Sample Cover Page of Exam-Take Home



Exam Number: __________________

GEORGETOWN UNIVERSITY LAW CENTER

EXAMINATION IN PROPERTY

TAKE HOME EXAM

Professor Tushnet May 3, 2013

INSTRUCTIONS:

1. This is an OPEN book exam. You may consult any inanimate object; however, no credit will be given for citations to any materials that were not assigned for this course. You may not discuss the content of this exam with any other person, whether or not that person is enrolled in this class. Although the questions are based on real situations, I have changed the facts in ways subtle and not-so-subtle, so you could really do yourself more harm than good by looking for outside information on the fact patterns.

2. This 8 hour exam must be downloaded and submitted using the Online Exam/Paper Management System. You may only work on the exam for 8 hours.

3. Structure: There are 6 questions worth a total of 65 points. Each is worth a stated number of points. You should allocate your effort accordingly.

4. There is no specific word limit. Thus, please think, organize, and prioritize carefully before you write. Cogent, well-structured answers that devote the most analysis to the most important issues will be graded more highly; poorly-organized, ungrammatical, or chronically misspelled answers will receive lower grades. Please do not waste space by restating the question or the facts of cited cases. If you need additional facts to answer a question, please state the specific facts needed and how they would affect your analysis. Also, please don’t call a person “he” if she’s clearly identified in the facts as female. I reserve the right to deduct points if you do.

5. Citation to relevant cases/statutes is required in order to receive full credit. Please indicate why the cited materials are relevant. You do not need to use Bluebook form; for example, simply state: Kelo or (Restatement §36).

6. Assume that for all the questions the relevant jurisdiction (the hypothetical state of Disturbia) applies (1) the US Constitution; (2) the Restatement of Property with respect to servitudes and nuisances; and (3) the common-law Rule Against Perpetuities as we have studied it (no Rule in Shelley’s Case, destructibility of contingent remainders, or other material we didn’t cover in class). You can draw on cases from other states as persuasive authority, or you can reject them if you reject their reasoning.

5. This exam is final.  No clarifications or corrections will be provided.  If you believe there is an error, inconsistency, or omission in the exam, please state your assumptions about the issue within your discussion of that issue.

6. You may not identify yourself in any way to the professor as the author of an exam until the grades are published. Therefore, you must remove personal identifying information from your exam document. Failure to remove any personal identifying information is an exam violation which will be referred to the Ethics Counsel. Instructions on how to remove personal identifying information from your take-home exam are available online at .

This exam consists of 8 pages, including this cover page. Please be sure your exam is complete.

Please be sure that you use your exam number (not your student ID number or social security number).

BY SUBMITTING THIS EXAM THROUGH THE ONLINE SYSTEM, I AFFIRM ON MY HONOR THAT I AM AWARE OF THE STUDENT DISCIPLINARY CODE, AND I HAVE NOT WORKED MORE THAN 8 HOURS ON THIS EXAM.

Question 1: 5 points

Sarah Connor bought a parcel of land in 2000 for use as a restaurant. Shortly thereafter, she began discussions with Catherine Weaver, who owned the adjoining land, about buying Weaver’s land, but the negotiations failed and the relations between Connor and Weaver were acrimonious. In 2010, Connor sold her parcel to James Ellison for $1.5 million, subject to the following restriction:

Grantee [Ellison] covenants for the benefit of Grantor [Connor] and her successors and assigns that neither Grantee nor his successors or assigns shall at any time hereafter develop, directly or indirectly, the land described above and conveyed by this deed (the “Conveyed Land”) together with the adjoining land (the “Adjoining Land”) presently owned by Catherine Weaver. In furtherance of the above, Grantee and his successors and assigns shall not (i) grant for the benefit of the Adjoining Land, easements upon or rights of way across the Conveyed Land or (ii) construct or permit any other party to construct a building or other improvement which shall straddle the common boundary of the Conveyed Land and the Adjoining Property. Grantee and his successors or assigns shall maintain a fence or other device on the boundary between the Conveyed Land and the Adjoining Land to preclude the passage of motor vehicles and pedestrians between the two.

Ellison defaulted on his mortgage in 2011, and the Zeira bank foreclosed. Zeira had trouble finding a buyer because of the restriction, but eventually sold the property (for $500,000) to Weaver. Weaver took subject to the restriction, but wanted to develop the property in conjunction with the adjoining land. Connor offered to release the covenant for $3 million, but instead, Weaver sued to invalidate the restriction. Who should win?

Question 2: 5 points

(A) Ashley Marin conveys property to Hanna Marin for life, then to Spencer Hastings if Spencer gets married, but if Spencer does not have a daughter, Emily Fields shall take the property at Spencer’s death. Spencer Hastings has never been married or had children. What is the state of the title?

(B) Hanna subsequently dies while Spencer is still alive, unmarried and childless. What is the state of the title?

(C) After the events in (B), Spencer has a daughter while still unmarried. What is the state of the title?

Question 3: 10 points

Saul Berenson conveys a parcel of his land to Carrie Matheson. The written deed does not mention any easement over the remainder of Berenson’s land. Matheson records the deed. Matheson’s land is surrounded on three sides by Berenson’s retained land, and the fourth side is bounded by Okkervil River, which is not navigable. Matheson, who is a bit of a loner, accesses the nearest public road, Langley Road, by means of a footpath over Berenson’s land. The footpath goes through a part of the land Berenson uses to store junked cars. Berenson never objects to Matheson’s use. Matheson builds a small cabin on her land.

[pic]

Two years later, Nicholas Brody wants to buy Berenson’s land, and asks Berenson about Matheson’s parcel. “Carrie’s a good neighbor,” Berenson says. “She won’t give you any trouble.” Brody buys the land and records the deed. Brody then starts to clear out the junkyard in order to build a complex for his high-tech startup. Security will be tight, so he builds a wall around the planned facility with only one gate, which opens onto Langley Road:

[pic]

(A) Carrie Matheson sues for interference with her easement to cross Brody’s land. The relevant recording statute reads: “Every conveyance of real estate which shall not be recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate whose conveyance shall be first duly recorded.” Who should prevail and why?

(B) Regardless of your answer to the first part of the question, assume that Brody prevails. Brody refuses Matheson access to her parcel. Matheson, furious, leaves to go live in Washington, DC. Each and every year on January 1, she mails Brody a request to purchase an easement to cross Brody’s land via some other path. Brody always ignores her letters.

Brody’s daughter Dana moves into Matheson’s cabin. After ten years have passed, Dana Brody brings an action to quiet title in the parcel, claiming ownership by adverse possession. The statutory period for adverse possession in Disturbia is seven years, and Disturbia does not require payment of taxes for adverse possession but otherwise has no controlling precedent. Who owns the land and why?

Question 4: 10 points

Walter Bishop, on his deathbed, tells Olivia Dunham, “Because I love you like a daughter and I want to ensure your financial security, I want you to have my house in Disturbia City. Continue to rent it out as I have done and you will always have an income.” He hands her the deed to the house, then dies. Walter’s will leaves all his property to Peter Bishop. For the last five years, the property has been rented to Astrid Farnsworth as a furnished dwelling “from year to year” at an annual rent of $12,000.

(A) Peter Bishop sues Dunham for possession of the furniture in the house as well as the rare book collection stored on the bookshelves of the house. Who owns the furniture and the rare book collection, and why?

(B) Regardless of your answer to the first question, assume that Peter Bishop wins his case. At the very beginning of Farnsworth’s new term, he brings a truck and empties the house of its furniture (and the book collection). Farnsworth asks Dunham to provide replacement furniture, but Dunham does not. What are Farnsworth’s options and what should she do?

Question 5: 15 points

Adult feral swine routinely weigh 200 pounds or more. They can tear up fields and lawns, harm wetlands, kill livestock, spread diseases like pseudo-rabies that infect domestic pigs and, occasionally, attack humans. While in 1990, fewer than two million wild pigs inhabited 20 states, the number is now six million, with sightings in 47 states and established populations in 38. The swine are thought to have spread largely after escaping from private shooting preserves and during illegal transport by hunters across state lines. Experts on invasive species estimate that they are responsible for more than $1.5 billion in annual agricultural damage alone, amounting in 2007 to $300 per pig.

Wild pigs can dig under or climb over almost any barrier. Pig experts say that “if a fence won’t hold water, it won’t hold a wild pig.” Allowing hunters to shoot them in the wild all year round, as the state of Disturbia does, is not in itself enough to limit the population. Disturbia’s Department of the Environment has budgeted $100,000 for trapping operations for the next year, but estimates that this too will prove insufficient to prevent wild swine numbers from growing.

Wild pigs are also highly desireable as a game species for hunters. They provide an entertaining and exhilarating challenge for hunters, and the pork is quite tasty. Disturbia’s wild pigs came primarily from escaped Russian wild boars imported from Canada for hunting on private game ranches.

Disturbia has about 60 private game ranches offering wild boar hunts. If Disturbia hired five additional animal inspectors, it could carry out routine fencing and health checks on penned wild swine, which would probably diminish the number of escapes to a low but nonzero level. This might be sufficient, in combination with shooting and additional trapping, to keep wild swine numbers from growing.

Instead, Disturbia banned the keeping of wild swine. Mal Reynolds, who owns the 300-acre Serenity hunting preserve, challenged the ban. Reynolds argued that he should not be penalized for the actions of irresponsible ranch owners who have inadequate fencing. A hole in his 10-foot reinforced fence that in one instance allowed some boar to escape was made by vandals, he said. Wild boar are cheaper for hunters than other game animals, and they made up 95% of his business. “I’m done if I don’t have hog hunts,” he said. The land is zoned only for agricultural and hunting uses; to convert the land to agriculture would require a significant investment in clearing trees and preparing the soil, and in the current economic downturn no one is willing to make such an investment.

Reynolds sued the state, alleging that the ban constituted a taking of (1) his boars—100 animals, which he will have to slaughter if the ban remains in place, worth $1500 each for hunting and at most $50 per slaughtered carcass—and (2) his hunting preserve, which will be unaffordable to run if he has to stock only deer and other non-boar game animals. Assume that his challenge is ripe and that there are no other barriers to his lawsuit.

Evaluate Reynolds’ taking claims and explain who should win.

Question 6: 20 points

Based on evidence indicating that homeownership produces a small but statistically significant increase in voting, participation in local government affairs, school parent-teacher association membership, and other civic activities, and also that owner-occupied homes have a 15% lower foreclosure rate than non-owner-occupied homes, the Disturbia City zoning board adopts a zoning ordinance allowing only “owner-occupied housing.” Multifamily dwellings are allowed and even encouraged as long as they are owner-occupied (e.g., condominiums and cooperatives). Disturbia City offers low-interest loans to qualifying low-income families so that they can afford to buy up to 15% of owner-occupied housing units in the city.

Existing rental properties are allowed to continue as rental properties as long as the current tenants are in place, but no new “tenants” are allowed. If existing tenants leave, the owner must either occupy the property or sell it to someone who will occupy the property. Multiunit buildings must convert to the condominium or cooperative form on a rolling basis as existing renters leave. Short-term rentals of up to 6 months are allowed when the owner is actively engaged in attempts to sell the property, but no property may be rented for more than 6 months out of every year.

The authority to zone has been sufficiently delegated to the town under state law.

(A) Hikaru Sulu, landlord of the 35-unit apartment building The Enterprise, exhausts his state challenges to the ban. He wishes to hold his rental property as an investment; though converting to condominiums will net him roughly $3 million, he will lose a revenue stream of roughly $500,000 per year. He does not wish to sell the property, nor does he wish to live in any of the units. Assume there are no ripeness or other barriers to his federal takings challenge: how should a court rule?

(B) Pavel Chekov owns his own home. He participates in the online housing marketplace Airbnb, which allows individuals to list extra living space for vacationers seeking short-term accommodations, for a price. He charges $200 per night to stay in his house. He does not intend to sell his house, but he does not stay in the house while Airbnb customers are there. Instead, he camps in the nearby woods. The longest he’s ever had a customer stay was two weeks. The zoning board fines him for violation of the zoning ordinance. Chekov challenges the fine: how should a court rule?

(C) Chekov also advertises on Airbnb that he will only provide accommodations for American men. Nyota Uhura, a female citizen of Kenya seeking accommodations in Disturbia City, sues him for discrimination. How should a court rule?

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