PRACTICE PROPERTY MIDTERM
Sample Answer 1
Potential claims between our client and Phillip Worly:
Worly may have a potential nuisance claim against our client. In order to have a nuisance claim, Worly must show that our client’s activities cause substantial harm and unreasonable interference with the use and enjoyment of his land. Our client may have a defense that although Worly was there first, Worly’s use of his property is a hypersensitive one that may lessen the unreasonableness of our client’s activities. Furthermore, our client has limited the amount of time he spends operating his machinery. The court may question whether our client’s activity is reasonable though, given the nature of the neighborhood. I think this could go either way given Worly’s priority in the neighborhood and the nature of our client’s activity weighed against the hypersensitivity of the use of Worly’s property.
Potential claims between our client and Cheryl Evans:
Our client may have a claim for easement by estoppel. In order to have easement by estoppel, he needs to establish that there was investment in reliance on permission given and the reliance must be reasonable. Evans expressly gave him permission to use the driveway even though he brought it to her attention that the driveway overlapped her land by 3 feet. He relied on her promise that he would be able to use the driveway as long as he wanted in his decision to purchase the property so there was investment made relying on the promise. Whether the reliance was reasonable is more questionable since she expressly rejected an offer for him to purchase a right of way and there is no way to know what would have happened had she sold her property to new owners. We may have a problem persuading the court of the reasonableness of relying on a simple promise when making such a large investment as purchasing a house.
We may need to know how long the former owners of Callahan’s property used the strip of land before they paved it. There is a strong argument for adverse possession from the period 1991 through 1998 since the paving would indicate actual possession of that strip of property, the possession would be adverse or hostile, open and notorious, exclusive since it seems that only the owners of Callahan’s property used it. If such use continued for the period 1988 through 1991, there would be continuous possession for the statutory period before consent was given by tacking the two periods together. I think we may have a stronger case for adverse possession than for easement by estoppel if we can determine how long the former owners used the strip.
Potential claims between our client and Sandra Norton:
The issue here is lateral support and to what extent does Norton have the right to have her land supported by the retaining wall. The prior owners of both properties clearly intended the benefit of the retaining wall to run with the land. However, the covenant expressly says “any buildings”. There is a general rule that neighbors have an absolute right to lateral support for the land in its natural state. There is no general right to lateral support for buildings placed on the land but here there is an express agreement otherwise. One could interpret the language in the covenant to include buildings only and not structures such as swimming pools. Furthermore, there is an obligation to not be negligent in the course of digging. In this case it is Norton who is doing the digging. We may need to know whether she gave notice to our client in order to determine the reasonableness of her digging. The test here is one of reasonableness, the purpose of which is to prevent undue harms. In this case it would seem that regardless of the existence of the covenant, you could argue that the scope of the covenant does not include swimming pools, and furthermore, that since the harm caused is due to the swimming pool, the one who causes the harm should pay to reinforce the retaining wall.
Potential claims between our client and the homeowner’s association:
Although the restrictions were not in our client’s deed or in his chain of title, it is arguable that he should have been on notice given the nature of the neighborhood. Given that he is in a residential subdivision, it is not unreasonable to assume the existence of a master plan or to look into the chains of title of neighboring properties, particularly directly neighboring properties. If we find that his neighbors’ deeds do reference the master plan, then I think this may be our weakest case.
Sample Answer 2
Property Midterm Practice
As to the situation with his neighbor, Phillip Worly, Callahan may be liable to Worly for nuisance. However, Callahan would most likely not be found liable if Worly were to pursue this action. To recover damages from Callahan, Worly would have to prove that Callahan’s actions constituted an unreasonable interference with Worly’s use and enjoyment of his land. It is doubtful that he would be able to show this, and thus recover under this cause of action, if what Callahan says is true and he limits the operation of his machinery to a few hours a day during daylight. While this may constitute an interference to Worly, it is perhaps only because of the particular use (psychiatric practice) that Worly is pursuing on his land. The law does not allow a plaintiff to recover for nuisance if it is only his extreme sensitivity which makes the defendant’s action an unreasonable interference with his use and enjoyment.
As regard the situation with Cheryl Evans, Callahan may have a legal claim against her on the basis of easement by estoppel. Under this theory, Callahan would have to show that he relied on Evans’ offer of continued use to the extent that her revocation of what would otherwise be a liscense would be unjust and injurious to Callahan. In this case, I believe the fact that Callahan purchased the land and moved in his equipment based on an expectation of continued use (which expectation was a reasonable reliance on Evans’ statement) would clear this bar. Therefore, I believe that he would be able to enjoin her from keeping him from using the driveway. I do not, however, believe that he has a claim under prescriptive easement, because even with tacking, there is only evidence to support hostile use (if any) for 7 years.
As to the situation invloving Sandra Norton, Callahan may be, and likely is, liable to her for failure to maintain lateral support under Norton’s covenant with the prior owners. The requirements for an enforceable covenant are: that they are in writing, they are intended to run with the land, the owner of the burdened estate was on notice of the restriction, the covenant touches and concerns the land, and there is privity of estate. All of these requirements are met in the present case save the requirement of privity. Even though that is missing, there will still be an equitable servitude. In practical terms, what this means is that Norton may be able to obtain injunctive relief against Callahan, but not damages. I should say here that, in the absence of this covenant, Callahan would not be liable for not maintaining the wall in such a way that it would support a new pool on the dominant (Norton’s) estate. While there is a general requirement that property owners maintain lateral support to neighboring parcels, and that this includes building and maintaining a retaining wall if the servient estate owners change the land in such a way that it will not provide lateral support without one, the only requirement is that lateral support be sufficient to support the land in its natural state. Therefore, without this covenant to the contrary, if the new pool truly was the cause of the slippage, Callahan would not be liable.
Callahan must probably abide by the restrictions in the master plan for the sub-division, if all of land in the subdivision was once owned by a common owner (I assume it was.). Callahan would be liable under an implied negative recipricol servitude. These occur where a large parcel of land, ownede by one owner, is divided into smaller plots, all of which are intended to be subject to certain restrictions. (I will assume here that this is the case). Even if all of the deeds do not contain these restrictions, all parcels will be bound if there is evidence of a common plan of development. In this case, there is such evidence; specifically the fact that nearly all of the other property deeds contain these restrictions. It would be easy for Callahan’s neighbors to argue that he was on at least constructive notice of the existence of these restrictions at the time he bought his property. While an “adequately maintained appearance” and no rental property may not be as obvious as all houses being painted a certain color or in a certain theme, it is reasonable to assume (and I do) that the character of the neighborhood should have induced Callahan to resaerch the deeds of the pther prtoperties. If he had done so, he would have been on actual notice of his obligation to comport with those restrictions.
Sample Answer 3
Property Practice Exam
To: Partner
From: Associate
Re: James Callahan
Our client Callahan has a number of disputes with various neighbors and his homeowner’s association; he has claims that can be made as well as several that may be made against him.
Dispute with Worly
It appears the Callahan may be liable to Worly on a nuisance claim against him. The essential elements of a nuisance claim are that there is an unreasonable interference of property causing substantial harm to another’s use and enjoyment. In this case, the noise from Callahan’s workshop does appear to interfere substantially with the Worly’s ability to operate his business out of his home. This is made more complex by the idea that Callahan’s activities are work-related as well; both seem to have a substantial interest at stake. A crucial issue here is that Worly did not come to the nuisance; he was established when Callahan began his activities. I believe a court would hold that it is reasonable for Callahan to pay the expense of soundproofing (which would sole the problem) under these circumstances.
Dispute with Evans
Callahan’s situation with Evans appears at first to constitute a prescriptive easement case. Callahan used the driveway without permission for 7 years. However, the situation is complicated by the fact that permission was given at that point to use the driveway before the relationship soured later. According to statute, 10 years is necessary for an adverse possession claim. (Traditional elements of adverse possession are met, including: actual possession that is adverse and hostile, open and notorious, exclusive, and continuous for the statutory period; color of title is present here as well.) We only have ten years if we “tack” the permissive years onto the non-permissive years, which to the best of my knowledge is not allowed. However, the court could find that the granting of permission to use for several years in the context of the previous use creates an easement by estoppel situation; Callahan has relied on the use and has no reasonable alternative. I believe a court would find for Callahan.
Dispute with Norton
Callahan has an absolute right to lateral support for his land from his neighbor under common law; the common law rule regarding a structure is usually viewed in terms of reasonableness. In our case, the covenant entered into changed this obligation to include the requirement that the owner of Callahan’s property maintain the retaining wall.
One question here is whether this covenant runs with the land. The requirements for that are writing, notice, intent, that the covenant “touches and concerns” the land, and privity of estate. The issue in question here is privity of estate; horizontal privity may be missing if there was no common interest in the land when the agreement was made. It could still be possible in this situation for Norton to sue under equitable servitude and get an injunction (presumably against allowing the decay of the wall), instead of suing under covenant law and getting damages as well.
A larger issue is whether a covenant allowing a person to forego the absolute right to lateral support is enforceable. I believe a court would enforce this covenant since it does not appear to violate a rule of public policy; the previous owner took on his neighbor’s traditional obligation, and Callahan had at least constructive notice if this was in the deed. It appears our client is out of luck with respect to this claim. However, the court could also decide that that a person cannot give up that common law right; however, for the reasons stated above this argument is not as strong.
Dispute with Homeowner’s Association
With respect to the Homeowner’s Association, it appears that a common plan was in effect and Callahan could be subject to the rule of implied reciprocal negative servitudes. Under standard covenant law, only later buyers can enforce against an earlier buyer in a situation where a common plan exists in a residential development; this doctrine allows earlier buyers (or the association) to enforce against later buyers. The requirements for this doctrine to kick in are that there was a common owner with a general plan, and more or less uniform restrictions exist. There also had to be notice to Callahan. Although there was no information in his deed, nor in the deeds in his chain of title, Callahan was probably put on inquiry notice (or constructive notice as to the other owners’ deeds) as to the fact that there were restrictions; these are to be expected in a residential subdivision. So Callahan should be subject to any of the restrictions as long as they are generally enforceable.
Regarding the appearance of the front and backyards, I believe a court would enforce this restriction. Part of the reason for entering into a residential development situation has to do with reasonable expectations about certain living conditions; the court will probably feel comfortable under these circumstances requiring Callahan to clean up his yard. This is made more difficult by that fact that Callahan works there; however, he chose his circumstances and should have known of the restrictions so I believe a court would enforce this.
The written consent clause is more suspect. The court will probably not find this repugnant to fee, as it would have in the past, but could find that this is an unreasonable restraint on alienation, especially if it feels that the provision exists for discriminatory purposes. The words “high-class” suggest that this may be the case. On the other hand, if Callahan is still free to rent to other people and the homeowner’s association has a true obligation to compensate him for any limitations it imposes, and discrimination issues could be dealt with separately (through statutory restrictions), the court may decide to enforce this.
Sample Answer 4
A nuisance is a substantial and unreasonable interference with the use or enjoyment of land. Phillips Worly (PW) might bring a nuisance claim against James Callahan (JC). The noise from JC’s machine might be asserted as offensive because it interferes with PW’s right to practice psychiatry at home. However, JC might assert that PW’s use of his home as a doctor’s office is an unusually sensitive use of a home. PW could assert that the noise JC makes is unreasonable because it startles and distracted by the noise and loose concentration important for psychiatric work. PW cannot use his property as a psychiatrist’s office while JC is making noise. JC might defend against this asserting by PW own admission that this is not a common occurrence but only happens occasionally and therefore is not an unreasonable interference. Also, PW used his property as a psychiatrist’s office years before JC moved in, therefore, PW was there first which weighs in PW’s favor in the eyes of the court. It would be nice to know what the zoning laws are in the area. The zoning laws might prevent use of homes as a pyschiatrist’s office or may even limit an artist’s use as well.
Adverse possession requires actual possession that is open and notorious, exclusive, continuous, and adverse or hostile for the statutory period. The driveway was paved in 1991 and JC bought property in 1998. Cheryl Evans (CE) was unaware driveway overlapped onto her property which could indicate that she did not give permission for the driveway to be used on her land for at least 7 years. JC could argue that because there was a dirt driveway used before the paved driveway, the doctrine of tacking would apply making up for the three years needed for the statute of limitations. However, CE might assert that the dirt road did not constitute possession because it wasn’t demarked as part of JC’s property like now with the pavement. JC will probably lose on and adverse possession claim on this point because he did not have actual possession of the 3 ft.
However, the doctrine of prescriptive easements has the same elements as adverse possession, supra, but the possession requirement is changed to use. The fact that JC and the former owner used the driveway and CE knew it satisfies the open and notorious requirement. The driveway was used in daily living by both JC and former owner shows it was used continuously. Therefore, all of the elements of prescriptive easements are met for JC.