UNIVERSITY OF CALIFORNIA HASTINGS COLLEGE OF THE LAW

FINAL EXAMINATION: PROPERTY

COURSE NO. ______Prof. Joseph P. Liu

SPRING SEMESTER MONDAY, MAY 1, 2000

3 QUESTIONS TAKE HOME EXAMINATION TIME: 30 Hours

PICKUP: MONDAY, MAY 1, 9:00 a.m., FACULTY SUPPORT OFFICE DUE: TUESDAY, MAY 2, 2000, 3:00 p.m., FACULTY SUPPORT OFFICE

INSTRUCTIONS: READ CAREFULLY

PICK UP AND DROP OFF. This is a 30-hour take-home examination. You may pick up this examination at the Faculty Support Office in Room 357 on the third floor of the 200 McAllister building, at any time after 9:00 a.m. on Monday, May 1, 2000. Your answers must be turned in to the Faculty Support Office by 3:00 on Tuesday, May 2, 2000. If you miss the deadline, your answer may be treated as if it had not been turned in. So, please budget sufficient extra time (e.g. for transportation, last-minute technical delays, etc., etc.) to make sure that you hand in your answers by the deadline.

GENERAL INSTRUCTIONS. The exam has three questions. The questions are weighted unequally according to the percentages set forth below, so please allocate your time and effort accordingly. Please read each question carefully before answering, paying particular attention to the type of answer that each question is asking for. Please also spend adequate time planning your responses, prior to writing your answers. Clear organization and analysis will do wonders for your answer. To that end, please try to budget some time at the end for reviewing and editing your answers.

RESOURCES. This is a limited open book exam. This means that you may consult the casebook, any outlines or notes, any commercial or third-party outlines, any other books that you have purchased or borrowed. You may not, however, share any copies of such resources with any other students during the course of the exam. In addition, you may not consult any on-line resources such as Westlaw or Lexis. You may not, under any circumstances, consult or communicate with any other individual about either the form or substance of the exam. If there are any ambiguities in either the form or substance of the examination, indicate any assumptions you are making and proceed to answer the question as best you can.

FORMAT, PAGE LIMIT, RELATIVE WEIGHT. Answers should be typed, double spaced, 12-point font with reasonable margins. Place only your identification number on your answers; do not include your name anywhere on the answer. The maximum word limits below will be strictly enforced. At the end of each answer, include the total number of words in the answer (including words in the footnotes, if any) and the method used to calculate that number (e.g. using the word count tool in your word processor, counting a sample page and multiplying, etc.).

LIMIT WEIGHT QUESTION 1: 1800 Words 50% QUESTION 2: 1200 Words 35% QUESTION 3: 900 Words 15%

These word limits are maximum limits. Of course, you may choose to use fewer than the maximum words. (But you cannot “save” words from one question to use for another.) It may be that you will be unable to say all you want to say within the existing word limits. If this is the case, then you will need to make judgments about the relative importance of the points you wish to make.

JURISDICTION. The jurisdiction for the questions below has been kept intentionally ambiguous. For certain legal issues, jurisdictions may differ as to the applicable rule. If this is the case, and if the question itself does not tell you to adopt a particular rule, note that the jurisdictions differ and apply the majority rule. You will get extra points if you also note the results under the alternative rules.

CASE CITATIONS. You needn’t refer to any cases by name in any of your answers, unless the question specifically asks for such. A perfectly excellent answer can be turned in without mentioning a single case by name. However, if you do wish to refer to any cases (whether for support, as an example, or as a short-hand for a particular legal rule), simply write the case name or a recognizable abbreviation. Do not cite any cases that are not in the case book – this exam does not require any additional research; rather, it tests how well you have mastered the legal materials that have been assigned to read during the course.

Good luck! QUESTION 1 (50%):

You are a junior associate at a mid-sized law firm in a large city. One evening, just as you are preparing to leave the office, your phone rings. A partner is on the other end of the line. She says that a client of hers will be coming into the office tomorrow morning. The client appears to be engaged in some kind of property dispute with a number of his neighbors and tenants. Unfortunately, the partner is going to be in court tomorrow morning and will be unable to meet with the client. However, she would like you to meet with the client and find out the nature of the dispute. She would also like you to draft a short memo for her, outlining any legal claims that the client could possibly have against other parties or that the other parties could probably bring against him, along with your preliminary assessment of the likelihood of success of any of these claims.

The next morning, you meet with the client and find out the following information:

The client, James Callahan, owns a house set in a suburban subdivision. He lives on the first two floors of the house and rents the third and fourth floors to tenants. The south portion of his lot borders on Main Street. To the west of his lot lies property owned by his neighbor Phillip Worly; to the east, lies property owned by his neighbor Cheryl Evans; and behind and to the north lies property owned by his neighbor Sandra Norton.

The client, Callahan, is an accomplished sculptor, specializing in large scale works made of wood and metal. He uses the first floor of the house as a studio. He fashions many of the pieces for his sculptures in his studio, using various types of woodworking and metalworking machinery. The machinery can sometimes be noisy. However, Callahan is careful to limit operation of the machinery to only a few hours every day, almost always during daylight hours. Because the sculptures are so large, he assembles many of them in his backyard. Accordingly, his backyard is often littered with pieces of works in various stages of assembly. In addition, when he assembles the pieces in his backyard, sometimes he needs to shape the pieces as he assembles them, which sometimes causes sawdust and sparks to fly into the air.

Callahan’s neighbor to the west, Phillip Worly, has complained to Callahan on a number of occasions about the noise from Callahan’s studio and backyard. Worly is a psychiatrist and works out of an office in his home. He often sees patients during the day, and has done so for many years before Callahan moved next door. He has noticed that, during his sessions with his patients, they have occasionally been startled and distracted by the noise coming from Callahan’s studio and backyard, making it difficult for them to concentrate. He is convinced that this is making it more difficult for him to help his patients. Worly has also complained to Callahan about the sawdust that occasionally drifts onto his property, coating his patio furniture. Worly is increasingly becoming more and more upset with the situation, and has demanded that Callahan reduce the noise (or at least install soundproofing) and prevent the sawdust from drifting onto his property. Callahan indicated that he cannot keep down the noise, is unwilling to pay the substantial expense of soundproofing, and cannot easily keep all of the sawdust from staying on his property.

Relations between Callahan and his neighbor to the east have been rather more cordial, at least until recently. When Callahan first considered purchasing the property in 1998, he had the property resurveyed and noticed that the paved driveway abutting the eastern side of his house and providing access to his backyard actually overlapped onto his eastern neighbor’s, Cheryl Evans’s, property by 3 feet. If the driveway were narrowed so as to rest only on his land, Callahan would not be able to drive a truck large enough to enable him to easily move his sculptures from his backyard to the street and then to the galleries. Moreover, because the house is even closer to the lot line on the western side, it would be impossible to construct an adequate driveway on the other side of the building (and there is no access to the north). When Callahan brought this to the attention of Evans back in 1998, she recalled that the driveway had been paved by former owners sometime in 1991, though it was used prior to that time as a rough, dirt driveway of uncertain width. Moreover, she was unaware that it overlapped onto her land. When Callahan offered to purchase a right of way to use the strip of land, Evans brushed the offer aside and said that she would be happy to permit Callahan to continue to use the property as long as he wanted. As a result of this conversation, Callahan proceeded to purchase the property and moved in the equipment he needed for his work.

Several months ago, however, relations between Evans and Callahan began to sour. When asked why relations began to sour, Callahan would not explain, saying only that it was “personal”. In any event, as a result of the deterioration of the relationship between Evans and Callahan, Evans has indicated that she is withdrawing her earlier permission to use the strip of property on which the driveway overlaps. Callahan is very concerned, because without that strip of land, the driveway will be too narrow and he will be prevented from using it to move his heavy sculptures from his backyard. (You may be interested to know that the jurisdiction has a 10-year period for claims of adverse possession).

Callahan is also in the midst of a dispute with his neighbor to the north, Sandra Norton. Norton’s property rests uphill from Callahan’s property. A retaining wall at the edge of Callahan’s property provides support to the land uphill from his backyard. When Callahan purchased the property, a title search revealed that the prior owners of Callahan’s and Norton’s properties had entered into a single covenant, which contained the following language: “The owner [of Callahan’s property] hereby covenants and agrees to construct and maintain a retaining wall on the northernmost edge of said property, sufficient to support any buildings on the adjacent land. This covenant is intended to bind, and inure to the benefit of, future owners of the respective properties.” Last month, Norton began to construct a swimming pool on the southern edge of her property. During the construction of the swimming pool, Callahan noticed that the retaining wall had begun to show signs of stress, which he attributed to the additional load caused by the swimming pool. Callahan demanded that Norton stop construction and pay to reinforce the wall. Norton has refused, arguing that Callahan is responsible for maintaining the wall. As if all of the above weren’t enough, Callahan has also recently had trouble with his upstairs tenants, Jack Tillman (3rd floor) and Janet Talley (4th floor). Tillman occupies the third floor unit under an oral, month-to-month lease. Two months ago, Tillman complained to Callahan about damage caused to his apartment from the fourth floor apartment occupied by Talley. Talley, with Callahan’s permission, employed a contractor to remove a wall in her apartment. The removal of the wall, however, caused large cracks to appear in the ceiling of Tillman’s bedroom. As a result, Tillman has been afraid to sleep in his bedroom. Callahan, however, has been too preoccupied with the other disputes to do anything about these complaints. Last month, Tillman refused to pay rent, indicating that he was withholding rent because of Callahan’s failure to do anything about the crack in the ceiling. Given the above, Callahan decided that now was a good time for him to end Tillman’s tenancy and expand into the third floor, as he had always eventually intended to do. This was a particularly good time, because he was beginning to run out of room on the first two floors, given the success of his sculpting. At the same time, Callahan would like to recover the back rent that he is owed.

The other tenant, Janet Talley, occupies the fourth floor apartment under a written, year-long lease, which is scheduled to end in October of this year. Talley, however, has indicated that she has received a terrific job offer in another city, and is intending to move in June. Although Callahan would like to expand into the third floor space, he would prefer to keep renting the fourth floor in order to receive income to help pay his mortgage. Accordingly, he refused Talley’s request to be let out of the lease. Although Talley proposed subletting the property to a friend of hers for the upcoming period, Callahan refused to accept the sublessor, pointing to a clause in the lease which reads “Tenant may not sublease or assign the apartment without the express written consent of the landlord.” Callahan told Talley that he needed this clause because, his sculpting requires intense concentration and he must have absolute control over who lives in the house in order to ensure that he can do his work. Callahan rejected Talley’s proposed sublessor because the sublessor was a concert cellist, and Callahan was concerned that noise from practicing might disturb his concentration. Talley, however, has indicated that she intends, in any event, to sublet the property and move out next month.

To add to Callahan’s list of miseries, two weeks ago Callahan received a letter from the homeowner’s association for his residential subdivision. The letter indicated that the association had received a complaint from an unnamed homeowner (Callahan suspects Phillip Worly, his neighbor to the west) about the sculptures in his backyard. The association’s letter pointed to a restriction in the master plan for the subdivision, which requires homeowners to “adequately maintain the appearance” of their front and backyards. The association’s letter also indicated that it had been informed (again Callahan suspected Worly) that Callahan had rented two of the floors of his house to tenants. The association directed Callahan’s attention to a provision in the master plan that provided that “in order to maintain the stability and high-class nature of the subdivision, no owner of the land subject to this master plan shall rent all or part of the property to any tenant without the written consent of the homeowner’s association.” The association demanded that Callahan abide by these restrictions. According to Callahan, his particular deed does not mention any of the restrictions in the master plan (nor do any other of the deeds in his chain of title), although he has since found out that nearly all of the other lots in the subdivision reference the master plan.

Two days ago, Callahan received yet another letter, this time from an individual named Bob Harrison. Bob Harrison was apparently the son of Abel Harrison (now deceased), who owned Callahan’s property approximately 30 years ago. Abel Harrison conveyed the property to James Wilcox in 1981. Wilcox then sold the property to Callahan in 1998. When Callahan had the title search conducted on the property, he found in the deed from Abel Harrison to Wilcox the following language: “I Abel Harrison, hereby convey the above described property to James Wilcox for the consideration set forth below, to use as a residence. If, however, the property is ever used for non-residential purposes, then the property shall automatically be transferred to my son, Bob Harrison.” During the purchase of the property, Callahan’s lawyer advised him not to worry about the restriction, since it was likely not enforceable. In the letter, however, Bob Harrison claims that Callahan’s use of the property as an artist’s studio violates the terms of the grant, and that Harrison therefore has a claim to the property. Callahan wants to know what his rights are.

Finally, Callahan is embroiled in a dispute with the local zoning board. The zoning board recently expressed concern that residential property owners were increasingly using their homes as offices for small businesses. In particular, the board was concerned that this type of use would result in increased traffic and parking problems, disturbing the peace of other home owners. The then-existing zoning codes prohibited “industrial and commercial uses” of residentially zoned areas, but did not expressly mention home businesses or home offices. To clarify this, the zoning board amended the existing zoning for residentially zoned areas to prohibit “industrial and commercial uses, including the use of a residence as a primary office or primary place of business.” Callahan is concerned that his sculpture studio may be excluded under the zoning regulations.

Draft a memo to the partner identifying the various claims that Callahan may be able to assert against any of the individuals mentioned above, as well as any claims that Callahan may have to defend against from these individuals. Also make an initial assessment of the likelihood that any of these claims might be successful. If there is any additional specific information that you will need in order to make your assessment, identify that information in your analysis and indicate how it would affect this analysis. (You can assume that the partner will already be familiar with the above facts, after reading your detailed notes of the interview, so there is no need to include a separate section summarizing the above facts). QUESTION 2 (35%):

You are a justice on the State Supreme Court. You have before you a case with the following undisputed facts, as presented to the trial court below:

Phillip and Cindy Paretti own a piece of property in the hills, approximately 60 miles outside a nearby city. The Parettis have lived there since 1970, and were one of the first families to build a house in that area. Until recently, the property in the area had been relatively undeveloped, largely because of its distance from the city. Both of the Parettis are writers and for many years enjoyed the relative isolation of their property. They also enjoyed the spectacular views of the valley, the city, and the harbor in the distance. In fact, they so enjoyed the views that they built the house to take full advantage of the view, with huge picture windows and expansive decks on the south side of the house, facing the view. Although there are a few other homes in the area, they are spaced relatively widely apart and are separated by many trees.

In recent years, however, the population of the nearby city has increased and city residents have begun to look farther and farther out from the city for housing. As a result, the hilly area in which the Parettis live has seen increased development. The area has been especially popular because of the beautiful views. Two years ago, a developer purchased a large tract of land immediately to the south of , and below, the Parettis’ property. The developer subdivided the land into 50 lots, and began to build a number large houses on the subdivision. The developer built a particularly large house on the lot immediately below and to the south of the Parettis’ property. The house had the effect of substantially blocking the view that the Parettis once enjoyed. Now, instead of an expansive 180-degree view, the Parettis have only approximately a 20-degree view of the valley, city, and harbor to the south.

During the early construction of the house, the Parettis complained to the developer about the size and placement of the house. Although the new house could easily have been placed differently on the lot, so as to minimize the blockage, the developer cited the slightly increased costs that he would have to incur in so doing. Although the Parettis offered to pay for these costs, the developer said he was simply too busy to deal with the hassle. Moreover, the developer stated, the size and placement of the house was in accordance with the applicable zoning laws. Accordingly, the developer ignored the Parettis’ protests and finished building the house. The effect, as was later documented by undisputed evidence before the trial court, was to reduce the market value of the Parettis’ property by at least 20 percent.

The Parettis filed suit against the developer, seeking damages and an injunction requiring that the house be torn down or that its top floor be removed. The trial court granted summary judgment to the developer. In so doing, the trial court applied the traditional common law rule, which provided that, in the absence of any agreements or contrary laws, property owners do not generally have any right to light and air over adjoining property. The court also ruled, as an alternative basis for summary judgment, that in any event, the developer had not acted unreasonably in building the house. The intermediate appellate court affirmed, and the Parettis have now appealed to the state Supreme Court. Some initial research performed by your law clerk has indicated that, although the lower courts have generally followed the traditional common law rule, that rule was adopted by the state Supreme Court in a number of extremely old cases, and the Court has not addressed this issue in more than 100 years.

After reading the briefs, hearing oral argument, and conferring with the other justices, a majority of the justices (of which you are a member) have tentatively agreed on a resolution of the case, and you have been assigned the task of drafting the majority opinion. Draft that opinion. In so doing, pay particular attention to the rule of law you are adopting and the various policy justifications for that rule. Because the issue has not been addressed in many years, you feel the need to justify the result with a comprehensive opinion, carefully setting forth the various policy arguments. In addition, you expect that there will be a sharp dissent in the case, so you will need to anticipate its position and explain why the result adopted by the majority is superior to other possible alternatives. (For now, you needn’t draft a separate section summarizing the above facts or the procedural posture of the case, since your law clerk will help you draft that later.). QUESTION 3 (15%)

You are you (and not a junior associate or a supreme court justice) – a first year law student at Hastings who is almost finished with the first year. One of the main aims of this first-year property law course has been to lead you to view property rights, not as abstract and absolute rights, but as legal constructs created and regulated by the state to address particular social problems and to mediate between competing societal claims and interests. In nearly every area of property law, we have seen that the rights of property owners (to exclude, to use, to transfer, etc.) are restricted and regulated to take account of such competing claims and interests.

For this essay, choose one (and only one) of the substantive property law areas listed below. Identify and discuss the competing interests implicated by that area of property law. (For example, for the trespass topic, discuss the interest that property owners have in excluding unwanted individuals from their property, as well as the interest that members of the public have in being able to access public spaces). Describe how property law doctrines currently resolve or balance those interests, using concrete examples of cases and/or statutes that we have read during this past term. Finally, provide your own assessment of how well you think property law doctrines in fact balance the competing interests in that particular area. If you find property law currently unsatisfactory, propose a better resolution and explain why you feel that it is better.

Choose only one of the following areas:

A. Trespass law and the limits on the right to exclude (the right to exclude vs. the right to access)

B. Housing discrimination law and the exemption for small home-owners found in 3603 of the Fair Housing Act (the right to choose tenants vs. the right to be free from discrimination)

C. Future interests and restrictions on such (e.g. the rule against perpetuities and other similar limits) (the right to control future use of property vs. the right to be free from dead hand control)