To:            Property I Class -

From:   J. Krishnan

Date:    January 23, 2002

Re:       Fall 2001 General Comment Sheet For Final Exam - Review this in detail

 

Section I:

 

1.      Homer conveys to Otto and his heirs so long as the land is used for a guitar studio and then to Ringo and his heirs. (Assume the common law RAP is in effect and that Homer, Otto, and Ringo are living). State the title and show all work

 

-For this question there were over a dozen aspects that you needed to cite in order to receive full credit. (Partial credit of course was given where appropriate). To begin with you needed to mention that Otto has a fee simple subject to Ringo's executory limitation in fee simple, and that Homer has nothing. (Note if, off the bat, you stated that Otto has a fee simple determinable, Ringo has nothing, due to a RAP violation, and that Homer has a possibility of reverter, this would count, although you still needed to show all your work.) You then needed to discuss what has to happen for the future interest holder to take, and then talk about all the potential measuring lives that had to be considered. This latter discussion would have to include a statement or two about Homer, Otto, and Ringo. You then needed to mention why Ringo's future interest was void and what the final outcome was. Here you also needed to state something about the cross-out rule and what the final state of title would be: Otto has a fee simple determinable, Ringo has nothing, Homer has a possibility of reverter.

 

2.      Marge conveys to Bart for 99 years if Bart lives for that long, then to Bart's heirs. Assume Marge and Bart are alive and please state whether or not the Rule in Shelly's Case applies - for this problem please state why or why not?

 

-For this question, I passed out a hand-out on this very exact point. The Rule in Shelly's case does not apply. Bart has a term of years and the rule applies only if we are talking about freehold estates. Here Bart's heirs have a contingent remainder because a living person has no heirs so they cannot be ascertained until Bart's death. This is what your answer should have resembled.

 

3.      Digweed conveys to Sasha for life, remainder to Munns and his heirs. (Digweed, Sasha, and Munns are alive). State the title

 

-For this question you need to state that Sasha has a life estate, Munns has a vested remainder that is indefeasibly vested and that Digweed has nothing.

 

4.      Barney conveys to Moe for life, then to Moe's oldest child who survives Moe and Moe's heirs. (Assume that Moe is alive and has two children, Edna who is 60 and

Ralph who is 50. Rso assumenthaRit e common law RAP is in effekt.) State the title and show all work.

 

-For this problem there were about ten or so steps that needed to be discussed. For example, you needed to mention how Moe has a life estate, Moe's oldest child who survives Moe has a contingent remainder and that Barney has a reversion. You also needed to say what has to occur for a future interest holder to take. In addition, you needed to discuss the potential measuring lives, which would include Ralph, Edna, and Moe. (If you mentioned Barney that would count as well). Then you needed to give an analysis of why the RAP is not violated and which of the measuring lives serve as a validating life and which did not.

 

5.     Jack conveys to Jill for life, then to Jill's first child who reaches 25. (Assume Jill has two children, Thelma who is 24 and Louise who is 20. Also assume that the common law RAP is in effect.) State the title and show all work.

 

-For this problem again there were about ten or so steps. For example, you needed to state how Jill has a life estate, Jill's first child to reach 25 has a contingent remainder, and how Jack has a reversion. You then needed to examine what has to occur for the future interest holder to take. Then, you needed to discuss the potential measuring lives, which would include Thelma, Louise, and Jill. After that, you needed to go into why this future interest conveyance is void, and state that the RAP applies and knocks out the contingent remainder leaving just a life estate in Jill with a reversion in Jack.

 

6.     Jim Bob conveys to Troy John for life, and in the event of Troy John's death to Billy Kyle. (All three parties are alive). State the title.

 

-For this problem you needed to state that Troy John has a life estate and I My Kyle has an indefeasibly vested remainder. (The rest of the language is verbiage).

 

7.     McClure devises Whiteacre "to my daughter Selma for life, then to Selma's children and their heirs." When McClure dies, Selma has one child, Patty. Two years later Selma has another child, a boy named Balu. Then Patty dies, leaving a husband, Homer, and a child Eben. Patty's will devises all her property to her husband, Homer. Then Selma dies, survived by Balu, Homer, and Eben. Who owns Whiteacre?

 

-For this problem - which you should have recognized since it draws from a problem right in the book - you have to keep in mind a few things. At the time of McClure's death, Patty has a vested remainder subject to open. At Patty's death, her share in the vested remainder passes to Homer. At Selma's death, Balu and Homer own Whiteacre as tenants in common. Eben gets nothing because Eben cannot be an heir to a living person.

8.     Omar conveys to Austin for life, then to Boris and his heirs, but if Austin fails to maintain a golf course on the property, then to Clyde and his heirs. State the title.

 

-For this problem you needed to mention specifically the following: Austin holds a life estate; Boris holds a vested remainder subject to divestment in fee simple, and Clyde holds a shifting executory interest in fee simple. Note a couple of you then proceeded to give a RAP analysis, even though I do not mention anything about needing to show work for RAP for this problem, nor do I say that you should assume that the common law RAP is in effect. This particular question is worth two points, so if you mentioned the two key aspects that I wanted, you were given credit. If, say, you got the part about Austin correct but the part about Omar incorrect, yet you performed a correct RAP analysis, you still got the two points. If you got the part about Omar correct but the part about Austin incorrect, yet you performed a correct RAP analysis, you still got the two points. However, you were not given additional points for stating the basic answer and then providing a RAP analysis on top of that.

 

9.     Omar conveys Blackacre to Austin but if Austin decides to play basketball on Blackacre, O reserves the right to re-enter and retake Blackacre. State the title.

 

-For this problem you needed to mention how Austin has a fee simple subject to a condition subsequent and that O's (Oscar's) future interest is a right of re-entry.

 

10.     Omar conveys to Austin for life, then to Austin's widow, if any, for life, then to Austin's issue then living. Is the gift to Austin's issue valid? (Assume the common law RAP is in effect.) Show all work.

 

-We went over this exact type of problem too in class and I passed out the analysis as a hand-out. There are several aspects that you need to state. You needed to mention how Austin has a life estate, how his widow has a contingent remainder, and how his then-­living issue also have a contingent remainder. You then needed to state what has to happen for the future interest holders to take as well as discuss how Austin qualifies as a measuring life. Then you needed to provide an analysis of why Austin is not a validating life for the then-living issue.

Section II:

 

Oscar is a tenant who rents a residential dwelling from Kermit. Oscar and Ken-nit have entered into a periodic month-to-month tenancy whereby Oscar is to pay Kermit $500 a month. Oscar has occupied the premises from 1981 to the present. Kermit has brought a lawsuit against Oscar for unpaid rent from September 2000 to October 2001. Kermit is also seeking to evict Oscar.

 

Oscar answers that the place where he lives has been a shambles, and was particularly in a state of disrepair between September 2000 and October 2001. During these thirteen months there had been a leaky roof, no hot water, toilets that constantly broke, cracked pipes, and hazardous floors and steps in the apartment.

 

Moreover, because Oscar's requests for fixing these problems had been ignored, he had to take it upon himself to pay for and do the repairs. Oscar files a counterclaim for the cost of the repairs that Kermit had failed to fix between September 2000 and October 2001.

 

Assess all common law and modem-day arguments of the interested parties and state who should prevail and why.

 

-For this question there were multiple issues, aspects, and points that could have been raised. A couple of you provided some insight on other issues that, while perhaps a tad tangential to the subject-matter, still were effectively argued, and thus you received credit for these responses. (The symbol used for crediting these "other" arguments was typically the letters "exc" - short for exceptional or excellent observation).

 

Let me outline the issues you needed to consider when examining this question.

 

To begin with, there needed to be a discussion of the doctrine of caveat lessee. The several exceptions mentioned on p. 516 also needed elaboration. (These exceptions included: short-term leases for furnished dwellings; the duty to disclose latent defects; the maintenance of common areas; the duty to undertake carefully any repairs promised by the landlord; the duty to abstain from fraudulent misrepresentation; and in some jurisdictions the duty to abate immoral conduct and other nuisances that occurred on the property owned by the landlord). In addition, you had to mention that at early common law breach by the landlord really only entitled the tenant to sue for damages.

 

There needed to be a discussion of the doctrine of quiet enjoyment and its relation to constructive eviction. There needed to be a discussion of how this particular doctrine has evolved and how it is different that it used to be.

 

There next should have been a discussion of the illegal lease - what is it; how it came into being; what does it include. Further credit was given for a discussion of the exceptions to the illegal lease, such as:

·          minor technical violations do not render a lease invalid

·          nor will a lease be declared invalid where the L has no actual or constructive notice

 

Then flowing from this discussion, one could mention a point on how a tenant who stays on in an illegal lease situation may be deemed a tenant at sufferance. What are the rights of a L in this situation -- namely that the L has a  right to the reasonable rental value of the premises.

 

After this one could have then moved onto a detailed discussion of the IWH. Several points should have been mentioned about the IWH, as set forth in HILDER:

 

·          that under the IWH leases are deemed to be a contract

·          that the IWH applies to defects

·          how the IWH generally cannot be waived

·          how state and local codes can complement the IWH

·          how under the IYM a tenant must notify a landlord within a reasonable time for

·          correction of a defect before proceeding with a claim

·    a discussion of what the measure of damages might look like for an IWH claim

·    a discussion of how a tenant does not have to move out under the IWH and may also stop paying rent

·          how the IWH can be a defense as well as an affirmative cause of action

 

Then one would need to mention how the IWH does not render pointless the other doctrines - caveat lessee after all can be the default doctrine in a jurisdiction where there is no applicable law or policy

 

And then one would need to mention the various exceptions to the IWH, including:

 

·          how it may not apply across the board to residential dwellings - single family dwellings, for example, may be exempt

·          Agricultural leases may be exempt

·          Long term leases may be exempt

·          Casual leases may be exempt

·          The majority of jurisdictions have not imposed a similar type of warranty on commercial leases

 

Following this discussion, it would be helpful to mention what some standard critiques are of the IWH.

 

Then one would need to move to a discussion of retaliatory evictions - what they are, how they work, and whether they are legal (consult p. 529).

 

Then the application phase of these rules/doctrines would need to be made:

·          Oscar v. Ken-nit at caveat lessee - what are the tenant's duties (discussing points such as: the tenant needing to keep the premises in good repair; the tenant's duties to injuries sustained to P parties; the tenant's duties to repair; the tenant's duties not to commit waste; a word perhaps about fixtures; and the tenant's duties to pay rent) ------ one would need to say if any of these duties have continued over the years

·          Oscar v. Kermit using the doctrine of quiet enjoyment

·          Oscar v. Ken-nit under an illegal lease analysis

·          Oscar v. Kermit under an IWH analysis

 

Then one would need to answer what the best public policy outcome would be for this situation. Finally a conclusion would need to be rendered.

Section III:

 

The year is 2001. Nelson is an employee of Spring-Lawn Services. As an employee of Spring-Lawn Services, one of his main jobs is to maintain the grounds (the lawn, plants, driveways, etc.) at Chez Hotel.

 

One summer day Nelson is mowing the lawn at Chez Hotel. During the mow~,~ the four wheels of his lawn mower comes off. Nelson turns off the lawn mower and goes to pick up the stray wheel that has gotten caught in a small ditch in the lawn. Much to his surprise Nelson finds in this small ditch a wad of cash amounting to nearly $4,000. The mint dates of the bills are all before 1965.

 

Nelson notifies his boss, Clancy, at Spring-Lawn Services of what has happened. They decide to turn the money over to the police.

 

A couple days later Nelson, Spring-Lawn Services and Chez Hotel file separate claims to the money in court.

 

No other party comes forward to claim the money for 20 months.

 

The relevant portions of the state's "found property" statute read as follows:

 

See 1: "Four types of found property can exist: abandoned property, lost property, mislaid property, and treasure trove property. Sec. 1 adopts the common law definitions for each of these categories."

 

Sec 2: "If the true owner does not claim lost property within 20 months, the right to the property vests in the one who found it."

 

Assess all common law and modem-day arguments of the interested parties and state who should prevail and why.

 

-Similarly for question number three there were multiple issues, aspects, and points that could have been raised. Again a couple of you provided some insight on other issues that, while perhaps a tad tangential to the subject-matter, still were effectively argued, and thus you received credit for these responses. (And again the symbol used for crediting these "other" arguments was typically the letters "exc" - short for exceptional or excellent observation).

 

To begin with, one would need to discuss the various types of property that the wad of cash could be. It would be important to set forth the definitions of.

 

·          Lost property - are there exceptions?

·          Abandoned property - are there exceptions?

·          Treasure trove - plus what are the historical and modem day applications of this doctrine (i.e., turning over to the crown v. finders keepers)

·          Mislaid property - what is the importance of the locus owner - what is the purpose of giving the property to the locus owner

 

*     Within this entire discussion one would need to consider and in orate the very important note (number 2) on p. 112.*

 

There would also need to be a discussion of the impact of a trespasser vis-a-vis these definitions. Do the rights and obligations of the finder change when he/she is a trespasser? In addition, what role does the ditch play in this question? Issues of the wad being embedded in the ground would need to be addressed and how this might affect what the rights of the finder are important to mention. And what about finding lost property on private versus public grounds? Is there a difference, why or why not?

 

Then, following this discussion, one would need to apply each of the definitions to the various parties in this scenario. Some of you simply assumed the property was X, and said for example, that Nelson should get the property because indeed it is X - without going into a discussion of how this property could be Nelson's because it may be A, B, or

 

In other words you needed to go through, step-by-step and do the following analysis:

 

1.     Nelson - what his rights are if this property is deemed to be lost v. abandoned v. treasure trove v. mislaid

2.     Spring Lawn - what its rights are if this property is deemed to be lost v. abandoned v. treasure trove v. mislaid. (Also a discussion of the employer employee relationship was key here).

3.     Chez Hotel - what its rights are if this property is deemed to be lost v. abandoned v. treasure trove v. mislaid. (Again a discussion of an employer employee relationship comes into play here as well).

 

Another key point that needed to be discussed involved what constructive possession entailed and how this term may or may not apply to the above parties. And one needed to mention how the statute itself applies to the fact-pattern.

 

Then separate discussions of what the public policy implications are for giving the property first to Nelson, then to Spring Lawn, and then to Chez Hotel needed to be made. Finally, a conclusion for why you came out the way you did on this question was required.