FINAL EXAM

FINAL EXAM

Property I

Professor Klass

December 21, 2004 (6-9 p.m.)

Part 1 of 2 (1 hour and 30 minutes):

In January 1990, an elderly man named Julio is on his deathbed in San Francisco, California surrounded by his three children, Enrique, Pablo and Christina and his longtime girlfriend, Vera. Julio tells the group that he recently has made a will with the help of a lawyer but he now realizes that he had forgotten to include several things in the will. Thus, in the minutes before he dies, he says to Enrique: “I give you the green tractor located on my farm in Marin County that I bought last year” and hands Enrique the keys. He says to Pablo: “I give you the jewelry in the dresser in the next room that was a gift from my grandmother.” He says to Christina: “I give you my car parked out front of the house that we shopped for together five years ago.” He says to his girlfriend, Vera: “You know we had always discussed getting married, and we have always acted like we were married in public for the 20 years we have been together. I know you have sacrificed a lot, first for my career, and now for caring for me in my old age. I want you to have everything a wife would be entitled to except for my farm (the only real estate he owns) which is covered in my will.” The children and Vera nod their heads. Julio dies 5 minutes later.

When the children and Vera go to look at the will, they see that he has included a conveyance of his 100 acre farm in Marin County, California “to my three children jointly in fee simple absolute.” Julio had inherited this farm from his father more than 50 years ago. The will did not include Vera, and devised the residue of the estate to The Nature Conservancy. The farm was in disrepair and had not been taken care of for years.

After all the funeral matters were completed in February 1990, Enrique leaves his small law practice in San Francisco and moves permanently to the farm to become a “real” farmer. Pablo, Christina and Vera have no intention of leaving the big city. Enrique clears 50 acres of the land, builds a small house on a portion of it, and grows various crops on the rest. Enrique pays the taxes and makes necessary repairs on all 100 acres of the property without seeking reimbursement from his siblings. He also rents out the 50 acres he isn’t using to another local farmer, Sven. Enrique keeps all the rents he receives from Sven and does not share them with his siblings. This continues for 10 years. During these 10 years, Enrique refers to the farm as “my farm” whenever he talks with his siblings, Vera or anyone else. Then, in 2001, Christina dies, leaving all her property to her daughter, Renata.

Unbeknownst to Enrique, a homeless person in the area, Dave, has been pitching his tent and making camp on a 2-acre, secluded and unused portion of the property since 1995 during the spring, summer and fall months, but spending the winter in a homeless shelter. Dave, however, would leave his tent and a few personal items wrapped in heavy plastic on the property, in order to mark his spot for his return each spring. Dave came to the farm in 1995 on the recommendation of another homeless man, George, who had been using those same 2 acres of the farm for the same purpose for ten years (i.e., from 1985-1995). However, George was getting on in years and had decided to move further south for a better climate. Before he left, he told Dave that he could take his place on the farm, and that it was a peaceful place to live.

In May 2002, Enrique sees Dave setting up his tent on the farm for the first time and demands to know why he is there. Dave explains that he has been doing this for years and that he isn’t interfering with the activities of either Enrique or Sven, that they aren’t even using that portion of the land, and he hoped Enrique would let him stay. Enrique becomes enraged, hits Dave, and throws him off the property, telling him never to come back or he will shoot him. Dave, understandably upset, goes back to homeless shelter and makes an appointment to see the lawyer who volunteers at the shelter once a week. That night, Enrique drives to San Francisco for his monthly dinner with Pablo and casually mentions that he had to throw a squatter off “his land” and that he felt Dave’s presence to be a personal violation of “his” rights and property. Pablo points out that Enrique isn’t the sole owner of the property – that the land was given to all of them by Julio and that Enrique should stop referring to it as “his” land. Enrique, already having a bad day because of the incident with Dave, throws his wineglass into the fireplace and storms out of Pablo’s house. Pablo, concerned about his rights, contacts a local lawyer in San Francisco to discuss the matter.

Discuss the best arguments Enrique, Pablo, Christina, Vera, Renata and Dave can make in their favor for part or all of the various items of property discussed above (not just those items for which the parties are considering litigation), as well as the counterargument to each argument. Assume for purposes of your analysis that the statute of limitations for an action for ejectment or other recovery of real property is 10 years in California and that California uses the objective standard for adverse possession. California is a community property state.

Part 2 of 2 (one hour):

Unless otherwise stated, for each problem, assume the conveyance is a devise (i.e., a testamentary transfer in a will). For each problem: (a) identify all interests created by the conveyance; (b) determine whether the common law RAP applies to any interests created; (c) if the RAP applies, determine whether or not any interests are void under the common law RAP and, if so, why; (d) if any re-classification of interests is necessary as a result of your RAP analysis, please state the re-classification.

For purposes of all problems assume the jurisdiction does NOT follow the Rule of Destructibility of Contingent Remainders, the Rule in Shelly’s Case, or the Doctrine of Worthier Title.

1. To Ann and her heirs until the return of Halley’s Comet, then to Bob’s grandchildren and their heirs. Assume Bob has no grandchildren at the time of the conveyance.

2. To Arnold for life, then to Arnold’s eldest son, Bob, for life, then to Cherie and her heirs.

3. To Ariella for life, then to Bogart’s grandchildren who pass the bar exam for life, then to Claudia and her heirs. Assume that Bogart has 2 grandchildren, Xavier and Yolanda, at the time of the conveyance.

4. To Barnaby and his heirs if Amy Klobuchar becomes Governor of MN, but if Amy Klobuchar does not become Governor of MN, then to Courtney and her heirs. (Assume conveyance is effective Dec. 21, 2004)

5. To April for life, then to Bono’s daughters and their heirs, but only to those of Bono’s daughters that become veterinarians. Assume at the time of the conveyance that Bono has 1 daughter, Cyndi.

6. To Aiden for life, then to my grandchildren who reach 21 so long as the land is not used for commercial purposes during their lifetimes. Assume O has no grandchildren at the time of the conveyance.

****

MODEL ANSWERS TO PROPERTY I EXAM

FALL 2004

Professor Klass

Answer to Part I:

The best way to approach this problem is to conduct an analysis for each person with regard to each item of property, although you could also organize it by item of property instead.

Enrique:

Gift of the tractor –This is a valid gift causa mortis. It is a gift of personal property made in expectation of immediate and approaching death. You then need to analyze whether it meets the three requirements for a gift: (1) intent; (2) delivery; and (3) acceptance. Julio’s statement on his deathbed shows intent to make a gift now (not in the future). Enrique nodded his head and presumably used the tractor on the farm, so there is acceptance. Although there was no manual delivery, handing over the keys constitutes constructive delivery so that requirement is met. For this gift causa mortis, as well as the others, you can also discuss the strict application of the gift requirements for gift causa mortis and the policy reasons behind that application.

Conveyance of the farm – The conveyance in the will makes it unclear whether the farm is given to the three children in a joint tenancy with right of survivorship or as a tenancy in common. In most states, the presumption in cases of ambiguous conveyances is a tenancy in common. If so, at the time of Julio’s death, Enrique owns a 1/3 interest in the farm with his two siblings with no rights of survivorship. That would mean that when Christina died, he still had a 1/3 interest in the farm with the other co-tenants being Pablo and Renata. However, if the court were to construe it as a joint tenancy, then the survivorship feature of the JT would take effect on Christina’s death, and Enrique would own ½ the farm and Pablo would own the other ½.

Adverse possession of the farm as against Pablo or Pablo/Renata – You should first set out the elements of AP before applying it to the facts of the problem. Enrique can argue that he has met the requirements for AP of the entire farm. For the 10-year statutory period he has been the sole person in possession, has paid all the taxes, made all the repairs and kept all the rents from Sven. More importantly, he has held out the farm as his own both to Pablo and Renate and to the public, with no apparent opposition from his siblings during the statutory period. He can argue that these actions meet the adverse possession elements (actual entry giving exclusive possession, open and notorious, adverse or hostile under claim of right, for the statutory period). Pablo and Christina will argue that it is nearly impossible to obtain adverse possession against a co-tenant (see Swartzbaugh and Spiller), and that he was occupying the farm only as a co-tenant and with their permission, but Enrique may have the better argument seeing as he has been denying their ownership interests by his actions and words. You can also make some policy arguments in favor of Enrique with regard to his productive use of the land.

These facts also give you an opportunity to discuss the rights and obligations of co-tenants with regard to rents, payment of taxes and remedies such as ouster and accounting.

Pablo

Gift of jewelry – Pablo can argue the gift of the jewelry is also a valid gift causa mortis. The elements discussed above with regard to the gift of the tractor to Enrique apply here as well. However, with regard to the jewelry, there may be a problem with delivery. Unlike the tractor, manual delivery of the jewels was available – Julio could have asked one of the other children or Vera to get the jewels from the next room. As a result, there is a good argument that the jewels remained part of Julio’s estate.

Interest in the farm – Pablo originally had a 1/3 interest in the farm and, after Christina’s death, had either a 1/3 or ½ interest in the farm for the reasons discussed above. Pablo may have lost his entire interest in the farm by Enrique’s AP for the reasons discussed above.

Christina

Gift of the car – this is also potentially a gift causa mortis. Like Pablo’s gift, delivery may be a problem but for different reasons. Manual delivery is not required for a car, but there is no indication that Julio relied on either constructive delivery (the keys) or symbolic delivery (handing her the title to the car, for instance). In the absence of either constructive or symbolic delivery, the gift likely remained part of Julio’s estate.

Interest in the farm – Christina originally had a 1/3 interest in the farm. If Enrique’s actions constituted AP, she lost her interest in the farm the year before her death. If the AP was unsuccessful, and the original conveyance was considered a JT, she had nothing to convey to Renate in her will. If it was a tenancy in common, she conveyed her 1/3 interest to Renate.

Renata

Interest in the farm – If Enrique’s AP action was successful, she obtained nothing by the will. If the AP was unsuccessful, and the conveyance was a JT, she obtained no interest in the farm by the will. If the AP was unsuccessful and the conveyance was a T in C, she obtained a 1/3 interest in the farm by the will.

Dave

Interest in the farm – The issue is whether Dave obtained an interest in the 2 acres of the farm by AP. He is probably able to tack George’s 10-year ownership period to his 7 years to satisfy the 10 year limitations period. George voluntarily relinquished the farm to him, so there may be privity. One can argue that the “hand-off” was too informal to constitute privity, but it probably suffices. The problem with AP for Dave is the requirements of actual entry and open and notorious. This is farmland, and Dave is not using the land as would a reasonable true owner of the land. Instead of planting crops, building a house, or putting up fences, he only pitches a tent seasonally. Thus, he is not acting like an owner of farmland, is using year-round land on a seasonable basis (although one can argue you don’t grow crops in the winter) and does not leave enough evidence of himself to be open and notorious and put Enrique or others on notice that he is exercising ownership. Dave also appeared to ask Enrique’s permission to stay, which is not consistent with acting in an adverse or hostile manner. On the other hand, when Enrique did see him, he reacted in a manner allowing Dave to argue that Enrique viewed Dave’s existence as hostile and open and notorious. Finally, Enrique should have been monitoring his land more closely and was not making good use of the land, thus Dave can rely on many of the policy reasons behind the doctrine of AP to make his argument. In the end, however, Dave’s argument for AP of the 2 acres seems weak.

Vera

Whether Vera has any interest at all depends on whether a court would recognize Julio’s intent to leave her a portion of the estate. There are several problems. First, although California has precedent of finding implied contracts for division of property in the absence of a marriage, it is unclear whether they would go so far as to give a nonspouse the ½ interest in community property that go to spouses under state law. Second, to consider this a gift causa mortis would be difficult because there was no delivery of any particular item, just a reference to what she would be entitled to if she were a wife.

However, if the court were to imply a contract or try to carry out Julio’s intent, Vera would argue that because of their 20-year relationship and Julio’s deathbed statement (with witnesses), she should get whatever a spouse should get either under a theory of implied contract for property division or under common law marriage. If either argument were successful, California is a community property state so she would have an interest only in property classified as community property. The farm was a devise to him before their relationship began, so it is separate property that he was able to convey in his will. The same is true for the jewelry. However, the car and the tractor were purchased during their relationship and thus would be community property unless the children could prove by a preponderance of the evidence that those items were purchased with money earned before their relationship began. Vera would be entitled to a ½ interest in these items. She would also argue that she was entitled to one-half of the residue of the estate that went to The Nature Conservancy.

Answer to Part II (partial credit was given for partially correct answers)

1. To Ann and her heirs until the return of Halley’s Comet, then to Bob’s grandchildren. Assume Bob has no grandchildren at the time of the conveyance.

a. A has FSSEL (or FSD); B’s grandchildren have an EI in FSA

b. RAP applies to B’s grandchildren’s EI

c. EI violates the RAP because return of Halley’s comet may be long after death of all lives in being

d. Conveyance becomes: A has FSD, O has possibility of reverter

2. To Arnold for life, then to Arnold’s eldest son, Bob, for life, then to Cherie and her heirs.

a. A has LE, B has VR in LE, C has VR in FSA

b. RAP doesn’t apply to any of the interests (present estate and 2 VRs)

3. To Ariella for life, then to Bogart’s grandchildren who pass the bar exam for life, then to Claudia and her heirs. (Assume that Bogart has 2 grandchildren, Xavier and Yolanda, at the time of the conveyance)

a. A has LE, X and Y have CR in LE, C has VR in FSA

b. RAP applies to X and Y’s CR

c. X and Y’s interest is void. After conveyance, B could have a child, Z, all lives in being, and then Z can have a grandchild, ZZ, who passes the bar exam more than 21 years after all lives in being are dead.

d. Conveyance becomes: A has LE, C has VR in FSA

4. To Barnaby and his heirs if Amy Klobuchar becomes Governor of MN, but if Amy Klobuchar does not become Governor of MN, then to Courtney and her heirs. Assume conveyance is effective Dec. 21, 2004.

a. O has a FSSEL, B has a springing EI in FSA, C has a springing EI in FSA.

b. RAP applies to both EIs

c. Both EIs are valid because we will know whether Amy Klobuchar will or will not become Governor of MN by the end of her life (either B will take the interest if Klobuchar becomes Governor of MN or C will take the interest at Klobuchar’s death – in the interim, O holds the interest).

a. Full credit was given for 2 different answers: (1) A has LE, C has VR subject to open in FSA; and (2) A has a LE, C has a CR in FSA, and O has a reversion in FSA.

b. RAP applies to C’s VR subject to open

c. Interest is void under RAP. B could have another daughter, D, then all lives in being (including C) may die, and then D may become a veterinarian more than 21 years later.

d. Conveyance becomes: A has LE; O has reversion in FSA

a. Full credit was given for 2 different answers: (1) A has a LE, O’s grandchildren have a CR in FSD, O has a possibility of reverter in FSA and a reversion in FSA; and (2) A has a LE, O’s grandchildren have a CR in FSA, O has a reversion in FSA.

b. RAP applies to O’s grandchildren’s CR.

c. Interest in O’s grandchildren is valid because O can’t have any more children (he’s dead) and O will either have a closed set of grandchildren or no grandchildren at the death of any of O’s children, who by definition are lives in being (if they exist) at the time of the conveyance.