Fall 2005 Property I Exam
Professor Krishnan
Question 1: 1/3 of the final grade – Recommend time 1 hour.
On December 1, 2005 Homer moves into an apartment building that has four individual, one-bedroom units. (Homer rents one of these units.) Ned is the landlord and both Homer and Ned sign a two-year lease in which Homer agrees to pay Ned $1,000 on the first of every month.
Almost as soon as Homer moves in, there are problems. The toilet in his unit does not work; the heat often fails; the mailboxes, which are all grouped together in the unsanitary basement of the building, do not have locks; and there is a crack in Homer’s bedroom window which seems to expand on a daily basis. Homer has made repeated requests to Ned to fix these problems, but it is now close to Christmas and nothing has been resolved.
On December 28, 2005 Homer moves out and the apartment remains vacant until February 1, 2006 when Homer meets Edna who agrees to move in immediately and to take his interest in the apartment. Homer does not pay January rent, even though he receives a letter from Ned (which has been forwarded to Homer’s new address) demanding such payment. Homer and Edna sign the following agreement:
“Homer agrees to give away his whole interest in his apartment to Edna, but if Homer so wishes, he retains the right to re-enter and retake the premises. Edna shall pay $1,000 to Ned on the first of every month.”
On February 1, 2006 Edna pays Ned $1,000, which he accepts. On February 10, 2006, Edna finds a wristwatch stuck under a floorboard that has recently shaken loose in the kitchen. She alerts Ned of her finding, but says that until he repairs the floorboard and all of the problems with the apartment that Homer had complained about in December, she will not turn the watch over to Ned.
Ned is unresponsive to Edna, and as a result, Edna holds onto the watch and then decides to stop paying any further rent. Edna, who is one-half East Indian and one-half Irish by ethnicity, has also come to learn that in the past Ned has advertised vacancies in his complex in the local newspaper stating that “mixed-race” tenants are not welcome.
Please detail all the arguments and counter-arguments for all parties in this question. Who, at the end of the day, is in the best position to win in court in terms of the issue of paying and receiving rent, and in terms of the issue of the wristwatch? (Please do not discuss the doctrine of adverse possession.)
Answer Key, Question 1:
I. Define what type of tenancy this is between H & N?
A. Periodic?
B. Term of years?
C. Tenancy at Will?
II. Would also have to note that there is an express covenant to pay rent
III. Privity of K and Privity of Estate between H &N
IV. Privity of Estate between H & N – define
V. Problems with Homer’s apt – parallel to case in book
A. Duties of Ned to fix these problems – would need to go through the evolution of L duties:
i. Old Caveat Lessee – define
ii. Caveat Lessee with 6 common law exceptions (is the mailbox area covered here – it’s in the unsanitary basement)
iii. Doctrine of Q.E. – what tenant had to do to make claim:
1. physically be ousted, initially
2. constructively evicted
3. not having to move out
4. need to identify what type of financial compensation tenant can get
iv. illegal lease doctrine – precedes IWH
v. Introduction of IWH – does it apply here? Define, but would need to know whether exceptions apply
1. Damages that are allowed under IWH
2. What about withholding of rent
-How does the concept of reasonableness come into play
VI. What are duties of the L to the tenant – Need to distinguish between English rule and American rule – legal v. actual physical delivery of title
VII. Then would need to discuss the whole issue of assignment and sublease
A. What was Homer’s transfer to Edna – Assignment or Sublease
1. Homer gave away his full interest, but
2. at the same time he retained a right to re-enter –(not this would not be considered a defeasible fee, because it is not a free-hold estate; this is a non-freehold estate)
B. Would have to go through the ramifications of Assignment and ramification of Sublease for Edna, Homer, and Ned –
i. if assignment, then Edna and Ned conceivably could have privity of estate – would privity of K be there – looks that way; she assumed express cov and Ned accepted payment
ii. if assignment, no privity of estate between Homer and Ned ----> why / what about privity of K – yes, unless novation – need to define
iii. if assignment, no relationship between H & E – why?
iv. If sublease, P of E and P of K stay between N & H – why
v. If sublease, P of E and P of K between H & E – why
vi. If sublease, no P of E between E & N – but is there P of K – ostensibly yes, because E agreed to express cov and N accepted !!! – this could be the theory that is pursued, similar to our critique in class of Ernst
-underlying all of this of course is whether in the original lease between H & N, H needs N’s permission to assign or sublease – see Ernst – is N’s letter to H evidence that N is not willing to accept payment from anyone but H? – formalistic v. intent approach
C. Would then have to discuss colorable title issues – especially if this is an assignment (see hand-out provided on BB)
VIII. Then would need to discuss issue of wristwatch – following issues need to be defined and covered:
A. Lost property v.
B. Mislaid property v.
C. Abandoned property
D. Then issue of locus owner – how does the Hannah case (and the cases within Hannah) come into play?
E. Policy goal and issue of relativity of title come into play
F. Application to facts here – is Edna or Ned in the best position to get watch back to rightful owner? -- do we even know that Homer is that rightful owner?
G. Is Edna’s holding on to the watch a rightful remedy against Ned’s not fixing the problems in her apt?
IX. Then there is the issue of the FHA and Homer’s past practices in terms of renting out apartments? – is there a violation – is there an exemption – but is all this moot, given that Edna is in the premises and N seems to have accepted her (and her payment of rent?)
-what provisions of the FHA are we talking about; and where would the exemptions be located – why might an exemption be granted?
Question 2: 1/3 of the final grade – Recommend time 1 hour.
In 1990, Selma built a house on a parcel of land in a subdivision in the city of Springfield. That same year, she planted a 3 foot by 3 foot flower bed on the edge of what she thought was her land. In 1994, Selma sells her house and land to Cecil. In 2000, Cecil moves out of his house because of an earthquake that hits Springfield. There is no damage to his house or land, but because he is so emotionally distressed by the earthquake, he does not return to the house until 2001. In 2005, Cecil sells his house and land to Marge.
Marge then has a survey done of her property. She learns that the flower bed – which she thought belonged to her – in fact is part of her next door neighbor Jimbo’s yard. (Note, the deed that she is given by Cecil also states that the flower bed is part of her yard.)
Jimbo has owned his house and land since 1985. In 1989, he is arrested for auto theft and is sentenced to five years in prison. He is released from prison in 1994 where he returns to his home. One day after returning home, Jimbo decides to convey away a life estate in his property to Barney with an indefeasibly vested remainder in Agnus. Upon receiving his life estate, Barney takes out an advertisement in the local newspaper proudly proclaiming that:
“I hereby state that I, Barney, have exclusive control over all of the land on which I live and over the home in which I now live.” (Assume that Jimbo has moved away.)
Marge comes to you for advice on what rights she has with respect to the flower bed. Please provide her with all arguments in favor of her retaining the flower bed, and then provide her with all counter-arguments.
Finally, please note the following statute that applies to
Springfield:
a). “To recover the title or possession of land in Springfield, an action must be brought within fourteen years after a possessor adverse to the land enters.”
b.) “However, if the person seeking to recover title or possession is imprisoned or emotionally unwell at the time the adverse possessor enters, even if the adverse possessor satisfies the fourteen year criteria in above provision “a”, the person seeking recovery is allowed to retain title and may bring such action within ten years after such condition is removed.”
Answer Key, Question 2:
I. Selma’s work – doctrine of accession, does it apply? How – Does building a flower bed count?
II. Privity is a big issue here:
A. Definition – to take the whole estate
B. Does Privity exist between the successive owners – i.e.,
i. between Selma and Cecil
ii. between Cecil and Marge
III. Tacking is also a big issue here:
A. Can Marge tack onto her time in possession, the time of Cecil and the time of Selma
B. Key point here is that Marge will try to make an argument that she is an AP and as such should have title to the flower bed
C. Of course you would need to define the concept of tacking and provide the underlying policy reason for its existence: See Howard v. Kunto
IV. Other issues to consider:
A. What effect does the deed from Cecil to Marge have on her AP claim?
i. Colorable title, does that come into play – how?
ii. Does title give Marge right to a part, or right to the whole?
B. What about the fact that Marge takes from Cecil, but that Cecil has not been in continuous possession? Note, Cecil’s being emotionally unwell doesn’t come into play in terms of the statute
C. Given point B: need to ask, has Marge satisfied all of the AP elements?
i. Continuity – define and apply
ii. Open and Notorious – define and apply
iii. Actual – define and apply
iv. Hostile – define and apply
i. how does Marge’s state of mind come into play – 3 different standards
a. objective
b. good-faith
c. aggressive
V. Then would need to look at Jimbo
A. Does he deserve to have title to flower bed
B. Was he disabled, per the statute – he was imprisoned at the time
i. note that imprisonment was there before AP took place by Selma
ii. should the statute be tolled, but till when?
C. What about Jimbo’s conveyance:
i. Barney gets a life estate
ii. Agnus gets an IVR
iii. Key question to ask is whether adverse possession took place before Jimbo fragmented the estate – if so, then AP is against entire property; if not then AP is against only the interest that is being adversely possessed at the time, whether it be the life estate or the remainder
D. What about Barney’s declaration:
i. Is this evidence of exclusivity and thereby stop the adverse possession clock?
ii. But is taking out the declaration in the newspaper, as opposed to putting signs on the yard, enough?
Other issues to consider:
1. Is the fact that this is a flowerbed, which is presumably only vibrant in the right season, make a difference? i.e., parallel to Summer House equivalent? – or is this not relevant, after all we don’t know the climate of Springfield.
2. Is Jimbo’s moving away relevant in terms of the adverse possession
3. What are the larger public policy considerations for adverse possession? Why might we want to reward Marge; why might we not want to?
Question 3: 1/3 of the final grade – Recommend time 1 hour.
Please state the final title for each problem. Be sure to show all work and define all terms. Only where needed, please perform a rule against perpetuities analysis. Do not discuss or apply the Doctrine of Worthier Title, the Rule in Shelly’s Case, or the Destructability Rule to any of these problems.
1. Gertrude owns Greenacre in fee simple absolute. Gertrude then conveys Greenacre to Abraham for life, then to Tice, so long as Tice remains coach of the Minnesota Vikings.
2. Moe devises Purpleacre to Homer for life, then to Homer’s children for life, and then to Homer’s grandchildren.
For this problem assume that the only facts you have are that Homer survives Moe.
3. Tobias devises Blueacre to “such of the grandchildren of Albert as shall attain the age of 25.”
For this problem assume that Albert is dead and that the eldest grandchild of Albert is 4.
4. Nelson conveys to Milhouse for life, but if Milhouse ever stops wearing blue glasses, then to Nelson and Nelson’s heirs.
5. Willie conveys Redacre to Manjula for life, then to Sanjay and his heirs, but if the land ceases to be used as a music studio, then to Gladis and her heirs.
6. Ms. Hoover conveys Whiteacre to Mrs. Krabapple for life, then to Principal Skinner.
1. Gertrude owns Greenacre in fee simple absolute. Gertrude then conveys Greenacre to Abraham for life, then to Tice, so long as Tice remains coach of the Minnesota Vikings.
The answer for this problem is:
Abraham has a life estate; Tice has a vested remainder in fee simple determinable; Gertrude has a possibility of reverter. Here you would need to define all terms, explaining why this is a specific type of defeasible fee, with the automatic forfeiture. The answer would not end here, however. You would need to explain how this answer falls under the larger umbrella category of a vested remainder subject to complete defeasance. See, as we said in class, there are a number of ways that the vested remainder subject to complete defeasance can be defeased. One way is through an executory limitation; another is through the right of entry; and another is through the possibility of reverter. (There is a fourth way that we didn’t spend much time on, which is the power of appointment.) But you would need to say here how the possibility of reverter was the limitation to the vested remainder subject to complete defeasance. And of course you would need to identify the vested remainder subject to complete defeasance by discussing the comma rule and what significance that plays into this problem.
2. Moe devises Purpleacre to Homer for life, then to Homer’s children for life, and then to Homer’s grandchildren.
This problem comes directly from the book and the pdf handout I provided. The final answer would be that the future interest to Homer’s grandchildren is void; the takers will not be ascertained until the death of A’s children and A’s last surviving child might be an afterborn child. You would need to show your work and provide final title which would be a life estate in Homer, CR in Homer’s children for life, and a reversion in M.
3. Tobias devises Blueacre to “such of the grandchildren of Albert as shall attain the age of 25.”
For this problem assume that Albert is dead and that the eldest grandchild of Albert is 4.
Here, this would not be valid. Again you would have to show work, but the way this could come out is as follows: The grandchild who is 4 might die under the age of 25. Then Albert’s child could have another child (i.e. Albert’s afterborn grandkid.) Then Albert’s child could die when the afterborn is 1. 21 years would pass and the interest would not vest – thus invalid.
In addition, you would need to note how the grandchildren have a springing executory interest and you would need to explain why they do not have a remainder, contingent or vested.
4. Nelson conveys to Milhouse for life, but if Milhouse ever stops wearing blue glasses, then to Nelson and Nelson’s heirs.
Milhouse has a life estate with a right to re-entry in Nelson. Nelson also holds a reversion.
5. Willie conveys Redacre to Manjula for life, then to Sanjay and his heirs, but if Sanjay ceases to use the land as a music studio, then to Gladis.
This was directly from the example we used in class. This problem involved the cross-out rule. You would need, of course, to show all work, but here the basics of the problem would be that we would not know within 21 years of Sanjay’s death whether the land would be still used as a music studio. (The heirs could continue to use the land this way or not.) As a result the “then to Gladis” would be crossed out, but so to would the language after “but if” (because of the lack of grammatical correctness.) The final state of title then would be a life estate in Manjula with indefeasibly vested remainder in Sanjay.
6. Ms. Hoover conveys Whiteacre to Mrs. Krabapple for life, then to Principal Skinner.
This was a straightforward problem – life estate in Mrs. K, indefeasibly vested remainder
in Skinner.