Property Quiz Two

PROPERTY QUIZ TWO

Fall 2009EVENING CLASS

Professor Peter M. Malaguti

September 11, 2009

ANSWERS AND EXPLANATIONS

Questions 1 and 2 are based on the following fact pattern:

The St. Paul Hotel is located in St. Paul, Minnesota. For more than 20 years, Ferdinand Hotz, a jeweler has visited St. Paul on business, and has made the St Paul Hotel his local headquarters. He had long been one of the hotel’s regular patrons, and was personally know by management and most of the staff employees. Several years ago, Hotz and made and sold to Mrs. Pamela Peet an engagement ring. Recently, one of the small diamonds on the setting fell off, and Mrs. Peet arranged with Hotz to have it replaced. They agreed that Mrs. Peet would leave the ring for Hotz at the concierge counter of the St. Paul hotel on September 7, 2008. The agreement was that Hotz would fix the ring and return it when he was next in town. At four p.m. on September 7, 2008, Mrs. Peet went to the concierge counter of the St. Paul Hotel, took the ring off her finger, and handed it to the counter attendant, Miss Edwards, an employee of the Hotel. Peet watched as Edwards took out an envelope and wrote “Ferdinand Hotz” on it. Mrs. Peet handed Edwards the ring and left. She did not pay any fee to the Hotel for this service. One hour later a man came in and introduced himself as Ferdinand Hotz. Miss Edwards asked for a form of photographic identification. The man produced a driver’s license under the name Ferdinand B. Hotz, and bearing a photograph that matched the man standing before Miss Edwards. Miss Edwards delivered the envelope with the ring to the man, and the man left. It later became obvious that the man who took the ring from Miss Edwards was not Ferdinand Hotz. It was his evil identical twin brother, Frederick Hotz, who has left for parts unknown.

Mrs. Peet has sued the St. Paul Hotel for the value of the engagement ring.

Q.1.At common law:

The St. Paul Hotel will prevail because the bailment relationship between Mrs. Peet and the Hotel benefited the bailor, and the low standard of care provides that the Hotel is liable only for gross negligence or wanton and willful conduct.

The St. Paul Hotel will prevail because the standard of care in all bailment cases was ordinary negligence, and Miss Edwards exercised the care a reasonably prudent person would exercise in the same circumstances.

Mrs. Peet will prevail because the bailment relationship between Mrs. Peet and the Hotel was one that benefited the bailee, and the high standard of care provides that the Hotel is liable even for slight negligence.

Mrs. Peet will prevail regardless of what kind of bailment relationship she had with the Hotel.

The best answer is “D.” At common law, misdelivery of a bailed item resulted in strict liability regardless of the type of bailment created. The bailee was liable for the misdelivery even if s/he exercised the highest degree of care possible. Knowing this rule, you should be able to eliminate “A,” “B” and “C” quickly because they get bogged down of standards of care and degrees of fault rather than proceeding under the strict liability standard.

Q.2. Under the modern rule:

The St. Paul Hotel will prevail because the bailment relationship between Mrs. Peet and the Hotel benefited the bailor, and the low standard of care provides that the Hotel is liable only for gross negligence or wanton and willful conduct.

The St. Paul Hotel will prevail because the standard of care in all bailment cases is ordinary negligence, and it is beyond all doubt that Miss Edwards, on behalf of the Hotel, exercised at least the care that a reasonably prudent person would exercise in the same circumstances.

Mrs. Peet will prevail because her bailment relationship with the Hotel was one that benefited the bailee, and the high standard of care provides that the Hotel is liable even for slight negligence.

The outcome will depend on whether the finder of fact determines that Miss Edwards, on behalf of the St. Paul Hotel, acted as a reasonably prudent person would act in the same circumstances.

The best answer is “D.”Under the modern rule, the standard of care in all bailment cases, including misdelivery by the bailee,is ordinary negligence. Knowing this rule, you should be able to eliminate “A,” “B” and “C” quickly because they get bogged down in different types of bailments and different standards of care. “D” states the proper standard of care for ordinary negligence.

Q.3.Oliver was the record owner of Spiritacre, a 20 acre undeveloped parcel of wooded land. Oliver, who had inherited Spiritacre some 40 years ago, was a member of the PsychedelicChurch of the Natural Order. Since a primary principle of that religion is that people are incapable of owning private property, Oliver did not consider himself to be the owner of Spiritacre. In 1982, Aaron, another member of the Psychedelic Church of the Natural Order and a good friend of Oliver, moved onto Spiritacre, constructed a shelter and lived there without interference until 2008. Oliver and Aaron never discussed the circumstances of Aaron’s possession of Spiritacre, but Aaron assumed that Oliver did not object given their mutually-held belief about private property.

Assume for this question that Aaron’s possession was open and notorious, actual, exclusive and continuous. In early 2009, Aaron quit the religion, became a capitalist and sued Oliver, claiming that he had acquired title by adverse possession. Oliver, who also recently quit the religion, is defending the suit. If Oliver prevails in that action it will be because:

While he practiced his religion, Aaron could not have been deemed a hostile possessor because he did not fully appreciate that his presence on Spiritacre created an affront to Oliver’s right to exclude.

Oliver’s and Aaron’s tacit understanding about Aaron’s presence on Spiritacre caused Aaron not to be a trespasser.

In failing to believe in private property Aaron could not have formed the requisite intent to be deemed a trespasser upon Spiritacre.

Human dignity and public policy requires that Aaron’s religious beliefs be respected under the Free Exercise Clause of the First Amendment of the United States Constitution, thus preventing him from being treated as a trespasser.

The best answer is “B.” In the vast bulk of adverse possession cases, one need only be a trespasser – intentionally going on someone else’s land without permission – to satisfy the “hostility” requirement. It therefore follows that possession of someone else’s land with their permission renders the possessor other than a trespasser, and causes an adverse possession claim to fail. And one can reach agreement expressly, or through conduct. “B” is the only answer recognizing this. “A” and “C” misstate the law regarding trespass and/or hostility. .” You should have also eliminated “D” rather quickly by recognizing that, even if the law it articulates is correct, it involves law entirely irrelevant to adverse possession analysis.

Q.4.Bennie Gill liked to fish in the waters of the LotsafishtocatchRiver located in the Michigan Upper Peninsula. His preferred method was to employ a large “purse” net with a large opening that Gill would “draw” closed when he wanted to haul in his catch. Using his pickup truck, Gill would “draw” the large opening down into a relatively small opening, and drag the net and fish out of the water and onto the shore. The net would hold as much as 100 pounds of fish at a time. During the process of “drawing” and “dragging,” the mouth of the net never closed completely, and a few fish would always escape. However, Gill’s method would usually net him about 90 pounds of fish at a time. The applicable fishing statute allowed year-round fishing of all types of fish except for trout. The fishing season for trout ran from April 15 to September 30, and proscribed the “taking, capture or corporeal possession” of any trout except during the fishing season. In addition, the statute prohibited keeping more than five (5) trout per day during fishing season. On March 12, 2008, a time outside of the fishing season, Michigan game wardens observed Gill place his net in the river as described above. After the net filled with about 100 pounds of fish, but before Gill dragged it onto the shore, the wardens arrested Gill for violating the above-described fishing law.

Gill’s best argument that he is not guilty under the applicable fishing statutes is that:

He never possessed any of the fish because the state could not identify them as trout, bass, pickerel, or the like.

The state could not prove that Gill had more than five (5) trout in the net at the time he was arrested.

The method of fishing he employed failed to reduce any single fish to corporeal possession because any one of them might escape through the small opening.

In Michigan, the “wolverine state,” trout are animals “animus revertendi” rather than “farae naturae.”

The best answer is “C.” Fish are wild animals. We know from our “capture doctrine” cases, that one may only own a wild animal if s/he deprives it of its natural liberty by killing it, mortally wounding it, or physically holding or trapping the animal. “D” is a silly answer that you can throw away immediately. “B” cannot be correct because it involves limiting the number of trout caught during the fishing season, and the facts clearly indicate that the part of the statute Gill has to worry about is that which deals with fishing out of season. Both “C” and “A” have merit, but “C” is a better answer because it approximates the holding in Pierson v. Post: being extremely close to depriving a wild animal of its natural liberty is not good enough. “A” also has a slight logical flaw because, although the state may in fact not be able to prove that any trout were in the net, the type of fish involved have nothing to do with Gill’s possession or lack thereof.

Q.5. In a proper claim of constructive adverse possession:

An adverse possessor who received a defective deed, and believed in good faith that s/he got good title, and who satisfies all five elements of adverse possession, obtains title to all real estate owned by the record owner rather than what s/he actually possessed.

An adverse possessor claims that the statutory period must be shortened to ten (10) years rather than the normal amount provided under the applicable state statute.

An adverse possessor claims the right to ownership under a “constructive” rather than “actual” possession of the real estate in questions.

An adverse possessor who received a defective deed, and believed in good faith that s/he got good title, and who satisfies all five elements of adverse possession, obtains title to the entire parcel described in the deed rather than what s/he actually possessed.

The best answer is “D.” If someone commences an adverse possession under a defective deed or will that s/he believes in good faith conveyed the property at issue, constructive adverse possession will allow the adverse possessor to “boost” the acreage from what s/he actually possessed to that described in the defective deed or will. One can only employ constructive adverse possession if s/he has first met all five elements of adverse possession. The only answer that approximates the rule of law is “D.” If you read “A” closely, you will see that it incorrectly would give the adverse possessor title to all real estate owned by the record owner, even that not described in the defective deed to the adverse possessor.