QUESTION TYPE 3: OPINION/DISSENT
3B. Allen, a resident of the state of Grace, was dying in the hospital when he and his lawyer Slick drafted his will, leaving everything to his friends Jones and Kelly. When Slick went to look for witnesses, Allen felt the end draw near and signed the document. When Slick returned with the witnesses, Allen said “That’s my will and my signature on the bottom.” He promptly fell into a coma. The witnesses then signed the will. Several hours later, Allen died without ever regaining consciousness. Allen’s only heir was his mother, with whom he had not spoken in 17 years.
The common law of Grace indicates that a will is invalid unless the witnesses watch the testator sign it. The probate court handling the estate found the will invalid on that ground. On appeal, the Court of Appeals held that, in future, wills in Grace would be considered valid “even if the requisite formalities are not met, if under the circumstances, there is clear and convincing evidence that the testator intended the document to act as his will.” Using that standard, it determined that Allen’s will was valid. Allen’s mother appealed to the Supreme Court of Grace.
Write an opinion and a shorter dissent for the Supreme Court of Grace, adopting or rejecting the rule formulated by the Court of Appeals.
3C. Wagman, Inc., a defense contractor, operates a plant in the state of Ecotopia where it manufactures Dolphin anti-missile missiles used in small foreign wars. As part of the manufacturing process, it releases into the air a chemical, Meltzerium, which causes lung cancer in laboratory animals. There is no other evidence as to whether Meltzerium has a negative effect on humans. There are no state or federal regulations prohibiting release of the chemical.
Residents living near the plant discovered that Wagman was releasing Meltzerium and sued, claiming that the emissions constitute a private nuisance. The local trial court heard the case, sitting without a jury. The judge made the following findings of fact:
1) The release of Meltzerium by the plant reduces property values in the surrounding neighborhood.
2) Although the harm from Meltzerium is somewhat speculative, the potential risk is high. Therefore, plaintiffs are not “oversensitive” to complain about it.
3) The social value of the plant—producing Dolphin missiles for American defenses and employing Ecotopian workers—exceeds the harm to the plaintiffs and others similarly situated.
4) The plaintiffs purchased their homes prior to Wagman’s starting the production processes that release Meltzerium.
The trial court granted plaintiffs’ request for an injunction. However, the court stated in dicta that, because of the high social value of Wagman’s plant, it would have preferred to employ the Restatement 2d test and either award damages or do nothing, but it felt constrained by Ecotopia’s strict liability nuisance precedents (similar to those of Florida and North Carolina).
Wagman appealed, requesting that the Ecotopia Supreme Court adopt the Restatement 2d rule for private intentional nuisance.
Write an opinion and shorter dissent for the Supreme Court, determining the appropriate rule governing nuisance actions and deciding the case under your rule. Assume that the trial court’s findings of fact are supported by the evidence the parties presented.
3I. Quiet Acres is a development of townhouses located in the state of Mind. At the time the buildings were constructed, the developer of Quiet Acres filed the proper documents to create condominiums under Mind law. The declaration of condominium contained a provision allowing the unit owners to change to the covenants restricting the properties by a 2/3 majority vote. This provision is legal under Mind law. Subsequently, the developer sold all the units of Quiet Acres.
Four years ago, Sarah Bellum, a resident of Quiet Acres, ran unsuccessfully for Governor of Mind. She took a number of controversial stands and received a great deal of publicity. Supporters and opponents often staged public events at the gates of Quiet Acres, causing traffic snarls and noise. Reporters and television cameras roamed the streets of the development, interviewing and filming Bellum’s neighbors and family, and interfering with the quiet lifestyle that the residents normally enjoyed. In addition, the other residents divided sharply on whether to support Bellum as “one of our own.” Many arguments raged in the common areas, harming the spirit of community that had existed.
Earlier this year, Bellum announced she would again run for Governor. The residents of Quiet Acres, using the proper procedures under their governing documents, voted 134-12 to enact a restriction prohibiting the residents from running for public office. Bellum brought suit, claiming that the restriction was void as against public policy, and seeking an injunction to prevent its enforcement against her.
The trial court refused to grant the injunction, finding that Bellum had agreed to be bound by the will of the rest of the residents, and that she could live elsewhere if she wished. The intermediate court of appeals reversed, finding that it was “obvious” that homeowners’ association restrictions could not limit political activity by the residents. The association appealed.
Write an opinion and shorter dissent for the Supreme Court of Mind, determining whether the restriction should be declared void as against public policy. Assume that the association met all technical and procedural requirements enacting the restriction. Your answer should include references and analogies both to the law of servitudes and to other areas of Property law we have covered in the course.
3N. Leslie owns an apartment house containing four units. She lives in one unit and rents the others out. Her leases all state that “Tenant may not sublease or assign Tenant’s interest without the consent of the landlord.” Timothy, one of her tenants, needed to leave town, and asked if he could sublease to his friend Sarah, who is HIV+ (i.e., is infected with the AIDS virus). Leslie refused based on Sarah’s medical condition. Timothy and Sarah sued in state court, claiming that Leslie’s consent was unreasonably withheld.
After a bench trial, the Trial Court made the following findings of fact:
(i) Sarah’s HIV+ status constituted no medical threat to Leslie or her other tenants.
(ii) Nevertheless, because of irrational prejudice, Sarah’s presence would make it significantly harder for her to obtain new tenants and to keep the present ones. Thus, the decision to withhold consent was commercially reasonable.
The Trial Court went on to say that state law did not require a landlord’s withholding of consent to a residential sublease to be commercially reasonable. It therefore found for Leslie on the dual grounds that she had no duty, and that even if she had a duty, she hadn’t violated it.
The Court of Appeals reversed. It held that, in keeping with the “modern trend,” the state should require residential landlords to withhold consent to transfer only for commercially reasonable reasons. It then held that, as a matter of public policy, landlords cannot use HIV status as an excuse for declining to accept proposed transferees, even if accepting them would hurt the landlord financially.
Leslie appealed. The state Supreme Court granted certiorari limited to two issues:
1) When a residential lease contains a clause allowing transfers of the leasehold only with the landlord’s consent, does the landlord have a duty to withhold consent only for commercially reasonable reasons?
2) Should the Court, as a matter of public policy, require that a residential landlord accept HIV+ tenants, even if to do so likely would harm the landlord financially?
Write an opinion and shorter dissent resolving these issues for the Court. Assume that no state or federal discrimination laws were violated. Assume that the findings of fact of the Trial Court were supported by the record.
3O. A few years ago, a group of parents in the State of Confusion, worried about the immoral mass media and inadequate public schools, formed an organization called “Nurturing Old-Time Values.” Its members convinced a local developer to build a common interest community consisting of 60 townhouses arranged in a large circle around a central complex, which contained a meeting room, a child-care center, and several classrooms.
The developer filed and recorded the proper documents to create a community governed by a homeowner’s association. The declaration stated that the purpose of the community was “to create a place where parents can raise their children assured of competent schooling away from the corruption of modern culture.” The declaration included provisions allowing the association to fund and operate a school and child-care facility in the central complex and allowing members of the association to change its rules upon a vote of two-thirds of the units in the community.
The developer sold all the townhouses to members of Nurturing Old-Time Values and like-minded families. Following the procedures outlined in the declaration, the residents elected a governing Board for the association. The Board then licensed and began operating the school and child-care facilities and most of the parents living in the community utilized them.
After several months, a group of parents complained that their attempt to isolate their children from the mass media was undermined when the children gathered at houses of their friends whose parents allowed them to view network and cable television programs. These parents suggested a rule that residents only view programs pre-approved by the Board. However, the Board worried that this rule would be too difficult to enforce. After more discussion, the unit owners (using proper procedures) voted 49-11 to simply ban watching television in the complex altogether.
Two residents of the community sued in state court to prevent enforcement of the new rule. The first, Erik, is a journalist who watches television to get ideas and information for his job. The second, Lauren, recently inherited one of the townhouses and has no children.
The State of Confusion has a statute which provides that all covenants properly recorded as part of the declaration of a common interest community “run with the land unless unreasonable.” The state has no caselaw interpreting this statute.
Question 3O Continues on the Next Page
Question 3O Continued
After a bench trial, the trial court held the association’s rule enforceable, arguing that the statute suggested deference to the rules of the association, and that the rule was clearly related to the association’s purpose. The Court of Appeals reversed, ruling that it would not give deference to a by-law passed after the filing of the declaration, and that, in today’s fast-paced communications-oriented society, banning television viewing was plainly unreasonable. It therefore enjoined the operation of the rule. The Supreme Court of Confusion granted review of the case.
Write drafts of the analysis sections of a majority opinion and a shorter dissent for the Supreme Court of Confusion determining the appropriate legal standard to use to review the challenged rule and then applying the standard to the facts of this case.
3P. Fairest Downs is a gated community of single-family homes in the state of Brophy with a Homeowners’ Association (FDHA) that is properly registered with the state. In addition to the private homes, the community includes several common areas including a large public meeting and event room, a gym, two swimming pools, a child care center, and a small general store staffed by residents. FDHA employs full-time security guards, so non-residents cannot enter the community unless they are guests of a resident.
Last year, FDHA had an unpleasant experience when a reporter who knew some of the owners attended a half-day meeting of its Board. The reporter wrote a long unflattering story about the meeting that appeared in the Christian Science Monitor. Because they were nervous it could happen again, the owners properly and unanimously enacted a new by-law banning owners from having reporters or photographers as guests in the community.
The state of Brophy has a statute that says that the properly enacted by-laws of registered Homeowners’ Associations bind all owners in the Association and run with the land “unless unreasonable.” There are no cases interpreting this statute. Media Against Tyranny (MAT), a group representing local newspapers and television stations, brought suit in state court to have the by-law declared “unreasonable” and thus unenforceable under the statute.
The trial court ruled in favor of FDHA, stating that the right to exclude was a crucial aspect of private property and that the joint owners of common areas should be able to exercise it as fully as individual owners of single-family homes. The court of appeals reversed, arguing that the community was sufficiently like a small town that the public interest in press access outweighed the minimal burden on the right to exclude. The state Supreme Court granted review.
Write drafts of the analysis sections of a majority opinion and a shorter dissent for the Supreme Court of Brophy deciding whether the by-law should be considered “unreasonable” within the meaning of the statute. Assume MAT has standing to bring the lawsuit. Assume that no state or federal constitutional issue was properly raised by any party.