at the ofce of Byer's attorney. On August 20, Byer told Owens that he would need until September 8 to raise the necessary funds. Owens replied that he had to close title on September 1, in accordance with the contract, because he needed the proceeds to purchase another home that same day. On August 28, Byer for the rst time examined a copy of Owens's recorded deed. Byer noted that the land was described as follows: The parcel known as Homeacre, beginning at the large boulder located at the Northwest corner of the property, then East along Main Street to the edge of Babbling Brook, then South along Babbling Brook to the oak tree, then West to the maple tree, then North to the point of beginning, consisting of 4.3 acres. In fact, the description using the boulder, Babbling Brook, and the two trees yields 4.1 acres. Moreover, a title search revealed the following: 1. The property is subject to a mortgage, held by National Bank, in the amount of $50,000. 2. Ten years ago, a zoning law was passed that prohibits the erection of any additional struc- tures on the property. That same day, Byer notied Owens that the deed raised certain questions in his mind, especially because he wanted to build a storage shed in the backyard. Owens replied by merely renewing his demand that Byer close title no later than September 1 or risk forfeiture of his deposit. Byer has consulted you to represent his interests. (a) Will Byer breach the contract if he does not tender payment until September 8? (b) How many acres will the deed convey? (c) Does Byer have a cause of action against Owens for unmarketable title