Miami
Question 1A: Model #1: As Mr. T's lawyer the first thing I would check is the title to the property (Widgetacre). I would want to find out who owns Widget., if the title has any clouds on it, if there are any encumbrances, faulty acknowledgments, easements, covenants, mortgages, etc. I would look up the title in the grantor and grantee indexes to find out if there are any problems in the Chain of Title (Board of Educ. of Minneap v. Hughts). If there are any problems such as wild deeds,(Sabo) Mother Hubbard clauses, etc. I would want to find out as soon as possible before my client has spent any money in regards to purchasing the property. After checking the title and finding out that it was either totally valid w/no clouds or invalid, as Mr. T's lawyer I would go w/him to the property to do a quick but thorough investigation.
Adverse Possessors: one of the things that I would search for would be if there were any adverse possessors on the property. If there were any it should be apparent to us during the visit since one of the requirements for adverse possession is open and notorious. I would also tell my client to go back to the property a couple of different times again, to make certain no one is in continuous, uninterrupted possession - Whaler v. Smith. Furthermore, I would have him or myself check w/ some of the neighbors to find out if they knew who possessed or owned the property. The neighbors may tell us that someone else owns the property, not the person whose name is on the title.
Easements: While on the property I would check for any easements. Based on the fact that there is a path running down toward the lake, it sounds as though someone has acquired an easement either by an express grant (which we should be able to find through the recording system), from an existing use, by necessity, or by prescription (adv. possession). If I find out that there is an easement, this probably will have a great effect on whether or not Mr. T. will buy the property. If the easement doesn't really bother him (maybe he can't see it from the building, etc)., he should be able to use the information as a bargaining tool against the owner to reduce the price of Widgetacre. If the eaffement is too troublesome (as in a public easement), I would advise him not to purchase the property.
Covenants / Equitable Servitudes: While investigating, I would want to try to find out if there are any covenants (promise to do or not to do something to the land) or equitable servitudes (an interest in the land). Either the recording system, the owner of the property, or the on site investigation of the land should tell us this information. There may be a covenant stating that the land cannot be used as a shelter for the homeless. This would be very valuable to know since the whole purpose of buying the property might be retarded due to a covenant. But if the covenant or equit. servitude doesn't run to new purchasers, then we would not have a problem.
Nuisance: The main, or one of the main problems that I foresee is a nuisance (an unprivileged interference w/ a person's use and enjoyment of his land). There could be two type of nuisance problems here: private nuisance (conduct that causes a substantial interference w/ the private use of land and is either intentional and unreasonable or unintentional but negligent, reckless, or resulting from an abnormally dangerous activity) or a public nuisance (a nuisance which effects the general public). This shelter for the homeless could be a nuisance to either the residential home owners that the site overlooks or the small businesses and warehouses. First we would have to find out if the activity in this factual setting is a nuisance: 1) What activities may constitute the nuisance? (the homeless people themselves; this would be discriminatory). To find out if this activity is unreasonable, we would have to weigh the gravity of the harm against the utility of Mr. T's conduct, or 2) if the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible, then it would be unreasonable. (RSTMT). To measure the gravity of the harm we would have to look at 1) Extent of the harm 2) Character of the harm (depreciation of property value),(discomfort caused (Morgan),(fear of the harm), (character of the neighborhood). 3) social value of the use (which is high here) 4) burden to avoid the harm. To measure the utility of the conduct we must look at 1) social value, 2) suitability of the use, 3)impracticability of avoiding the invasion. Based on this test (Balancing Test), we could argue that the utility of helping these homeless people outweighs the burden to the resident, owners or business people. Also using the Borneo analysis, we could argue that the benefits to society outweigh the harm to society in general.
Also under nuisance, I would find out if this shelter could be categorized as a nuisance per se (nuisance under any circumstance). Personally I don't think it would because it is not like storing explosives. Furthermore, I would want to find out if these residential owners or business owners were hyper- sensitive people that react to anything new in their town. other questions I would want to ask is 1) Are there statutes regulating this activity? 2) How easy is it for the neighbors to see or hear this activity? 3) What are the exact lay out plans-for the shelter? 4) What kind of neighborhood is this (primarily rich residential?) If this does constitute a nuisance I would tell my client to purchase some other property. However if he really wants to buy it there are four basic remedies that the neighbors can seek from him:
1) Injunction - must meet the Balancing Test. 2) No injunct. but damages for future harm. 3) No injunct, and no damages. 4) Injunct & damages to Mr. T. (Calabresi and Spur).
ZONING: The other problem that we have here is zoning. The purpose of which is to protect the landowner (Mr. T.) from harming his neighbor by bringing in an incompatible use. Zoning declares in advance what uses are harmful and prohibited in the various zones. There are five questions I would ask: 1) What is the general use of the area? (are shelters allowed at all) 2) What is this area zoned for? (residential or industrial) - If it is residential we won't be able to put the shelter in at all 3) Are there going to be any changes in the actual building that will effect zoning? (Mr. T. must have specific plans) 4) What fixtures will effect zoning? (Lights, Parking, Bathrooms, Fences) 5) How hard will it be to get a variance and what will we need?
I would have to check and see what kind of permits Mr. T. would need 2) what the zoning statutes call for (i.e. Coral Gables zoning wouldn't allow this shelter) 3) How hard it would be to set a variance.
ENVIRONMENTAL LAW: Lastly, I would check and see (by doing an Environmental Impact study), what effects this new plan will have on the envirorment. If there are any endangered animals or species on the property. If the property has any toxic waste and if so, would my client be responsible for it (check the statutes).
Question 1A: Model #2: In advising my client there are several areas of the law that I will have to research and decide whether they have a serious impact on my client.
The first area is zoning. It is imperative to my client that a shelter for the homeless be allowable in that area. I, as his attorney, must check the zoning regulations to make sure that they are. Since there was a previous factory on the site it is doubtful that this could be zoned for single (traditional family), but this should be checked out. The question to be asked is whether a shelter for the homeless can be built in a commercial district and if there are restrictions on the demolition of the factory in that area. If there are restrictions, I, as attorney, should determine whether they constitute a "taking" without just compensation so as to violate 5th amendment. If there are restrictions, how can they be worked around. Are variances easy to get in Adver City and if they aren't can Throppi get a special exception?
My client may want to know if there is incentive inclusionary zoning so that he will receive a benefit in his later constructions/building permits/zoning variances because he is building a shelter for the homeless which benefits the society. The next question to be asked is whether the town requires approval of all zoning or space/layouts and if they have a master plan in mind with that locality. This will affect Mr. Throppi's use of the land.
Another question my client needs answered is whether the town allows aesthetic zoning. If it does to what extent does it allow it, and what standard does party to meet. Are there any restrictions on fences, kitchens, and other accoutrements inherent to a shelter for the homeless.
Mr Throppi will also find it important to know whether there are growth control restrictions which will prevent a shelter being built on Widgetacre. If there are what timetable, if any, are these growth restrictions.
The next area of the law to be looked at is nuisance. Can the operation of a shelter for the homeless constitute a nuisance? If there are long lines outside waiting for food it can be (possibly) a nuisance in both commercially and residentially zoned areas. Can the type of person that a shelter brings into the neighborhood be sufficient to create a nuisance?
The question then becomes if there is a nuisance is it a public nuisance? It appears unlikely that a shelter for the homeless can create a nuisance so widespread in range that it should be taken on by the community as a whole. It is also important to determine whether there are public nuisance statutes.
In determining whether it is a nuisance we must determine where people will wait for food (probably inside and not a nuisance), whether their daily activities will be controlled and what curfews and/or time restrictions will be imposed on the homeless.
Can the shelter for the homeless constitute a private nuisance? If the jurisdiction follows the Restatement we must perform a cost/benefit analysis.
Costs
1. moves indigents into commercial or residential area,
2. may increase crime in that area,
3. property values may go down.
Benefits
1. provides homes for homeless.
2. gets people very apt to commit crimes off the street,
3. gives hope to those without it..
If we are in a jurisdiction that follows the common law we must determine whether Mr. Throppils behavior was intentional and unreasonable. He intended to put business there, but did the gravity of his actions outweigh the social utility of his conduct, The issue is debatable.
The next area of the law to be looked at is the transfer of real property. As his attorney I should check the records to see whether party selling to Mr. Throppi is indeed the true owner. While checking public records I should also check for any easements or restrictive covenants that are possibly on the land. Mr Throppi should survey the property to check for any easements, restrictive covenants (possible) or squatters to satisfy the inquiry notice requirement. If jurisdiction is race jurisdiction and evidence of unrecorded easement, Throppi should (regardless really) immediately record his interest. This is true in any of the three type of jurisdictions. Mr Throppi should get an acknowledgement from grantor of Wigetacre to make filing possible.
The deed should be a general warranty deed because it contains six covenants from grantor and are applicable before as well as during time grantor owned property. The tract in the deed must be adequately described, preferably by an original survey monument and address. The deed should be delivered (handed to Throppi by grantor) . Mr . Throppi should bargain for a provision providing for grantor having risk of loss between contract of sale and closing and require the seller to procure both insurance for destruction of the property and title insurance with Mr. Throppi as the beneficiary. While it will be impossible to convince the grantor to agree to these, the more options the buyer has the better he can negotiate.
The area of covenant/easements was previously discussed in transfer of real property.
The next area of the law to be discussed is the envirormental question. The first thing Mr. Throppi should do is check for toxic waste to make sure this land had not been used for a toxic waste dump making him responsible for a huge million dollar debt. Mr. Throppi should try to prevent anything from entering the water and make sure what the water contains when it goes through his land is the same that goes out so as not to violate the clean water act. A lso going back to transfer of real property, Mr. Throppi should make inspection of land thoroughly and also inquire as to defect so that Mr. Throppils duty to disclose defects may rise to a greater level.
Question 1B: Sample Only: No Model Answers
QUESTION IG: COMMENTS: Structure: As I discussed in the review sesion, I was looking for an organized list of specific investigative tasks that you would undertake and some sense of the reasons behind the tasks. The two best student answers both are good examples. Some of you did some of the following tasks that were not very responsive to the question:
• Made arguments about whether FN would be successful in possible lawsuits (without determining relevant law and facts)
• Listed possibly relevant legal tests without following up with factual questions to see if the facts indicated the tests would be met
• Asked "questions" that were simply legal tests in question form, and so were too vague to indicate how you'd go about answering them (e.g., "I'd see if the new by-law was arbitrary" or "I'd check if it would be a public nuisance.")
• Proposed settlement alternatives for the parties (you were not asked to prepare for a negotiation).
Substance: An important set of questions you needed to ask concerned the scope of the display and the extent of the harm it caused. Some of you did thoughtful detailed investigation of these issues; others barely mentioned them. You will be unable to determine if her display is a nuisance or if it violates local zoning unless you know how extensive it is and what problems it causes. In addition, I looked for discussion of the following topics:
Homeowners' Association (HOA) Rules: To see if the HOA rules could prevent the lights, you would need to determine what the new by-law said, whether it was passed properly under the HOA's own rules and any state laws, whether the state had any statutory limits on what HOAs could do; whether the state had rules like Nahrstedt; whether the rules were stricter for changes in by-laws than for original declaration, etc.
Many of you spent a long time exploring other possible servitude issues, which I thought was not time well spent. Although I certainly would check the records for other deed restrictions, it is unlikely they are there. If prior covenants prevented the lights, the HOA would not have needed to amend its by-laws; it would just enforce the existing covenants. Some of you also suggested looking for a common scheme, another unlikely possibility. While I can easily imagine a developer planning "residence only," I am skeptical that a developer would intend to create an X-mas-light-free zone. Moreover, how could anybody get inquiry notice of such a restriction? Even just before Xmas it would probably not occur to you that the lack of lights was part of a deliberate scheme.
Nuisance: Legal research would include determining the rules for public and private nuisance that apply in the state, looking for any nuisance cases had addressed holiday displays, determining the relationship between zoning and nuisance liability, and determining if Felice could be liable for actions caused by others (as in Armory Park). Factual research would include determining the scope of the harms caused by the display, determining what other holiday displays were in the area to see if the display was typical or suitable, exploring possible benefits of the display (neighbors who like; any charitable work associated with, etc.). Weaker answers listed nuisance tests, but did not describe what research you would undertake to see if they were met. Incidentally, Professor Mahoney says there are a lot of recent cases in which courts have found traffic-causing holiday displays to be nuisances.
Zoning: We discussed a number of possible attacks on aesthetic zoning. Here, you first should determine whether the zoning in fact governs your client's display and, if it does, what process you would need to go through to get board approval. If approval was unlikely, you would explore whether the municipality's zoning complied with state requirements for zoning generally or aesthetic zoning in particular. You could check caselaw about whether it needs to be tied to property values and how specific it has to be. You also could check if it was conbsistent with the municipality's comprehensive plan. Some of you cleverly suggested checking to see if the displays pre-dated the zoning (it might be a non-conforming use) although because it's taken down each year, this might not fly.
Many of you discussed variance procedures and availability. While I gave a little bit of credit for these discussions, I think that this is an unlikely case for a variance. If the zoning specifically requires board approval for exterior displays, it would be hard to argue that the zoning plan wouldn't be harmed by the variance. Moreover, limiting large Christmas displays is unlikely to drastically reduce the value of the property, so it will be very hard for her to meet any hardship requirements.
Other Possible Topics: You could usefully explore religious discrimination claims against the homeowner's association and first amendment claims against the municipality. As we discussed in class, it is difficult to bring constitutional claims against private parties like the homeowner's association. A few of you cleverly suggested that there might be some kind of prescriptive right that would develop because Felice has been setting up these displays for 15 years; this issue certainly would be worth researching. Some of you researched the records to make sure Felice owned the property. I think this would not be an efficient use of your client's money unless somebody called her ownership into question.
QUESTION IG: BEST STUDENT ANSWER #1
Nuisance
1. What nuisance regime is used in jurisdiction? (affects Liability Rule, Remedy)
2. What else happens in HA? (How different is this)
3. What else happens in local area?
4. How much traffic increase?
· Any accidents
· Any trespass
· Noise
· Traffic law violations
· Times of day effected (worse during rush hour/sleeping time)
5. How many neighbors upset?
· Do these folks complain often? (establish a pattern, use to show "bad" intent)
· Has client ever argued with these neighbors (motive)
· Have these folks told complaint to my client? (potential out-of-ct. agreement, save $)
6. How many kids in subdivision? (Public Benefit?)
7. What notice, if any, did client have other than Pres. of HA? (How free of blame is she?)
Homeowners Assoc. Issues
1. Any master deed, client deed restrictions?
2. Was Amendment to by laws done correctly?
3. How many people affected? (Is this arbitrary).
4. What is makeup (religious) of HA? (If Christians in minority may claim discrimination & goes to arbitrary/unfair)
5. What is makeup of HA board? (Support above)
6. Any evidence of affect on Property Value?
7. Other than traffic, does HA have rational reason for acting?
8. How strict are courts with owners in such HA's? (Will affect any chance in court, client wants to know any way to keep display).
9. Is there a gatehouse to keep traffic out?
10. Can the street be dead-ended if it isn't to stop thru traffic?
11. Is 50 feet a std. length for X-mas lights or will that number hinder efforts to comply? (proof of arbitrary.)
12. What other religious emblems/festive emblems allowed? (Proof of arbitrary.)
13. When did problem arise?
· Only after client added even more stuff.
· Is there a level that is tolerable? (More than 50 ft. but less than as is?)
Coral City Zoning
1. What are the existing zoning regulations?
2. What is rationale behind them?
3. How many rulings have been made?
· Who is angry (may support client)
· Selective enforcement
· Who is on the board?
· How difficult is it to get permit?
4. Do rules protect "existing character" of the community? Property Values.
5. Are the existing terms of the rules vague?
6. Is there a comprehensive plan in this regard?
7. When were rules made?
8. What is make up (religious) of locality? (Proof of arbitrary/unfair or discrimination)
9. What has happened elsewhere with aesthetic zoning boards with like restriction?
10. What is defined as a decoration?
· How large/small
· Permanent v. Temporary
11. Any established causal link between property value and external decorations.
12. How corrupt is the process?
General Questions
1. Have there been any Christmas light cases?
2. Is client a minority or protected class in any way? (Use as arbitrary/discrim. issue.)
3. What protections are there for religious expression? (Public Policy Arg.)
4. How far does the 1st A. go? (Pub. Policy)
5. How much is "a whole lot of lights"
6. How big are the animals?
7. What can she live without? (Length of time, decorations)
8. Would she compromise? (Time, Size, Volume)
9. How much money is she willing to spend fighting? (Litigation is costly)
10. Where among the 85 lots is hers? (How many people could complain, how much effect is she having.)
11. Did she buy before the complainers?
12. Did they know she did this?
13. Did the complainers ever encourage her?
14. During the HA vote did everyone vote?
· How democratic was it.
15. Does jurisdiction differentiate betw. master deed/deed restrictions and subsequent HA rules?
QUESTION IG: BEST STUDENT ANSWER #2
Nuisance Law
A. Legal Inquiries
- Plat of EE (special layout of house & roads).
- What test does the juris apply? Morgan, Shultz, Rest 1, Rest 2
- Case law on nuisance litigation
- btw. private individuals
- homeowner & assn's
B. Factual Inquiries = focus on being able to balance burden & benefits of holiday lights & displays
Burden
- How far do the lights emanate (lots are 2 acres big, might not be major interference)
- When are lights on? (daytime display not so burdensome)
- Are they musical lights? Flickering lights?
- What is "steadily increasing"? (is the nuisance "going" to the other residents?)
- What is "local attention?" (media coverage can be very concentrated or very burdensome — trucks, satellites)
- How big are her trees? (light can be shining down over neighborhood).
- How many care are passing by to see the display?
- Is it just traffic? Children can be trotting up and down others' property, people parking on other lots & walking to Felice Navidad's house? (more burdensome)
- Interview neighbors (get specific reasons why they are complaining; could there be negotiations?); who's complaining besides family?
- When is traffic bad? (time affects burden — people are _ home during the day but, of course, they might _ be able to sleep at night).
Benefit
— Interview neighbors: do any appreciate the holiday glee.
- What is actually done on the property? Does Ms. Navidad open a wonderland - games for children during the holidays?
- Do Ms. Navidad and her family open the decorating time up to their neighbors? (community unity).
- Does Ms. Navidad do any charitable work while the display is up, using the display: fundraise, collect gifts, can drive?
FHA — Discrimination
A. Legal Research
- What are the state anti-discrimination policies?
- Case law: 1) Interpreting statutes
2) Dealing with restrictions on relig. expression, holiday displays; explaining what's protected?
3) Constitutionality of such restrictions
- Could this be treated as a time, place & manner restriction on expression-case law? (Why: prohibition of religious expression can be violative of FHA & FHA-like rules)
B. Factual Research
- What do "holiday elements" include? Is there a nativity scene? Is there a menorah?
Homeowner Assn's Internal Policies
A. Legal Research
- What are the existing by-laws? (Is this already addressed/mentioned? Are there similar restrictions -—such as on flags/regular lighting?)
- Are there any housing codes that require certain lighting comparable to the wattage/# of bulbs use by Ms. Navidad?
- How does the h'owners' assn. make & amend its policies?
- How have courts of that jurisdiction dealt with policies made?
- Do they defer to the maj. vote of the homeowners?
- Would Ms. Navidad have to show that the restriction on her property is unreasonable on the surface of the entire community?
B. Factual Research
- Same balancing as nuisance
- Do other houses have similar displays? (arbitrary towards Ms. Navidad?)
- Was there someone in Ms. Navidad's house before her and was there a similar display?
Zoning
A. Legal Research
- Look up regulations Pres. of assn. mentioned
- What are the "external decorations" the regulations mention? (a mural of a naked person is distinguishable from a Santa Claus though both are arguably "decoration")
- Look up case law interpreting "external decorations";
- Do the regulations prohibit amusement park-like activity explicitly?
- Do they allow parks such that Ms. Navidad's house could fall under that deliniation?
- Are there any special exceptions built into the regulation that address holiday activities?
Sub Issue: Aesthetic Zoning (AZ)
- How do regulations address AZ — is there language authorizing such limitations (Dermeke: "offends sensibilities," Stoyanoff: "standards of beauty and conformity")
- Are the regulations vague? In other words: - are there technical terms used? (i.e., wattage)
- Is there a common understanding in the relevant industry?
- Are there procedural safeguards? In other words — does the architectural board have restrictions on how arbitrary it can be (voltage, wattage, specific colors)?
B. Factual Research
- Effect on prop. Value, if any?
QUESTION 1H: COMMENTS: Exam Technique: I was looking for a to-do list or series of questions here. The best answers discussed in detail both legal and factual research they would do for each topic they discussed. Less strong answers were skimpy on either law or facts or both. A common problem was simply reciting legal tests in question form (e.g., "I would check to see if the eviction was substantial.") without any indication of what types of facts or questions would be relevant to determining whether the test was met.
A few of you ignored the form of Question I in whole or in part, and simply made legal arguments as though this was Question III or IV. I gave you a little credit for legal arguments that were on point and that recognized those places where you had insufficient information to resolve legal issues conclusively. I gave virtually no credit for arguments that assumed away the very uncertainties that you would have to research to advice your client intelligently.
Another common problem was a tendency to ask questions or make suggestions that were really aimed at giving L business advice. The problem suggests that he has come to you to get a sense of his legal rights and of the legal consequences of possible actions he might take. Nothing in the question (or the course) suggests that I was looking for you to do an elaborate business analysis, particularly of the potential profitability of the other space he is considering. On exams, focus on the topics which we covered in the course.
Substance: I was looking for discussion of four major sets of problems: The loss of heat/electricity; E's boxes in L's storage area; access to S's storage area; and L's ability to exit.
Heat/Electricity: Law: You need to determine if the jurisdiction has any kind of implied warranties or building codes that apply to commercial leases, whether they are waivable, how they are breached, what notice tenants have to give, and what remedies are available. Some of you suggested lawsuits against the builder for improper construction, but all the cases we read of that type involved suits by owners, not tenants. If you raised this issue, you should have at least suggested that you'd need to research whether tenants could bring such suits. Facts: You need to find out what provisions the lease makes for repairs, the cause and extent of the problems, what damage they caused, whether there's evidence of notice already given about the problems, whether L can (and can afford to) fix the problems himself. Some of you suggested researching the relative bargaining power of the parties. First, it's not clear what exactly you'd do to determine this. Second, it is highly unlikely that a court will void a commercial lease because of unequal bargaining power, and you really have no facts to suggest it would be an issue. Thus, it probably wasn't worth spending much time on.
E's Boxes: Interference with the tenant's possession by the landlord herself raises actual partial eviction (APE) issues. You'd have to check the relevant legal standards for APE, make sure the lease did not contain language that gave E the right to store the boxes, determine how big an interference was at issues, check what remedies were allowed, etc.
The boxes do not raise the issue of right to possession at the outset of the lease, which only arises if 3d parties are in possession without the landlord's permission. It also is not a "constructive" eviction both because it involves an actual trespass and because it doesn't effectively make it impossible for L to use the whole space.
S's Storage Area: Here, you'd first have to determine how precise the separate agreement between E and S was. The description of the agreement suggests a license as much as a lease (some storage space somewhere when it becomes available). Assuming it is sufficiently lease-like to be enforceable, you have to check the rules for who/how to evict holdover tenants. You probably also need to find out if L reaslly needs the space before S intends to vacate. No point in getting upset if in practice the space serves L's needs.
L's Exit: In order to advise L about exit, you'd need to determine how easy it would be for him to transfer the leasehold and whether E would have to mitigate damages. For both issues, you'd need to check the lease provisions as well as the particular legal rules employed in the jurisdiction for limiting transfer and for mitigation. You might want to know something about how suitable a tenant the law firm is and about how easy it is to fill the spaces in the mall in general. A couple of you cleverly suggested checking local law to see if discrimination against lawyers is permitted.
Other Issues: Many of you suggested checking if L's primary agreement is a lease or a license. You could do this, although it probably isn't worth spending a lot of time on. The question strongly suggests that L is assigned a specific space for a specific duration. It is very unlikely that one of a group of stores in a strrip mall will be operating by license; the mall owner needs security that individual stores will continue to operate.
Several of you proposed elaborately checking out the space to which L was considering moving. If your analysis seemed helpful to the question of whether L should leave his present lease, I gave you a little credit. However, you were not explicitly asked to check out the arrangements at the second location. The lack of information about it (compared to the current space) should have suggested that this was not a primary focus of the question.
QUESTION 1H: STUDENT ANSWER #1
(1) What are Lew's goals?
- How far does he want to go before cutting off E?
- When will he want to move?
This provides framework to effectuate decisions under client goals.
(2) Get the Agreement: Lease or License?: Getting the agreement would lead to allowing us to determine what he signed because they both have different ramifications, so categorize the agreement. Lease factors included?
- Language indicating parties intended Landlord Tenant Relationship or Informal Agreement signifying a license.
- Is there any assignment clause? (leases are assignable) or No Assignment (license)
- Is the space to be occupied specifically designated (lease) or not and subject to chance? (license)
- Does it appear easier or harder to set out of?
- Liquidated damages provision for breaching?
- Express term of agreement?
- Is it a right to possess exclusively or right to use to you personally?
Why? Determine if it is a license or lease allows a number of solutions to be spelled out right away. If the agreement is a license it will be generally easier to get out of while a lease is tougher; determining if it is one or the other also would impact how we negotiate w/ Edna or what optional incentives to act are most favorable. Along these lines we may want to research custom in strip mall agreements, in this strip mall, as well as prior relationships w/tenants and how Edna handled them.
(3) Implied Warranty of Habitability (IWH) and its extension to commercial facilities in jurisdiction?
(a) Look at lease what does it obligate parties to do?
- Did Lew waive his IWH?
- Any express duty of LL to repair?
- Of Lew to repair?
- Is the lease one-sided or ambiguous?
- How far in Caselaw in Jurisdiction will court construe against LL or how much does jurisdiction want to have equal bargaining power as policy.
- Who wrote lease? Lew or Edna?
(b) Does the Jurisdiction extend the IWH to commercial?
(i) Caveat Emptor doctrine
(ii) Only residence
(iii) Limited commercial exceptions?
- For comic stories
- For strip malls
- Anything similar
(iv) Does jurisdiction have bright line commercial rules or evaluate parties on case by case basis.
(v) Any statutes? Housing codes?
- What do they say? May be we can get off on a technicality, a violation of code:
- Ask around; inspect the sites; list specific violations of codes, etc.
- May be we want out on point of law but can't so we need to find another way.
(c)Remedies: what does court allow?
(i) Constructive eviction? — Do we fit in, do these violations seem to constitute or run similar to caselaw?
(ii) Repair and deduct? — for commercial?
(iii) Rent abatement? For commercial
(4) Actual Partial Eviction/Storage in already demised back room
(a)Check out site:
- Are boxes substantially invading Lew's backroom
- Take measurements, pictures, collect witness testimony as to any change, addition of boxes to backroom. (Want to build a case for a substantial interference regardless of caselaw rule, just easier to show.)
(b) Since caselaw on APE often depends on the community (i.e. in Smith trivial invasion; APE because in city but in rural area not as big a deal lots of land). Check facts re custom/community
- What is business type and practice
- (i.e.) need lots of storage
- What do other malls in area allow
- What does Edna do for other clients in the area?
(b) Now check the caselaw to see how easy or how hard it will be to prove APE.
(i) Smith Rule — Trivial — APE (better for us; easier to prove.)
(ii) Dussin Rule — Substantial Required
(c) Along the Dussin lines we should check out evidence as to E's good faith in failing to remove her boxes as well as her agreements/history of agreements in area and how complicated. Dussin allowed the landlord to interfere as well because the lease agreements were complicated and also they stated that a good faith mistake was made. Since this a possible exception we should look into this.
1) Inquire to other tenants — Is she going same thing to them.
2) Any evidence of conversation
3) Any history of a bad relationship between Lew and Edna — May go to any bad faith motive of E.
- delinquent rent payments
- financial problems
- previous failures to repair, supply, remove previous tenants
(d) OK Now what can Lew get if he wins the APE suit.
1) Can he abate rent — Smith
2) Can he get just contract damages?
(5) As an aside: quickly consulting with a Landlord-Tenant lawyer for five minutes, on the phone may give the diligent attorney a grasp on any policies the state has. In a "close call" case, a court may rule on policy.
(a) Does state have pro-landlord policies
- protections for landlord
- less damages for tenant
- prevent assignability w/o consent
- rule for landlord often when bargaining power of parties questioned.
(b) Is the state pro-tenant?
- Flexible remedies like 1 year deduct
- Easier to prove fault of landlord in failing to furnish
- Remedies better for tenant rent abatement allowed not just contract damages.
After getting a feel for policy, this will allow you to prioritize your arguments and place those that will be most appealing to the court first, it will also dictate overall which remedies you seek to obtain; taking and trying to get the easier remedies first.
(6) Possible Potential Landlord breach: Failure to furnish possession of storage #2 at start
(a) Self Help
- Any way to avoid issue and either paying a moving co. or have Lew and his crew at the store help Stephanie move out more quickly.
(b) What is jurisdictions rule of LL required to do at start?
- Landlord or tenant duty to furnish
- If T, what will it cost Lew to boot out Stephanie?
- What are appropriate methods?
- Sheriff?
- Gangland raid — just kidding
- Cost of these vs. suit in court.
(c) Remedies — What can we get is it worth it?
(1) Fault of Landlord
- Does Edna have a duty and does she sit idly by
- Ask Edna to move out Stephanie
- Has she failed to remove in the past?
- (2) We can't recover if it is our duty.
(d) Does the jurisdiction follow the rule allowing the LL to have a reasonable time to remove the LL to have a reasonable time to remove the defaulting tenant?
- What constitutes a reasonable time in the caselaw?
- What constitutes a reasonable time under custom in the community?
- What and how dire is Lew's need for storage?
- Can he make it until Stephanie leaves or does he need now?
- What is value of site bargained for?
This issue may not be the best method to hang our hat on; the best we can do is get damages for substitute premises, and only if we follow a modern rule and can prove that the landlord is at fault and/or fails to correct the problem in a reasonable period of time, plus damages may not suffice if what Lew wants is storage. Since this is the case I might focus on self-help here.
(7) Assignability: Can Lew assign to the firm?
(a) Look at the lease
(i) Assignability Clause — Yes or no.
- "No transfers"
- "Transfers w/ LL consent"
(ii) No assignability clause?
(iii) Can Lew sublease?
(b) Caselaw — What rule does the court follow?
(i) Isbey — no implied reasonable consent, stick to language of contract
(ii) Hinky Dink — Implied that consent will be commercially reasonable given or not?
(iii) If no clause ,will our court read in a clause implying assignability?
- What will be terms of this implied clause?
- Strict landlord consent
- Landlord consent must be reasonable.
(c) Is there equal bargaining power between Lew & Edna (ie) evidence of?
(d) Are there a plethora of open places for the firm to rent from?
(e) Can firm pay?
- Financial info on firm
- What type of law?
- May dictate revenue or appearance of revenue.
(f)Is there a strong policy against restraining alienation in the jurisdiction?
(8) Can Lew breach the agreement while still coming out ahead?
(a) Since Lew has a number of possible actions against Edna it may be just cheaper for him to breach the lease move out and just pay damages assessed. How long is the lease?
- if short a breach may be attractive; a landlord must mitigate and only gets damages for the term of the lease. Even if fails to mitigate or can't. Then Lew would only have to pay less damages.
- if long — may not want to breach damages high; mitigation problem where landlord may not have to under common law, or may not be feasible (i.e. the damages could be high)
(b) Caselaw Stds (Standard)
(1) What is stds for surrender in jurisdiction
- Common law — goes in he surrenders
- In order to surrender landlord must notify tenant — Reid
(2) What is landlord required to do.
- Common law, no mitigation required suit only at end of term
- Mitigate — most likely some mitigation.
(3) What is jurisdiction's mitigation standard?
(a) Commercially reasonable attempts — Reid
(b) Reasonable diligience — Isbey
(c) Good faith attempts — Ruud
*
Note: In Ruud they allowed the landlord to turn down a potential subleasee offered by the tenant and still saw his efforts as mitigation. May want to check caselaw for any like/similar caselaw because Lew should offer the firm as a sublessee to Edna.
QUESTION 1H: STUDENT ANSWER #2:
Does Lew have lease or licence?
- important to establish rights within relationship
- Define space?
- " duration?
- Check instrument language
- Any assign or transfer clauses in contract (more on this later) indicative of lease.
- On its face — most probably a lease
Possible constructive eviction claim.
- Usually safer to claim breach of Implied Warranty of Habitability. Less risk?
- Does IW of H exist in this state? — case law to support?
- Does it extend to business leases? IW of suitability?
- Does IW of H only set minimum standards?
- Heat would seem to satisfy; check precedent
- Electric flashes might not.
- Is the IW of H or (suitability) waivable?
- Any express wording on repairs in lease?
- In Davidow if knowledge of defect in commercial lease then waived.
- Did Lew know about Heat and Electricity before entering lease?
- Average Temp of area? Is heat really a vital facility?
- Case history on termination of leases and tenant liability
- Was there Equal bargaining power to determine waivability?
- Heat and electricity pre-existing probs or recent development?
- Has Edna fixed anything in the past?
- What constitutes breach?
- Only vital facility? (Marini)
- Not fit for specific use? (Davidow)
- Did Edna know of intended use and importance of regulated electricity?
- What remedies available in jurisdiction?
- Vacate and abate — Davidow
- Notice required?
- Reasonable time to fix — How long has this been going on?
- Repair and deduct — (Marini)
- Expense of Repair — How much will it cost? Might be too much.
- Could Lew afford this?
- Withhold rent but stay in possession?
- Pay full rent; sue for damages
- Facts — How often does heat drop out?
- How cold does it get?
- Any injuries?
Actual Partial Eviction Claim.
- Was there language in lease about exclusive use of storage space?
- Any language about the boxes in question.
- Does Edna actually own the boxes.
- Does anyone else have a right to the space (paramount title) or other tenant?
- Did Lew know of boxes when signed the lease? Does he waive right to object if he did?
- How much time has been given Edna to remove boxes.
- Law in jurisdiction? Rule or Standard?
- Rule (Smith) — Any significant interference (not trivial) is a constructive eviction and the tenant does not have to pay rent.
- Standard (Dussin) — Tenant's obligation to pay rent is not suspended unless the tenant has been actually evicted from a substantial portion.
- What is risk if Lew moves out and court does not find standard is met.
- Maybe Jurisdiction (Juris) follows restatement — Damages, no rent abatement; bring lawsuit.
- Might seek declaratory judgment before moving
- Are boxes causing increased risk of any danger. — (Fire, tripping etc.). Use as bargaining chip — L tort liability.
Tenants right to possess at Outset of Lease. (re new lease in old "Secret Sharer" (SS) building)
- Any language in contract about lease or licence.
- Definite space
- Definite Duration
- Exclusive Right to Lew
- Is it addendum to other lease or separate
- How much is the rent increase. (Helps determine exactly what Lew should get for his money)
- When is Lew charged the extra money. When he moves into the space or now?
- Any language about when the space will be available.
- Modern Trend (Trendacost) Hold L liable for actions of another.
- If lease — what is Juris rule on tenant's rights at outset of lease.
- Minority (American) — no duty to deliver on L. T must dealwith holdover.
- Majority (English) — L has a duty to furnish actual possession.
- Can Lew withhold the rent?
- Lew can't recover damages unless the holdover is Edna's fault?
Assignment or sublease.: Lewis solution to his difficulties may be to move his store. This must be attractive, however, as he is loath to move.
- Lease/License Analysis
- Again this helps to establish the relationship and is especially useful in assignments and transfer.
- Any Assignment/sublease (A&S) language in the Contract?
- If so is there a consent clause?
- Is this legal.
- Can Edna refuse consent without a good faith, reasonable objection?
- Any commercial v. residential disparity?
- Hinky Dinky rule apply? (No clause — must have good faith reason.)
- Will law firm fit in with surrounding leases?
- Neighboring tenant opinions?
- Anti-Discrim. Rule — may Edna arbitrarily object to lawyers (Kronansky) as a non protected class? (Strict or illustrative reading of the rule.)
- How long is the lease.
- Could Lew get more money by subleasing at a higher amount? (More attractive to L).
- Did Edna or Lew write the lease — construed against writer.
Question 1J: Model #1: The first thing I would do is to research Annie's deed, find out what is says, and then try to find this "pre-existing easement" that it seems to reference. It is unclear from Annie's memory whether this "easement" referred to was another document, or perhaps just the right-of-way across the land. Looking at the documents will enable me to determine whether an easement, RC, or ES has been created, what exactly the requirements are (it is positive right-of-way or negative--don't obstruct or positive--cut the trees) and then I could go further to research the applicable law and relevant facts. The following are areas I would explore:
A. Has an easement been created to fly over Annie's land?
1. Is there an express easement? Again, I would like to see what Annie's deed says and whether there is another "deed-like" document that expresses the easement. In order for there to be an easement, it would have to have all the formalities of a deed. If it is specifically laid out in Annie's deed, perhaps this is enough. I'd have to see. It seems very unusual that it would be in this deed. If it exists, it seems more likely that it would be in a separate document. I would try to find this document and once I did, I would see if it has all the formalities of a deed. If not, it wouldn't be valid and I would move on to other areas. I would read the language and see whether "flying overhead" is consistent with the scope of the easement. If instead it talks about crossing the property to get to the airport, it probably doesn't apply to this use and therefore flying over was not part of the parties' intention so the express easement would not apply. If it does talk about flying over, I would do some factual research to figure out if the burden has increased--are there a lot more planes not than there were? Are the planes bigger? louder? different? flying lower? If any of these things are true, we would argue that the use has changed over time. However, this may not help too much, since the court may just limit their use but still make Annie trim the trees. I would probably have to look into the law for remedies in this jurisdiction also.
If it is found that there is an express easement that they can use this overflying right-of-way, I would then research to see whether Annie's trees are truly obstructing it. How have courts interpreted this sort of thing in the past? How low do the planes fly? How high are the trees? What is the custom in the industry? (lots of planes take off over houses, etc.). With this information we could argue that Annie does not have to trim her trees to not obstruct the flyers.
2. Implied easement. If the right of way does not qualify as an express easement-- inadequate formalities, wrong intent (not in terms), or the increased use is beyond the scope--the airport may (and seems to be planning to) argue that an implied easement has been created. Since jurisdictions usually don't allow implied negative easements, the language of the grant and interpretation would be very important. Does it talk about a right-of-way? that growing trees might obstruct? or does it talk about not growing trees, etc. Of course, I would have to look into how the jurisdiction treats this. The airport may argue that they have:
a. Easement by estoppel. They may claim that since they have used the right-of-way for 3+ years, they would be able to have it permanently. I would research the law in the jurisdiction to determine whether it recognizes this (only 1/2 of states do). I would then look into the facts to see if the airport relied on this right-of-way. Did they build a special runway going this direction? I would check case law to see how much reliance is considered detrimental and what time period that the owner allows seems like too much.
b. Easement by implication. I would look to see whether the property was perhaps all owned by the airport at one time and maybe split in 2. Though since the airport would be retaining the right-of-way, the state might be reluctant to enforce. I would look into statutory and case law to see how they treat this. I would research records to see if this was a pre-existing pathway (did they fly planes over here when it was split). I would also see how necessary the easement was when the grant was made. Could they fly other directions back then? (Are there big buildings on the other 3 sides?) And then I would check to see how the state handles this. How much necessity is required? If it wasn't necessary, depending on the jurisdiction, we could defeat this claim.
c. Easement by necessity. Much of the research done in (b) could help here as well. However, I would focus more on the necessity aspect. Were there other ways out back then and are there now? If we can show that they can fly other ways, the necessity would end and this implied easement could be terminated. Again, I would research the law to see how the jurisdiction treats this.
d. Prescriptive easement? I would look into all the elements. Have they been flying over the land for a long period of time? What is the S/L in the state and have they met it? Has it ever been effectively interrupted (stop continuous element), has Annie given permission? (Would this court presume permissive use from these facts?) Is it exclusive? I would research the law of the jurisdiction to see what elements apply.
B. Has a Real Covenant or Equitable Sentiment been created? If the formalities are not there for an easement, or if the language is more appropriate for a RC or ES (i.e., it says she has to keep the trees cut, or not do anything to interfere with the flyspace), I would look into RC and ES law. Much of the research I did in (A) would be helpful here. Since I would want to determine the intent of the parties, I would look closely to see whether the was an intent to bind successors. Because if not, Annie may not be bound. I would need to find out the circumstances of the conveyance to aid its interpretation. I would explore the privity element further. What was the relationship between the original parties. Did it satisfy horizontal privity? Was the airport the original owner of the other land?
Did Annie have notice? I would check to see how this jurisdiction deals with record and inquiry notice--to see whether the fact that the possible easement (whatever it is) was mentioned in her deed was enough for either. I would also check to see whether she did any other inquiring. For T and C, I would see how this jurisdiction treats it. Do they require it anymore or go along with the restatement? What tests do they apply? What does the case law say? Depending on what the grant says, it could affect whether it touches and concerns for the test of being connected to the land. For the Bigelow-Clark test, I would check to see how much the value is reduced (Annie) or benefited (Airport) from the grant.
C. Does the airport already have a policy-based right in the law? I would check the jurisdiction to see whether the airport in a sense already owns the land over Annie's house and if they do, how low that ownership goes. With this knowledge, we can argue about whether they are going beyond this right.
D. Would the threatened ordinance be a taking? We would also have be prepared to deal with this part of their arsenal. I would research the takings cases in this jurisdiction to see how they have treated claims similar to Annie's in the past. The ordinance could require her to trim the trees, the purpose would be to allow (safe?) plane flights and the effect would be to lower the value of her land by not letting her grow more apples. I would look into the applicable parts of the takings cases we have studied. In general (balancing), I would figure out the harm to our client and the benefit to the airport of the ordinance. Did she buy the property with the purpose of growing applies? (Penn Central expectation). Is there any reciprocity of advantage? Does she get any special benefit from flying going overhead, etc.? (Mahon). Could her trees be considered a nuisance (Hadacheck). What benefit is the (county) state getting from this? They own the airport. Is there a substantial relation or rough proportionality between the purpose of the ordinance and its burden? (Dolan and Nollan). Armed with this analysis, I would argue that a taking has occurred.
E. For more ammunition, I would look into the following (though probably not as thoroughly since they seem to be not as powerful and I don't want to cost my client too much money).
1. What is going on with the road through her land? Was the easement/RC/ES dealing with this? Do they have a right to use it through some other means? adverse possession? It doesn't seem to be a necessity. We could use this road as a bargaining chip in the negotiation (i.e., you better let us grow our trees higher or you can't use it anymore) if they don't have a strong claim to it.
2. Can Annie claim flying over the land is a nuisance? Again, we could use this as a bargaining chip or try to defeat their claim altogether. I would look into the benefits of the plane flights and the harm to our client, figuring in such things as "coming to the nuisance" if a private nuisance. I would also look into the public nuisance possibility to try to get around the "coming to the nuisance" defense if it is recognized in this jurisdiction.
Question 1J: Model #2: First, I would check the express easement in A's deed. I would check the following: Is it valid? Did it comply with all requirements for conveyances for land? When was it made? between whom? (If it's before the airport was even there, county's argument becomes weaker). What purpose is expressed in the easement (if any)? from A's information, it seems it may be at least ambiguous--it may not mention planes. Do we know from the deed or can we find out the intent of the parties? Can we find the parties for additional information? If the easement is valid, is the current use an increased use? If so, is it evolutionary or revolutionary? (Was it made before jets, which may need a greater easement). Does the easement have a duration?
Because the county's letter mentions easement--express OR implied--this indicated the county itself may believe the express easement is weak. Next, I would check the state law regarding implied easements because they can vary so much. Regarding state law: does it allow easement by estoppel? If it does, it become complicated. Was airport built with assent by their owners to overflights? Does the airport have to use the flight path over A's land? If they don't, then probably no easement by estoppel. Then again, it does appear the airport has relied on using the flight over A's land. A big problem would be if the airport had built/expanded runway after they had used the flight path, thus demonstrating reliance in an expectation of an easement.
The other easements; by necessity and by implication, require that the two properties were one at some point. If they were, then we must find out, if at the time of the separation of the properties, whether the flight path over A's land was the only way to fly out of the property? This probably requires that the airport was already there at the time of separation. Then we look to see if the other possible flight paths were usable--are they blocked by buildings? mountains? Are there fragile ecosystems in the direction, etc.?
For all of the above, finding the original grantor and grantee would be very valuable as well as anyone else with information about that time and the airport's construction. For all of the above, (and below) caselaw pertaining particularly to airports and effects on surrounding land could be particularly helpful.
Also, for an easement by implication, there are a couple of other factors to consider: Who was the grantor and grantee? If A's predecessor was the grantee an easement by reservation would be looked on with disfavor--it smacks of dirty dealing. What consideration was paid for the land? Doesn't it indicate an easement? Was the flight path already determined at the time of separation? If so, this could be bad as it would be strong evidence--if planes were already flying over, one would assume they would continue to do so. Obvious right-of-way.
Finally, the airport may have a prescriptive easement, which is akin to adversely possession the right to an easement. Once again, state law must be consulted for the precise elements of a prescriptive easement. Questions to consider and research:
Is it an adverse use? Difficult to characterize here, although there is an argument that even if there wasn't consent, A tacitly consented by not complaining before. However, did A really know that she wouldn't be able to grow trees if she allowed overflights? Is there any caselaw on this?
Continuous use required--airport's use her is probably continuous, but there might have been an interruption. What is statute of limitation for adverse possession in state? has the state met it? If not, no easement by prescription.
Open & notorious--not necessarily required (state law) but undoubtedly satisfied.
Exclusive--also not necessarily required--is growing of trees by A considered to be a use of the airspace? If so, could go against exclusively?
Because the county is threatening to pass on ordinance, it seems probable that their claim to an easement is at least in contention. The ordinance to trim trees to trim trees:
Is it possible to word the ordinance so it doesn't affect A and A alone? If not, then county has a real problem it becomes an "individualized determination" look upon with disfavor by the Supreme Court in Dolan.
— how tall are trees? are they much taller than 1 story high? If not, it may not be possible to build anything on property--which could render it unusable for anything, thus constituting a complete taking as in Lucas. However, if apple trees can be grown there, can other (shorter) crops be grown there? Either way, it is a severe limitation on A's use of property.
— How applicable is U.S. v. Causby to A's situation? There the Supreme Court found direct overflights to be a compensable taking. Does the state constitution include compensation for "damaging" a swell as "taking" property?
— A has cultivated these trees for 10 years. Why didn't the county inform her of this earlier? She has a reliance interest here that can definitely be characterized as a "distinct investment backed" expectation. The Supreme Court, in Penn Central, strongly indicated such expectation may be compensable--further research required.
— investigate the zoning laws. Does the county even have the authority to pass such an ordinance? A's procedural on substantive due process, rights violated by a zoning ordinance against trees that are already there? Would there be an allowance for a variance? If so, A does seem to have an undue hardship which was not self-created.
Since I'm going to into a negotiation, there other information I would want: What public officials are involved? Are they up for re-election soon? May not want to tarnish their image by "picking on poor Annie Appleseed and her apple orchard." (Then again, is Annie a billionaire--industrialist?)
I would also ask my client what compensation she would accept--for an easement, for the entire property? The county may need to fly over the property no matter what, and if they are on shaky legal ground, they may want to avoid a court battle regardless--because of expense both monetary and possible damage to reputations of public officials involved.
If not made clear before, the history of the development of the airport is important. Did they just decide to fly over A's property? Have they detrimentally relied on that right when expanding the airport, etc.?
Question IL: Comments: What I Was Looking For: This question asked you to derive a research agenda for assessing possible legal claims in this scenario. The best answers provided organized descriptions of both factual and legal questions that an attorney would need to explore and conveyed (explicitly or implicitly) the sense that they understood why these questions were legally relevant. Four major areas needed to be explored:
(1)Transferability of Easement: The city apparently was using an easement that had originally been granted to D. Assuming, as seems most likely, that the easement was express (see below), you needed to explore whether the easement was transferable. You needed to determine whether it was appurtenant or in gross. If it was in gross, you needed to determine if it was transferable anyway. These issues required determining the jurisdiction’s rules for distinguishing between the two types of easements and for transferability, and then examining the terms of the easement and the circumstances around its creation. Some of you also explored whether the quick statement by R just before closing constituted adequate notice. Although I think the answer is almost certainly “yes,” I gave some credit for this because it obviously would be very helpful if you could find some support for “no.”
(2)Scope of Easement: Assuming the city legally may use the easement, you will need to research whether the city’s use is outside the scope of the easement and what the appropriate remedies are for misuse. You will need to determine the state’s rules about scope and misuse as well as its rules for construing the language of easements. You will need then to examine the language of the easement, the uses made by D, and the current uses by the city. You will want to get a very detailed account from the client (and other witnesses where possible) of exactly what kinds of problems the teenagers were causing. Many of you also usefully suggested looking into whether moving the easement was feasible and legally possible.
(3)Nuisance: J may well have a nuisance claim against the city based on noise, trespassing, loss of privacy, etc. You would need to research the standards for nuisance in the jurisdiction and, (as some of you noted though I wouldn’t necessarily expect you to know this), whether you could even bring a nuisance suit against a city. You would want to see if the city was violating any ordinances about noise or land use, which would strengthen both your nuisance suit and your negotiating position. You would want to see if other neighbors have similar complaints to create the possibility of a public nuisance suit. Assuming the jurisdiction used a balancing test for at least part of the analysis, you would need to get detailed information both on the harm being caused by the center (many of you did a good job on this) and on any benefits it provides to the community (fewer of you did a good job on this).
(4) Takings: Although your information does not suggest that this is J’s strongest issue, there might be a taking if it turns out that activity sponsored by the city has significantly devalued J’s property or the center results in regular trespassing apparently authorized by the city. In some ways, the case looks a little like Causby: regular “overflights” of teenagers and their accompanying noise and garbage would interfere with many possible uses of the land. Thus, you might research takings cases that involve the proximity of undesirable government uses (airports, fire and police stations, prisons) to residential property as well as trying to determine the amount of property devaluation and the extent of public benefit created by the center.
(5) Other Plausible Issues: (a) trespass: You clearly could research the rules and remedies for trespass and the responsibility of the city for acts committed by teens. You might at least be able to enjoin the trespasses and get damages for prior infractions.
(b) zoning: Although we did not cover zoning issues in any detail, you certainly could sensibly check to see if local zoning rules prohibited any of the center’s activities. However, given that it is a city-run facility, the likelihood is that it’s permitted.
(c) easement by implication: The easement probably is express; R is unlikely to tell J she “gave” D an easement if it arose by implication. However, if you find no express easement, then some quick research into a possible easement-by-implication would be in order. The first model answer does this well.
Common Problems: (1) Listing Rules & Arguments (v. Questions & Tasks): Your task here was to explain how you’d get information necessary to advise the client. Listing possibly relevant legal rules was helpful but insufficient; you needed to explain how you’d determine which rules applied and how you’d determine whether the rule had been met. More importantly, you should not have made any but the most tentative arguments about who was likely to win on any given issue; you simply did not have enough information to draw firm conclusions. Those students who gave me more argument than investigation received low scores.
(2) Poor Organization: The stronger answers organized their lists of tasks in ways that presented related information together and helped show me the purpose behind the questions and tasks on the list. As I had suggested at the review session and in comments on prior exams, organizing by legal category is more effective than separating all fact issues from all legal issues. Many of you who did the latter left me puzzled as to why some of your fact questions were relevant. Similarly, students who broke down larger topics into subtopics tended to have clearer answers than those who just listed a lot of questions under a broad heading like “Easements”
(3) Listing General (v. Specific) Questions: Many of you listed some very general questions as part of your list of tasks. Part of your job as an attorney will be to think through what sort of specific questions you need to investigate in order to answer the general questions that often make up legal tests. For example, some of you simply asked, “Is the easement appurtenant or in gross?” Although this is an important question, it does not show me that you know how to go about finding the answer. This kind of general question is useful as a heading on a longer list of more specific questions. Both models provide solid examples of specific questions on this issue. I rewarded students who consistently provided more specificity in describing their tasks.
(4) Ignoring Necessary Legal Research: I designed the problem so that, for each of the major issues, the course materials made clear that different states have different legal rules. You would need to begin your work on any of these issues by determining what the rules were in your jurisdiction. Many of you assumed that one particular rule would apply and/or made no reference to determining what the applicable rule would be. Although I would expect a larger percent of your answers to address factual questions, you did need to do some basic legal research. Failure to do so cost many of you several points off your score for this question.
(5) Spending Time on Questionable Issues: A number of you spent a great deal of time on some issues that seemed very unlikely to be significant.
(a) Easement v. Fee: Neither D or the city has acted in a way that suggests they are claiming a fee interest. Although you should glance at the documentation to make sure it says “easement,” this was not an issue that merited a large expenditure of your limited time.
(b) Other Implied Easements: Aside from an easement-by-implication (or visible easement), it seems highly unlikely that any other kind of implied easement is present. An easement by estoppel requires building in reliance on the easement. It seems difficult to believe that the building of the center was only possible because of access to the beach. Similarly, a path connecting an inland property to the beach is highly unlikely to be necessary. Nothing suggests that the parcel is otherwise inaccessible. Finally, because R and J believe that D and the teens had permission to cross the land, their use is unlikely to be viewed as hostile for purposes of an easement by prescription.
(c) Promissory Servitudes: Although it is worth checking briefly to see if either J’s deed or the deed to the center contain relevant restrictions, you have no indication –that there’s anything important there. A one-acre residential parcel is unlikely to be part of a common scheme or an association involving a neighboring undeveloped 10-acre tract. In addition, the rules for running of promissory servitudes do not apply to easements and so need not be examined here.
(6) Researching General Policy Issues: Policy arguments to support specific legal arguments that you are making. When you get to the stage of attacking or defending specific motions, you will need to investigate the policy arguments that the relevant courts have found to be important. At the early stage of the case where you are simply exploring the contours of your client’s position, policy arguments are less important unless they are likely to become a major factor in the case itself.
Some of you, for example, said you would research whether the jurisdiction had a strong policy favoring transferability of easements. At this stage of the case, however, it is much more important to determine how that policy has translated into specific rules. If it turns out, the rules don’t decide your case clearly, you can return to the policy.
By contrast, suppose the jurisdiction has repeatedly stated in cases and statutes that the operation of teen centers “is a crucial function of the state, necessary for the healthy growth of children and neighborhoods.” That kind of policy statement might make winning a nuisance or takings suit much more difficult, and might be worth looking for at the outset of your research.
Model Answers: Both models provided strong organization, nice detailed factual investigation, necessary basic legal research, good discussions of nuisance, and some very clever ideas. The first model contained among the best discussions of the transferability of the easement and of the possibility of an implied easements. The second is very strong on scope issues and contains a pretty good quick discussion of the takings issues.
Question IL: Student Answer #1: Easement Issues: 1. Implied or express easement? Before finding out what Jason’s (J) rights are, one first must ascertain whether if there in fact is an easement, whether that easement is express or implied. First, must research the records to see if the easement has ever been recorded and is therefore an express easement. If that is the case, I can move on to later analysis. This would be easier if the jurisdiction (jurn) has a tract index so I must ascertain whether it uses a tract index or a grantor/grantee index. Also, I’d have to see how far the jurn requires me to search back in the index (e.g. 50 years, 60 years, etc.) If it is not recorded, I must nevertheless check to see whether it is an express easement by asking Rosalie, Daniel, and any of the previous occupants.
A. Easement is express: If the easement is express, I would have to find out whether it is appurtenant or in gross. Factual research includes:
• Whether the document says “appurtenant” or “in gross”?
• How personal in nature the relationship between D and R was?
• Whether anyone other than R or D used it in the past?
• Prior uses of the easement?
• Specificity of language in the easement (must also make sure that it’s not a fee!)
• Whether it was a grant, exception or reservation?
i) If Appurtenant: must research to see to what extent it purported to be transferable. Read language in the original conveyance. Most likely this does pass if it is recorded because notice is provided.
ii) If in Gross: see whether the jurn follows the traditional rule which does not allow transferability of in gross easements unless commercial (see Crane), or the trend rule which allows transferability of easements in gross as long as that was the parties’ intent and it does not violate public policy (see O’Donovan)
(a) If traditional (see Crane), determine whether use was commercial in nature.
• Why was D using easement?
- Walk on beach? – looks non-commercial.
- Fishing? – possibly commercial.
• Did D use vehicles?
• Does D have a jet ski business or run scuba diving classes?
• Is the beach considered to be private property or public property?
• Were D and R just wealthy individuals or are they developers?
(b) If trend rule (O’Donovan):
• What was the intent of the parties? Did R tell J that intended to pass? Yes probably transferable.
• Public policy violation? Research O’Donovan like case law to determine what public policies courts have protected in this area of law.
B. Easement is implied:
i) Apparent? Looks apparent because J saw D using the easement.
• See if it has been apparent when D first began using it.
• Does easement cut property in half or down side?
• Is it paved?
• Are there fences? Gates?
ii) Once one parcel? Again, check records to find out. Find common origin of land if these were served from the same plot then it’s satisfied.
iii) Permanent? How frequent has the use been? Any big breaks of time in the use?
iv) Necessary?
• What necessity test does jurn use?
• Any other ways to get to beach?
• Was it a mere personal convenience?
• Any laws requiring inland plots to have beach access?
• Different necessity tests for commercial v. residential entities?
2. Easements – Possible causes of action or solutions
A. Change in use: J possibly can enjoin Fullerton (F) from using the easement in the manner described if he can prove that it is a “revolutionary” change in use rather than an “evolutionary” increase in use. This turns on foreseeability, normal use, and the general use in the neighborhood. Research should include:
• Whether there are other commercial like buildings in the area which immediately border beachfront estates.
• Whether there were any press releases or newspaper articles about building the rec center.
• How many teenagers actually use the rec center.
• Whether the beach is vital to the operation of the rec center.
• What the climate is in this area – Maine or Florida? Will pertain to how frequent the increased use is because the teens only go to the beach when the weather is warm
B. Moving the Easement: Depending on the jurn, J may be able to move the easement. Even if this jurn has the traditional rule, and easements cannot be moved without consent, J can see if F will allow this to take place. Research should include:
• Whether there are other feasible locations for the easement which will not interfere with F’s utility or increase F’s border.
• Whether easements can be moved by the servient estate in this jurn without consent.
• How expensive the new easement would be – whether F is willing to pay.
• Whether there is any place that would not disturb J as much for an easement.
• Whether F would consent to allowing it to move.
• Whether D used the same path every time or used different paths.
Nuisance Issues: 1. General nuisance research: J may have a private nuisance cause of action against F. I would first have to determine what restatement this jurn has adopted. If it uses the 1st restatement test (see Carpenter II), J would have to seek an injunction using the gravity – utility balancing test. If this jurn used the 2nd restatement test, J can either seek an injunction or try to get damages using the 2nd prong (Carpenter I, Boomer). Also check:
• Whether zoning laws forbid this type of activity?
• Whether S-acre or H-acre are part of a homeowners assn. or other community assn?
• Whether other neighbors in the area have complained?
2. Gravity-utility test:
A. Gravity of harm
• Any police reports?
• How frequent are the disturbances?
• What is the neighborhood like? Mostly residential or mixed residential/commercial?
• What time does the rec center close?
• What time do the dances end?
• Is the rec center seasonal? Busier in the summer b/c no school?
• How old are the children? Do they have cars?
• What activities have the children performed on the easement? Drinking? Smoking? Vandalizing? Drug use? Sex on the beach?
• How frequent is the trespassing?
• Has rec center put up signs restricting children from trespassing?
• Does rec center expel children who trespass, litter, etc?
• Extent of property value diminution?
• Does this impair J’s use of the beach?
B. Utility of rec center:
• Other options for area children?
• Has crime decreased in city?
• Test scores gone up?
• Is city dangerous – is rec center keeping kids out of trouble?
• Does rec center charge dues?
• Taxpayer funded or privately funded?
• Does rec center allow other government programs? Significant revenue?
• How many people does rec center employ?
3. 2nd Restatement – 2nd Prong (damages)
A. Seriousness of harm – see “gravity” above.
B. Would damages make activity unfeasible?
• Look at city’s annual report: Is it a rich city?
• How much would damages cost them as amount of their grant/funding/operational expenses?
• What is per capita income of city?
• Could city increase taxes?
Question IL: Student Answer #2:
Client
• What exactly does the client want?
• Has he talked with the Center? What, if any, responses?
• Would shutting down the center solve J’s problem?
The Easement
1. Daniel’s Interest & Use (If it was in gross there is more wiggle room).
• What does the document containing the easement actually say? Was it intended to be appurtenant to the land? In gross? Further, in examining the easement deed it is important to understand the intent R had in giving easement to D. Was it just personal to him and did not run with the land or was it truly a fee to D instead of an easement? Talk to R and D to see what they thought and review document for legal terminology to see if there is contrary intent in the words.
• Is it specified by measurements? Does it specify the side of the house it is to be located? Was it intended to be a fee to Daniel rather than an easement?
• What was D’s “occasional” use of the easement? Was it at night? During the day? Often or J only occasionally saw D use the easement?
• What did the surrounding area look like, in addition to their respective lots, when D purchased? Was the community growing? New construction? Could the development have been foreseeable?
2. The Center’s Interest & Use
• Did J see the construction of the center? Was he aware when he purchased? When construction began was he notified? Discussions concerning the nature of the right of way?
• What is “wild and crazy”? How late are the dances? How often? Is there a curfew in the area for teenagers? How old are J’s children? Are they teenagers yet?
• How many teens actually cross the easement? (There are 100’s at the Youth Center, but …). Do they use the easement more than D did? Does J notice it more because they are teenagers? Or has use increased? If so by how much?
3. Legal Research
• How does this state apply transferability of easements regarding express, implied, and necessity? Cases that look at development in the context of the easement? Has the court determined a standard for when a purchaser should be on notice of impending development that could affect an easement across his land?
• What are the relevant state laws concerning easement use? Statutory provisions? How has the court defined easements that overburden the servient estate? Is there relevant caselaw and is it applicable? What are the situations where the court found the easement was being used different from its intended purpose? How about when increased usage was ok like in Hayes?
• How does this state deal with easement relocation? Must both parties agree or can it be unilateral? Who bears the cost? What remedies has the court been likely to use to solve easement problems? Damages? Injunctions from using?
Private Nuisance
1. Factual Research (There would be many of the same questions involved as above.)
• How loud are the dances? How often? Weekdays, weekends? How long do they last? Does our client suffer from delicate nostril or in this case delicate eardrum?
• How is J’s house situated on the property? Where? (1 acre vs. 10 acre). Has applicable zoning been followed?
• Where do they “trespass”? And what exactly does that mean (peering in windows; any property damage)? Has J ever alerted the police?
• How many teens live in the area? Teen drug problems? Gangs? Does the Youth Center provide the only alternative? Does it aim to keep teens out of trouble?
• What does J do for a living? Does he have a home business? Does he have clients over often?
• How does J know the Center/teens have devalued property? Has he employed a real estate agent? Any prospective buyers? Any indication people are wary of the area?
2. Legal Research
• How has the court dealt with private nuisances against a government entity?
• What are some cases that give a good example of the cost/benefit analysis?
• Is shutting own the center an option? What remedies does the court seem to prefer?
Takings
• How much has the property devalued? Has it been rendered valueless under Lucas?
• Are there regulations providing for the state to have Youth Centers?
• How has the court interpreted permanent physical invasion under Loretto? How about regulatory under Penn Central?
Question 1M: PROFESSOR’S COMMENTS
What I Was Looking For:
Concurrent Ownership Issues: If you are going to help prepare the paperwork for the transaction, you will need to determine what kind of concurrent interest the Vestors wouls like to have. You would need to ascertain which types were available in the jurisdiction and how to create each. Then in order to advise them on which to choose, you probably would need to determine to rules in the jurisdiction about the ability of one co-owner unilaterally to transfer, encumber and control the property. You then need to ask them which they prefer.
Many of you missed this cluster of issues. A major hint that it was here was that it is the only place on the test where there are married people who might own property together and I went out of my way to note that they might disagree about how it was to be used. We really spent too much time on this area for it not to show up at all on the exam.
Recording/Title Issues: You need to do (or have done) a check of the records to make sure that A has complete title to convey. You need most basically to determine the type of recording act and how far back you need to look and then to do a standard title search for ownership and encumbrances (especially easements), which includes reading any documents in the chain of title. In addition you might investigate some or all of the following:
▪ Whether the parcel had been split from a larger one (for implied easements).
▪ Whether Mrs. A’s husband has any rights
▪ Rules about name changes and info on Mrs. A’s maiden name etc. (if it’s been in her family and not her husband’s, it may not ever be redorded under A).
▪ Whether the whole chain is in order (if in a race-notice jurisdiction)
▪ Mineral rights and other partial transfers.
Egress Issues: Access to the Outside World for Vestors’ Parcel: Prior to purchase, your clients would want to know how they will be able to access their lot. The public lake road provides one access, but it probably would not be sufficient if they were to subdivide the lot. Thus, you’d need to know who owns the private driveway, and to research the following:
▪ Does Mrs. A have an express easement to use it? If so what are its terms? What are the rules regarding the scope of easements in the jurisdiction?
▪ Does Mrs. A use the driveway by virtue of an implied easement? Eaement by necessity seems unlikely because of the Lake Road, but you’d want to research the possibility of an easement by prescription, estoppel or implication.
▪ Can you negotiate an express easement with Mrs. A and any other owners of the driveway? How would the easement have to be created to leave open the possibility of using it for any future development? Note that it is possible that the sale might create an easement by implication benefitting the Vestors, but it would be unwise to count on that happening.
▪ Does the lot currently have access to utilities (power lines, water and sewer lines, cable)? How does Mrs. A access utilities? Do the Vestors need to negotiate other easements to get this accesss? [This is not something on which we focused in class, but many of you sensibly discussed it.]
Ingress Issues: Access to/through Vestor’s Parcel by Outsiders: You need to determine if other people have rights to use the parcel. In addition to a general check of the records for easements and covenants, you will want to make some specific inquiry about use of the cabins and lake by third parties and uses Mrs. A might want to make after the sale.
Regarding the cabins, you need to find out if they were simply used by Mrs. A and her guests or whether others have rights to use the cabins and swim in the lake. If you find no express easement in the records, you would need to research inquiry notice requirements regarding unrecorded easements, as well as the possibility that someone has acquired an easement by implication or prescription. Easements by necessity and estoppel seem very unlikely because nobody needs to use the lake and it is hard to imagine a court finding detrimental reliance on going swimming. You also might research who has what rights to use the lake generally, although we did not focus on that kind of question in class.
You also will need to determine if Mrs. A wants to continue to use the lake after the sale and whether her utility lines cross the parcel. In addition, you probably should make sure she has access to the highway via the private driveway. Otherwise, you could be facing an easemeny by necessity or implication for her to cross to the Lake Road.
General Information. You would want to examine the parcel and the area nearby to check for evidence of third party use, other nearby uses that might affect the Vestor’s ability to enjoy and develop their land, and possible effects of development on the neighbors. You might check for federal environmental regulations and state and local rules about use of the lake. You might also inquire as to whether the local government has any plans to begin zoning the area. You certainly could question the Vestors in more detail about their goals and plans.
Common Problems:
Lawyer’s Issues v. Developer’s Issues: Many of you spent a lot of time exploring issues related to the profitability of the land or the ease of development (e.g., market values of homes in the area, ability to bring construction materials on to the site). Unless these were tied to specific legal issues you were discussing, they were issues that a client would not normally use a lawyer to address. Although I gave you some credit for these, I gave less than for issues clearly tied to legal questions we addressed in the course, particularly if you failed to address important legal issues.
Questionable Legal Issues:
Zoning: If I tell you “there are no state or local restrictions on developing” the parcel, you could reasonably assume that you need not spend a lot of time researching current zoning.
Promissory Servitudes: Although you would naturally check the records for promissory servitudes, nothing in the problem suggests that they exist, so they didn’t warrant much discussion. The lot is not part of any pre-existing subdivision and three other expensive homes of different shapes are not going to constitute any kind of common scheme. Moreover, we studies no instances of homeowners’ associations where the restrictions pre-dated any plans for construction.
Nuisance: Although it might be useful to try to determine if noisy play on the lake would affect the houses across the lake, many of you discussed whether the construction of the subdivision might constitute a nuisance. It seems very unlikely to me that a court would allow such a lawsuit regarding unzoned rural property. I think it is an expected risk of buying in undeveloped areas that normal development will take plaqce around you. A court is likely to find the houses reasonable as a matterof law or rule that the plaintiffs are overly sensitive.
Adverse Possession: Aside from the small point that I said I wouldn’t test A.P., it seems unlikely here. The cabins seem set up as places to simply change clothes and there is no sign of recent habitation. At most, this deserved a quick mention.
Detail re Future Development Because the Vestors are not yet in the process of developing the land, researching their duties as developers seems premature. Details regarding homeowners’ associations and covenants they might establish and possible duties as sellers or landlords can wait until they are actually in the process of planning their development.
Insufficiently Thinking Through the Necessary Research
Remember the transaction is still in process. You can talk to the seller to get information, can negotiate prior to the sale (e.g, to acquire an easement) and can insert terms into the sale documents to protect your clients (e.g., by making explicit that Mrs. A retains no easement).
Be specific about how you would find things out. E.g., “I would check for implied easements” is awfully general. You can’t simply look for them in the records, so how would you go about checking?
Remember that different states have different rules and that states change their rules all the time. Thus, you need to make sure you check the rules rather than assuming a particular rule we studied governs. This is particularly true when we identified more than one rule on a given topic (e.g., the meaning of “Exclusive” for prescriptive easements or the different rules for determining the scope of an express easement.)
Question 1M: STUDENT ANSWER #1
Title Defects: Vs must ensure that purchasing the land from A will give them proper ownership to the land.
Legal:
1) Is this a race, notice, or race-notice jurisdiction? - if there are other potential bona fide purchasers, this will determine who will prevail.
2) Research law regarding maximum time limits for title searches. If there is a limit, Vs are no longer required to have record notice prior to this time.
3) Research law regarding intestacy and concurrent interests (e.g. joint tenancy, tenants in common) in this jurisdiction. Because the land had been in A's family for several generations, A may actually be a tenant-in-common with another family member, or (if the land was passed via intestacy) may not be the proper title holder.
4) Research law regarding notice requirement for late recordation of deeds, early recordation of deeds or estoppel by deed.
Factual:
1) Perform a grantee search in the records, beginning with A as grantee. Search back to original grantor or until time limit for title searches.
2) Similarly, perform grantor search to beginning with original grantor until a conveyance to A is found.
3) Find any defects in the recorded chain of title.
4) Because A's family owned the land in an undetermined manner, also search record for grantors/grantees of A's family members, A's maiden name (she is married now).
4) See if any liens, mortgages, equitable servitudes, express easements, real convenants are recorded against the property.
5) Find out if 3rd party land and A's land were ever part of the same parcel. If this is true, there may be easements between A's land and the 3rd party land abutting highway.
Concurrent Ownership between Vs
Legal
1) Research law regarding recognition of types of concurrent interets (tenants in common, joint tenancy, or marital co-owners)
2) Research law regarding severing joint tenancies or joint marital tenancies.
3) Research law regarding whether martial joint tenancies can be severed by mortages held one party, or to what extent the property is reachable by creditors.
Facts: Ask if Vs want to own land as tenants in common, joint tenants, or martial joint tenants.
Private Road: The road abutting A's land is private, it is not clear if A or a 3rd party owns it.
Legal: Research law regarding easements by estoppel (standard for detrimental reliance, notice) and prescriptive easements (statute of limitations, standards and requirements for continuity,
obviousness, exclusivity, notoriety, color of title)
Facts:
1) Find out who owns private road.
2) If A does not own road, determine on what grounds A was able to use the road and for ho
long.
3) If A is not owner, find out if actual owner was aware of her usage, or if he/she gave express
permission for her to use the road.
4) Find out whether A's house was built before or after road.
A's reserved rights
Legal: Are easements by implication recognized? If so, what are the standards for notice, and whether an implied reservation easement is recognized.
Fact:
1) Find if there are any obvious paths, roads, utility or water lines that cross Vs future property from A's future retained property.
2) If so, ask Vs and A if they want to create an express easement wherein A reserves these easements.
Cabins (Adverse possession): Because the lakefront area may be used seasonally, the cabins may be evidence of a seasonal trespassor and potential adverse possessor.
Legal: Find legal standards for adverse possession in this jurisdiction, particularly the statute of limitations, and requirements for exclusivity, continuity, notoriety, and color of title.
Facts:
1) Interview A and neighbors if they have ever seen occupants or users of the cabins. If so, identify them to determine if they are seasonal users.
2) Find out whether A is a seasonal or regular occupant of her land, and to what extent she has l interacted with occupants/users (if any) of cabins.
3) Find out if A or someone else built the cabins.
Cabins (Easements): The cabins are being served by water, possibly even sewer lines. Notwithstanding adverse possession issues above, easements may be required for these lines.
Legal: Standards in this jurisdiction for easements by estoppel (i.e. requirements for detrimental reliance), prescriptive easements, easements by necessity (i.e. strict necessity standard or unduly burdensome standard), easements by implication (ie. notice requirements, necessity requirements)
Facts:
1) Find out what lines (e.g. water, sewer, electricity, etc) are serving the cabins and where they go.
2) If these lines cross A's retained property, or possibly even originate there.
3) If they do originate or pass through A's retained land, ensure that A grants at least express easement to allow the lines.
4) Determine if lines cross a 3rd party property. If so, determine:
a) how long they have been there (useful for estoppel/prescriptive easements)
b) whether 3rd party is aware of them (useful for estoppel/prescriptive easements)
c) whether has expressly allowed them to be there
i) if expressly allowed, determine if current usage is in accord with language and intent of instrument
Miscellaneous
Legal:
1) Research standard for private nuisance.
2) Research statutes regarding access to and use of large bodies of water.
Factual:
1) Research if any actions for nuisance have been brought by any of the landowners surrounding the lake.
2) Find out, if anyone, owns the lake and the water.
3) Find out how current residents use the lake w/r/t access, drawing water from lake, dumping into lake.
Question 1M: STUDENT ANSWER #2
First, check the deed(s), incl. grantor and grantee index to assure good title to the land. As combined with other issues of possible easements or promissory servitudes, notice of any encumbrances are important and likely (or hopefully) to be found in the record. Would also want to trace title back as far as possible. Although in AA's family for a long time, could be possible question of adverse possession from long ago. In addition, could be a problem of early recording depending how far back the ownership by AA's family runs. Would need to check on the original deed if possible, see if it was warranty, quitclaim, etc. and whether the recording was valid. Because property stayed in family for a long time, possible no title searches have been done and perhaps deeds were not properly recorded after the property passed through will or intestacy.
Would want to find out why the cabins are there, who built them, how long they have been there, who traditionally uses them. AA would be a good source of this info since she has been in the area presumably for a long time, as has her family. This would depend though on her actual use of the area, esp. if seasonal (probably not, since she's keeping a parcel, suggests she will stay in the area regularly). Would also need to ask AA about the private driveway to the west - whose land is it on, any recollection of an easement/RC/ES that establishes access to the parcel. Also important to note cul-de-sac goes beyond AA's property line. Some 3rd party(ies) involved with the driveway? Would search public records for the same information about the driveway including information about whether the public is allowed to use it. Could be those cabins are for limited public use during the summer (not unreasonable, given large, rural county, probably not much to do, lake would be attractive recreation when it gets hot). If there is public use, see if there is some sort of shoreline type of easement that gives the public rights to use the shore of the lake during summer months (or any time of the year).
Would also want to look for other signs of public access given proximity to 2 public roads. Check for things like beer bottles, trash, fishing line, etc. Anything that would indicate trespassers (continuous), such as a path from the road to the lake, or anything else that might then
be suggestive of an unknown easement for public access from the road. Would not be an express easement, but perhaps one by prescription or even estoppel. Checking for other users/uses is critical to avoid unpleasant surprises.
Inquire of the owners of the 3 large homes about the cabins, esp. since 3 homes + 3 cabins raises possible questions of constructive notice re use of the cabins -- perhaps there is some equitable servitude or real covenant between the owners of those homes and AA for access to certain parts of the lake or to the changing/dressing cabins. Would also inquire of the 3 owners about the public road -why infrequently used, subject to closure, being blocked due to weather (i.e. winter time, in case V's want to use area at times other than summer). Also check to see where the road goes (hiway at 1 end, what about the other? ). In addition to asking the 3 neighbors, would also inquire about all these facts with the local county government officials, including record searches, plat reviews, water and land use issues, access to utilities, etc.
Would likely need to determine (though this is likely) that AA would use the private driveway as the sole access for her smaller plot. Possible she goes overland to the public road, but nothing suggestive of this (though something to check for, vehicle tracks). But if she leaves infrequently, tracks could be sparse or hard to find/notice. Maybe even see what kind of vehicle she owns (Jeep vs. Mercedes sedan,suggestive of her access method).
Would likely need to talk to the owners of the strip of land bordering the highway. Questions would revolve around the driveway and the easement (is it appurtenant to them or to AA's plot), checking on terms and understandings of the parties (i.e. only 1 car a week or are they used to public having access for some other reason?) Also would be good source of information possibly about public access, information about other uses or users of the lake.
Why do the owners of the 3 houses go an extra 3 miles out of their way to the same highway when it is otherwise so close? Some reason they could not/did not build/get access to the highway more directly? Was some 3rd party uncooperative in the past with regards to an easement? Still bothersome that part of the private driveway easement extends onto the southern
lot area with the 3 houses. Would make more sense if the easement continued. Why not? Does the lake flood, blocking off access at some times of the year? Any signs of flooding, i.e. high water marks, driftwood far from the current edge of the lake, etc? J
Would want to find out how many homes V's ght want to eventually build on the parcel. Goes to possible issues with the public road ( ficient for lots of traffic?) and with the driveway - likely scope of any easement might be exceeded but may not matter depending on which parcel is the dominant tenement. If V's parcel would be dominant, then access would need to be increased. Based on # of homes, V's may need to arrange for more easements to bring in appropriate utilities for the other homes. In addition, would need to check on access to utilities for their planned home and any easements needed to acquire access to things like water, sewer, electricity, etc.
Would also be a good idea to find nearest town or something remotely like civilization and inquire about the "lake down by old AA's place", what people know about it, whether people go there (other than private owners) during summer, what types of use are made, etc. Possibly contact local law enforcement see if there have been problems with trespassers on a repeated basis (possible adv. poss. concerns).
Also need to get more in depth with the 3rd parties owning the northern strip. Currently nothern land not built on, other than the cabins. Some RC/ES whereby AA agreed not to build on the land? Seems unusual that there would be and then she'd keep a parcel. Would want to know why she is keeping a parcel, any expectations about her private (or her family's) access to the lake? Ask why land was never developed on, other than the cabins. Intending to retain an easement for some use of the cabins?
Alternately, are the cabins being 1eased to any 3rd parties? Would V's be taking on any tenants that they would then be in privity of K/estate with? Have the cabins been otherwise subleased or assigned to anyone else (other landowners, public, etc)? A lease might not be recorded (prob. not), so would have to diligently research through AA and anyone else familiar with the area and uses of the area.
In the same way, is the driveway not part of a RC/ES/easement, but part of a lease (long term, i.e. easement for some use of the cabins? 99 year)? If so, need to understand future impacts of the lease (get the lease, its language, terms, etc. down), when/if it expires, if it may be renewed, assigned, etc. Easement seems more realistic here, but long term lease is also reasonable. Also find out if there are any outstanding licenses or licenses + profits that have been orally granted to the land for access to the lake, taking of fish, other animals, plants (berries, fruit, etc). Especially so during summer time when fish are around, trees give fruit, etc. Even more likely in a rural county where (possibly) farming/hunting/fishing are common activities/mainstays.
Would probably want to check on the spelling of AA's name, inquire as to what name or names the deed is recorded under, and whether she had a previous name (maiden, married/divorced, etc). Also would want to discover if the property was held jointly, either as tenants in common with other parties, as a joint tenancy or as a tenancy of the entireties (if both recognized and applicable to AA specifically). A thorough search of the grantor-grantee index would also be required, to determine proper recording and assure good title. Although legal in nature, at this point, would be necessary o check on the state recording act to make sure all recordings are in order and that new recording can be done properly.
Legal: Find out what the local recording act is to make sure previous deeds were properly recorded, i.e. race, notice, race-notice. Also because the property has been in the family for a long time, find out about the particulars of adv poss. in this jurisdiction and any caselaw or statutes relating to adv. poss. Also caselaw/statute about early recording.
Find out the nature of the easement for the private driveway - implied or express easement? Easement properly recorded given the jurisdiction? Which parcel is dominant and which is servient. Determine if the easement is a license or some other type (through implication, necessity, estoppel) of easement. Either way, V's will end up in some sort of legal relationship with other parties and must understand the nature of their duties (or of the benefits they might gain from this).
No restrictions on development, but unclear about types of development or specifically density of development. Would need to check county and state ordinances/zoning acts, etc. to make sure that there are no density limitations. Rural county, may require certain amounts of open space. Would also want to find out how far the lakeside property line extends, i.e. whether there are rights to the water in the lake/lake bottom that extend out, or if the line ends at the shoreline and no one is considered an owner of the lake itself. If the lake is seasonal and changes size, any regulations about high/low water marks. Also would need to check on restrictions about how close to the lake you can build, esp. if there are public access rights or environmental regulations (setback to protect the lake itself).
Need to determine what types of easements the jurisdiction recognizes. If V's unble to connect to the public road, may need to reserve access to the private driveway. This would probably have to be easement by necessity (if blocked from other road and no other way in) or implication (splitting parcel, continue current use of easement). Would also want to make sure that if they did build on the land later, that they would not go beyond scope of the driveway easement - check local caselaw for which black letter law tests are used, research language of particular easement to understand contemplated burden, terms of easement as written. If they build, probably not all future owners/lessors would use the mountain road, so need to guarantee access.
If the lot is to be developed for more homes, would need to make sure express easements for public access to homes, etc. would be allowed. Also would need to check local caselaw for nuisance. Likely that eventually dropping a bunch of homes into an otherwise rural area, increasing traffic, noise, congestion, pollution, etc. would be viewed as either a public or private nuisance, depending on the injured party or parties. Would need to know what test the jurisdiction follows and what types of things have been found to be nuisances and which have not been found so.
Research underground/mineral rights issues to make sure the title conveys those rights, or if mineral rights can be separated in this jurisdiction from surface rights/subsidence protections. Rural areas sometimes stay rural because of unknown or not easily knowable subsurface activities like mining.
Question IN: Professor’s Comments: This was the third most popular question, chosen by 35 of the 51 of you who took the test. Several of you did a very good job with this, although it did tend to expose students who did not have a good understanding of easements, promissory servitudes, and zoning. The models are two examples of the five or six very strong answers at the top of the class.
As always on this question, I rewarded organized presentation, descriptions of necessary investigation (as opposed to argument), specific and detailed questions (as opposed to simply restating the elements of a claim in question form), thorough coverage of the significant legal questions, and giving me implicit or explicit reasons for the questions you asked. Below you can find my thoughts on the major legal issues and on common student errors.
Promissory Servitudes: S’s predecessor appears to have made two agreements regarding the property. You should probably check to see if the agreements are genuine. Assuming they are, you’ll need to research whether either agreement is enforceable by R against S as either a real covenant or an equitable servitude. You’ll need to check the particular legal requirements of the jurisdiction, then do factual research to determine whether each of those requirements is met. Of particular importance here:
o Reading the agreements themselves to see precisely what they say and to look for evidence of intent to bind successors.
o Determining whether affirmative obligations like the requirement of supplying flowers meet the touch and concern requirement.
o Checking the records to determine whether S had record notice of the agreements and to get the information necessary to determine whether there was vertical and horizontal privity. A few of you cleverly noted that if S is in a race or race-notice jurisdiction, you need to know if she recorded her deed.
You also have to determine whether the residential use agreement has been violated by checking caselaw in the jurisdiction about the meaning of “residential use” and determining with precision what business-related activities conducts on the premises. Note that, as far as you know, “residence only” is purely a servitudes issue. That is, there is no evidence that the zoning board is complaining about S’s use of her land. However, it would be useful to see if there is “residence only” zoning and to see how it is interpreted. If the servitude doesn’t define residential use, a court might well be willing to accept the government’s definition.
Nothing in the problem suggests that these agreements are easements; the neighbors are not being given any rights to use S’s lot (S has to supply the flowers; the neighbors don’t get to come get them). In addition, nothing in the problem suggests the existence of a homeowners’ association and the size of the lot and the presence of the greenhouse and shed don’t sound like the kind of developments that typically have associations.. Similarly, a common scheme normally does not begin with an agreement between two neighbors, but rather with agreements between a developer and land purchasers.
Adverse Possession: S may be able to claim that she and her predecessors have adversely possessed the strip of land on the other side of the property line that has been occupied by the greenhouse. You needed to determine what the rules were for adverse possession in the jurisdiction and then do factual research to determine if they have been met. Issues deserving particular attention include:
• Continuity: Length of the statute of limitations; date the greenhouse was built; rules about tacking
• Open & Notorious: standards in the jurisdiction for border disputes; evidence of notice by the owners of the neighboring lot
• State of Mind: standards in the jurisdiction for border disputes; evidence of state of mind of S and her predecessor
• Available Remedies: Can S do a forced purchase as suggested in Manillo.
Issues not meriting a lot of attention:
• Actual possession: The existence of a building built and used by the owners of S’s lot on the neighboring land for the relevant period is an “improvement” and would satisfy this element.
• Breaks in continuity: It seems very unlikely either that the greenhouse moved once it was built or that the owners of the other lot were using the greenhouse as their own
• Prescriptive Easement: The greenhouse didn’t simply use space possessed by the neighbors; it prevented the neighbors from possessing the space.
Zoning: Here, you would want to check precisely what the zoning says. With regard to the size, you need to check that the shed actually is bigger than allowed. If it is, you could research the standards for variances and how easy they are to obtain in the jurisdiction. With regard to the aesthetics, you could check the relevant statutes and caselaw to see if any of the challenges tried in Stoyanoff might be available. You should find out precisely what the zoning board wants S to do and whether she can comply relatively cheaply. With regard to both claims, a look around the neighborhood might reveal whether the shed seems very out of place and is likely to affect other people’s property values.
Other Issues: To the extent that the seller knew of some of these problems and did not disclose them, there might be some liability. Marketability of title must be challenged before closing, but there might be a breach of one of the sellers’ warranties. You might explore whether cases like Johnson might apply, although the cases we read dealt with physical (and metaphysical) defects not problems with the title.
Some of you explored the possibility that the greenhouse was a nuisance. You don’t have any facts to suggest that it was, so this was not an issue that merited a lot of attention.
Miscellany: If you get creative on a question like this, remember to help your reader follow along with you. Some students included questions whose relevance completely eluded me. A few words explanation ensures that you get credit for good ideas.
It is not particularly helpful to ask non-lawyers about their understanding of, e.g., agreements reached by their predecessors or of laws and regulations. What R thinks the servitude means or how S understands the zoning are facts that have little legal relevance, although they might help you negotiate a settlement. Read the agreement and the ordinance yourself. Similarly, it will be your job to check the records if notice is at issue; you don’t send your client to do it unless she has legal training.
You should be aware that you cannot count on being able to interview the opposing party. If R gets a lawyer, you can’t talk to him without going through the attorney. Of course, you can question him formally through depositions or interrogatories.
Finally, on this question, the common tendency toward unnecessary wordiness and formality was unusually apparent. The reality of law school exams is that you have a limited amount of time. The standard rule for a formal presentation or essay (tell them what you’re going to say; say what you’re going to say; tell them what you said) is a terrible strategy. Get down to the nitty gritty as fast as possible. Many of you spent 10-15% of your time doing an elaborate introduction telling me what topics you were going to discuss. Let Nike be your guide: Just Do It.
Question IN: Student Answer #1
I thought this was the strongest answer overall. It iis very nicely organized and detailed covering both legal and factual questions on all major topics. The factual questions regarding the servitudes are exceptionally strong and the questions at the end regarding the client’s concerns are a good idea as well.
Real Covenant/Equitable Servitude Enforceable: Flowers
-What does Alford use to determine if RC or ES enforceable/
• Touch and concern?
• Bigelow Clark?
• Restatement, public policy and reasonableness
-Did Shveta “S” have any inkling of this “promise” b/w D and C?
• Did D tell her when she purchased?
• Was the promise in the deed?
• Was it recorded?
• Did she see C give D flowers prior to buying the house?
-What type of land interest did D and C have?
• What type of interests do R and S have? Assignees, diff leaseholds?
• Establish privity? Vertical b/w two parties and horizontal?
-Check grantor/grantee index to see if RC recorded and to see if parties had some lad interests.
-Did neighbors know of any promise b/w C and D? Anyone else have similar arrangements?
-How often did C give D flowers?
-Were C and D close friends? Relatives?
-Did D pay C consideration for the ongoing flower supply?
-Other cases in jurisdiction with unusual convenants b/w neighbors?
-who won? What grounds?
-What was actual language of this written agreement?
-What did C mean by “as needed”?
-What does S mean the agreement “looked real”?
-was it notarized? Signed? Dated?
-did it have a termination date?
-did it say it would run w/ the land expressly?
-how does juris case law look at affirmative covenants?
-How much time would S have to spend growing flowers to enforce previous owner’s covenant?
-How much profit would she lose?
-What does R plan to do w/flowers?
-plant in neighborhood to beautify?
-possibly benefit land by increasing market value?
-Why did D never ask/tell S if this agreement legitimate?
-Did D help C grow the flowers?
-What was R’s demeanor during S encounter?
-How much burden on S to fulfill promise?
-are orchids expensive? Hard to grow? Take up a lot of room to take away
from her are for flowers to sale?
Residential (convenant/zoning)
-What is area of Alford zoned for?
-Strictly residential?
-is entire neighborhood residential or only covenant b/w D and C?
-how uncommon is this? Seems unusual
-would promise b/w C and D to remain residential benefit land if other neighbors were not held to similar promise?
-how much of S’s orchids are for sale?
-what are her annual profits?
-do customers ever stop by?
-other cases where an unusual covenant threatens “residential use”; orchid breeding vs. dog breeding maybe? Results
-does S have signs or advertisements re her orchid business?
-are other neighbors aware she grows orchids for sale?
-do any other neighbors have small ma/pop businesses out of houses?
-again same ?’s about reqts for residential covenant to run and jurn
-privity – do they have same leasehold?
-intentions – did C intend for subsequent owners to be band
- did D pay consideration
-did S have any notice that she wouldn’t be allowed to grow orchids for sale?
-notice – did D or C ever mention anything about residence only?
-any businesses in close vicinity
-touch and concern
-does orchid breeding inside existing greenhouse injure residential feel of neighborhood?
-where did R find this letter suddenly?
-does Alford protect bona fide purchasers?
-prove S had no notice maybe thru neighbors; C’s terminology
-does S have a copy of the agreement?
Pool/Survey/Greenhouse
-does Alford zoning allow pools to begin with?
-who performed survey?
-paid for by R most likely
-what type of survey did they do?
-use monuments, landmarks?
-how reliable was surveyor?
-does S or C have past surveys on file?
-check tract index to confirm/deny 21” allegation
-have own survey done for S
-how much $ does S have
-survey will be extra cost
AP – re greenhouse
-how long has greenhouse been erected?
-did C build it?
-how long did C own house?
-was it there when C bought property
-what is SOL for AP in Alford?
-req’ts for AP?
-did C believe it was on his property?
-did C possibly buy small tract w/out recording from neighbor?
-what is case law favor in jur’n re boundary disputes b/w neighbors?
-can or would S want to purchase 21’ if survey proves to be correct?
-how much have cts charged the APer in past cases when neighbor forced to convey?
-does jur’n require hostile for AP (S thought it was hers)
Zoning – re shed
-what is state’s enabling act?
-how long has this ordinance been in effect?
-was greenhouse erected prior to?
-does jur’n allow non-conforming if predates ordinance?
-who passed ordinance? For what purpose?
-what does “materials compatible w/surrounding buildings” mean?
-is this too vague? Are there guidelines somewhere w/in statute to provide S w/ means to remedy?
-did S obtain permit for shed?
-if yes (permit) did zoning board allow aluminum?
-what does “too large” constitute?
-does statute give acceptable dimensions?
-again did she have a permit granting permission?
-is jur’n easier on area variances v. use variance?
-does shed stick out in neighborhood?
-does it disrupt the conformity of zoning plan?
-have neighbors complained about the shed?
-do other neighbors have out buildings of similar size?
-out of aluminum?
Misc
-what would S like to accomplish
-how much $ is she willing /able to spend on discovery/litigation/negotiation
-would she be willing to negotiate w/R
-how essential is the shed as it is now
-what is S’s overriding concern? Shed? Orchid business? Giving flowers to R?
Question IN: Student Answer #2
This student did the best work in the class on the zoning issues and is very strong on the servitudes as well. The adverse possession discussion notes the most important legal issues, but is not as detailed as I would like on the fact side.
Boundary Disputes
▪ Is this a jurisdiction that requires, in a boundary dispute for the original owner to have actual knowledge of the overage?
▪ Does this jurisdiction require that the overage be clear and immediately visible?
▪ Does this jurisdiction allow the overage to continue if the one who is in violation can pay damages to the original owner?
▪ Did Rafael have actual knowledge that the greenhouse was partially on his property?
▪ Was there a survey conducted prior to Rafael’s purchase of the property (goes to actual knowledge)?
▪ Was the original owner, Daniel, aware of the overage by Chris’ greenhouse?
▪ Are there other markers n the property, such as hedges, that would seem to indicate a boundary line (clear & immediately visible)?
▪ Does Shveta want to remove the greenhouse, or would she rather pay damages?
Variance
▪ Does this jurisdiction allow variances to convert residential to commercial use, or to permit a non-use variance to allow the shed to be built on an undersized lot?
▪ How has Shveta complied with other zoning requirements?
▪ Will allowing the shed effectively “mess up” the zoning plan?
▪ What is the zoning plan?
▪ What are the reasons that the zoning plan gives for not allowing “outbuildings” the size of the shed on a three-acre lot?
▪ Did Shveta have a lot that complied, but then she altered it (size) so now it does not comply?
▪ Does this jurisdiction allow Shveta to attempt to fix the problem by purchasing more land?
▪ Does Shveta conflict with any of the reasons for not allowing the building on the undersized lot?
▪ Assuming that one of the reasons not to allow the shed is due to increased traffic due to mere/larger buildings, does it matter that she does not have additional people coming to the lot & she only uses for her own needs?
▪ Have there been other instances in the neighborhood that the board has made exceptions for?
▪ How are they like/similar to our case?
Aesthetic Zoning
▪ What is the zoning boards rules, regulations, and hearing procedures?
▪ Have there been other cases that had a similar “compatible material” requirement? How did they turn out?
▪ When did the board adopt the “compatible material” standard? (non-comforming use)
▪ Was the shed in place before this standard was adopted?
▪ If so, what is the board’s policy on non-conforming uses?
▪ Does the board allow the use to remain, or to be phased out?
▪ How does the board describe “materials compatible” with surrounding buildings?
▪ What buildings surround the shed?
▪ What materials are used in those that surround the shed?
▪ If the shed is resurfaced with “compatible materials” will it comply?
▪ Within the board regulations are there examples of compatibility?
▪ What statute enables the board to zone for aesthetics?
▪ Is the use of “compatible materials” tied to property value (welfare community) or any of the other state police powers?
▪ Is it within the board’s power to zone for the types of materials used in buildings?
▪ Is the board allowed to zone for structure of buildings? (scope of powers-arbitrary test)
▪ What is considered to be within the board’s zoning authority?
▪ Are the rules/regulations clear? Do they list the requirements or do they list terms that are hard to define?
▪ Is there a process for Shveta to follow in order to defend against this regulation use?
Promissory Servitudes
▪ Is Rafael seeking an injunction to stop Shveta from using the greenhouse to breed orchids for sale and to require Shveta to supply flowers? (Equitable servitude)
▪ Or is Rafael seeking damages for the non-residential use and the lace of flowers? (real covenant)
▪ Has this jurisdiction adopted the Restatement 3rd of property that in effect joins a real covenant and equitable servitude as one and does not allow the promise to be binding if it is unconscionable, interferes with alienability or competition or violates a public policy?
▪ Is the promise/paper that Rafael presented to Shveta real?
▪ Is there a reason why Daniel did not attempt to enforce the servitude in the few months before he sold the property?
▪ When was the agreement signed, date, by whom, where, were there witnesses?
▪ Was there explicit language that stated that it was intended to bind the sucessors?
▪ Had either of the lots, during the time Chris and Daniel owned them, ever been used for anything other than residential use?
▪ Is this district what constitutes commercial use?
▪ Do customers have to come/leave the property for it to be considered a commercial use?
▪ Is breeding orchids for competition and later resale considered a commercial use?
▪ How many plants does she grow for this purpose?
▪ How many plants are usually grown by those who engage in competition?
▪ Does this jurisdiction require horizontal privity?
▪ Does horizontal privity exist between neighbors in this jurisdiction?
▪ Does Shveta own the exact piece of land that Chris owned? (vertical privity)
▪ Did Shveta have actual notice of the servitude?
▪ Was the servitude included in her sale papers?
▪ Who benefits from the servitude? (touch & concern)
▪ If the jurisdiction uses the traditional test for touch and concern is this a physical act on the land?
▪ Are the plants grown in the ground or in potters/planters?
▪ Does the jurisdiction use the Bigelow Clark test for touch and concern?
▪ Is giving away flowers the same as losing some type of value?
▪ Was Shveta on inquiry notice of the servitude?
▪ Was there a sign, calendar, note that reminded Chris when the flowers were due to Daniel?
▪ Does the burden (duty created) or benefit (right created) run with the land?
▪ Does this jurisdiction require that both must as the bind the promisor and promises sucessors?
▪ Does the make-up of a residential neighborhood put Shveta on inquiry notice of a common scheme so that she cannot breed orchids in an already established greenhouse?
▪ If enforced, would the servitude interfere with competition that Shveta engages in?
▪ Is it unconscionable to require someone to give personal property to another?
▪ Has personal property ever been allowed to be given in any other servitude case?
Question IO: Comments: 90/110 students chose this question, making it the third most popular question. A lot of students wrote nice answers, although quite a few spent a long time on issues that were not very important here but played a large role in the sample questions. In addition to general questions about her priorities and about possible negotiation with the university, you should have focused on:
Overhanging Building: The primary issue here would be the potential trespass. You first need to determine whether the planned building will in fact cross the property line (newspaper is not a very reliable source). You then need to find out what the rules are in the jurisdiction for trespass in the air (the building is going to be at least 120 feet above the flat part of A’s land). Does the jurisdiction follow Geller? Is there any kind of direct conflict with the planned mall or garage (seems unlikely; facts say building will be “constructed above her.”). You then could consider negotiating to deal with the trespass. Can the University alter its plans? Is A willing to sell or lease space to the University to deal with the overhang? Note that the University will be occupying the space in question, not using it, so granting an easement probably would not be appropriate.
You also could explore the possibility of nuisance or other tort concerns. There might be a Prah-like interference with sunlight, although (i) unlikely to be too severe because the building is on the western edge of the property, so it won’t cast shadows until the afternoon, and the building is unlikely to be all that large in comparison to A’s parcel (ii) in the desert sun, shadow is more likely to be a benefit than a harm. You also might briefly investigate the possibility of things falling from the building either accidentally during construction or deliberately after completion if university students are allowed to play on the balconies of the new building.
Many of you discussed adverse possession at length. While a quick look at the statute of limitations might be in order, the university will not be able to claim adverse possession for at least five years after they cross the property line. Your issue at the present is how to prevent the trespass (or how to negotiate an agreement addressing it). It seems to me quite premature to be asking about how A might break exclusivity or whether the university had the appropriate state of mind.
Quite a few students discussed the possibility that the overhanging building might be a Loretto-type taking. Takings claims usually can be made only against the government; the university is private. The university’s acts could be a taking if the state specifically authorized the university to occupy space on A’s side of the line, but that seems pretty unlikely. I gave some credit to students who checked the state’s role in the univ’s plans.
Garage/Elevator: I primarily intended the garage in the side of the hill to trigger investigation about lateral & subjacent support duties that A might have to the university with new construction going on above. The better answers discussed legal research into liability rules & necessary warnings in the jurisdiction (cf. Noone) and factual investigation about what engineering work had been done or needed to be done to insure support and whether A’s engineers were already working with the university’s. You also might have looked into whether the garage might be encroaching onto university property, whether the university might have support issues related to the construction of the elevator, and what legal and physical arrangements might be made to connect the elevator to the garage.
Endangered Species: The problem says that the MNRO is endangered under federal law, so you need to explore what effects that will have on A’s construction plans. Your legal investigation would involve the relevant legal standards (Does the federal circuit you are in follow Bernal or some other rules? Is there relevant caselaw or federal regulation? What are the rules if part of the parcel is MNRO habitat? If most of it is?) You would also need to check if the state or local governments have additional requirements? Your factual investigation would parallel the kind of fact-finding done in Bernal, which means that both expert and non-expert testimony about the owls’ location and habits might be relevant. Many of you did a nice job addressing these issues; the primary weakness for those who saw them was being too general often regarding both law and facts.
In addition to examining environmental law, I think I would have done some investigation of takings law. If A cannot remove the owl nests and/or if her building plans are severely impaired, she is going to want to know if she has any remedies against the government. As I suggested in class, the interaction of Endangered Species protection and Takings law is very much up in the air. I would have at least looked at cases about Takings claims based on species preservation, whether an owner can make Penn Central claims if she inherited the burdened property, and whether there might be a Loretto claim regarding the owl nests. Perhaps a quarter of the students who answered Question One covered this issue, mostly pretty quickly. I had said I was going to put Takings on the test twice and this is the only place it shows up besides Question III.
Common Problems:
Lack of Common Sense: A number of the common errors would have disappeared if you had thought through your arguments more clearly. Some examples:
Prior use of space occupied by encroaching university building overhang. Although the university has just started construction on the convention center, many of you suggested that the university or its students might already have regularly used or occupied the space where the building might encroach onto A’s side of the property line or that A should start using the space to prevent adverse possession. What do we know about that space?
• The building overhangs the edge of the cliff by several yards; let’s say 5 for the sake of argument. The encroachment is supposed to be about two feet onto A’s property, which would then be 13-15 feet from the edge of the cliff.
• The overhang consists of the upper stories of the building; we can safely say that would be at least 8 feet above the top of the cliff and maybe more.
• The property line is about ¾ of the way up a cliff that is 120 feet high, which is 90 feet above the desert and 30 feet below the top of the cliff.
Thus our space is 13-15 feet from the edge of the cliff and at least 38 feet above the part of the slope directly below it. Michael Jordan in his prime might have been able to leap from cliff’s edge and briefly sailed through that space before plummeting to his death on the cliff face below. There is little likelihood that will have used it regularly before the building gets near to completion.
Property Inherited from Uncle Bert: “Inheritance” means property transferred through intestate succession. Since A inherited the lot, we know that :
• Uncle Bert is dead, so you probably will have trouble interviewing him.
• There is no deed or will transferring the property to A, so we can’t check these documents for information about the property.
Elevator Crossing Property Line: A number of you expressed concern that the proposed elevator would cross the property line. Unless the property line is very unusual, this cannot happen. Elevators run straight up and down as do ordinary property lines. Thus, if the shaft is on university property at the top, it is on university property as far down as it goes.
Focus on Tasks Presented: Probably the most consistent problem was straying away from your primary tasks. As always, some of you made arguments about who should win rather than outlining your investigation. The instructions ask for the research necessary to advise your client, they don’t ask you to provide the advice or the answers.
Similarly, although questions about business planning and local politics are sometimes useful, they shouldn’t be your primary focus. With regard to the first, your client is unlikely to have hired you to do business advising (at least for the purposes of a law exam). With regard to local politics, it can be important in certain kinds of cases, particularly those involving local zoning. However, you always need to research the purely legal questions as well. Moreover, the crucial issues here are state tort/property issues and federal environmental law, where local popularity or clout is much less likely to matter.
For many of you, the most significant aspect of losing focus on your task was spending too much time on issues that didn’t merit extensive treatment. Many of the past examples of Question One involved the purchase of a large parcel of land, where you would want to physically survey the property before closing and where part of your job is to check for problems your client might not anticipate. Where the client already owns the land and has been working with it already, you still might try to identify potential hidden problems, but you need to focus more on the specific job you were given to do. The three clusters of issues noted above are the ones that A asked you to look at, so they should have been your primary focus. Some legal issues that frequently got overplayed:
Zoning: The absence of any relevant zoning and the support of the city council should strongly signal that this is not a major concern. A brief check to see if any zoning is planned would be useful as would a quick check of whether the university is governed by any relevant zoning. However, extensive discussions of possible future zoning limitations and possible future variances was not a good use of your time.
Unrecorded Use/Possession: Many of you spent a lot of energy on possible conflicting rights to use and possession of A’s lot, especially implied easements. I don’t think this was a good use of time for this problem. A already owns this lot and apparently has looked it over pretty thoroughly checking for owl nests. She is not complaining of trespassers or squatters, so they are unlikely to constitute a large issue.
In addition, some of you suggested that the university might have an easement by necessity or by estoppel that would allow the students to cross A’s land. For that to be true, the university would need to show that there was effectively no other way to access its land. I cannot imagine that a university could function if the only way to get to it was scrambling up and down a fairly steep cliff on foot.
Access to the Mall: Because she hasn’t mentioned road access as a problem, it’s a good bet that she and her architects know how customers will get into the mall from nearby roads. This is the kind of question that is likely to be more relevant pre-purchase.
Title Issues: The phrase, “A thorough search of the public records revealed that Uncle Bert left Ashley good title…” should strongly signal you not to spend too much time on title issues. Moreover, she inherited the property, so there is no deed made out to her to examine (although you could look at the last deed in the chain of title). Finally, a number of you worried about unrecorded interests held by the university. While their existence is not entirely inconceivable, remember that a university is a wealthy institution used to handling donations of property and it will have lawyers and trust officers who are likely to ensure all of the university’s interests are recorded.
Utility Easements: I think it was reasonable to determine the nature of the utility easements and to make sure they didn’t effect A’s building plans. However, the problem suggested that A was aware of the easements and she did not identify them as a concern, so they did not merit extensive coverage. I did give students some points for thoughtful work on this issue.
Question IO: Student Answer #1: This is a terrific answer, hitting almost every sub-issue I identified.
Basic Lawyering Issues:
▪ Strength of Ashley’s desire to go through with project?
▪ Alternative use of land if project does not go through?
▪ Amount of time willing to spend researching?
▪ Amount of money willing to spend on legal/factual issues?
▪ Amount of money willing to spend on lawyers? Since this proposed mall is an extensive commercial project, it is assumed Ashley will be willing to spend a large amount of time/money to determine the feasibility of project and chances of success.
Air Property Rights: The first issue of air property rights stems from the newspaper report that indicates the Vanessa Memorial Convention Center will encroach on Ashley’s side of the property line. Legal:
▪ Look to state statutes and municipal codes of Gerber Glen to see if there are any express provisions regarding air property rights
o How far up into the air does the property extend?
o Are there any codes against encroachment into others air?
o Are there any legal remedies against encroachment? Injunction? Damages?
o Are there any provisions regarding the right to sunlight?
o Statute provision/ordinance regarding distance between two structures? Bottom v. top?
o See if there is a height ordinance for the convention center.
o Does overhang violate ordinance by being too close to property line? To garage?
o Prescriptive easement law.
▪ Look to the caselaw of the state/municipality to determine if there is any legal precedent regarding air rights.
o Any legal precedent regarding the right to sunlight?
o Do previous cases prefer damages or injunctions?
o Is there case law such as Geller that states property rights only extend upward as far as reasonably used?
o Does case law define the term “reasonably used”? Does statute define “reasonably used”?
o Can violation of air rights lead to cause of action for trespass or nuisance?
Factual:
▪ First and foremost, a survey should be done to determine if the easternmost edge will actually encroach onto the property owned by Ashley.
▪ Check to determine if convention center is structurally sound.
o Adhere to building codes of the municipality?
o Is there imminent danger of it collapsing and falling down onto Ashley’s property?
▪ Determine where the position of the sun is in relation to the properties.
o How tall is the convention center? Since the sun sets in the west, and the hill/convo center is on the western edge of the property, will Ashley’s property be rendered in the shade for a major part of the day?
o Importance of sunlight to the overall structure?
▪ During construction of the convocation center, the possibility of falling particles?
▪ How high would the potential parking garage be?
▪ If garage can’t go underground, would it have to go upwards, potentially being affected by the overhang?
▪ Necessary distance between overhang and anything below?
▪ Will the overhang be supported by beams or strong enough on its own?
▪ Will beams fall on university’s property or Ashley’s?
▪ If overhang does encroach, how willing is university to make concessions or bargain for an easement?
▪ Would overhang cause/alter noise, acoustics? Trap smog? Cause echos?
Lateral Support/Parking Garage/Elevator Shaft: The next issue regards the need to provide lateral support for the University. Legal:
▪ Look to statutes/municipal ordinances to determine if there are any express provisions regarding lateral support? Specific material? How far into mountain can dig? How far into ground?
▪ Ordinances regarding drilling? Construction? Noise violations? How close to the property line can they build? Set back?
▪ Is there an ordinance regarding the number of parking spaces needed?
▪ Look to case law of state/municipality to determine if any case precedent has been created regarding lateral support?
o Court holds neighbor strictly liable?
o Extent of damages? Compensatory? Punitive?
o Contributory negligence by the creator of unsafe overhang?
Factual: Garage-
▪ How important is it for the parking garage to be underground?
▪ Alternatives for parking? Above ground? on the other side of parcel?
▪ How many spaces need to accommodate consumers?
▪ Potential for expanding garage? Need for more spaces?
Factual: Mountain –
▪ Structural composition of the mountain? Is it made of strong granite or sediment? Is drilling feasible? Expensive v. above ground?
▪ Will drilling endanger support of mountain?
▪ Are there any minerals in the ground? Potential for profit?
▪ How far into the mountain will they need to go? How far down into earth?
▪ Would University concede to drilling into their property in return for air rights above?
▪ Potential for natural transfers? Earthquakes? Will garage be structurally safe?
▪ Risk of surface erosion of the mountain?
▪ Necessary precautions if garage isn’t built.
▪ Still responsible for lateral support?
Factual: Elevator –
▪ Would elevator shaft be feasible? Destroy structural soundness?
▪ Who would own shaft? Responsible for maintenance? Upkeep?
▪ Easement for shaft or connection to garage?
Would University use garage? Share in costs of building? Proposed garage would seem to benefit both the University and the shopping center alike so I assume both parties would be willing to cooperate and work together to make the project happen.
Protection of endangered species: Legal:
▪ Look to statutes/ordinances to determine if there are any express conditions regarding conditions surrounding the MNRO
o Specific distances kept away?
o Automatically turned into nature preserve?
o Specific rules to follow?
▪ Any special federal rules/regulations regarding the MNRO, sure they are considered by federal endanger species law?
o Federal cases hold over state cases?
▪ Look to case law of municipality/state to determine any prior precedent regarding endangered species?
▪ Will there be a taking? Can the law still be used? Compensation for taking?
▪ Look to federal cases to determine how the MNRO were dealt with in other jurisdictions? Will the same probably hold true here?
o Does the government compensate?
o Can the land be converted into nature preserve?
Factual:
▪ How prone are the MNRO to expanding their territory? Breeding habits? Migration habits?
▪ Are they very affected by noise? Pollution of the cars?
▪ How concentrated are the nests? Most in one place? Starting to spread? Can they be isolated from the rest of the property?
▪ Level of protection needed in order to not harm the birds?
▪ Will Ashley’s new plans conform to gov. regulations? Acceptable? Further revisions?
▪ How willing is government to compromise? Would they be willing to make deal? Give land for protection/preserve in exchange for right to build shopping center?
▪ Will birds be a nuisance to customers? Store owners?
Question IO: Student Answer #2: This answer is particularly strong on the factual research on the lateral support and endangered species issues.
Overhang:
▪ What line of reasoning does this jurisdiction (j) follow, re: property rights?
o Look to similar cases re: air rights
o Ask local lawyers, “experts” in the area
o Look to treatise, statutory law, ordinances, etc.
▪ If j. follows reasoning similar in Geller and only allows as much air space as pra. use, find out what that means with the j. – what if you have plans to use them but haven’t yet?
▪ How high off the ground is the U’s overhang going to be?
▪ How accurate is the newspapers report – is there even going to be a two ft. overhang – more or less?
▪ Talk to the U and the U’s contractors to find out the real plans – if they won’t tell you see what plans they have submitted to the council.
▪ If there will be an overhang how much will it likely interfere?
▪ Ask A if it is that big of a deal – what are her plans – did she want to hang a sign, flag, etc.
▪ See if the overhang will interfere w/construction
▪ Who is going to build first – do we need to put a big truck under there for construction? Would it fit?
▪ Is it a glass, concrete or other kind of overhang?
▪ How fragile is it?
Support:
▪ What rules does the j. have re: right to support?
▪ When building into the plateau must she just not act negligently or does she have some kind of affirmative duty?
▪ Does she only have duty to support the soil, but not obligated to support structures (as in Noone)?
▪ Look to similar cases in the area, legislation ordinances, etc.
▪ Talk to U and see if there may be some kind of agreement that was not recorded regarding a duty to support.
▪ Look around property – are there retaining walls? Drainage ditches? Any evidence that may support some kind of duty?
▪ Talk to U’s contractors or look at the plans: how big is the new building? what material is it made of? what is its expected and full capacity?
▪ How heavy will the building be at full capacity?
▪ What is the soil made of – is it something crumbly requiring a lot of support, or is it solid granite or marble or something?
▪ Talk to a soil/land expert to find out what the risks are – how much the soil may shift, what kind of supports are needed, if any.
▪ Talk to the U – do they plan on putting in supports? Standard rebar or something substantial?
▪ What kind of effect on the ground below does the U expect it to have?
▪ Find out how detrimental it would be to cut into the plateau for the parking lot?
▪ Has anyone in the area cut into a similar or same plateau?
▪ How big will A’s garage be? How much does she want to cut into it (the plateau)?
▪ What kind of support do the plans call for to hold up the garage and its floors?
▪ Look at the plans and talk to A’s contractor.
▪ Are A and U willing to compromise in any way?
▪ Could A’s garage support U’s convention center?
▪ Who is building first? What is the timeline?
Owls:
▪ What are the state and national rules, re: endangered species and the owl? Are state or local laws any stricter than fed. law? Can A even build nearby?
o Need to do research on laws and other cases regarding endangered species and the MNRO in particular.
o Look to other cases re: construction around the MNROs or other endangered species.
o Is there anything A could do if they spread further – can they be moved and relocated? Find the regulations on this.
▪ How endangered is it – are there 4 left or 400? (while this would not change fed. rules it may change the way the county reacts as well as environmentalists, i.e., protestors)
▪ How many MNROs are there in the area? Are they spread out or concentrated? Would have to have people survey the entire property which depending on how small they are and how difficulty their nest are to see; may take longer and may or may not be all that accurate.
▪ Talk to bird/MNRO experts.
o How often do they reproduce? What is their family size and life span? How long are they likely to be on the property?
▪ Do they stay in the same nest their whole life or do they migrate?
▪ If they migrate do they return to the same area and even nest every year?
o What is the possibility that they will expand their nesting area?
o What kind of tolerance do they have for humans, noise, pollution, trash?
o Will the construction harm their behavior or is it reasonably certain to kill or harm them?
o What kind of danger/harm will the permanent shopping center pose to the MNROs habitat – will there be trash, excessive run off, flooding or noise?
o What kind of burdens would the MNRO be if the center was built – are they really noisy? Do they poop a lot? Do they scare people?
▪ If a can simply alter plans and still be w/in state and federal protection laws, how feasible is this? How much would she need to alter her plans and what are the economic repercussions? Talk to environmentally sensitive builders – do cost increase?
▪ Talk to neighbors – do they have MNROs? What do they do about them – what does the state and county make them do (or not do)?
▪ Talk to environmentalists – is this a big concern of theirs – are they likely to protest the construction, possibly effecting the building process, are they working to push stronger laws through that may prevent A from building altogether?
▪ Could environmentalists help her – help protect the MNROs during construction or find ways to contain them in the future – show A’s good faith and public interest.
▪ Would the public be outraged if A built center around MNROs and not shop there? Again talk to people in the neighborhood – are these owls beloved or does anyone even know about them?
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