University of California

UNIVERSITY OF CALIFORNIA HASTINGS COLLEGE OF THE LAW

FINAL EXAMINATION: REAL PROPERTY (COURSE NO. ______)

PROFESSOR JOSEPH P. LIU

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SPRING SEMESTER 2001

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3 QUESTIONS TAKE HOME EXAMINATION

TOTAL TIME: 30 Hours

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PICKUP: MONDAY, APRIL 30, 9:00 a.m., RECORDS OFFICE DUE: TUESDAY, MAY 1, 3:00 p.m., RECORDS 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 Records Office in room 208 on the second floor of the 200 McAllister building, at any time after 9:00 a.m. on Monday, April 30, 2001. Your answers must be turned in to the Records Office by 3:00 p.m. on Tuesday, May 1, 2001. 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 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

1 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 or the World Wide Web. 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, do not discuss the exam with anyone else; instead, 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), as determined by the word count tool on your word processor.

LIMIT WEIGHT QUESTION 1: 2000 Words 40% QUESTION 2: 1200 Words 30% QUESTION 3: 1200 Words 30%

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

2 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 (and conducting such additional research will probably serve only to confuse you); rather, this exam tests how well you have mastered the legal materials that have been assigned to read during the course.

Good luck!

3 QUESTION 1 (40%): (1800 WORDS)

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. He says that a client of his will be coming into the office tomorrow morning. The client appears to be engaged in some kind of property dispute. Unfortunately, the partner is going to be out of town tomorrow morning and will be unable to meet with the client. However, he would like you to meet with the client and find out the nature of the legal issues facing the client. He would also like you to draft a short memo for him, outlining any legal claims that the client could possibly have against other parties or that the other parties could possibly bring against the client, 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:

Susan Caswell, the client, is a successful African- American businesswoman who owns a number of residential properties, which she rents to various families and individuals. Initially, Caswell began purchasing these properties and renting them out in order to supplement her primary income, but over the years, she has acquired more and more properties and today earns most of her income through the rental of these properties. Over the last several months, a number of potential disputes have arisen between Caswell and her tenants and neighbors.

One of Caswell’s residential properties is a 2-bedroom condominium unit (Unit 5A) in an apartment building located at 151 Cedar Street. Caswell purchased the unit in 1995 but has never lived in the unit. Instead, she has rented it out to various tenants over that time period. Until recently, she has never had any problems with any of the tenants. Her string of good fortune, however, has ended with her latest tenant, Roger Abrams.

Abrams first rented the unit on July 1, 2000. Abrams and Caswell entered into a one-year lease, which automatically renewed for successive one-year terms, unless either party gave the other 30 days notice of intent not to

4 renew. The rent was due in monthly payments of $1200. The lease contained a clause that requires Caswell to abide by the bylaws of the condominium association.

Almost immediately after signing the lease, Abrams began to withhold a portion of his rent. Abrams constantly complained about various aspects of the condominium unit which he felt were sub-par. In particular, Abrams complained that the paint was flecking on the walls of the bathroom, that there were water stains on the ceiling of the bathroom, and that at least once a week there was insufficient hot water in the morning for a shower longer than 10 minutes. He also complained that the upstairs neighbor played his stereo late at night (until 3 a.m.) so loudly in the room above Abrams’s bedroom that he was forced to sleep in the living room. As a result, Abrams began withholding approximately half of his monthly rent.

Caswell initially fixed a number of the complaints, repainting the walls and fixing the water stains. However, Caswell felt that she should not be responsible for the intermittent lack of hot water in the morning, or the noise from the upstairs neighbor. Moreover, as Abrams increasingly raised new and in her mind rather baseless complaints (e.g. demanding that old refrigerator be replaced, even though it was perfectly serviceable), Caswell began to suspect that Abrams was raising complaints simply in order to withhold rent. Caswell would thus like to remove Abrams at the earliest opportunity.

In addition to withholding rent, Abrams has also engaged in activity that has brought unfavorable attention from the condominium association. In particular, Abrams is a painter and, although he has a studio downtown, he also likes to paint when he is at home. Because the condominium unit is not terribly large, Abrams paints on the balcony outside his unit (which is on the 5th floor of the apartment building). The balcony is part of the condominium unit.

Other condominium unit owners have complained to both Caswell and the association that the painting supplies left out on the balcony (e.g. paint tubes, partially finished canvasses, paint-spattered easels, jars of paint thinner, etc.) are an eyesore. The association has complained to Caswell, and Caswell has relayed these complaints to

5 Abrams. However, Abrams has refused to do anything about the complaints.

At the time Caswell rented the condominium unit to Abrams, the bylaws for the condominium contained no express restrictions on the use of the balconies. Instead, there was only a general restriction on use of the unit, barring any “unreasonable” use of the property that disturbed the quiet enjoyment of the property of others. However, after receiving complaints about Abrams’s use of the balcony, the association board passed a new bylaw that required all of the residents of the condominium to maintain their balconies in a “visually pleasing” manner, and that restricted the use of the balconies by barring storage of any materials on the balcony, other than patio furniture. The association has now demanded that Caswell stop Abrams from painting on the balcony. Although Caswell is not terribly sympathetic to Abrams, she is concerned that this particular restriction is too severe and will make the premises less desirable to future renters.

Despite the problems she has been having with Abrams, the unit in the apartment building had in the past been a very profitable property and Abrams has always kept an eye out for opportunities to purchase new units in the building. In February of 2001, a neighboring unit, 5B, was put up for sale. Caswell approached the unit’s owner, Charles Eggleston, and in March of 2001 entered into an agreement to purchase the unit, to be effective June 1, 2001. The condominium association, however, exercised an option in the condominium declaration (which was referenced by the deeds to all of the condominium units), which provided that, upon receipt of a bona fide offer to purchase any unit in the condominium, the unit owner had to notify the association, and the association would have 30 days in which to decide whether to purchase the unit on the same terms and conditions. The association exercised this option and purchased the unit. It then sold the unit a month later to a man named Matthew Johnson.

When Caswell asked why the association had effectively blocked her purchase of the unit, the chairman of the association board stated that they exercised the option because they were concerned that too many of the units in the condominium were being rented out and not occupied by the owners. However, Caswell recently received an anonymous letter from an individual purporting to be a

6 member of the condominium association, which stated that during the meeting of the association board, one of the association board members had made statements which could be interpreted to be racist. The statement was “We don’t need any more of her kind owning units in this building.” The man who ultimately purchased the unit from the association, Matthew Johnson, is white.

In addition to the unit in the apartment building on Cedar Street, Caswell owns a house located at 686 Willow Street. The house faces west onto Willow Street and has three floors. Caswell purchased the house in July of 1996. Behind the house is a very nice garden and a medium-sized swimming pool. The house is located near the University, and Caswell rents the apartments primarily to college students. Originally, Caswell rented the entire house out to larger groups of college students. However, in July of 1999, Caswell converted the house from a single-family house to a three-family house, with each floor as a separate, 2-bedroom apartment.

The house is located in a residential subdivision. Although most of the houses were originally owner occupied, nearly all of them have been subsequently converted to rental units for students attending the University. When Caswell purchased the property in 1996, the subdivision was zoned as a residential district, with strict maximum height and minimum setback requirements for buildings built in that district. The effect of the zoning was to limit the buildings to free-standing houses, and to prevent large apartment buildings from being built.

In addition, almost all of the deeds for property in the subdivision reference certain restrictive covenants found in the master plan for the subdivision. The master plan, which was filed when the subdivision was developed in the 1920s and predates the zoning code, contained the following provision: “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; nor shall any owner of land subject to this master plan build any structure exceeding 7 stories.”

In response to increased crowding and a severe shortage of student housing in the area, the local zoning board recently rezoned the district to permit apartment

7 buildings up to a height of 8 stories and to permit structures to be built much more closely to the property line. Moreover, the zoning ordinance expressly abrogated and made unenforceable any preexisting real covenants that limited the height of buildings built upon property subject to the zoning.

A real estate developer, Carla Darwood, recently purchased the lot immediately to the south of Caswell’s property. The developer has plans to build an 8-storey apartment building on that lot. The apartment building would have been barred by the prior zoning regulations, but would comply with the new zoning regulations as recently amended. Furthermore, when finished, the apartment building will cast a substantial shadow over the backyard of Caswell’s property, rendering the garden and swimming pool far less useful. The developer has just begun to start construction on the project.

Caswell has spoken to the real estate developer and asked her to take steps to ease the blockage of light, by for example redesigning the building so that it is not built so closely to the lot line. Caswell also notified the developer of the restrictions in the master plan. The developer, however, has refused to make any changes in the design of the apartment building. Furthermore, the developer indicated that a title search on her property revealed no references to the master plan for the subdivision, and therefore she was not subject to the restrictions, even if they hadn’t been abrogated by the new zoning ordinance.

In addition to the dispute with the real estate developer, Caswell is also in a dispute with the neighbor to the north, John Norton. Shortly after Caswell purchased the Willow Street property in 1996, Norton approached Caswell with a proposal. Both Caswell’s lot and Norton’s lots each had paved driveways on the northern edge of their respective lots, leading to free standing garages located behind their respective houses. Norton wished to make a number of modifications to his house, which involved eliminating the driveway on the north end of his property. Norton wanted to relocate his garage to the south of his property, and purchase from Caswell a right of way over her driveway in order to reach his garage.

8 Caswell agreed, and in exchange for a significant sum, Caswell granted Norton an easement which was duly recorded and stated: “Grantor hereby grants to grantee an easement and right-of-way over grantor’s driveway to grantee’s garage, to have and to hold unto the said grantee, his heirs and assigns forever.” Norton then moved his garage to the southern edge of his property and paved a branch of the driveway over his property, from Caswell’s driveway to his garage. For the next couple of years, Norton used the right of way in order to reach his garage, and both Norton and Caswell used the driveway in a harmonious fashion.

Sometime in 1998, Norton converted his home into a rental property and divided the house into three separate apartments. As a result of the division of Norton’s house into apartments, the number of cars passing over Caswell’s driveway increased. Whereas Norton had only owned two cars, the individuals now renting the apartments collectively owned up to five or six cars. Moreover, at times, when the residents of the house had visitors, these visitors would park in the driveway and block access to Caswell’s garage. Caswell’s tenants have begun to complain about the increased use of the driveway.

Finally, in addition to the properties already described above, Caswell owns, along with her sister Selena Caswell, a house located at 258 Elm Street. Unlike the other properties, the Elm Street house is not a rental property. Caswell’s grandmother, Jennifer Garrison, left the house in her will to Caswell and her sister Selena Caswell in 1995, as tenants in common. The original grant of the property from their grandmother contained the following language: “I hereby grant [the house] to my granddaughters Susan Caswell and Selena Caswell, as tenants in common, for use as a residence for one or both of them. If, however, the property should ever be used for a commercial or profit-making purpose, then the property shall immediately be transferred to my grand-nephew Charles Needham.”

Although both Susan and Selena both lived in the house from 1995 to 1998, in 1999, Susan and Selena had a falling out over the future use of the house. Susan wanted to move out of the house and rent it out to tenants. Selena, however, wanted to stay in the house and was greatly upset by the prospect of strangers living in a home that had been part of the family for generations. Arguments between

9 Susan and Selena grew increasingly heated, at which point Susan moved out in January of 2000. Selena and Susan are currently not speaking with each other. Susan, however, still wishes to derive some financial benefit from the house and would like to know what her options are.

Draft a memo to the partner identifying the various claims that Caswell may be able to assert against any of the individuals mentioned above, as well as any claims that Caswell 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).

10 QUESTION 2 (30%): (1200 WORDS)

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:

A large shopping mall is located in the downtown area of the city of Springfield. It is connected to the subway and thus forms a pathroad for visitors going from home to work. This past winter, a dozen homeless persons began spending time inside the mall. The mall is huge, with three very large floors and dozens of stores. The mall can accommodate hundreds of customers. The homeless persons entered the mall to escape the bitter cold, snow, and ice on the streets of the city.

Some customers began to complain to the management at the mall that they felt uncomfortable entering the mall to shop because of the presence of the homeless people. The customers’ discomfort came from the disheveled appearance of the homeless persons and the worry that some of them are afflicted with mental illness. No customers were accosted or even approached by a homeless person while at the mall. Nonetheless, the mall manager believed that the presence of homeless people in the mall caused some potential customers to avoid shopping there. To remedy this problem, the management developed a policy that persons who appear to be homeless would be asked to leave the mall.

One of the excluded told his story to the manager of a shelter for homeless people in downtown Springfield. The shelter contacted a lawyer who filed a pro bono lawsuit on behalf of five homeless persons excluded from the mall. Plaintiffs asked the court for (a) a declaratory judgment stating that plaintiffs had a right of reasonable access to defendant mall and that the mall could not exclude them simply because of their appearance; and (b) an injunction ordering the mall to stop interfering with the plaintiffs’ rights to enter the mall.

After a bench trial, the trial court entered judgment for the plaintiffs. In so doing, the trial court noted that under the common law of the State, only innkeepers and common carriers had an obligation to serve the public without discrimination. However, the trial court extended this obligation to all businesses open to the public, so

11 that now all such businesses can only exclude members of the public if they have a legitimate reason for doing so. The trial court further found that, based on the undisputed factual record, the exclusion of the homeless plaintiffs in this case was unreasonable.

The Store appealed, and the intermediate appellate court reversed. Reiterating the traditional common law rule that the obligation to serve the public without discrimination applied only to innkeepers and common carriers, the court refused to extend the rule to all businesses open to the public. The court also rejected the alternative argument made by plaintiffs that, even if the obligation did not extend to all businesses open to the public, it should at the very least extend to shopping malls. Although it did not have to, the intermediate appellate court further held that, even if such an obligation applied to shopping malls or all businesses open to the public, the mall in this case had legitimate reasons for excluding the plaintiffs.

The plaintiffs 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 (i.e. applying the obligation to serve the public only to innkeepers and common carriers), 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

12 procedural posture of the case, since your law clerk will help you draft that later.).

13 QUESTION 3 (30%): (1200 WORDS)

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. For this essay, give me your view of the law of adverse possession. Identify and discuss the competing interests implicated by that area of property law. Describe how property law doctrines currently resolve or balance those interests. Finally, provide your own assessment of how well you think property law doctrines in fact balance the competing interests in the area of adverse possession. If you find property law currently unsatisfactory, propose a better resolution and explain why you feel that it is better.