Professor Henry H. Perritt, Jr.

Property (Three Hours)

Exam No. ___________

Spring 2007

            Time: 1315-1615, 18 May 2007

Chicago-Kent College of Law

Final Examination in property

Instructions

1. This examination consists of 5 pages. Please check to make certain you have the complete examination, including the statutory appendix.

2.  Read these instructions carefully, read each question, and read the appendix carefully. As you answer each question, make use of any materials in the appendix that are pertinent. Think each problem through before you write and treat every appropriate issue in each question.  Be direct and concise.

3.  Answers will be graded upon the reasons given as well as the conclusions drawn. If more than one reason is pertinent to an answer, state every reason.

4.  While you have been permitted to bring materials into the examination room, answering the questions appropriately will put time pressure on you. You should not do extensive research during the examination. Credit will be weighted according to the time allocations shown. Manage your time accordingly.

5. You may decide, in answering one or more questions, that a complete answer would require legal research.  If this is so, you should identify the specific issue that you would research. If you have a mastery of the basic concepts, you will be able to frame research issues very narrowly and precisely.

6.  It also may be that more factual information is required to answer a question. If this is the case, you should say what factual information is required and why you need it. A mastery of the underlying concepts will permit you to frame any factual inquiries very narrowly and link them precisely to the legal issue involved.

7. Organization and clarity are very important. A shorter answer that is well organized and evidences a clear understanding of basic concepts and their interrelationships is better than a long answer with disconnected fragments of information.

8.  Do not write outside the margins of your bluebook pages, but write clearly.  If it’s not legible, it will not get credit.

9. Write your examination number on your bluebook(s) and on each page of this examination. Do not use your name.

10.  When you have finished the examination place it inside your bluebook(s) and deposit them in the appropriate box in the examination room.

MATERIALS WHICH MAY BE TAKEN INTO THE EXAMINATION ROOM

Any material including any outlines whether commercially prepared or not, whether accessible by computer or not. No communication by e-mail, cell phone, voice-over-IP, or any form of instant- or text-messaging is permitted during the exam.

GOOD LUCK!

PROPERTY

Prof. Perritt

Final Examination

18 May 2007

QUESTION I

Ardian and Linda are recently married. Ardian’s parents came to the United States from Albania and he is interested in Albanian folk culture. They decide to build a traditional Albanian musical instrument known as a çiftelia. A çiftelia has two strings and is strummed or plucked, playing a role in the performance of traditional folk music at wedding, funerals, and other community events. Linda has long practiced woodworking as a hobby. Ardian has conducted considerable research into folk music and folk instruments and developed good specifications for the instrument. Linda makes the instrument according to Ardian’s specifications. After the çiftelia is finished they decide to play at an upcoming three-day folk festival sponsored by the county government in a park near where they live in central California. Ardian does further research into the basic characteristics of Albanian folk music and conceives of a song he can sing while he plays the çiftelia. Linda, not a musician herself, encourages Ardian and gives him comments and suggestions as he works out the song. He writes a chord chart. A chord chart indicates chord changes and may have basic reminders about lyrics and melody but it does not include all the specific notes or all the words of the lyrics. A musician uses a chord chart in a performance much as public speaker might use an outline while giving a speech.

Ardian and Linda perform the song at the festival, on the first day. At the performance Linda stands on the stage with Ardian and holds the chord chart so he can see it but does not herself sing or play the çiftelia. She sways occasionally and taps her foot in time with the music. Their performance is well received—too well received, in fact. A famous popular singer, Justfine Timberpond, has been recruited by the county board to perform on the last day of the festival. There is considerable excitement about his participation and the crowds on the last day are expected to be huge. Timberpond’s problem is that he does not have enough material. He hears about the Albanian folk song performed by Ardian and Linda and discovers that the daughter of the mayor recorded their performance. He listens to the recording and, being very talented, memorizes the song and thinks about how he can embellish it to make it more appealing. But he has another problem: he does not have any traditional Albanian folk instruments. He tells the county board that he will not come unless the board finds a way to get him a çiftelia for the performance. The county board immediately adopts an ordinance requiring any resident of the county who owns an unusual musical instrument to make it available without charge for up to six weeks for any county-sponsored musical performance. Everyone saw the çiftelia that Ardian and Linda used in their performance. Ardian and Linda refuse to make the çiftelia available voluntarily, so the county sheriff goes to their home and seizes it, telling them he is acting pursuant to the ordinance. Timberpond practices intensively on the instrument and performs Ardian’s and Linda’s song on the last day of the festival. The audience is so enthusiastic about his rendition that they insist that he play it five times. Shortly afterward, Timberpond goes home to Memphis and the sheriff returns the çiftelia to Ardian and Linda undamaged. Indeed its value has been enhanced, as they discover when they get many phone calls and email messages from Timberpond fans offering to buy it for several hundred thousand dollars.

A. (35 minutes) Assume you represent Ardian. What arguments, on what legal theories, would you make in a lawsuit to recover damages from Timberpond for singing the song? Evaluate Timberpond’s likely defenses and assess Ardian’s prospects for success.

B. (35 minutes) Assume you represent Ardian and Linda in a suit against the county or the State of California or both for seizing their çiftelia and letting Timberpond use it. What arguments, on what legal theories, would you make? Evaluate the likely defenses that would be asserted by the defendant, and assess your prospects for success.

C. (20 minutes) Unfortunately, discord develops in the marriage. Linda accuses Ardian of being a wimp because he did not resist the sheriff more forcefully, which, she says, might have prevented the seizure of the çiftelia, and for not composing a more complicated song which would have made it harder for Timberpond to appropriate it so easily. While they are fighting, Linda sells the çiftelia on eBay to Keith Anne Richardson for $600,000, without telling Ardian. She gives Richardson a deed purporting to convey a fee simple absolute interest in the çiftelia. When Ardian finds out, he sues Richardson for conversion and in replevin and seeks an injunction compelling her to return the instrument. Suppose you represent Richardson. What arguments would you make in her favor and what arguments by Ardian would you anticipate? Evaluate the prospects for success. Do not analyze the tort theories; instead assume that whoever establishes ownership wins.

D. (10 minutes) Linda and Ardian decide to get divorced. Most of the controversy in the divorce proceedings involves the çiftelia and the song. Ardian claims whatever property rights exist in the song and he thinks they developed a pretty good case that property rights do exist in the song, in conjunction with the case developed in response to Question (A). Linda claims the çiftelia. Assume you are the law clerk to the judge in the divorce/property-distribution proceeding. Who should get what and why?

QUESTION II

Carl Mark owns a five acre parcel of land on the outskirts of Midville, Illinois. The parcel is not far from an interstate highway and he is approached by a cell phone service provider with an offer to pay him $1 million for an easement permitting the cell phone provider to construct a cellular facility with accompanying antennas on his property. He also receives an offer from a developer for $2 million to construct high-density low-income housing on the property. He decides to accept both offers. He gives a general warranty deed to the developer conveying a fee simple absolute in the parcel. A few minutes before he does that, he gives a deed to the cell phone service provider conveying an easement to build a cell site on no more than 1/8th of an acre at a place on the parcel of the cell phone service provider’s choosing. The easement is contingent. It can take effect under one of two circumstances: (1) if the developer has not constructed structures on the property within six months after the developer acquires the property, or (2) if such structures are built within six months, only “at such time as they have become dilapidated and the developer is generally regarded as a slumlord.” The deed to the developer makes no mention of any interest held by the cell phone service provider.

A. (20 minutes) Assume, for purposes of this subquestion, that the easement is recorded and validly indexed. What arguments can the developer make that the easement is not valid? Identify all relevant legal theories, and evaluate their merits in light of probable defenses.

B. (20 minutes) Assume the easement is valid as of the time of its conveyance. Assume also, for purposes of this subquestion, that everyone recorded his or her deeds but the Recorder of Deeds Office is backlogged in updating the computerized index and none of the conveyances are reflected in the index. The developer loses interest in high-density low-income housing, and instead subdivides the property and constructs two palatial single family homes, each on half of the property. He sells one of the houses to Sean Lock and the other to Peggy Thatch. Both record their deeds and both deeds are indexed accurately. Shortly after he moves in, Lock is startled to see a backhoe in his backyard bearing the logo of the cell phone service provider. He discovers that the cell phone provider intends to build a site with associated antennas for a new technology that provides broadband Internet access. In his conversations with the provider, seeking to understand the purpose for the construction, he says, “You mean this provides something like cell phone service?” The provider’s representative responds, “No. This has nothing to do with cell phone service; it provides Internet access through a completely different technology.” Lock asks you to represent him and to take whatever legal action is necessary to prevent the construction of this facility on his property. What legal action would you take, what legal theories would you assert, and what defenses would you anticipate? Would you expect to be successful? Why or why not?

C. (20 minutes) Assume the easement is invalid and void. At the time of the original conveyances to the cell phone provider and the developer, the land was under lease to a local conservation group which makes a practice of obtaining leases to vacant land so that the land will remain vacant during the terms of the lease, enabling local nature lovers to watch and photograph birds and other animals such as coyotes, foxes, rabbits, and diamond-back rattlesnakes. The lease expires one month after the conveyances to the developer and the cell phone provider but the birdwatchers and nature lovers continue to use the property and the conservation group continues to list it on its Web site as available for those purposes. Can the conservation group take any legal action to prevent construction on the property by developer? What would its legal theories be? What would the developer’s defenses be? Evaluate the prospects for success by the conservation group.

D. (20 minutes) Assume that both the easement and the lease are valid and that Thatch knows about both. Suppose you represent Thatch in a lawsuit against Mark. What arguments, on what legal theories, would you make? Evaluate likely defenses and assess the prospects for success.

APPENDIX

765 ILCS 5/30

Formerly cited as IL ST CH 30 ¶ 29

West's Smith-Hurd Illinois Compiled Statutes Annotated Currentness

Chapter 765. Property

Real Property

Act 5. Conveyances Act

5/30. Effect of recording as to creditors and subsequent purchasers

§ 30. All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record.