BOSTON COLLEGE LAW SCHOOL
FINAL EXAMINATION: PROPERTY LAW
(COURSE NO. LL70903)
PROFESSOR JOSEPH P. LIU
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FALL SEMESTER 2006
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3 QUESTIONS
IN-CLASS EXAMINATION
TOTAL TIME: 3.5 Hours
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DATE: MONDAY, DECEMBER 11, 2006
INSTRUCTIONS: READ CAREFULLY
GENERAL INSTRUCTIONS. The exam has 3 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 wonders for your answer.
RESOURCES. This is an open book exam. This means that you may consult the casebook, any outlines or notes, any commercial or third-party outlines, any other books or articles that you have purchased or borrowed. You may not, however, share any copies of such resources with other students during the course of the exam.
QUESTIONS. The questions in this exam will be given the following weights for purposes of grading. Please allocate your time accordingly:
WEIGHT SUGGESTED TIME*
QUESTION 1: 40% 80 MINUTES
QUESTION 2: 30% 60 MINUTES
QUESTION 3: 30% 60 MINUTES
*Note that the suggested times leave you with an extra 10 minutes to review your answers.
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, to the extent there is one. 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 warrants 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.
Good luck!
QUESTION 1 (40%):
You are a junior associate at a small law firm. 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 needs some advice concerning a number of potential legal issues. Unfortunately, the partner is going to be out of town 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 legal issues facing the client. 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 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:
The client, David Cooper, recently purchased a piece of property in a residential subdivision called Happy Acres. Happy Acres was developed in the late 1970s and consists of approximately 100 homes located in a leafy suburban area within the town of Greenacre. Happy Acres is governed by a homeowners association, and the deeds to all of the lots in the subdivision reference a master deed. Because the schools in the town of Greenacre are quite good, the property values within the subdivision have remained quite high. Almost all of the lots in the subdivision originally had relatively modest, single-family homes on them. In recent years, however, new purchasers have begun tearing down the modest, single-family homes and replacing them with significantly larger homes.
Cooper purchased the house at 150 Elm Street from Susan Sellers as an investment property, never intending to live there. Instead, Cooper planned to tear down the existing, modestly-sized one-storey house, replace it with a much larger three-storey “McMansion” and then re-sell the house for a tidy profit. The new house would have a significantly larger footprint (up to the maximum allowed by the zoning code), leaving very little in the way of a front or back yard. Thus far, Cooper has torn down the old house, but construction on the new house has yet to begin in earnest.
Approximately two weeks ago, the governing board of the homeowners association, in response to resident concerns about the changing nature of the neighborhood, amended the bylaws of the association. Specifically, the association added a provision that barred property owners within the subdivision from re-selling their property for more than 10% above the purchase price within 24-months of the purchase date. In other words, property owners could still sell their property within the 24-month period, but only if the price was less than 10% above their purchase price. The goal of this provision was to deter the practice of “flipping” (i.e. buying and immediately re-selling) the properties within the subdivision.
Cooper’s property sits on the North side of Elm Street (which runs East to West). Cooper’s neighbor to the West, Francis Wagoner, has been a vocal opponent of Cooper’s plans. When Cooper purchased the land, he had a survey conducted and noticed that a paved driveway connecting his garage to Elm Street passed over a corner of Wagoner’s land. A title search revealed no documents concerning the paved driveway. Nevertheless, Cooper’s new plans assumed that he would continue to use the driveway. In fact, he plans to expand the width of the driveway by about 15% to enable larger cars such as SUVs to pass over the driveway. Wagoner has stated, however, that she intends to bar Cooper from passing over her land. According to Wagoner, the paved driveway has been in place since 1995. At that time, the previous owner of Cooper’s property, Susan Sellers, was relocating the garage on her property and sought permission from Wagoner to lay the driveway over the corner of Wagoner’s land. Wagoner gave Sellers her consent, and Sellers used the driveway until the day she sold the property to Cooper.
Cooper’s neighbor to the East, Matt Eaton, has also objected to Cooper’s plans. Eaton alleges that Cooper’s plans violate the terms of a restrictive covenant placed on Cooper’s property. In 1995, Eaton entered into an agreement with Cooper’s predecessor Susan Sellers. Both Eaton and Sellers had been concerned with the pattern of new construction in the neighborhood. (Indeed, these concerns have proven to be well-founded – currently, only about 5 of the 20 houses on Elm Street have not been torn down and rebuilt). Accordingly, they each promised the other not to significantly alter the use of their property. Rather than hire attorneys to formalize these promises, they drafted their own document, titled “Agreement,” which memorialized the promise. The agreement stated, in relevant part: “I Susan Sellers promise not to significantly alter the use of my property.” The document was never filed in the registry of deeds. However, Sellers provided Cooper with a copy of the document during the course of the sale of the property.
Cooper has also entered into a dispute with the town of Greenacre’s local zoning board. The back (i.e. North) end of Cooper’s property is bordered by a small creek. Cooper’s current construction plans anticipate building to within 15 feet of the creek. Several weeks ago, however, the zoning board amended the zoning code to prevent any new construction from occurring within 50 feet of any rivers, streams, or creeks running through the town of Greenacre. The goal of the change in the code was to reduce the damage from flooding, which was a significant problem in the town. Because of the peculiar layout of Cooper’s lot, the effect of the zoning code will be to severely hinder Cooper’s ability to develop the lot. Indeed, any house built in conformance with the new zoning code would be smaller than the house that Cooper tore down and would have to be designed with an awkward layout, which Cooper believes would make it impossible to sell. If the zoning code change is effective, Cooper says he will simply stop construction and leave the lot vacant.
Finally, Cooper recently received notice from Deborah Simons, the daughter of Susan Sellers (the prior owner who sold the property to Cooper). Simons claims that she properly owns the property under a restriction in the deed to the property. Susan Sellers had acquired the property originally from her father in 1988. The deed granted Susan “our family home for her personal use, provided that she preserve and maintain the house in its existing condition. If the property fails to be preserved and maintained in its existing condition, then the property shall pass to her children in equal shares.”
Draft a memo for your partner, analyzing any potential claims that Cooper may be able to bring or that others may be able to bring against Cooper, along with your preliminary assessment of the strengths and weaknesses of such claims. 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 (30%):
You are a judge on the State Supreme Court. You have before you a case with the following undisputed facts, as presented to the trial court below:
The plaintiff, Roger Pak, owns a piece of property in the town of Elmwood, which is located in a relatively remote part of the state, near the Northern border. Pak’s property is located at the very top of a hill, overlooking the ocean to the West. A number of other properties are located below Pak’s property, between his property and the ocean. Approximately 50% of the properties in the area have been developed. Most of these properties are relatively rough cabins, used as summer homes by individuals who live in the city of Belleview, approximately 80 miles to the South of Elmwood.
Pak built the cabin on his property in 1978 and has lived there year-round ever since. A unique feature of the surrounding neighborhood is the strong and unusually consistent wind that blows in from the ocean. Wind speeds in the area average over 15 miles per hour and are remarkably consistent. Indeed, because the wind speeds are among the most consistent in the entire state, they have been the subject of study by climatologists.
As a result of the unusually consistent and strong winds, and also because of the remoteness of the location, nearly all of the cabins in the area, including Pak’s, have deployed wind turbines to help generate electricity. Pak installed a large wind turbine on his property in 1995, and the turbine supplies a significant portion of his electricity needs. About 90% of the developed properties in the area have similar wind turbines. Most of the wind turbines were erected during the early 1990s.
In 2005, the property immediately below and to the West of Pak’s property was purchased by Susan Dennison. The property, which was undeveloped at the time, sits between Pak’s property and the ocean. Dennison made plans to build a large summer home on the property. Because the property was large, Dennison could have sited the house at any of a number of different locations. In order to take full advantage of the view, however, Dennison chose to build on the highest part of the property, which happened to be near the border between her property and Pak’s property.
Pak complained to Dennison that the planned building, due to its location, would have a significantly negative impact on Pak’s ability to generate electricity via his wind turbine. The building would block part of the wind reaching the turbine and also greatly increase the turbulence of the wind, thus reducing the efficiency of the wind turbine. Moving the turbine would be extremely costly. Moreover, even if Pak moved the turbine, he would still not be able to generate nearly as much power as before, largely due to the effect of the house below on wind patterns. Despite these objections, Dennison continued to build. Since construction of the building was completed, Pak has suffered an 80% reduction in the amount of power generated by the wind turbine.
Pak subsequently sued Dennison in state court, alleging common law nuisance. After a trial, the jury found that Dennison’s use of her property was a nuisance under state law. The trial court then awarded Pak damages for the nuisance, but refused to order Dennison to tear down or move her house. Both parties appealed. On appeal, the state appellate court reversed. The appellate court held that, under the state’s precedents, there was no entitlement to access to wind over someone else’s land. Accordingly, there could be no claim of nuisance for blocking the wind. Pak has now appealed that decision to the State Supreme Court. He argues: (1) that the trial court’s nuisance verdict be reinstated; and (2) that the trial court be directed to issue an injunction, ordering Dennison’s building to be moved.
After reading the briefs, hearing oral argument, and conferring with the other justices, a majority of the justices have tentatively agreed on a resolution of the case. However, a minority of the justices disagree with that resolution. You have been assigned the task of drafting the majority opinion. Draft that opinion. Because there is relatively little case law in this area, you feel the need to justify the result with a comprehensive opinion, carefully setting forth the various arguments in support of your conclusion. In addition, you expect that there will be a sharp dissent in this case, so you will need to anticipate its position and explain why the result adopted by the majority is superior to other possible alternatives, from both a doctrinal and policy perspective. (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.).