MEMORANDUM
To:Students in Professor Liu’s Property Law Class – Fall 2006
From:Professor Joe Liu
Date:February 7, 2007
Re:Final Exam
The purpose of this memo is to provide you with some feedback on your exams. I am providing general comments here in summary form (rather than individually on your exams) because this format allows me to give you more information about the exam, both because I can go into the answers in more depth, and also because this summary will give you a sense, not only of how well you did, but how others in the class generally did with respect to particular questions, problems, and issues.
The best way to use this memo is as a guide to the test. It does not purport to be an actual answer to the exam. Rather, it highlights the issues that were raised by the various questions, summarizes how students dealt with them, and provides some of the expected answers. None of the actual answers submitted by students in fact identified and dealt with all of the issues in the exam. Accordingly, you should not feel bad if you did not identify all of the issues – many excellent answers missed a number of issues. However, the answers that generally got higher grades spotted more of the issues than other answers. So by comparing your exam to the issues raised by this memo, you should be able to get a decent sense of how you did and why you received the grade you received. You can view your exams by speaking to my assistant, Donna McDermottonthe third floor of the East Wing, Room 325. (I am required to keep the originals, but you are certainly free to make a copy for yourself).
Memos like this, however, only provide you with substantive information about the test – i.e. what the issues were, what complexities were raised, etc.; they do not actually give you a very good idea of how all of this information is best presented in an exam answer. Accordingly, I have attached to this memo copies of some actual answers submitted by students in the class. The sample answers are all very good, although they are not necessarily the very best or “top” answers for any given question. They all do a very good job of addressing the major points of each question in an organized and coherent fashion. By taking a close look at these sample answers (and again, comparing them to your own), you should be able to get some sense of how the substantive issues set forth in this memo were presented in an effective manner, within the time limits.
I hope that this memo will give you some valuable constructive feedback on the exam. After looking at these materials, if you still have any questions at all about the exam, please feel free to contact me.
General Overview
Overall, I was quite happy with the answers that were submitted in response to the exam. The vast majority of you all did quite a good job of addressing the major issues presented by each question. Exams did differ, of course, with respect to the number of issues actually addressed, the depth and sophistication of the treatment of these issues, and the way in which the answers were presented. Accordingly, these were grounds for distinguishing between answers. However, as I noted above, the vast majority of you did quite a good job of addressing the issues, so you should feel good about that.
With respect to grades, the class generally followed the usual BostonCollege curve. The vast majority of the grades (around 75%) were some form of B (i.e. B+, B, or B-), and the mean grade was between a B and B+.
A word about time limits. As many of you no doubt noticed, there were a lot if issues in the exam, and the time allotted was not really sufficient to address all of them in as much detail as you probably would have liked. To some extent, this is an unavoidable consequence of the in-class exam format. For almost any exam question, you could probably spend several days and many, many pages spotting and discussing all of the issues raised in the exam question. Since time was limited, however, you were forced to decide which issues were worth spending time on, and how much detail to go into for each issue. This involves an element of legal judgment (i.e. recognizing which issues are important, which are less important, which are clear cut, which are more complicated, etc.), and was accordingly part of the exam. In addition, the short time frame meant that solid preparation and good time management were extremely important.
Question 1
I.Overall
Overall, the answers to this question were quite solid. The question presented you with the challenge of spotting a large number of issues in a complex fact pattern. The goal, as with any issue spotter, was to see if you could identify potential legal issues, state the applicable legal rule, apply the facts to the rule, and make a preliminary judgment about the result. I was happy to see that most of you were able to spot most of the issues raised in the fact pattern. A solid, middle-of-the-pack answer highlighted the major issues, set forth the applicable legal rule, and applied the rule to the facts in a general fashion. The better exams tended to spot more issues, and dealt with these issues with a bit more sophistication, either noting potential ambiguities in the law, or doing a better, more nuanced job of applying the specific facts to the legal rules. As with all such things, it was a matter of degree.
Because of the complexity of the fact pattern, clear organization and writing had an impact on the grade. Although time is often quite short during an in-class exam, a few minutes thinking about organization are generally well-spent. The better exams tended to set forth a clear structure, with headings and coherent paragraphs. Exams that rambled or simply listed information, with no organization, did not do as well. In addition, the short time limit forced students to be brief and to the point, and to make some judgment calls about which issues deserved more discussion, and which issues were fairly straightforward. Such decisions about what to include and in what detail also indicated your grasp of the doctrine. Despite the short time limit, many excellent answers were able to cover a wide range of issues in a good level of detail and sophistication.
II.Homeowners Association
Cooper’s property is clearly subject to the restrictions in the master deed, as the facts state that the “deeds to all of the lots in the subdivision reference a master deed.” A number of answers spent some time analyzing the facts under the doctrine of implied negative reciprocal servitudes, which allows a restriction to be imposed on a property even if it doesn’t appear in the deed or chain of title to that property. Here, however, there is no need to rely upon that doctrine, as Cooper’s deed contained an express reference to the master deed. Although Cooper’s property is subject to the restrictions in the master deed, he may have a number of defenses.
A.Unreasonable Exercise of Discretion
Cooper may be able to challenge the new bylaw as an unreasonable exercise of the homeowners association’s powers. An initial question would be whether the development’s master deed gives the association the power to enact this kind of bylaw. The record does not provide any information on this score, but even assuming that the master deed authorizes this kind of bylaw, most courts require associations to act reasonably in the exercise of their powers. In assessing whether the change in bylaws is reasonable, a court would look at the association’s interest in making the change as well as the effect of the change on the homeowner’s interests. Here, the impact is relatively significant – the change has the effect of limiting Cooper’s right to sell his property (albeit not completely). Moreover, this kind of bylaw appears to go beyond the usual type of thing that homeowner’s associations tend to pass bylaws for (e.g. maintenance of common areas, appearance, etc.). A court would need to weigh this against the association’s desire to prevent “flipping.” Because of the fuzziness of the standard, it is hard to predict with any certainty how this would turn out.
B.Unreasonable Restraint on Alienation
Cooper may also be able to argue that the bylaw is an unreasonable restraint on alienation. Under the traditional approach, a court could find the condition invalid as “repugnant to fee,” since it limits Cooper’s ability to sell the property. Under the more modern approach, courts would look to the reasonableness of the restraint, taking into account the length of time, the extent and type of limitation, etc. Here, the restriction is not a complete ban on sale (only on the amount), and the restriction is not overly long (i.e. only 2 years). Moreover, property owners do agree to give up some freedom when they purchase a property in such a development. At the same time, the restriction does limit Cooper’s ability to sell the property for market value if the market has gone up more than 10% within those two years. It is thus unlike a right of first refusal, which some courts have found to be reasonable. And it is not entirely clear what the association’s interest is in preventing “flipping” of properties. In the end, this is a close issue.
III.Wagoner
A.Easement by Estoppel
Cooper may be able to claim that he has an easement by estoppel over Wagoner’s land. (There would be no claim for adverse possession or prescriptive easement, as the use is not hostile). An easement by estoppel arises when one party grants another permission to use the property and that party subsequently reasonably relies upon that permission to his or her detriment. Here, Wagoner granted Cooper’s predecessor, Susan Sellers, permission to pass over the land. Moreover, Sellers clearly relied upon the permissionwhen she relocated her garage. Withdrawing permission would have been a detriment to Sellers. Accordingly, Sellers very likely acquired an easement by estoppel.
A separate question is whether Cooper acquired the easement when he purchased the property from Sellers. The easement is most likely an appurtenant easement, given that it is a right of way and Sellers paved the driveway. Easements by estoppel, like other informal easements, are property interests that pass to future landowners with notice. Accordingly, Cooper likely acquired the easement when he purchased the property from Sellers. An interesting question is whether this is affected by the fact that Cooper tore down the house, thereby reducing the claim that withdrawal of permission would act to prejudice Cooper. (Cooper could always argue that he relied upon the existence of the driveway in purchasing the property in the first place and drawing up plans for a new house.).
Even if Cooper can establish entitlement to the easement, he will probably not be able to expand its width. Although courts are sometimes willing to permit reasonable changes in the extent of use of an easement, they tend to be more reluctant to change the physical dimensions of the easement. (E.g. Cox v. Glenbrook).
IV.Eaton
A.Enforceable Covenant
Eaton may have a claim that Cooper’s use of the property violates a real covenant entered into between Eaton and Cooper’s predecessorSellers. For the covenant to run with the land, and therefore be enforceable against a subsequent owner (i.e. Cooper), it must satisfy the following requirements: (1) writing; (2) intent to run with the land; (3) touch and concern the land; (4) notice; (5) privity (both vertical and horizontal). The covenant is clearly in writing and also touches and concerns the land, as it provides a benefit to the dominant parcel. Cooper also had actual notice, since Sellers provided him with a copy of the writing. Vertical privity is satisfied, since Cooper purchased the property from Sellers and Sellers retains no interest. Thus, the only two remaining issues are: (1) intent to run with the land; and (2) horizontal privity.
It is unclear whether the parties intended the covenant to run with the land. The text of the covenant itself does not expressly say that it runs with the land. Moreover, the language of the restriction makes references only to Susan Sellers personally, and says nothing about future owners. On the other hand, the covenant does touch and concern the land, and courts often presume that such covenants are intended to run with the land. Moreover, Sellers provided Cooper with a copy of the covenant at the time of sale, suggesting that she subjectively believed it ran with the land. All in all, this is a close question.
Even if the restriction was intended to run, there is probably no horizontal privity, as there was no simultaneous interest in land between Eaton and Sellers. Accordingly, the covenant would not run. However, Eaton could still enforce the restriction as an equitable servitude, since the requirements are the same except for privity. Thus, Eaton would not be entitled to damages, but could still get an injunction. It is unclear, however, how much injunctive relief will in fact help Eaton, as the prior house has already been torn down. Eaton may be able to argue that Cooper should be barred from building a house any different in scale or scope from the house that he tore down.
B.Changed Conditions
Even if there is an enforceable equitable servitude, Cooper could argue that the servitude should be unenforceable due to changed conditions. Such an argument requires that the neighborhood have changed so much that there would be no benefit to the dominant parcel in enforcing the restriction. Here, Cooper could point to the fact that only 5 of the 20 houses on the street have not been torn down and rebuilt, and thus enforcing the restriction would not benefit Eaton. Eaton could respond, however, that he would still derive a benefit from enforcement, given the fact that his property is immediately next door to Cooper’s property. Given the generally high standard for this defense, Cooper would probably not succeed.
V.Zoning Board
A.Vested Right
Cooper may be able to argue that the zoning change should not apply to him because he has a vested right in continuing to build. Many courts will find a vested right if a landowner has made substantial progress toward a use that would have been permissible prior to the change in the zoning law. Courts generally require more than simply a plan to engage in such a use. Thus, the mere drawing up of plans, without more, is generally not sufficient. Here, Cooper has not yet begun construction. However, unlike some of the cases we read in class, Cooper did already demolish the house that used to sit on the property, and a court might find that this was sufficient to give rise to a vested right to continue.
B.Variance
Cooper might be able to seek a variance from the zoning board. Zoning boards are often authorized to grant such variances when the application of the zoning law to the property would prohibit or unreasonably restrict the reasonable beneficial use of the property. Here, the peculiar layout of the lot, when combined with the application of the new zoning code, would “severely hinder” Cooper’s ability to build on the lot. According to Cooper, both the size and the awkward layout of any compliant house would make it effectively unmarketable. If this is true, then Cooper might have a good claim for a variance. (This is particularly the case if Cooper is in a jurisdiction where variances are granted more freely than the caselaw would suggest.).
C.Taking
Cooper may be able to argue that application of the new zoning code amounts to a taking of his property without just compensation. As an initial matter, Cooper could attempt to argue that the zoning code eliminates all economic value of his property (e.g. Lucas v. South Carolina Coastal Comm’n). According to Cooper, in the absence of relief, he will leave the property vacant. If Cooper succeeds in fitting the case into this per se category, then his claim would likely be successful, since building a house near a river would likely not constitute a common law nuisance under state law. However, Cooper is unlikely to be able to fit this case within the per se rule, as he can still build on the property and use the property.
Cooper has a stronger argument under the general 3-part balancing test. Under this test, a court will look at: (1) economic impact of the regulation; (2) interference with investment backed expectations; and (3) the character of the government regulation. The overall inquiry is whether the burden of the regulation is one that the homeowner should fairly be asked to bear. Here, the economic impact of the regulation is non-trivial. According to Cooper, the zoning code will significantly limit the economic viability of the property. In addition, the zoning code will interfere with his investment-backed expectations, insofar as he purchased the property and tore down the older house with the express expectation that he would build a bigger house and sell it for a profit. On the other hand, the character of government action here is consistent with the type of exercise of the police power that towns ordinarily engage in. The prevention of flooding near rivers is a legitimate health and safety concern, and a restriction on building near rivers is a reasonable response to this concern. In the end, as with all such balancing tests, the outcome would be difficult to predict.