These Examination Questions Must Be Returned at the End of the Examination

STUDENT I.D. #

THESE EXAMINATION QUESTIONS MUST BE RETURNED AT THE END OF THE EXAMINATION.

SANTA CLARA UNIVERSITY SCHOOL OF LAW MIDTERM EXAMINATION

PROPERTY 104 DECEMBER 3, 1998 PROFESSOR CARBONE FALL SEMESTER 3 AND 2 HOURS

THE EXAMINATION RULES STATED IN THE STUDENT HANDBOOK APPLY TO THIS EXAMINATION.

INSTRUCTIONS: This exam consists of two parts. Part I consists of 2 essay questions. You may also allocate your time as you like, but the credit given will be proportional to the time allowed. (A half hour is allocated to reading the questions.) This is closed book exam.

PART I (2 hours)

INSTRUCTIONS FOR PART I ONLY:

1. You are in the State of Misery, a mythical jurisdiction in which there is very little law and in which the courts are influenced by precedents from other states. The courts in the state have never ruled on the implied warranty of habitability, but most urban areas have passed ordinances adopting it as part of their housing codes. The State is part of the United States and as such is subject to federal laws barring discrimination on the basis of Arace, color, religion, sex, familial status, or national origin.@ The statute of limitations for actions in ejectment is seven years, except that the statute of limitations for actions brought under color of title is five years.

2. Unless you are typing the exam, please write your answers in the blue books provided. Write on every other line and on every other page. (I.e., do not write on the backs of the pages. The ink shows through.) Begin each question in a separate bluebook. Write your student I.D. on the exam and on the outside of each bluebook.

1 QUESTION I (45 min.)

In July 1988, Eddie, tired of the corporate rat race, talks his wife into joining him on a farm in the country. Eddie and Eva obtain a deed conveying title to land described as ABEF on the map below. Eddie and Eva live in the farmhouse on the property and grow strawberries up to the small ravine marked by the squiggly line noted as CD on the map below. The land on the other side of the ravine (CDEF) has never been cleared, and Eddie and Eva do not use that portion of the property, though they occasionally pick and eat the wild raspberries growing on a few bushes on the other side of the ravine from their house. After five years of farm life, Eva misses the big city and talks Eddie into moving back. They leave the farm in September 1993. Eddie harbors thoughts of returning, however, and rather than sell the property, he leases the farm to Terry in February, 1994. At the time the lease begins there is still snow on the ground, but after the snow melts, Terry discovers a dense covering of raspberries bushes growing in the area to the right of the ravine. That year, Terry grows corn on the rest of the property, but the raspberries seem so much hardier than the corn that he harvests and sells some of the raspberries, and decides to concentrate exclusively on raspberries during the summer of 1995. Without mentioning it to Eddie, he fills in and levels the ravine, and encourages the spread of the original raspberry plants over the entire area (that is, all of ABEF except for the area immediately around the farmhouse). In May 1998, Terry, proud of his farming success, invites Kimble, the county agent, to test the raspberries. He discovers that the raspberries have been genetically engineered, and that they are more resistant to frost, disease, and drought than any other known variety. The Nabors learn of Kimble=s findings and produce a valid deed to the area marked CDGH on the attached map. The Nabors retain you to protect their interest in the property. They inform you that: 1) they can prove that Eddie and Eva=s original deed is invalid; 2) they (the Nabors) have lived in the area marked EFGH on the map for the last twelve years, but they have no memory of ever using the CDEF area, and they always thought that their land stopped at EF; 3) they have located a surveyor who was able to trace the CD boundary from the county records twenty years ago, but the markers that established the boundary (the squiggly line on the map) were buried when Terry filled in the ravine, and it may now be impossible to establish the precise location of the boundary line; and 4) they have learned that Eddie and Eva grew genetically engineered strawberries on the farm in 1988 and 1989, and they believe that cross-pollination of the strawberries with the wild raspberries growing in the area has produced a superior new variety of raspberries.

Advise the Nabors whether you believe that Eddie and Eva are likely to prevail in their claims to any of the land in the area.

2 QUESTION II (1hr. 15 min.)

Eddie and Eva settle the dispute with the neighbors and have title to ABEF. Terry, still in possession of the land, but tired of the dispute, enters into a one year lease with Oliver, effective June 1, 1998. The summer of 1998 is unusually wet. The farmhouse basement floods during the frequent rains, partly because the old farmhouse needs fixing and partly because the ravine used to carry away excess water and no longer does. Oliver complains repeatedly to Eddie and Eva, but to no avail. Finally, in August of 1998, Oliver withholds rent.

Eddie and Eva retain you as their attorney. They inform you they entered into a two year lease with Terry in March 1993 with the following provisions:

1. This lease is a lease of commercial farmland for agricultural purposes. Tenant may use the residence located on the premises, but any residential use is incidental to the main purpose of the lease and will not change its commercial character.

2. Tenant may not assign the premises.

3. Tenant assumes responsibility for all repairs and maintenance.

4. This lease is conditional on payment of a security deposit equal to two months rent.

Eddie and Eva also tell you that when the original lease expired in March 1995 that Terry simply continued paying the monthly rent without a new lease. They did not learn of Terry=s lease with Oliver until recently, but they have accepted rent checks from Oliver since June. They tell you that if Terry had asked their permission before signing the lease with Oliver, they would not have approved because they were thinking of selling the property.

Advise Eddie and Eva 1) whether they have grounds to evict Oliver; 2) any defenses that may be raised to an eviction action and their prospects for prevailing; 3) whether they can withhold the security deposit as compensation for the failure to repair the damage caused by the basement flooding, the failure to repair the house to prevent the flooding, or the costs of restoring the ravine to its original condition. [You learn independently, however, that the property is worth more without the ravine than with it.]

END OF PART I