Property I - Final Exam - Fall 2006

Professor Krishnan

Question 1:  Recommended time – 1 hour

Marge owned a rectangular 30 acre plot of land, which was divided into three sectors, Sector A, Sector B, and Sector C.  Each sector contained 10 acres.  On Sector A, which was the western sector, Marge maintained a bird sanctuary.  On Sector B, which was the middle sector, Marge had an open-air amphitheater; and Sector C, which was the eastern sector, was kept barren. 

In 2005 Marge hired Barney to install new seats in the amphitheater.  Occasionally during his breaks, Barney would walk over to Sector A to watch the birds in the sanctuary, despite signs on Sector A which said:  “Keep Away; Private Property.”

Marge would often see Barney cross onto Sector A, but she would not say anything to him about it.  One day, as Barney was watching the birds he saw an unusual hole in a tree where there were many bird-nests in the branches above.  He looked inside the hole and, to his surprise, found a hand-written diary by a “Charles Darwin,” one-thousand dollars in cash, and a gold watch that said “property of Jebadiah Springfield, year: 1801.”

Barney placed his findings in a plastic bag and took them home.

One week later Marge decided that she wanted to donate two acres of Sector C, the barren land she owned, to the First Church of Springfield.  The conveyance to the Church stated:

These two acres are to be used for religious purposes.  If the land is not used for religious purposes, then it shall go back to Marge.  Marge also retains the right to re-enter and re-take the land if she deems that the land is not being used for religious purposes.

First Church soon constructed a building and began to hold religious services.  Shortly thereafter, Marge conveyed away the remaining eight acres of Sector C to Ned.  The conveyance to Ned also stated:  I, Marge, transfer any interest I hold in the two acres currently used by First Church to Ned.

A month after the conveyance to Ned, First Church stopped holding religious services.  On that same day, First Church conveyed away its two acres to the Springfield Hindu Association, which immediately began holding reading sessions of ancient spiritual textbooks.

Please state and discuss all claims all parties may have here.  Make sure you give all sides of all arguments.  Note that in Springfield there is a statute which prohibits transferring possibility of revertors but allows transferring rights of entry.  Do not discuss anything related to adverse possession, the First Amendment’s religion clause, or landlord-tenant law. 

Answer Key for Question 1:

-Key thing then would be to apply all of this law to the facts – does Armory apply? – Does Hannah apply? – What about the employee-employer rule? – Lost-item rule apply? Where were the goods located:  Buried, private or public place, was there a trespasser involved?  Does mislaid doctrine apply?  How about Treasure trove?  Abandoned property?

--Other issues worth mentioning. – e.g., does issues of Waste come in, with respect to barren land

-Then there is a second part of the question which deals with the conditional defeasible fee issue

A.                    What is the law:  Mountain Brow

                  -recall it invalidated a condition of the form:  “in the event of sale or transfer by second party” as invalid restraint on transfer

                  -upheld the following condition:  “In the event the same fails to be used by: as a valid restraint on use

B.                     Then remember the many factors we talked about which a court will consider when deciding whether conditions are valid or not

-would need to list and discuss these

C.                    Would have to ask what type of limitation was created here

                        -was it a Fee simple determinable – poss of revertor

                        -what’s the law:

                        1.  Definition needed

                        2.  so long as language – durational language more generally

                        3.  automatic forfeiture to grantor if condition not satisfied

                        4.  need more than words of intent or hope or wish

                        5.****MAHRENHOLZ**** -- what did this case hold?

---THEN WOULD NEED TO APPLY ALL OF THESE TO THE FACTS AT HAND---

What about if this is a FS SUB TO CON SUBSEQ?

---THEN APPLY---

-What about issue of transferring future interests – what does Mahrenholz say – what is the policy reason for having limitation

--OTHER KEY POINT:  WAS THE CONDITION VIOLATED – WHAT ABOUT IT BEING THE HINDU ASSOCIATION AND NOT FIRST CHURCH

--WHAT ARE THE CLAIMS BY NED, MARGE, BARNEY, AND THE TWO RELIGIOUS ASSOCIATIONS? 

Question II:  Recommended time – 1 hour

Apu was a wealthy multimillionaire who lived in the town of Shelbyville.  Because he was afraid of driving, Apu had a chauffer, Homer, who drove him wherever he needed to go.  Homer lived in Apu’s house.

On January 1, 2000 Apu rented out a separate condominium that he had owned for years to Maude.  The lease to Maude ran from January 1, 2000 to December 31, 2003.  Maude expressly covenanted to pay rent to Apu on the first of every month.  Maude also agreed not to assign or sublet the premises without receiving permission from Apu.

On June 1, 2000 Maude assigned her interest to Ralph, and Ralph assumed all the covenants in the original lease between Apu and Maude.  (Apu gave consent to the assignment.)

On July 1, 2001 – over one year later – Ralph assigned his interest to Edna.  Edna did not assume any provisions from any previous lease.  (Again, Apu gave consent to this assignment.)

On September 1, 2002, Edna conveyed her interest to Seymour for: “a period of four months, ending on December 31, 2002.”  Seymour did not assume any provisions from any previous lease.  (Again, Apu gave consent.)

Seymour paid the rent for the month of September (2002) to Apu.  Beginning on October 1, 2002 the electricity in Seymour’s apartment only came on for two hours a day, and water from his faucets was intermittent.  Angered by these problems, Seymour wrote to Apu stating that he would no longer be paying rent. 

Apu received this letter on October 3, 2002.  Stunned by what he read, Apu began to hyperventilate.  He then fainted, and on his way down to the floor hit his head on a table and began to bleed.  Homer soon thereafter found Apu, awoke him, and then called an ambulance.  Thinking he was going to die, Apu wrote down on a piece of paper to Homer, “I hereby give Homer my most precious item: my 10-foot tall drink machine, located in my basement, which makes Mango-Chutney Squishy Slushes.”  Apu then pulled a key out of his pocket which he said unlocked the basement door and gave it to Homer.  (In fact, the key was to the front door, but because the basement door was unlocked, Homer ended-up not needing a key at all.)

After spending the night in the hospital, Apu woke-up feeling much better.  His doctors discharged him saying he was absolutely healthy.  Apu then returned home only to find his drink-machine gone.  Fuming mad, Apu rushes to you, his lawyer, and asks for your advice.  He wants to know what claims he might have against Homer as well as against Seymour, Edna, Ralph, and Maude.  Please give him the best advice possible, taking into consideration all arguments for and against him.            

*Answer Key:  Question II:

Apu v. Maude, Ralph, Edna, Seymour, and Homer

-Key point to keep in mind is that that, first, we have to see, with respect to both the L-T issues and the gift issues, whether the statute of frauds is satisfied. – what types of tenancies were these, also?

-The gift seems to be, and I think we need to infer that so too were the leases – this is key though to note before even proceeding, because as the book notes, leases for longer than a year generally must be in writing

-Also a second issue to keep in mind, with respect to the L-T relationships is whether the duty to mitigate has been satisfied – remember, under the traditional rule, there is no such duty but as tenant-rights have expanded, this has changed

-How might such an application come into play here – right at the beginning?

-Rule in Dumpor’s Case???

Apu v. Maude:

--would need to apply these rules to the situation

Apu v. Ralph:

Apu v. Edna:

* Same rules as for Ralph

* was there personal assumption by Edna – no

* is there liability – it depends on what Edna gave to Seymour

* did Edna assign or sublease?  Need to define distinctions

* remember, subleases involve someone like Edna retaining an interest, does she?

* what is the relationship between Edna and Seymour if there is a sublease? (P of K?/P of E)

* what about if there is an assignment

* was there any novation here –

* what if there is a sublease ----> then will A and E be in privity, yes – P o E

Apu v. Seymour:

* if there is a sublease, what relationship between the two?  None

* But might a court find a relationship – see Ernst v. Condit – rule – implication of that rule here – could an assignment be found – if so, then a relationship exists

* if so, then what are the remedies for Seymour – about for Apu – need to go through all the L’s rights and Tenant’s rights, including what existed at common law (including 6 exceptions) – Q.E/Constructive Eviction – evolution of this doctrine – IWH (does it even apply) – is this lease even legal? – does Apu have retaliatory eviction claim?

--what about damages here and the issue of refusal to pay rent – how does that come into play

--can Seymour do that – again all this assumes that there is a relationship that exists (i.e. Ernst)

--what about English rule v. American rule in terms of requirement that L deliver premises

-does subrogation come into this at all?  How? –

-Other:  Pestana rule?

-- Then there is the gift issue and the cases that involve that part of the problem (including Newman v. Bost; and the Gruen case)

--What about the law here:  a gift of personal property requires

a.  donative intent b. delivery c. acceptance

--donor must transfer possession to donee unless it is not practicable to do so

-difference between manual v. constructive v. symbolic delivery – need to define and explain

-plus gift causa mortis comes in the analysis v. gift inter vivos – a full discussion would be needed here.

-need definition:  made in contemplation of an in expectation of immediate approaching death

--aside from the conditional character of such gifts, the essential elements are the same for inter vivos gifts

--made subject to: recovery of donor from the sickness or delivery from the peril; revocation by donor before his death; death of donee before death of donor

-gifts causa mortis more strictly construed by courts than gifts inter vivos

-here:  would need to apply this:  was there donative intent; delivery (Manual; constructive; symbolic)

--was there acceptance

--satisfied causa mortis elements? –

--Other issue

Question III:  (Please note that once you define a term, you do not need to define it again.  The definitions also only need to be a sentence or two.  Just show me that you know what the term means.) – Recommended time:  1 hour

Otto conveys “to Monty and Monty’s heirs so long as the power plant is used for nuclear purposes, then to Wayland and Wayland’s heirs.”  Assume Monty and Wayland are alive.  There is no need to presuppose any other measuring life. Please identify all interests and conduct a Rule Against Perpetuities analysis.  State the final title and explain how you arrived at your answer.

State the initial titles of these two conveyances.  What if, any, differences exist?  Please explain.  Assume for both conveyances O, A, B, C, and D are alive.  There is no need to presuppose any other measuring life. Please identify all interests and conduct a Rule Against Perpetuities analysis for each.  State the final title for each and explain how you arrived at your answers. “O conveys to A for life, then to B if B marries C, then to D.” “O conveys to A for life, then to B, if B marries C, then to D.” 

Answer Key:  III – FINAL TITLE WOULD NEED TO BE STATED FOR ALL OF THESE – IF NOT, THEN SERIOUS POINTS WERE DEDUCTED

1.  Selma conveys property Ato Agnus for life, then to Willie and Willie’s heirs if either Willie or at least one of Willie’s children, whenever born, writes a book on how to improve Springfield High School’s graduation rate.@ Assume that on the effective date Selma, Agnus, and Willie are alive and that Willie has three children, Nelson, Jimbo, and Kearney, none of whom has yet written such a book.  There is no need to presuppose any other measuring life.  Please identify all interests and conduct a Rule Against Perpetuities analysis.  State the final title and explain how you arrived at your answer.

Answer:            [a] Effective date? [date of conveyance]

[b] Potential measuring lives? [S, A, W, N, J, K]

[c] Ato A for life@

{1} Type of interest? [present LE]

{2} At risk under RAP? [No]

[d] Ato W and W=s heirs if either W or at least one of W=s children, whenever born, publishes  . . . .”

{1} Type of interest? [CR in FSA]

{2} At risk under RAP? [Yes]

{3} Resolution under RAP?

{a} [Void]

<1> Suppose that after the effective date, W has a fourth child, F. Then everyone dies, together with any other life in being one cares to mention. Then more than 21 years later, F publishes a book. The interest has vested too remotely.

[e] Effect of the invalidation?

{1} At the initial classification, S has a vested reversion in FSA, subject to complete divestment. Transferor interests are not subject to RAP.

{2} Strike the CR in W and W=s heirs.

{3} That leaves S with an indefeasibly vested reversion in FSA. Again, transferor interests are not subject to RAP. A is left with a present life estate. Present interests are not subject to RAP.

2.  Moe conveys “to Homer for life, then to Homer’s nuclear power plant boss, if any, for life, then to Homer’s issue then living.”  Assume on the effective date that Moe is alive, and that Homer is alive and has no issue.  There is no need to presuppose any other measuring life. Please identify all interests and conduct a Rule Against Perpetuities analysis.  State the final title and explain how you arrived at your answer.

a. Eff. date? [Date of conveyance]

b. Potential measuring lives? [M,H]

c. "to A for life"

1) Type of interest? [present life estate]

2) At risk under RAP? [No]

d. "to H’s boss, if any, for life"

1) Type of interest? [CR for life, at least assuming that it should be read as, "to H’s boss, if any, then living"]

2) At risk under RAP? [Yes]

3) Resolution under RAP?

a) Valid.

1} Int. will vest, if at all, in possession at H's death, and H is a life in being.

e. "to H's issue then living"

1) Type of interest? [CR in FSA]

2) At risk under RAP? [Yes]

3) Resolution under RAP?

a) Void.

1} Suppose that after eff. date, H has a child, Z. Then H gets a boss, L, who was not alive on eff. date. Then M and H die, together with any other lives in being one cares to mention. Then L dies 50 years later, survived by Z. The int. has vested too remotely.

f. Effect of invalidation?

1) At initial classification, M has a vested reverson, subject to complete divestment. Transferor int. not subject to RAP.

2) Strike out the CR in H's issue then living.

3) This leaves M with an indefeasibly vested reversion in FSA. Transferor int. not subject to RAP.

3.  Apu conveys “to Sanjay and Sanjay’s heirs when a person with blue hair is elected President of the United States.”  Apu and Sanjay are alive.  There is no need to presuppose any other measuring life. Please identify all interests and conduct a Rule Against Perpetuities analysis.  State the final title and explain how you arrived at your answer.

Answer:  this is invalid under RAP – Sanjay holds a springing executory interest; we won’t know within twenty-one years of Sanjay’s death whether Sanjay’s heirs will take, because a president with blue hair may or may not be elected.  Apu therefore has a FSA

4.  Seymour devises “to Lisa for life, then to Lisa’s children for their lives, then to Seymour’s grandchildren.”  Assume that Lisa is alive but has no children.  Please presuppose that Seymour has children and can be used as measuring lives.  Please identify all interests and conduct a Rule Against Perpetuities analysis.  State the final title and explain how you arrived at your answer. 

Answer:  This is exactly from the book, p. 249 number 6f:

For 6f, we here have to presuppose S's children and use them as our measuring lives. Even if one of S's children has a child of his/her own after the devise becomes effective, all of S's grandchildren will be ascertained at the death of S's children -- so we will know for certain within the RAP period.

5.  Otto conveys “to Monty and Monty’s heirs so long as the power plant is used for nuclear purposes, then to Wayland and Wayland’s heirs.”  Assume Monty and Wayland are alive.  There is no need to presuppose any other measuring life. Please identify all interests and conduct a Rule Against Perpetuities analysis.  State the final title and explain how you arrived at your answer.

Answer:  We did same type of problem in class.  Wayland has a shifting executory interest while Monty holds a fee simple subject to W’s executory limitation, as well as, more specifically, a fee simple determinable with a possibility of revertor in O.  Doing the RAP analysis, this is obviously an invalid shifting executory interest, thereby striking out W’s interest, leaving M with a FSD and Poss of Rev in O.

6.  State the initial titles of these two conveyances.  What if, any, differences exist?  Please explain.  Assume for both conveyances O, A, B, C, and D are alive.  There is no need to presuppose any other measuring life. Please identify all interests and conduct a Rule Against Perpetuities analysis for each.  State the final title for each and explain how you arrived at your answers.

“O conveys to A for life, then to B if B marries C, then to D.” “O conveys to A for life, then to B, if B marries C, then to D.” 

Answer:  in #a:  A has a LE, B has a CR in FSA, D has a CR in FSA O has a Reversion in FSA.  Doing a RAP analysis on both the CRs, they are valid.  Would need to explain why.  We’ll know at B’s death if B has married C and thereby whether D would take.  If B hasn’t married C, then D takes – in a sense these could be considered alternative CRs.

You would also need to talk about how the condition to B is interwoven into the fabric of the gift to B.

For #b, A has a LE, B has a VR S to D’s executory limitation, or more specifically how B has a VR subject to complete defeasance.  The comma makes this a condition subsequent, and D holds a shifting executory interest.  Same analysis as above regarding D here.  (B’s interest is not subject to RAP) – no reversion in O.