QUESTION I (60 minutes)

In 1978 Davis, a real estate developer, bought a large tract of land near the city of Lathrup, Mitchell. Davis intended to develop the tract as a residential development with its centerpiece being a golf course designed by the famous golfer, Jack Niblick. He obtained the golf course layout and then subdivided the remainder of the tract into 60 lots numbering them 1 through 60. These lots were situated around the course in a way intended to achieve maximum scenic views of the course.

As the course was being built Davis began to advertise and sell the lots. Because he intended that the subdivision be maintained as a residential area with expensive houses Davis intended to include several covenants relating to use of the property in all of the deeds in the subdivision. He did not have a lawyer assist him in doing this work, and therefore did not include any restrictions in the subdivision plan.

Interest in golf was just beginning at the time, and Davis had no trouble selling lots. The first 10 sales were made rather quickly. Each of the deeds transferring these lots contained 3 covenants. The first provided that the lot was to be used only for a single family residence. The second provided that no structure on the property could be more than 2 stories and in no case more than 30 feet high. The third provided that the owner would pay annual fees of $4,000 for the maintenance and upkeep of the golf course. This fee was to be adjusted annually for inflation. Each of these covenants was to be binding on the grantee 'and the successors and assigns of the grantee.' None of the deeds contained any provision expressly binding the lots retained by Davis. The deeds did provide that the owner of the property would be entitled to use of the golf course. In each case, however, Davis told the buyers that he intended to bind all of the remaining lots to the same covenants.

On March 3, 1983, Palmer purchased lot #32 from Davis. The deed by which Davis conveyed title to Palmer contained the first 2 covenants relating to residential use and the height restriction, but because of a clerical error omitted the covenant requiring payment of the golf course maintenance fees. This deed also contained no provision purporting to bind Davis with respect to any lots not yet conveyed by Davis.

On June 15, 1983, Davis contacted Palmer and told him that the covenant regarding the golf course fees had been inadvertently omitted from Palmer's deed and asked Palmer to execute a separate document incorporating the covenant. Palmer was an ardent golfer and agreed but only if Davis would agree to guarantee that Palmer would always have sufficient sunlight to operate a solar heater which he had recently built in his backyard. Palmer was particularly concerned about lot #33 immediately adjacent to his backyard. Davis and Palmer then signed a document in which Palmer agreed to the golf course fee covenant and Davis agreed that no structure on lot #33 would be higher than 25 feet nor closer than 10 feet to the property line with lot #32. Each party agreed to bind his 'successors and assigns.' This document was duly recorded in the county recorder's office. The county did not maintain a tract index, and the document was recorded in the grantor only under the name of Davis. The reference in the index said only that the document related to lot #32. There was no reference to lot #33 in the index.

In 1987 Palmer sold lot #32 to Lopez, also an avid golfer. He conveyed title by warranty deed 'subject to all encumbrances of record.' Lopez enjoyed the property and the golf until 1993 when she sold the lot to Agassi. Agassi preferred tennis to golf but liked the view of wide open spaces. In the meantime, Davis had sold lot #33 to Alcott in 1984. His deed to her contained the 3 covenants relating to residential use, the 2 story-30 foot height requirement and the golf course fees but said nothing about the 25 foot height or the 10 foot set back restrictions. Alcott still owns lot #33.

In 1995 the golf course was redesigned slightly. As a result the practice range where golfers hit balls to practice or warm up before a round was moved closer to lot #32. As golfers hit ball after ball to practice, many began to fall in the backyard of lot #32. From dawn to dark balls flew into Agassi's yard. He and several of his guests nearly missed being hit. It reached the point that his yard was unusable during daylight hours. He complained to the golf manager but was told that the course had expended too much money and could not afford to move the range.

The golf course had been sold to a private management company after the development, and the company agreed to build a 50 foot high fence to keep the balls out of Agassi's yard. Agassi agreed to that solution, but when the company started to put up the fence several neighbors objected. Alcott who wanted to maintain her good view sued to enjoin the building of the fence saying that it violated the 30 foot height restriction applicable to all property in the subdivision.

Disgusted, Agassi refused to pay any more maintenance fees for the golf course saying he did not like golf anyway and had no obligation to support it. Agassi and several other owners in the subdivision sued for an injunction requiring Agassi to make payments as required in the covenant.

At about the same time Alcott began construction of an addition to his house. this addition was 28 feet high and would come within 6 feet of the property line with lot #32. Agassi then sued for injunction against Alcott's construction.

1) Can Alcott enjoin the building of the fence? CHANGE THE FACTS HER TO MAKE IT A SIMPLE NUISANCE QUESTION--AGASSI SUES TO ENJOIN USE OF THE DRIVING RANGE

2) Can Agassi be required to pay the maintenance fees for the golf course?

3) Can Agassi prevent Alcott's construction of the addition above 25 feet and within 10 feet?

QUESTION III (60 MINUTES)

A. (30 minutes) In 1985 Abel owned a 50 acre tract of land which she intended to use for a retirement home at some future date. The land was undeveloped at the time, and when she became strapped for cash Abel decided to sell some of the property to raise money. She liked the north 25 acres because it was more scenic and also was on the state highway which ran across the northern boundary of the tract. She therefore advertised the southerly half of the property for sale.

Soon Baker expressed interest in buying the southerly half. He noted, however, that the only way he would be able to get to this property was by using the dirt roadway that ran from the state highway south across the 50 acre tract and then continued south over land owned by Crites until it intersected with County Road 2. This was a path that had been used for many years by owners of the 50 acre tract to gain access for farming and recreational use. Crites' land and the 50 acre tract had never been owned as a whole by one owner, and the use of the path over Crites' land had always been by permission.

Baker asked for permission to use the path over the north half of Abel's property to be sure of having a right of access. Abel objected to this saying that Baker had the use of the path over Crites' property which would likely continue, and that Abel did not want to clutter the title to her property with any rights of way across it. Baker, being a conciliatory sort, agreed that there probably was nothing to worry about and took Abel's deed for the south 25 acres in 1990.

For the next three years Baker used the land occasionally for camping and mushroom hunting, and used the path to get there. Sometimes Baker would use the northerly route to and from State Highway 45 and sometimes he would cross Crites' land to County Road 2.

Finally in 1995 Baker began to clear a part of the land in preparation of building a house on the tract. When Crites noticed what was going on, he immediately put a barricade across the path to County Road 2 and sent Baker a letter telling him that he could not longer use the path over Crites' land. Baker continued to use the northerly route across Abel's land for a few days, but within a week Abel too put up a barrier and sent a letter to Baker saying that the path was closed to further use. Although Baker had done only a little work in clearing the land at this time, he realized that without use of the path he would not be able to develop or even use his land.

Baker has now sued for a court order enjoining Abel from barricading the path and granting Baker the right to use the path for access to his land. If you were Baker's lawyer, what arguments would you make to support his request for an injunction? If you were Abel's lawyer, what arguments would you make in favor of her right to deny Baker's use of the path? Who do you think should prevail and why?

B. (30 minutes) In 1990 Owner executed a quit claim deed to Blackacre in favor of her daughter, Abigail, as a birthday gift. Abigail did not record the deed at that time. The land was unimproved, but was not too far from Tipp City and was likely to increase in value for development in the next few years. Abigail did not occupy the land or put any structures on it.