QUESTION TYPE I: LAWYERING:
PROFESSOR’S COMMENTS & BEST STUDENT ANSWERS
QUESTION IG: COMMENTS: Structure: As I discussed in the review sesion, I was looking for an organized list of specific investigative tasks that you would undertake and some sense of the reasons behind the tasks. The two best student answers both are good examples. Some of you did some of the following tasks that were not very responsive to the question:
Made arguments about whether FN would be successful in possible lawsuits (without determining relevant law and facts)
Listed possibly relevant legal tests without following up with factual questions to see if the facts indicated the tests would be met
Asked "questions" that were simply legal tests in question form, and so were too vague to indicate how you'd go about answering them (e.g., "I'd see if the new by-law was arbitrary" or "I'd check if it would be a public nuisance.")
Proposed settlement alternatives for the parties (you were not asked to prepare for a negotiation).
Substance: An important set of questions you needed to ask concerned the scope of the display and the extent of the harm it caused. Some of you did thoughtful detailed investigation of these issues; others barely mentioned them. You will be unable to determine if her display is a nuisance or if it violates local zoning unless you know how extensive it is and what problems it causes. In addition, I looked for discussion of the following topics:
Homeowners' Association (HOA) Rules: To see if the HOA rules could prevent the lights, you would need to determine what the new by-law said, whether it was passed properly under the HOA's own rules and any state laws, whether the state had any statutory limits on what HOAs could do; whether the state had rules like Nahrstedt; whether the rules were stricter for changes in by-laws than for original declaration, etc.
Many of you spent a long time exploring other possible servitude issues, which I thought was not time well spent. Although I certainly would check the records for other deed restrictions, it is unlikely they are there. If prior covenants prevented the lights, the HOA would not have needed to amend its by-laws; it would just enforce the existing covenants. Some of you also suggested looking for a common scheme, another unlikely possibility. While I can easily imagine a developer planning "residence only," I am skeptical that a developer would intend to create an X-mas-light-free zone. Moreover, how could anybody get inquiry notice of such a restriction? Even just before Xmas it would probably not occur to you that the lack of lights was part of a deliberate scheme.
Nuisance: Legal research would include determining the rules for public and private nuisance that apply in the state, looking for any nuisance cases had addressed holiday displays, determining the relationship between zoning and nuisance liability, and determining if Felice could be liable for actions caused by others (as in Armory Park). Factual research would include determining the scope of the harms caused by the display, determining what other holiday displays were in the area to see if the display was typical or suitable, exploring possible benefits of the display (neighbors who like; any charitable work associated with, etc.). Weaker answers listed nuisance tests, but did not describe what research you would undertake to see if they were met. Incidentally, Professor Mahoney says there are a lot of recent cases in which courts have found traffic-causing holiday displays to be nuisances.
Zoning: We discussed a number of possible attacks on aesthetic zoning. Here, you first should determine whether the zoning in fact governs your client's display and, if it does, what process you would need to go through to get board approval. If approval was unlikely, you would explore whether the municipality's zoning complied with state requirements for zoning generally or aesthetic zoning in particular. You could check caselaw about whether it needs to be tied to property values and how specific it has to be. You also could check if it was conbsistent with the municipality's comprehensive plan. Some of you cleverly suggested checking to see if the displays pre-dated the zoning (it might be a non-conforming use) although because it's taken down each year, this might not fly.
Many of you discussed variance procedures and availability. While I gave a little bit of credit for these discussions, I think that this is an unlikely case for a variance. If the zoning specifically requires board approval for exterior displays, it would be hard to argue that the zoning plan wouldn't be harmed by the variance. Moreover, limiting large Christmas displays is unlikely to drastically reduce the value of the property, so it will be very hard for her to meet any hardship requirements.
Other Possible Topics: You could usefully explore religious discrimination claims against the homeowner's association and first amendment claims against the municipality. As we discussed in class, it is difficult to bring constitutional claims against private parties like the homeowner's association. A few of you cleverly suggested that there might be some kind of prescriptive right that would develop because Felice has been setting up these displays for 15 years; this issue certainly would be worth researching. Some of you researched the records to make sure Felice owned the property. I think this would not be an efficient use of your client's money unless somebody called her ownership into question.
QUESTION IG: BEST STUDENT ANSWER #1
Nuisance
1.What nuisance regime is used in jurisdiction? (affects Liability Rule, Remedy)
2.What else happens in HA? (How different is this)
3.What else happens in local area?
4.How much traffic increase?
· Any accidents
· Any trespass
· Noise
· Traffic law violations
· Times of day effected (worse during rush hour/sleeping time)
5.How many neighbors upset?
· Do these folks complain often? (establish a pattern, use to show "bad" intent)
· Has client ever argued with these neighbors (motive)
· Have these folks told complaint to my client? (potential out-of-ct. agreement, save $)
6.How many kids in subdivision? (Public Benefit?)
7.What notice, if any, did client have other than Pres. of HA? (How free of blame is she?)
Homeowners Assoc. Issues
1.Any master deed, client deed restrictions?
2.Was Amendment to by laws done correctly?
3.How many people affected? (Is this arbitrary).
4.What is makeup (religious) of HA? (If Christians in minority may claim discrimination & goes to arbitrary/unfair)
5.What is makeup of HA board? (Support above)
6.Any evidence of affect on Property Value?
7.Other than traffic, does HA have rational reason for acting?
8.How strict are courts with owners in such HA's? (Will affect any chance in court, client wants to know any way to keep display).
9.Is there a gatehouse to keep traffic out?
10.Can the street be dead-ended if it isn't to stop thru traffic?
11.Is 50 feet a std. length for X-mas lights or will that number hinder efforts to comply? (proof of arbitrary.)
12.What other religious emblems/festive emblems allowed? (Proof of arbitrary.)
13.When did problem arise?
· Only after client added even more stuff.
· Is there a level that is tolerable? (More than 50 ft. but less than as is?)
CoralCity Zoning
1.What are the existing zoning regulations?
2.What is rationale behind them?
3.How many rulings have been made?
· Who is angry (may support client)
· Selective enforcement
· Who is on the board?
· How difficult is it to get permit?
4.Do rules protect "existing character" of the community? Property Values.
5.Are the existing terms of the rules vague?
6.Is there a comprehensive plan in this regard?
7.When were rules made?
8.What is make up (religious) of locality? (Proof of arbitrary/unfair or discrimination)
9.What has happened elsewhere with aesthetic zoning boards with like restriction?
10.What is defined as a decoration?
· How large/small
· Permanent v. Temporary
11.Any established causal link between property value and external decorations.
12.How corrupt is the process?
General Questions
1.Have there been any Christmas light cases?
2.Is client a minority or protected class in any way? (Use as arbitrary/discrim. issue.)
3.What protections are there for religious expression? (Public Policy Arg.)
4.How far does the 1st A. go? (Pub. Policy)
5.How much is "a whole lot of lights"
6.How big are the animals?
7.What can she live without? (Length of time, decorations)
8.Would she compromise? (Time, Size, Volume)
9.How much money is she willing to spend fighting? (Litigation is costly)
10.Where among the 85 lots is hers? (How many people could complain, how much effect is she having.)
11.Did she buy before the complainers?
12.Did they know she did this?
13.Did the complainers ever encourage her?
14.During the HA vote did everyone vote?
· How democratic was it.
15. Does jurisdiction differentiate betw. master deed/deed restrictions and subsequent HA rules?
QUESTION IG: BEST STUDENT ANSWER #2
Nuisance Law
A.Legal Inquiries
-Plat of EE (special layout of house & roads).
-What test does the juris apply? Morgan, Shultz, Rest 1, Rest 2
-Case law on nuisance litigation
-btw. private individuals
-homeowner & assn's
B.Factual Inquiries = focus on being able to balance burden & benefits of holiday lights & displays
Burden
-How far do the lights emanate (lots are 2 acres big, might not be major interference)
-When are lights on? (daytime display not so burdensome)
-Are they musical lights? Flickering lights?
-What is "steadily increasing"? (is the nuisance "going" to the other residents?)
-What is "local attention?" (media coverage can be very concentrated or very burdensome — trucks, satellites)
-How big are her trees? (light can be shining down over neighborhood).
-How many care are passing by to see the display?
-Is it just traffic? Children can be trotting up and down others' property, people parking on other lots & walking to Felice Navidad's house? (more burdensome)
-Interview neighbors (get specific reasons why they are complaining; could there be negotiations?); who's complaining besides family?
-When is traffic bad? (time affects burden — people are _ home during the day but, of course, they might _ be able to sleep at night).
Benefit
— Interview neighbors: do any appreciate the holiday glee.
- What is actually done on the property? Does Ms. Navidad open a wonderland - games for children during the holidays?
- Do Ms. Navidad and her family open the decorating time up to their neighbors? (community unity).
- Does Ms. Navidad do any charitable work while the display is up, using the display: fundraise, collect gifts, can drive?
FHA — Discrimination
A.Legal Research
-What are the state anti-discrimination policies?
-Case law:1) Interpreting statutes
2) Dealing with restrictions on relig. expression, holiday displays; explaining what's protected?
3) Constitutionality of such restrictions
-Could this be treated as a time, place & manner restriction on expression-case law? (Why: prohibition of religious expression can be violative of FHA & FHA-like rules)
B.Factual Research
-What do "holiday elements" include? Is there a nativity scene? Is there a menorah?
Homeowner Assn's Internal Policies
A.Legal Research
-What are the existing by-laws? (Is this already addressed/mentioned? Are there similar restrictions -—such as on flags/regular lighting?)
-Are there any housing codes that require certain lighting comparable to the wattage/# of bulbs use by Ms. Navidad?
-How does the h'owners' assn. make & amend its policies?
-How have courts of that jurisdiction dealt with policies made?
-Do they defer to the maj. vote of the homeowners?
-Would Ms. Navidad have to show that the restriction on her property is unreasonable on the surface of the entire community?
B.Factual Research
-Same balancing as nuisance
-Do other houses have similar displays? (arbitrary towards Ms. Navidad?)
-Was there someone in Ms. Navidad's house before her and was there a similar display?
Zoning
A.Legal Research
-Look up regulations Pres. of assn. mentioned
-What are the "external decorations" the regulations mention? (a mural of a naked person is distinguishable from a Santa Claus though both are arguably "decoration")
- Look up case law interpreting "external decorations";
-Do the regulations prohibit amusement park-like activity explicitly?
-Do they allow parks such that Ms. Navidad's house could fall under that deliniation?
-Are there any special exceptions built into the regulation that address holiday activities?
Sub Issue: Aesthetic Zoning (AZ)
-How do regulations address AZ — is there language authorizing such limitations (Dermeke: "offends sensibilities," Stoyanoff: "standards of beauty and conformity")
-Are the regulations vague? In other words: - are there technical terms used? (i.e., wattage)
-Is there a common understanding in the relevant industry?
-Are there procedural safeguards? In other words — does the architectural board have restrictions on how arbitrary it can be (voltage, wattage, specific colors)?
B.Factual Research
-Effect on prop. Value, if any?
QUESTION 1H: COMMENTS: Exam Technique: I was looking for a to-do list or series of questions here. The best answers discussed in detail both legal and factual research they would do for each topic they discussed. Less strong answers were skimpy on either law or facts or both. A common problem was simply reciting legal tests in question form (e.g., "I would check to see if the eviction was substantial.") without any indication of what types of facts or questions would be relevant to determining whether the test was met.
A few of you ignored the form of Question I in whole or in part, and simply made legal arguments as though this was Question III or IV. I gave you a little credit for legal arguments that were on point and that recognized those places where you had insufficient information to resolve legal issues conclusively. I gave virtually no credit for arguments that assumed away the very uncertainties that you would have to research to advice your client intelligently.
Another common problem was a tendency to ask questions or make suggestions that were really aimed at giving L business advice. The problem suggests that he has come to you to get a sense of his legal rights and of the legal consequences of possible actions he might take. Nothing in the question (or the course) suggests that I was looking for you to do an elaborate business analysis, particularly of the potential profitability of the other space he is considering. On exams, focus on the topics which we covered in the course.
Substance: I was looking for discussion of four major sets of problems: The loss of heat/electricity; E's boxes in L's storage area; access to S's storage area; and L's ability to exit.
Heat/Electricity: Law: You need to determine if the jurisdiction has any kind of implied warranties or building codes that apply to commercial leases, whether they are waivable, how they are breached, what notice tenants have to give, and what remedies are available. Some of you suggested lawsuits against the builder for improper construction, but all the cases we read of that type involved suits by owners, not tenants. If you raised this issue, you should have at least suggested that you'd need to research whether tenants could bring such suits. Facts: You need to find out what provisions the lease makes for repairs, the cause and extent of the problems, what damage they caused, whether there's evidence of notice already given about the problems, whether L can (and can afford to) fix the problems himself. Some of you suggested researching the relative bargaining power of the parties. First, it's not clear what exactly you'd do to determine this. Second, it is highly unlikely that a court will void a commercial lease because of unequal bargaining power, and you really have no facts to suggest it would be an issue. Thus, it probably wasn't worth spending much time on.
E's Boxes: Interference with the tenant's possession by the landlord herself raises actual partial eviction (APE) issues. You'd have to check the relevant legal standards for APE, make sure the lease did not contain language that gave E the right to store the boxes, determine how big an interference was at issues, check what remedies were allowed, etc.
The boxes do not raise the issue of right to possession at the outset of the lease, which only arises if 3d parties are in possession without the landlord's permission. It also is not a "constructive" eviction both because it involves an actual trespass and because it doesn't effectively make it impossible for L to use the whole space.
S's Storage Area: Here, you'd first have to determine how precise the separate agreement between E and S was. The description of the agreement suggests a license as much as a lease (some storage space somewhere when it becomes available). Assuming it is sufficiently lease-like to be enforceable, you have to check the rules for who/how to evict holdover tenants. You probably also need to find out if L reaslly needs the space before S intends to vacate. No point in getting upset if in practice the space serves L's needs.