Professor Henry H. Perritt, Jr.

Spring, 2005

Model Answer


Question I


A.                 Grandmother conveyed life estates to Sister and Brother as tenants in common.  There is no joint tenancy because the conveyance evidenced no intent to create one.  She also conveyed indefeasible remainders in fee simple to Grandson and Granddaughter.  There was no class gift here because she designated the two favorite grandchildren by name, as indicated by the initial capital letters.  After the conveyance, Grandmother had no property interests. 


The conveyance by Sister and Brother to Grandson and Granddaughter is best understood as a quit claim deed, but it is not clear whether it satisfies the Statute of Frauds.  Because the Statute of Frauds can be satisfied by “any memorandum” I think the best interpretation is to find that the email was valid.  This left Granddaughter and Grandson with life estates as tenants in common pur autre vie and the remainders they originally got from Grandmother.  Under something akin to the Rule of Merger or the Rule in Shelley’s Case—the facts don’t quite fit the rules-- the life estates may merge into their remainders, causing Granddaughter and Grandson to  end up with fee simple interests as tenants in common.  They do not have a joint tenancy because there no words in the email indicated an intent to create one.  But it doesn’t matter whether the life estates and the remainders merge into a fee simple absolute—the effect is the same either way.


When Grandson conveys his 50 percent tenancy in common to Granddaughter and her Husband, he obviously does intend to create a joint tenancy with right of survivorship.  The only question here is whether the four unities (interest; title, time, and possession) are satisfied. The only real question is about unity of interest.  I believe that is satisfied here because the interest being conveyed—all of the Grandson’s interest--is conveyed all at once, and both Granddaughter and her Husband get the same type, amount and duration..  The fact that the Granddaughter already had her own 50 percent interest independently is irrelevant to the unities analysis. It’s as though she owned some other parcel of property on her own. That would surely not interrupt the unity of interest. 


Presumably Granddaughter was already married and therefore “her Husband” referred to an identifiable person.  The question then is when Granddaughter and her Husband got divorced.  Obviously they must have gotten divorced before she was killed.  But they might have gotten divorced before the conveyance by Grandson.  Or she might not have been married at all before that conveyance. Either way, daughter had no Husband and therefore the grant presumably resulted in a conveyance of everything the Grandson had to Granddaughter.  Alternatively it could be interpreted as a grant to her, subject to open, with future interest in her Husband should she get married, which she obviously would do or not before she died, eliminating any Rule Against Perpetuities problem although a grant to an unidentifiable person is contingent. 


Assuming the more likely situation that the grant from Grandson to Granddaughter occurred after her marriage before her divorce, the divorce had the effect of severing the joint tenancy and a possible tenancy by the entireties and causing a co-tenancy to result.  So when Granddaughter was killed, she had two interests—the 50 percent co-tenancy that she acquired from Grandmother and Sister and Brother, and the co-tenancy in the other 50 percent with her Husband created by the grant by Grandson.  So GDS in the bequest from Granddaughter gets a 75 percent co-tenancy in Ski Lift with his father—Granddaughter’s original 50% plus 25%, or half, of what she owned in joint—then common—tenancy with Husband.


Of course, GDS’s interests and Husband’s are subject to the easement considered in the answer to sub question (B).


There is no Rule Against Perpetuities problem here because all of the interests  are vested, or will vest within a life in being, in the case of the possible contingent interest in the unidentified Husband 


If the attempted conveyance by Sister and Brother did not satisfy the Statute of Frauds, it was ineffective, and since Sister and Brother are still alive, that would mean that GDS and Husband have only a future interest—a co-tenancy and a vested remainder.  The only real difference that makes in further analysis of the problem is that it would invalidate the easement considered in the next sub question. 



B.                 The Granddaughter conveyed an express easement to developer.  Although the question does not say so explicitly, the fact that they negotiated causes me to assume that the easement was in writing.  The easement is best characterized as appurtenant to the developer’s interest in the land on which the airport was built.  It also is both negative and affirmative.  It is affirmative in the sense that it gives him the right to fly aircraft or to cause aircraft to be flown through the airspace over the servient estate.  It is negative in the sense that it prohibits the servient estate from building structures higher than 100 ft. 


The easement is valid against other co-tenants even if they did not consent to it because a co-tenant may use all of the rights associated with the property interest.  The Granddaughter thus had the power to create the easement as long as she compensated Husband for it by sharing any compensation for the easement or conceivably in any action for waste that the Husband might bring against her.  On the other hand, if the Granddaughter attempted to convey the easement during a period of tenancy by the entirety, there might be other questions, because a tenant by the entirety is disabled from conveying without consent by the other tenant by the entirety.  But even that is not a problem here because Granddaughter owned all by herself a 50 percent co-tenancy that she got from Grandmother and Sister and Brother and that gave her sufficient power to create the easement.  Moreover, the question explicitly says that the easement was created before the grant by Grandson to her and therefore the easement existed when any tenancy by the entirety arose.


If the conveyance from Sister and Brother to Grandaughter of their life estates was not valid, however, as discussed in the answer to subquestion (A), Grandaughter lacked the power to create a present easement because she did not have a possessory interest.


The easement runs with the land—at least with the servient estate.  Even if it is an easement in gross and therefore does not run on the benefit side, the developer has not conveyed his interest and he is the one who negotiated the easement.  So even if it is personal to him, he can enforce it. 


The easiest claim is against the Husband.  The easement certainly is a negative easement, whether or not it also is an affirmative one, and building structures higher than 100 ft. definitely violates the terms of the easement and intrudes upon the use the easement contemplates.  The developer should be able to get an injunction against building any structures higher than 100 ft. or compelling anything higher than 100 ft. to be torn down. 


The developer’s claim against GDS is more complicated.  First of all, if the easement is not construed as affirmative but only negative, his shooting at aircraft, while certainly a crime, does not trespass on any right guaranteed to the dominant tenement.  Bullets, though they rise higher than 100 ft., do not constitute structures. But I think the best interpretation of the easement and the law is to construe it as an affirmative easement. Any shooting at airplanes a trespass against the easement holder’s rights of ingress and egress. But GDS hasn’t done anything yet; he has merely threatened to do something.  An injunction against his threats would raise First Amendment issues. But injunctive relief against actual shooting would be appropriate. It is not clear, however, that this would add much to the criminal prohibition against shooting at airplanes, except that it would give Developer the power to enforce it rather than leaving it in the hands of the chief prosecutor. 


C.                 GDS should challenge the ordinance as violative of the takings clause of the Fifth Amendment, incorporated into the due process clause of the Fourteenth Amendment.  In order to succeed in such an argument, he must avoid any claim that his right to use his property to bring in more than 500 skiers per year was not part of his bundle of property rights to begin with.  They were part of his bundle, under Justice Scalia’s analysis in Lucas, unless he would have been prevented by the common law of nuisance from such use of his property.  It is extremely unlikely that having a substantial customer base for a ski resort in a rural area would constitute a nuisance.  So he gets by the first step in the analysis.  Then, he must proceed to the Penn Central Balancing Test, because he cannot show a physical trespass; nor, except as explained below, can he show a total economic deprivation. 


Within in the Penn Central balancing equation, states are entitled to use their police powers to regulate land use.  But three things are necessary for zoning ordinances to be valid within this analytical framework.  First, the governmental decision maker—the county, here—must have been delegated power by the state to adopt the zoning ordinance.  We would need to do further research to see whether GDS can succeed in an argument that the zoning ordinance is ultra vires.  Next, the zoning ordinance must be in pursuit of a valid public purpose related to the public health and welfare.  Reviewing courts defer significantly to elected legislative bodies, and it is likely that preservation of traditional lifestyles in this rural community does constitute a valid purpose, whatever one thinks of beer drinking, drag racing, and watching television.


But third, the means chosen by the government must be rationally related to achievement of the goal.  This is the so called “nexus” test.  And it is here that GDS has his strongest argument.  The municipality’s claim is more than 500 customers per year will cause too much traffic that the traffic will impede attainment of legitimate goals.  But more than 500 skiers per year don’t generate much traffic: say two cars per day, if each skier only stays in the resort for one day.  Moreover, how does traffic interfere with watching television, which usually is done at home?  How does it interfere with beer drinking, which usually is done close to home?  And how does it interfere with drag racing, which is itself a form of traffic?  In addition, it seems that the ordinance is under-inclusive.  It focuses on sporting facilities but apparently continues to allow drag racing, which is a form of sport itself.  So GDS has a fairly strong argument that the means chosen in the ordinance is not rationally related to the public purpose, even if the public purpose is valid. 


Of course GDS must be prepared to show that he was already attracting more than 500 people per year or that he had a reasonable prospect of doing so.  Otherwise, restricting him to 500 skiers per year does not deprive him of anything.


A further argument is that GDS has been subjected to a total economic deprivation under Lucas. He would have to prove that the 500-customer limit is tantamount economically to shutting down the ski resort and that that land is not suitable for anything other than a ski resort, both tough challenges. But it he could establish that, no balancing need be done, under Lucas.


D.                 GDS will sue Tenant for rent. First of all, there is no problem with GDS standing in the shoes of Granddaughter.  Leases run with the land, and anyway, he inherited from his mother all of her property interests.  The tenant clearly has abandoned the premises, so no unlawful detainer action is relevant here. 


GDS has three basic options.  He can treat the leasehold as abandoned and relet it.  He can sue for unpaid rent as it becomes due, or he can wait until the end of the lease and sue for the entire balance of unpaid rent.  Most jurisdictions have somewhat blurred these distinctions by obligating the landlord to mitigate, which means that he cannot simply sit around and wait and sue for all the rent. 


He can anticipate that Tenant will claim that the tenant’s obligations under the lease were extinguished by a breach of the covenant of quiet enjoyment and/or the warranty of habitability.  The tenant’s best argument would be that the aircraft crash made the premises so unsafe that no one should be expected to live there.  The aircraft crash was thus a form of constructive eviction.  The tenant’s principal problem with this argument is that both covenants of quiet enjoyment and warranties of habitability historically protected tenants only against acts by landlords or those holding under or through them.  Obviously neither Granddaughter nor GDS crashed the airplane.  But the airplane was a use occurring under or through the landlord because Granddaughter had granted the easement.  So the tenant does have an argument that the aircraft crash implicated the covenant of quiet enjoyment and/or the warranty of habitability.  


How this affirmative defense would be resolved might depend on whether the easement was created before the tenancy or afterwards.  If before, and if the tenant had notice of it, as by aircraft flying over at 100 ft. or a little more, she consented.  Alternatively, if the easement was granted after the tenancy, then there is an affirmative act by the landlord that ultimately impaired the tenant’s quiet enjoyment and the habitability of the premises, giving Tenant a much stronger constructive eviction argument because of breach of the covenant and/or warranty.


In addition, GDS’s threat to shoot down aircraft strengthens Tenant’s position on the covenant/warranty argument.  Whether or not the landlord could control aircraft operations through the easement, GDS certainly can control whether he shoots down aircraft.  If he shoots one down, the risk of aircraft or aircraft parts falling on the leasehold premises would be substantial, greatly heightening the danger to Tenant.