Questions Exam Review

8/10/2019 Questions Exam Review

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PROPERTY EXAM REVIEW

I have some suggestions set forth below that will allow you to review the exam onyour own. After you have reviewed the answers, you are welcome to come to see me. If

you do, I expect to you to come prepared to discuss the issues set forth below.

Law school exams measure two factors: how many issues do you spot and how

well do you develop them. The adverse possession question is the easier of the essays to

use for selfdiagnosis. !veryone in the class understood that the central issue wasadverse possession, and everyone at least mentioned the elements of adverse possession.

"o the things to loo# for go beyond that. To review:

$. %eread the question and my answer.

&. 'se my answer to identify the issues in the question.(. %eview your answer, and see if you discuss the issues in the outline. In

particular, loo# for:

a. )id you discuss the characteri*ation of the deed+ It might be a fee

simple determinable, a fee simply subect to a condition subsequent orboth. I thought it was both, and that would then set up discussion of

whether or not there was a violation.b. )id you discuss whether the lot was one lot or two+ "ince there was

no issue of color of title, possession of the lot as a whole if there was

only one lot is pretty straightforward. If there were two lots, however,whether there was sufficient possession of the second lot to establish

possession of the whole was a significant issue.

c. )id you consider each element for the two lots separately+ -hether

possession of the second lot was open and notorious, for example,required discussion.

d. )id you discuss estoppel and balance of the hardships+ And did youdiscuss them separately for the two possible lots+verall, with respect to issue spotting, the big differences in the class were

between those who recogni*ed that the characteri*ation of the deed, the

existence of one or two lots, and estoppel and balance of the hardshipswere worth discussing and those who did not.

/. After you have identified the issues you missed, thin# about why you missed

them. The estoppel and balance of the hardships issues are largely the product of

having a good outline. They are part of the outline I presented in class, and theycome up frequently on my exams. The issues are relatively wea# in this question,

but worth raising in the alternative. If you missed them, try to remember whether

you had them in your outline, and whether you thought about discussing themduring the exam. An important part of law school exams involves loo#ing for

alternative causes of action, and comparing them.

The characteri*ation of the deed is a different #ind of issue. 0our adversepossession outline would not include this issue. Instead, it should come from

training yourself to thin# li#e a property lawyer. 0ou can see from the way the

question is worded that the condition is li#ely to be an issue. -ithout ever having

studied 1roperty, a good lawyer would #now that the condition is going to be an


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II. Adverse 1ossession

Adverse possession arises only if the deed is invalid. It could be invalid eitherwith respect to ?)@ only, or entirely invalid. If the deed is valid, no adverse

possession issue arises9 A and 1 are the owners. If the deed is invalid, the

Association would still be said to have conveyed any interest they possess via thedeed. "o the adverse possession claim is necessary to assert a claim against the

true owners, not the Association.

A. ne lot or two+ A and 1 clearly have color of title. The statute limits theconstructive possession to a single lot. The deed describes a single lot 2A>@3,

but the original neighborhood plat, which should be a matter of record, describes

two separate lots. The #ey issue here, aside from the question of statutory

construction, is notice to the true owners. If there were originally two lots, andthe true owner owns only ?)@, possession of A>?) would not necessarily put

the true owner on notice of a claim against ?)@. BThe facts say two lots, and

suggested that ?), the site of the old fence, was the most li#ely dividing line.

Actual use then distinguishes between ?)!; and !;@, but does not suggestthat there were treated as separate lots.C

>. Actual or ?onstructive: "ince entry is under color of title, A and 1 haveconstructive possession of the relevant lot in its entirety. Bote again:

constructive possession is important only if the deed is invalid. If the deed is

valid, they own the property and don8t need possession. If they lac# title, then thefact that they entered into possession in accordance with a defective deed

indicates an intent to possess 2and constructive possession of3 the entire area

described in their deed.C They clearly possess all of A>?) anyway9 the issue is if

there are two lots, do they have possession of any of ?)@+ They clear away theremains of the fence and the old boundary line, and the facts suggest mur#ily that

they may have cleared some of the area that extends over the ?) border. Is this

enough for constructive possession of all of ?)@+ Duite possibly not if it mustbe cultivation or improvement9 merely clearing a small area is unli#ely to be

enough. The construction of the garage is substantially more of an improvement,

but the garage construction doesn8t begin until much later and can8t meet the fiveyears test. "o it8s not clear that they have enough possession of any portion of

?)@ to give them constructive possession of the whole for five years.

?. pen and otorious: This builds on >. 1ossession of A>?) is clearly open and

notorious9 clearing the area around the ?) border probably isn8t open andnotorious possession of ?)@.

). !xclusiveE?ontinuous: many students correctly noted that the trespasser does not

have title or a claim to title through adverse possession. @e does, however,interfere with a claim of exclusivity or continuity. The two are not the same. If a

trespasser with no right to be there has possession of the property, then the

adverse possessor cannot be said to be in possession of the same part of theproperty, brea#ing the run of exclusive possession. "o the issues are:

i. )oes his possession affect ust !;@ or all of ?)@+ Arguably, the lac# of

exclusivity is only re: that portion of the land actually used by the trespasser

since he doesn8t have color of title.


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ii. ?an A and 18s action in having him arrested be considered the actions of true

owners asserting title+ 0es, but this still raises the issue of the split in the

authorities about whether it still constitutes a brea# in possession.iii. Is he actually in possession or he is littering+ @e doesn8t have to live on the

premises to possess them in a way that interferes with exclusivity. >ut putting

debris on an empty lot is not enough to interrupt A and 18s possession. Thecharacteri*ation of his actions as trespass is probably sufficient, however, to

establish them as possession and not merely littering. BThe criminal action is

not, however, res udicata since the true owner was presumably not a party,and did not have an opportunity to contest the characteri*ation of the actions.C

!. @ostile and Adverse: ot an issue because under color of title.

III. !stoppel

ote: the issue is estoppel against the true owner, not the Association. TheAssociation is clearly estopped by issuance of the deed. If the deed turns out to be

invalid, then it must be because someone other than the association had title. Two

issues for estoppel:

A. %eliance: ?an A and 1 reasonably rely on the true owner8s inaction+ 1ossibly.They have a strong claim that with respect to A>?)9 they have built a house.

"urely, the true owner should have said something. -ith respect to ?)@,they have begun construction of a garage. That may have been enough to

compel a response, but it raises the issue of whether there is still time to stop

construction without too much of a loss.>. )etriment: Again, strong argument with respect to the house and A>?)9 less

so re: the garage and ?)@.

?. %emedy: the true owner would be estopped from claiming the property while

the house lasts, but it8s not clear the garage can be completed, which wouldma#e the estoppel action pointless.

IF. >alance of the @ardships

A. %eliance not needed here. Instead, assuming an inunction requiring removalof the house, there could be a balance of the hardships defense. @ouse stays9

A and 1 damages equal to the value of A>?). They have a claim for unust

enrichment against the Association, but they do have to pay damages to thetrue owners.

>. The argument for the garage is a little stronger here than the estoppel issue. If

the true owners isn8t using the land, and the garage encroachment does not

substantially affect the value of the remaining portion of the lot, then a courtmay limit the remedy to damages even if the garage is not completed or even

substantially under way. The emphasis here is on the balance between A and

1, not the extent of the reliance on the true owner8s actions.?omment: The secret to this question as with prior A1 questions was to divide the lot

into pieces, A>?), ?)!;, !;@, and consider whether the elements were met for each

section separately as well as as part of a single lot.

QUESTION B

I. Lease


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A. ffer to enter into new lease

Accepted+

>. @oldover: new year term or monthtomonth+There are really two issues here. ;irst is a contract question. A offers to enter into

a new one year lease. LL says if you don8t hear from me in a couple of wee#s assume it8s

o#ay. )oes this become an acceptance creating a new one year contract when the timepasses and nothing happens or do the parties anticipate that no deal will be final until they

sign a new written agreement+

It may not matter because even if they entered into a new agreement, thatagreement too has expired. "o A clearly became a holdover and the LL clearly accepted

rent from here. The only question then becomes whether the default term is a new lease

on the same terms as the last lease 2i.e., one year3 or the creation of a monthtomonth

tenancy.ote that a yeartoyear tenancy is not an option. The common law rule would

have created a new lease on the same terms as the old one, and the newer rule favoring

monthtomonth tenancies does so to shorten the period in which the parties may be

involuntarily committed to a new lease9 no urisdiction would extend the period of theexisting lease.

A number of students argued that the landlord could choose the holdover term.This is incorrect9 the period is a default term supplied by law. The better argument is that

both parties may have thought they were simply continuing the lease on the same terms

as before. This is probably not enough to create a new lease as a matter of contract,however9 instead, it is a good reason for the urisdiction to favor the old common law

rule: holdovers should be on the same terms as the previous lease.

II. rounds to Terminate Lease

A. ?D! G probably not$. "ubstantial Interference+ 1ossibly

&. )ue to landlord G unli#ely

(. ?onstructive eviction G if she actually leavesA wishes to leave. If she does so, can she claim constructive eviction and

terminate the lease+ The LL would argue that he is not responsible for criminal activity

ta#ing place off the premises in places he cannot control. A would respond that the LLhas the obligation to do what he can to secure the premises. @e is responsible for the

common areas, and security measures appropriate to the circumstances in the

neighborhood. The LL has refused to do anything9 but what more should he have done+

The facts are s#etchy enough to set up any number of possibilities. A8s scary encounteroccurs when the vendor follows her through the loc#ed front door of the building. The

door is loc#ed, and there is no description of a problem with lighting. iven the

circumstances of the neighborhood, should the landlord has hired a doorman+ a securityguard+ 'nder what circumstances are such measures compelled+ The fact that A had a

scary experience in the building may suggest that the LL should ta#e greater precautions

unless there is a reason to believe that this is an isolated incident. >ut the facts aren8tclear enough to indicate that the LL8s failure to do so before the incident breached the

covenant of quiet enoyment.

A would have to leave to claim constructive eviction.


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ote: The issue of building safety could also have been raised as part of the discussion of

I-@. I gave it equal credit however labeled. oting the need to leave to claim

constructive eviction, however, garnered additional credt.>. I-@ G bro#en loc# on door, bro#en window G enough+

Falidity of repair clause G shift of responsibility for I-@+

LL8s responsibility+An argument for breach of the I-@ might also allow A to terminate the lease, or

to stay and withhold rent. >reach of the I-@ might stem from the failure to ta#e the

security measures described above, but it may also follow the state of the apartment witha bro#en front door latch and bro#en window. The bro#en latch is clearly more critical.

The issue arose in the Hildercase in the text, and it goes to a basic issue of security. The

bro#en window might be a serious issue in a cold climate in )ecember or Hanuary, but

both ultimately turn on who has the duty of repair.The more significant issue is who has the duty of repair+ The clause in the lease

clearly says the tenant does unless the landlord is responsible. This leads to a series of

issues:

$. "ome students argued that the landlord is responsible if his failure to provideadequate security measures can be said to have caused the damage.

&. 5any argued that it was invalid as a waiver of the I-@. The x has notactually adopted the I-@, but presumably it will. There is no indication whether it

would permit waivers. This isn8t a classic waiver, though9 instead, it is an agreement that

tenant will assume responsibility for repairs. The issue then become one ofinterpretation. Ta#en to its logical conclusion, it means that the tenant would be

responsible for a furnace that bro#e down, damage from a hurricane etc. "uch a clause

would clearly be invalid. "o a court is li#ely to either stri#e this clause, or interpret it

narrowly to preserve its validity. If the latter, the court might distinguish between minor,everyday repairs, and maor structural damage. ;ixing a bro#en window, however, might

easily qualify as an everyday repair9 fixing the front door latch might or might not.

(. If the court interpreted it narrowly to uphold its validity, but nonethelessconcluded that windows and door latches are everyday repairs, is this the end of the

matter+ ot necessarily. If the result is that the tenant cannot deal with a breach of the

I-@, the landlord might still be responsible. If he fixed the problems, and tried towithhold the tenant8s security deposit, could he do so+

/. 5aybe. This is a new x with no security deposit statutes. If the lease provides

that it8s the tenant8s responsibility, and if the LL had to step in to avoid building code or

other violations, then presumably he can ta#e the money out of the security deposit. The?A statute might arguably be interpreted as precluding this result, but applying it here

requires discussion of whether the courts are li#ely to limit the landlord8s ability to

enforce such lease provisions.

III. 1roposed Transfer to 1eter

A. Are the statutes applicable+>. Falidity of clause on assignment and subleasing

?. "ublease rather than assignment

As many students noted, the statutes are only applicable to commercial leases.

These statutory provisions are the ?alifornia ones we discussed in class, and they were


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designed to prompt the issues of statutory construction we mentioned. In ?A, the statute

applies only to commercial realty because the legislation was prompted by the desire to

limit Kendallsretroactive effect, and Kendallonly addressed commercial realty.-hat would you conclude from a new urisdiction adopting such legislation+ If

they are simply copying ?alifornia, then they might not want to reach a legislative

udgment on residential leases. Alternatively, the legislature may be intentionallyindicating that it views the residential mar#et differently. If so, how+

If the provisions apply, what then+ The provisions embrace freedom of contract,

and permit blan#et prohibitions on transfer. "o the statute is li#ely not to interfere withthe enforceability of the provision anyway. 5any students argued that the statute

indicates such clauses will only be upheld where they provide a standard for exercise of

the LL8s discretion to refuse consent, and this clause provides no standard. thers argue

that saying the LL can withhold consent for any reason whatsoever is a standard. Igraded the discussion based on presentation of both sides and persuasiveness.

If the statute doesn8t apply, the courts are very li#ely to uphold the clause given

that it is the maority rule for commercial leases, and the close to universal rule for

residential leases.A, however, has a clear out. The clause in the lease only refers to assignments.

The clause will be strictly construed against the drafter. "o all A has to do is change theproposed transfer to a sublease, and she doesn8t need the LL8s consent. @ow does she do

so+ "he has not actually transferred anything at the time of the problem. "he had

wanted to transfer her entire interest, but that would be an assignment. 1eter wishes tohedge his obligations until he clears up his immigration status, but what does that mean+

It could be a condition, or it could be an offer to enter into a lease determinable. The

latter is probably a sublease since A retains a possibility of reverter, but then the common

law mind did not view a possibility of reverter as a substantial interest Is it+ @ow wouldyou advise A to draft the terms of the agreement to give her some security and to insure

it8s a sublease and not an assignment.

). )iscrimination$. Accent discrimination

&. 1rima facie case

(. ood reason+The LL may not have had to state a reason for his refusal consent, but he did. Is it

valid+ This raises two separate issues. ;irst, is it illegal discrimination+ This is actually

a difficult question. "everal cases have raised the issue of whether accent discrimination

in the selection of applicants to be TF weather announcers or )5F employees isdiscrimination. The standard is whether accent serves as a proxy for ethnicity, with some

arguing, for example, that >ritish accents are viewed as cultured while "panish accents

may be viewed less favorably. In this case, the LL is saying that he has troubleunderstanding 1eter, not all %ussians or all people with accents, and he has rented to A,

an immigrant from !astern !urope. The employment cases did not find accent

discrimination in itself to be a violation of Title FII, and the statement here about accentin itself is unli#ely to be actionable.

1eter could also argue that the statement about his accent cloa#s animus for more

general discrimination in the selection of tenants. The problem is that to do so he must be

able to establish a prima facie case. Arguably, the statement itself creates an inference of


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discrimination. -ho would 1eter then compare himself to+ The landlord reects him in

favor of #eeping A on the hoo#. Their circumstances are quite distinct, however. If A

leaves, 1eter applies, is reected again, and a nonaccented, non%ussian is selected,1eter8s chances would be greater.

The landlord, however, could give other reasons at that point for the selection.

;inally, note that the LL might also have to give good reasons to satisfy thecommon law rule applied in Kendallif the urisdiction were to adopt such a rule. The

discussion would be the same, but the legal standard would be different. Kendall

required commercially reasonably reasons, but it8s not clear what such a standard wouldmean in the residential context. The LL may be within his rights selecting a tenant with

whom he feels better able to communicate.

!. 5itigation of damages: If A were to leave, and the LL #ept the place empty

and then sought bac# rent, the duty to mitigate would arise. ote that x are split overwhether to impose such a duty. If they do, and the LL had reected 1eter, he might be

said to have failed to mitigate the loss of rent. BIf he were see#ing future rent, mitigation

would be built into the formula for calculating damages, and accepting or reecting 1eter

would be irrelevant.C

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