Professor Henry H. Perritt, Jr.

Property (Three Hours)

Exam No. _________________

Spring 2009

            Time: 1315-1615, 15 May 2009

 

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 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!


QUESTION I

Edwina Burke owns a condominium unit in fee simple absolute. Not having need of it herself, but wanting to keep it for her children, she conveys, through a general warranty deed, an estate in the unit “for the duration of my (Burke’s) life” to Chris Boxer, retaining all the remaining interests. Chris Boxer operates an active blog, on which he expresses himself about various issues of the day, sometimes adding music in the form of .mp3 files attached to a particular entry. He finds that his best work occurs when he smokes weed (marijuana) while he composes. Wanting company (and a source of other recreational substances), he rents one of the four bedrooms in the condo unit to Brad Dozier, who sets up an on-line beer distributorship with the high-bandwidth Internet connection that Boxer pays for. Dozier also operates a methylamphetamine (“meth”) lab in the bathroom connected to his bedroom. His beer and meth sales are quite profitable. He spends all the proceeds.

Buhla Newpup is attracted to Boxer, but Boxer is more attracted to Dozier. Jealous of Dozier, Newpup is in the condo one evening when Boxer is working on entries for his next blog contribution. Boxer is smoking, and Dozier is drinking beer. Before they are too far gone, Boxer recites what he is writing in the blog about the Rule Against Perpetuities being an unnecessary curse inflicted on law students by out-of-touch law professors. While Boxer recites, Dozier hums a pedestrian melody, comprising only the three notes of a rudimentary tonic triad in the basic key of C-major.

Newpup, wishing to curry favor with Boxer, and to embarrass Dozier, secretly records Boxer’s recitation and Dozier’s humming. She posts her recording on YouTube, where anyone can view it for free. There is a huge reaction, surprisingly applauding Dozier’s “song,” and belittling Boxer’s blog content.

Burke hears about Dozier’s activities and hires some former Blackwater tactical force personnel to raid the unit. In their illegal search, they trash not only Dozier’s bedroom and bathroom, but also the remainder of the unit, doing considerable damage, caving in the wallboard with sledgehammers, among other things, generally making it uninhabitable.

A.     (20 minutes) Dozier is now in a federal prison. He needs money to pay his lawyer—you. He suggests that you sue Newpup for copyright infringement on his behalf. What are your prospects for success? Explain your legal theory or theories, analyze the facts supporting them, and evaluate probable defenses.

B.     (20 minutes) Burke wants to sue Boxer. Suppose you represent her. What legal theories might she assert? What is the probability of success? Explain your legal theory or theories, analyze the facts supporting them, and evaluate probable defenses.

C.     (15 minutes) Boxer wants to sue Burke, either in a separate lawsuit or as a counterclaim in her suit against him. Suppose you represent him. Explain your legal theory or theories, analyze the facts supporting them, and evaluate probable defenses.

D.     (15 minutes) Suppose, instead of leasing to Dozier, Boxer had conveyed a co-tenancy in the entire premises to him. You represent Boxer in a suit against Dozier. What is the probability of success? Explain your legal theory or theories and, analyze the facts supporting them, and evaluate probable defenses.

E.      (15 minutes) Dozier, still in prison, and still a co-tenant, needs more money than he obtained from the copyright action. He hears that Boxer has moved out of the condo and leased it to a substance-abuse rehabilitation service for the remaining term of his (Boxer’s) estate. You represent Dozier in an action against Boxer. What is the probability of success? Explain your legal theory or theories, analyze the facts supporting them, and evaluate probable defenses.

F.      (10 minutes) How would your answer to subquestion (E) change if Dozier were still a tenant instead of a co-tenant?

QUESTION II

Braxton White is fascinated by horses and history. He shops for property on which he can pursue both interests. After a long search, he identifies Sue English, who owns a large plot of land in the outskirts of Rock Hall, Kent County, Maryland, known as “Eastern Shore Acre.” He buys the property and receives a general warranty deed from her that says, “to Braxton White in fee simple absolute.” Unbeknownst to White, English inherited the land from her grandmother, who received it in a quitclaim deed from Theopolis Claiborne which recited, “to Rebecca English and her heirs so long as she never allows horses on the property, in default of which to my worthless son, Andrew, who fantasizes and brags, but never actually does anything worthwhile.”

Immediately after his purchase of Eastern Shore Acre, White invites the Kent County, Maryland, equestrian club to play polo games on the property (polo is a game involving horses). The club invests $10,000 in stables and polo apparatus. Unfortunately there is little interest in polo on the Eastern Shore of Maryland and the games eventually cease, some eleven years later. At that point, the equestrian club decides to hold ATV races on the property. ATVs are all terrain vehicles powered by gasoline engines rather than horses. The ATV races continue for ten years.

Andrew is long dead. Erin Brunwald is his granddaughter and succeeded to all of Andrew’s property through a chain of intestate succession. While doing some genealogical research, she discovers the deed from Claiborne to English. Desiring to establish a refuge for alligators, she decides to take over Eastern Shore Acre. She begins construction of a small replica of the Everglades, blocking the ATV trail.

The statute of limitations in Maryland for real-property actions is 20 years.

If your answer to one or more of the following subquestions is pertinent to your answer to another, you may incorporate your analysis in the other subquestion by reference.

  1. (30 minutes) The equestrian club retains you to file a legal action to resist Bruwald’s intrusion. What is the probability of success? Explain your legal theory or theories, analyze the facts supporting them, and evaluate probable defenses.
  2. (15 minutes) Forced to cease work on the alligator refuge and to restore the ATV track to its original state, Brunwald buys a five-acre parcel adjacent to Eastern Shore Acre and, upset by the noise and rowdy behavior resulting from the ATV races, retains you to sue the equestrian club. What is the probability of success? Explain your legal theory or theories, analyze the facts supporting them, and evaluate probable defenses.
  3. (20 minutes) Brunwald, as the only remaining survivor of the famous Claiborne family, which was among the first settlers of Maryland, has considerable political influence. She makes large campaign donations to all the members of the Kent County Planning Commission, which is authorized by state statute to “make any laws restricting land use in the county necessary to protect the health and welfare of the citizens.” The Planning Commission adopts an ordinance that says, in material part, “In order to protect the peace of mind of Maryland’s historic families, no property near any property owned by descendants of Maryland’s original families may be used for ATV races.” The equestrian club and White retain you to sue the Planning Commission to prevent enforcement of the ordinance. Assume that there is no conflict of interest and that you can represent both. What is the probability of success? Explain your legal theory or theories, analyze the facts supporting them, and evaluate probable defenses.
  4. (20 minutes) Sue English, just before she conveyed to White, discovered the old deed from Claiborne to her grandmother, and recorded it. Immediately after taking title, White conveys an easement to the Maryland Shetland Pony League permitting it to hold Shetland Pony shows on Eastern Shore Acre. Shortly thereafter, White, having time on his hands, visits the Kent County Courthouse and submits the deed from English to him for recording and browses through the land records. He discovers the deed from Claiborne to English’s grandmother, not having known of it before. He retains you to sue English. What is the probability of success? Explain your legal theory or theories, analyze the facts supporting them, and evaluate probable defenses.