Professor Henry H. Perritt, Jr.

Property (Three Hours)

Exam No. ___________

Spring 2008

            Time: 0830-1130, 7 May 2008

 

Chicago-Kent College of Law

Final Examination in property

 

Instructions

1.         This examination consists of 4 pages. Please check to make certain you have the complete examination.

2.         Read these instructions carefully and read each question carefully.  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 an answer is 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

7 May 2008

QUESTION I

Shelby Krebs owns a house on a one-acre lot in Elmwood, New Jersey. He is approached by Berrysohn, a large communications company, which wants to bury a fiber optic cable across his lot. In exchange for $15,000, Krebs gives Berrysohn a deed reciting, “to Berrysohn, its successors and assigns, an easement for an optical fiber cable to be buried no less than one foot under my property beginning at the northern boundary 100 feet from the eastern side, directly south, to exit at the southern boundary. Such easement is for the purpose of enabling Berrysohn to connect its state-of-the art Internet backbone to enhance use by the general public.” Berrysohn installs the cable using a WitchDitch, which bores under the surface without requiring disturbance of the surface itself. Neither Krebs nor Berrysohn records the easement. Berrysohn operates its network for five years as part of the Internet, but subsequently separates its network from the general Internet and restricts its use to proprietary technologies and services, meaning that traffic from websites and other servers that have not entered into a special contract with Berrysohn is blocked. Krebs is a passionate advocate of “Net Neutrality” and does not want his property used for digital services that do not allow traffic from any and all Internet services. He come to you, licensed to practice law in New Jersey, and asks you to advise and represent him.

  1. (20 minutes) What legal action can he take to block Berrysohn’s new, restricted use of the optical fiber under his property? What legal theories would you assert? Evaluate the prospects of success.
  2. (20 minutes) Krebs does nothing about the cable, instead selling the property in fee simple absolute to Cynthia Michels. He tells her nothing about the underground cable. Michels is even more passionate than Krebs about net neutrality. After she takes up residency in the house, she sees a Berrysohn crew working in the neighborhood and finds out about the cable. Shortly thereafter the municipal government of Elmwood adopts a zoning ordinance including Michels’ property in a new zone “I-1” which requires property owners to allow the operation of underground digital network facilities. Michels worries that the new zoning restriction will make it difficult for her to sell her property. What action would you take to invalidate the zoning restriction? Evaluate all plausible legal theories. What are your prospects for success and why? Assume that an optical fiber cable connected only to a proprietary network falls within the definition of “underground digital network facility.”
  3. (30 minutes) Suppose the ordinance never was adopted. Michels rents a jack hammer from Home Depot, drills through her basement floor directly over the optical fibre and cuts it with a pair of pruning shears, also rented from Home Depot. Berrysohn sues her for trespass. She now comes to you and asks you to represent her. What defenses would you offer? Evaluate your prospects for success in getting a judgment in Michels’ favor.
  4.  (20 minutes) Suppose Berrysohn, after repairing the cable, uses it for 10 years, and then transfers all its assets to Notbell, a former competitor. Notbell uses the cable for its network for another 15 years. Michels’ granddaughter, who now owns the property, remembers hearing Michels’ tell stories about the uproar over her cutting the cable. She encounters the cable while tilling her garden and deliberately cuts it, believing that the optical bits moving through the cable stunt the growth of her flowers. Notbell and the granddaughter sue each other for trespass. Who wins, on what legal theory and why?

QUESTION II

Four law students start a band to fill their spare time. They have difficulty finding adequate rehearsal, performance and recording space, so they persuade their parents to give them $250,000 to buy a piece of property in Cook County, Illinois on which they build an appropriate facility. The band members record the deed to them from the previous owner in the Cook County Recorder of Deeds office.

At the closing for the conveyance of the property from the previous owner to the band, one of the band members, Bosworth Terrier, has an instant messaging “conversation” with his father. The father texts, “I am worried that you will do drugs in the place, but I don’t want to embarrass you and your friends by raising it aloud.” Bosworth texts back, “No we won’t. We agree that, if there is ever any drug use on the premises, the property will automatically pass to you and you can sell the whole thing.” Satisfied, his father lets the closing go forward.

  1. (20 minutes) Another band member, Tempa Tite, the drummer, becomes obsessed with her legal studies in advanced property and stops coming to rehearsals. The other members of the band kick her out and replace her with Rando M. Biet. Tite tries to return to the band several times but the other members will not let her in the facility. She retains you, licensed to practice law in Illinois and asks you to file a lawsuit on her behalf. What legal theories would you assert and why? Evaluate your prospects for recovery.
  2. (25 minutes) Tite gives a quitclaim deed to Biet. Unfortunately, Biet can’t keep time to the music and finally the band gives up. Bosworth Terrier, unbeknownst to the other three, leases the facility to another band, “Half-inch Tacks,” for ten years. Half-inch Tacks, after taking up occupancy, finds a lead sheet (a music score with the lyrics, chord symbols, and melody notes on it) left behind by the original band. They try playing various arrangements of the music indicated by the lead sheet, and eventually record the resulting song. It zooms to the top of the charts, earning Half-inch Tacks $1 million in their first year. Excited by their success, Half-inch Tacks spends more time smoking pot and sniffing coke in the facility than they do rehearsing, performing and recording. Half-inch Tacks makes no more music and the facility falls into disrepair.

Bosworth Terrier’s father, needing to supplement his income for retirement, sells the property in fee simple absolute to a non-profit museum, known as “Death Struggles of Dinosaurs,” for $100,000 in exchange for a general warranty deed. The museum recruits some thugs, who run off Half-inch Tacks, and the museum sets up operations in the facility, exhibiting many of the form documents used by record-label lawyers to sue children and octogenarians for file downloading.

Rando M. Biet takes rhythm lessons and decides to organize a new band, including no members of the original band. She shows up at the museum with her new band and starts giving loud concerts inside. The museum comes to you, licensed to practice law in Illinois, and asks you if it can recover from Bosworth Terrier’s father. What advice would you give the museum? Be sure to explain all the legal theories available to the museum and to Terrier’s father and evaluate the prospects for success on each.

  1. (20 minutes) Another of the original band members, Aquis E. Teeve, discovers that the members of Half-inch Tacks haven’t spent all the million dollars they earned on the song for dope yet. They still have about half of it left. He comes to you, licensed to practice law in Illinois, and asks you to represent him in an effort to get a significant part of this money. What legal theories would you assert and why? Does he have a chance of succeeding? Why?
  2. (25 minutes) The fourth original band member, Arfand Knau, worries about the possibility that Half-inch Tacks may sue him. He asks you, licensed to practice law in Illinois, to advise him on what, if any, liability he may have to Half-inch Tacks and what, if any claims he might assert against them. What advice would you give him? Explain your legal analysis.