PROPERTY

EXAMINATION

Professor Port

Spring 1998

Instructions

1. Follow these directions.

2. I'm not joking. Do as I say in these directions and not what anyone else may do or say you can or cannot do.

3. This examination is being distributed on the last day of class. I expect you to take it home, think about it, discuss it with ANYONE IN YOUR CLASS. You may not seek nor obtain any other outside, personal assistance. You may read or refer to any written resource whether it is mentioned in the textbook, was referred to by me, or not.

4. In discussing this examination with classmates, you shall follow these guidelines. It will be easy to cross-over and create at least an appearance of impropriety. Lawyers must deal with very fine lines on a perpetual basis; therefore, I do not mind expecting the same from you.

a. You may discuss the examination in general terms.

b. You may discuss the class in general or specific terms.

c. You may discuss approaches, methods of conceiving of, or general issues raised by the facts given in the examination.

d. You may not share answers.

e. You may not write an answer for someone else.

f. You may not tell someone else nor ask someon else specifically how to answer the question.

Examples:

a. Student Ken says to Student Paula: I am really troubled by this concept of adverse possession. Do you want to talk about it so that we can both obtain a better understanding of the subject matter.

Judgment: Ken get to take the exam.

b. Student Ken says to Student Paula: This adverse possession problem on the exam is really sticky. Can we talk about adverse possession so I can try to figure out how I should answer it?

Judgment: Ken still gets to take the exam.

c. Student Ken says to Student Paula: I can't for the life of me figure out what I should know about adverse possession. The exam question seems confusing to me. Please tell me specifically how you will answer the question. Paula replies, sorry, I'm too busy.

Judgment: Ken gets referred to the University for discipline for violating the school's rules on ethics. Paula gets to take the exam.

d. Student Ken says to Student Paula: I can't for the life of me figure out what I should know about adverse possession. The exam question seems confusing to me. Please tell me specifically how you will answer the question. Paula replies, sure. From my notes on the question, let me tell you exactly how I will answer the question...

Judgment: Both Ken and Paula will be spending the summer learning to read rules.

5. The point is to work together to understand the course but in the end do your own work in answering the specific questions.

6. You may bring in to the exam any notes, outlines you have prepared yourself (not professional ones), the textbook and, within reason, anything else that is your work product.

7. You may not simply prepare an answer before hand, come to the exam, and copy it into the bluebook. That wrecks all the fun.

8. Congratulations on completing this course. I hope to see each of you in the future. If there is anything I can do to assist your careers, let me know. I have truly enjoyed this semester. I am truly impressed with the effort you have put in this course. Thanks.

Question 1 (67 points. Math is hard)

Below are some facts. Your assignment here is to predict an outcome and explain your reasoning. Two maps are attached to assist you in keeping the story clear. The jurisdiction for this question is That Fictitious State. You are to give the general common law answer unless a specific statutory rule is provided. You are to raise all probable issues and come to some conclusion on those issues.

Buz Lightpost is a rather unrealistic fellow. He has this strange notion that he is not from our culture. He seems to have a rather unique view of property. Fortunately, or unfortunately, he is your client. Buz has come to your office seeking your advice. He seems to have series of related legal problems. Oh, he is also very inquisitive. He really likes hearing why you are answering in a particular manner. He likes organization, too. He is also apologetic. He fears that in attempting to get you to express your comprehensive understanding of the subject known as Property, you will either find Buz's predicament too complex and/or the following not entertaining.

Buz has a long family heritage. All of the land depicted on the attached maps was purchased by Buz's great-grandfather in 1865 from the United States government. The land was originally designated as a United States Army Base. In 1865, Congress sold off much of its holdings such as this land. Buz has a deed signed by the Andrew Johnson, the President of the United States at that time. The entire plot of land exists within the city limits of That Fictitious City; the city exists in, of course, That Fictitious State.

From 1865 until 1970, the land remained in the family in one lot. None of Buz's ancestors had wills. Buz is the first person in his family to consult a lawyer. He is currently 80 years old and married for the third time. All of his previous wives have predeceased him. He had two children with Wife 1 (named Slinky and Rex--both boys); he had no children with Wife 2; he has fathered one child (a boy named Andy) with Wife 3. All of his children and his current wife are living. Buz has no other relatives currently alive (at least on this planet).

As a boy, Buz used to enjoy hunting fox in the land now described in the attached map as "County Park". It used to be a completely wooded lot; some deer still seem to live in the park as well as many species of birds, plants, and other animals.

In 1970, Buz decided to subdivide his land and sell it off. He was sick of heritage. He had just watched a movie similar to Feeling Minnesota and decided family wasn't everything anyway. He subdivided his land according to the attached map and according to city ordinances in effect at that time and sold or disposed of all of the land as depicted in the map within six months. He wrote a letter to each of his relatives telling them that he was "sick and tired of the responsibility of a land owner. I want to forever dispose of my property so that I can simply live in peace and not worry about it all."

Buz retained lot B (for "Buz") for himself. On lot B stood a house erected by Buz's father in 1920. It had been the family home since then. Buz never lived anywhere else. Buz has never even been to the next county (let alone the next galaxy). Each lot (except for the ones which are obviously bigger) are, you are to presume, exactly one acre. Buz also retained lot 21 for himself.

Buz sold lot A to a guy known as "Woody" and lot N to a kid (18 years old in 1970) known as Sid. Sid had a dog named Scud. The dog barked night and day. Sid kept Scud tied to a very short leash. Scud seemed to never tire of barking. Scud was a huge problem for Buz; however, Buz has read the sign on your door that says "We didn't cover nuisance law in Property, don't ask me those questions" and so he is not raising nuisance issues.

In 1970, Buz also conveyed to the County the lot identified as "County Park" on the map. Lot M was sold to the local school district; lot C Buz conveyed to his son Slinky. Buz conveyed lot D to Rex. Slinky was born in 1969; Rex in 1970; and Andy in 1990.

Buz has been driving his motorcycle from lot B through lot N to get access to Route 79. Buz has been doing this every since he sold the property to Sid in 1970. Buz cuts directly east across lot N. He does this because the only motor vehicle Buz drives is a motorcycle. Local ordinances prohibit Buz from driving a motorcycle on Emily Street. Buz is, of course, a very law abiding citizen and refuses to break the law regardless of how dumb the law is. Therefore, ever since Buz conveyed lot N to Sid, he has been cutting across it to reach Route 79. Sid spends most of his time in doors working on his experiments with explosive devises. He has never recognized that Buz has, through continued use over the years, made a rather substantial path through his property to Route 79. Scud barks all of the time and so Sid never recognized any difference when Buz cut through the property. On the day of Buz's closing with Sid, Buz included a letter to Sid that was stuffed in with the rest of the documents indicating that Buz intended to continue to use the path across lot N. Sid did not retain a lawyer to do his closing and so he never read the letter and promptly used all of the documents in the closing as fuel for one of his experiments. Holding up the documents while leaving the closing, Buz overheard Sid say to Scud in a sadistic tone, "Let's go home and play."

Because Sid seemed like a happy child to Buz, Buz also tilled the south half of lot N, raised carrots, and gave them to Sid at the end of the summer. Sid always said thanks, but never asked nor knew where the carrots were grown.

The deed conveying lot M to the school district was a quit claim deed in which Buz included in handwriting the following:

"The school district must build a school on lot M. If they don't I (Buz) get to sue them get lot M back."

The school district built a school on lot M in 1975. It burned to the ground in 1985 (some suspected Sid's involvement--Scud was seen running from the premises soon before smoke was detected). It was never rebuilt.

In the deed conveying the land identified in the map as "County Park", Buz wrote on the top: "General Warranty Deed" and included the following language in addition to the standard boilerplate language already used on the form contract: "This lot will be maintained as a park. I don't want this lot to be used for anything other than a park."

The County did, in fact, create a park out of a narrow strip of that parcel of land that abuts lot M. The remainder of the park has been taken over by homeless people. The homeless people have erected a complex community of shanty style houses. Some of the homeless people have been there since 1980. The homeless people tend to be transient and do not stay in the park for long. However, there are some people that are there year-round and have been their for over 17 years.

In the deed conveying lot A to Woody, the following language appeared:

"To Woody and his Wife ("Bo")."

In 1985 Woody drafted a deed and executed and recorded the following document. It read in its entirety as follows:

"I, Woody, hereby deed, convey and transfer for good and valuable consideration my portion of lot A to me, Woody."

Woody never told Bo about the deed. Woody and Bo obtained a second mortgage on the lot A in 1988. At that time, Woody never mentioned the conveyance to himself and the bank did not discover it. Woody also reconveyed his share of lot A to a new restaurant that was planning on opening up in the neighborhood. The restaurant was to be called "Pizza Planet" and included a video game arcade. Woody didn't tell Pizza Planet about his wife and he didn't tell his wife about Pizza Planet. Woody, aparently, felt he was above the law.

In the deed conveying lot C to Slinky, Buz included the following language: "I convey this lot to Slinky for as long as Slinky shall live. If Slinky predeceases me, then lot C shall go to Slinky's children and if any child predeceases Slinky then that share shall go to Slinky. Slinky had two children: Sargent and Potato Head. Sargent had a wife named Ellen and one child. Potato Head had trouble getting dates and so has never married nor sired any children. In a will dated January 1, 1995, Sargent bequeathed "all of my interests in any property whatsoever" to his beloved wife Ellen. Slinky died the next day.

In the deed conveying lot D to Rex, Buz stated: "I convey lot D to Rex for his natural life time and then to any of Rex's children who reach age 25 and go to law school." It seems that after all of this, Buz was finally recognizing how helpful lawyers could be in this regard. When you spoke with Buz, Rex was not married and Rex was on his deathbed.

The reason Buz really needs your help is because he informs you that the City has informed Buz they will be putting in a light railway that, due to topographical irregularities, requires them to condemn and take all of lots M, A, N, B, C, D, K and the County Park. Track will go through all of the lots and the City will erect a major railway station in what is now County Park. The Cit has agreed to pay 8 million dollars, total, to all of the true land owners in Buz's subdivision that can prove they are the legal owners. Each lot owner is to take one million dollars. Buz wants the entire pot or at least as much of it as he can get. He must be from another planet, or something. Explain to Buz how much of the eight million dollars he will be legally entitled to, if any and if not Buz, who will get the money.

Attached is also a zoning map. The map indicates that most of Buz's original lot was zoned SH. Because of the new light rail line, That Fictitious City has rezoned CR-2 and SH to CB-1. The rezoning ordinance has an amortization clause which allows non-conforming uses to cease within one year of the effective date of the rezoning ordinance. The specific language of the rezoning amendment reads as follows (Codified as TFS Stats. §1700):

"In order to provide a more conducive atmosphere to development around the new Light Rail System (LRS), all property currently zoned SH or CR-2 and that lies within 1,000 feet of any LRS track is hereby rezoned to CB-1. The purpose of this rezoning is to promote business to develop shops around train stations so that stores, offices, workplaces and entertainment facilities will be built or developed within walking distance of LRS stations. We consider the automobile to be a substantial cause of all things bad in our society and hereby attempt to do our best to discourage the use of automobiles and encourage the use of trains."

Excerpts of ordinances in effect in That Fictitious City

Zoning

ARTICLE 6

SR - Suburban Residential Zone:

Sec. 601 Uses Permitted:

a. One-family dwelling.

b. Commercial agricultural uses:

1. Field crops, truck gardening, berry or bush crops, tree crops, flower gardening, orchards and Aviaries.

2. The raising and marketing of poultry, rabbits and small animals including foxes, but no slaughtering or hunting or chasing of any kind on the premises.

c. Guest house accomodations.

d. Public park, public or parochial school.

e. Church

f. Accessory building or use.

Sec. 602 Minimum lot area: 144,000 sq. ft. (four acres).

ARTICLE 7

SH - Suburban Homestead Zone:

Sec. 701 Uses Permitted:

a. Any use permitted in the SR Zone.

b. Duplex dwelling.

c. Trailers or mobile homes, provided that no more than two trailers or two mobile homes be placed on any one lot.

d. Professional or semi-professional office or studio, home occupation and the employment of persons not residing on the premises.

Sec. 702 Maximum Building height: Two stories or thirty feet.

Sec. 703 Minimum lot area: 36,000 sq. ft. (one acre).

ARTICLE 8

CR-1 - Single Residence Zone

Sec. 801 Uses permitted:

a. One-family dwelling.

b. Public park, public or parochial school.

c. Church.

d. Home occupation.

Sec. 802 Minimum lot area: 144,000 sq.ft. (four acres).

ARTICLE 9

CR-2 - Sincle Residence zone

Sec. 901 Uses permitted

a. Any use permitted in the CR-1 zone.

b. No motorcyles shall be permitted on the streets in any CR-2 zone.

Sec. 902 Minimum lot area: 20,000 sq. ft.

ARTICLE 10

CB-1 Local business zone

Sec. 1001 Uses permitted:

a. General business uses which have at least $10,000 in annual gross receipts.

b. Parking garages ancilliary to the operation of such businesses.

c. Gasoline service station.

d. Governmental structure.

e. Any use by That Fictitious City needed to facilitate, support or maintain public transportation within the City including parking garages for buses, Park and Ride lots for users of public transportaion.

Statutes of note in effect in That Fictitious State

1. No action shall be brought to recover title to or possession of real property more than 10 years after the cause thereof accrued. TFS Stats. §2222

2. Each municipality may establish zoning ordinances in order to regulate the general welfare of each community. Such ordinances shall conform to the general principles of zoning as presenting in Dukeminier and Krier, PROPERTY (1993). TFS Stats. § 1111.

Question 2 (33 points)

Instructions: You are to choose one and only one of the following statements/questions [except for number 3] and respond. You need not agree with the statement.

1. A person should never own his/her own body parts. Such a concept is entirely inconsistent with our general concept of what is or is not property in this great country.

2. The implied warranty of habitability goes too far. To dictate to a land owner that by leasing his/her property opens him/her to interference in the quiet enjoyment of his/her property is outrageous and should be discontinued. The judicial creation of such rules only shows how out of touch courts can be in the formulation of law in this country, great as it is.

3. Levitation.

4. The laws of property are merely political tools to justify state intrusion on what otherwise should be absolute property rights of the citizens. As such, they are illegitimate uses of the majority's political power.