GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 1: (60 minutes - 60 points) (theories of property, right to exclude)
Amazon.com is one of the country=s largest and most popular on-line retailers, selling everything from books and CDs to toys, electronics, and house wares. The on-line company has recently come under fire from an international activist group called Save-the-Children (ASTC@), which is critical of the company for selling toys produced by third world child laborers. Angry that the world does not know about Amazon=s practices, STC set up a website called Amazonsucks.com to protest Amazon=s policy. STC members have also posted anti-Amazon flyers on college campuses and have occasionally picketed on the public sidewalk in front of Amazon=s corporate headquarters in Seattle. Because these protests gained little attention, Amazon ignored them.
Early in 2001, technically savvy members of STC discovered a way to modify Amazon.com=s website to add a Apop-under@ ad to the website. A Apop-under@ ad becomes visible to a user when he or she closes the Amazon window. This way, before any user clicks off the Amazon website, they will first see the pop-under window. STC=s pop-under window reads in big, bold letters: ABoycott Amazon! Amazon Exploits Child Labor!@ Amazon officials requested that the protesters stop the pop-under ads, arguing that the ads are slowing down Amazon=s computer system. When the protesters refused, Amazon sued, alleging that the unwanted ads constitute a trespass on its website. The protesters responded that they are only exercising their free speech rights. Furthermore, the protesters argued that there is a need for Asidewalks@ in cyberspaceCspace adjoining private websites that allows for public discourse.
The case has made its way up to the Supreme Court of Confusion, where you are a judicial law clerk. Draft a memo to your justice explaining how you believe the court should resolve this case of first impression. Be sure to consider: a) what theoretical and policy arguments exist for and against a property right like the one claimed by Amazon; and b) what sources of law may limit this right. Your justice has indicated that she is willing to consider the law of other states in making her decision.
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 2: (60 minutes B 60 points) (adverse possession)
Patricia and Robin Smith were long-time residents of West Oaktown, as were their best friends and next door neighbors, Mildred and Bill Mann. Every spring since the early 1980s, the Smiths and the Manns coordinated and worked together to maintain their homes in various ways, including landscaping the yards, mowing the lawns, repainting the interior and exterior of the homes, and putting blacktop on their driveways. The couples genuinely enjoyed the social aspect of their activities, and also found that by working together they could obtain lower prices on materials and services. The couples also exchanged keys to their homes in case of emergency.
While the Smiths both had secure employment, the Manns were not so fortunate. In September 1988 both Mildred and Bill lost their good-paying jobs due to a massive layoff, and unable to find comparable work, they failed to meet monthly financial obligations. Soon thereafter, the First Bank of Oaktown (the “Bank”) foreclosed on and obtained title to hundreds of homes in West Oaktown, including the Manns’ home (the “Foreclosed House”), and the Manns moved to Florida to find employment.
The Smiths were heartbroken. Not only were their best friends gone, but the neighborhood continued to deteriorate. In November 1988, the Smiths noticed a great deal of suspicious activity at the Foreclosed House over the course of a week, and near the end of the month, a man coming out of the Foreclosed House mugged Robin. The police investigated the situation, and arrested an individual who was using the Foreclosed House as a place to sell drugs. The Smiths noticed similar activity in February 1989, reported it to the police, and the police arrested another drug dealer.
Consistent with their annual tradition of landscaping after the heavy snow melts, in March 1989 the Smiths planted flowers not only in their yard, but also in the yard of the Foreclosed House. In the course of this activity, the Smiths remembered that the previous year they stored a few garden supplies in the attic of the Foreclosed House. On a fluke, the Smiths tried to enter the Foreclosed House using the key given to them by the Manns, and to their surprise, they were successful. Over the course of the next six months, the Smiths realized that by maintaining the Foreclosed House, drug dealers, vagrants, and others had the impression that the home was occupied. While almost all of the other vacant homes fell into disrepair and were regularly broken into and housed illicit activity, the Foreclosed House remained untouched by drug dealers and vagrants. In May 1989, the Smiths resolved their problem of limited storage space by partially furnishing the Foreclosed House with a few pieces of their worn, excess, less attractive furniture (an old bed, a couch, and a kitchen table and chairs), and also installed decorative security bars over the windows of the house. From that time on, the Smiths continued to maintain the Foreclosed House (mowing, landscaping, painting, blacktopping, etc.), realizing that the maintenance was a small investment in exchange for the increased value and safety to their own property.
In June 1990, Mildred and Bill Mann came to West Oaktown to visit the Smiths for a month. Although the Manns initially stayed with the Smiths, the Smiths soon decided that for old times’ sake, they should invite the Manns to stay in their former home. The Smiths arranged for the local utilities to provide services for the month, and the Manns stayed in the Foreclosed House until July. The couples continued this tradition every summer.
Every January between 1991 and 1998, an inspector from the Bank performed a “walkthrough” of the homes owned by the Bank, including the Foreclosed House.
In February 1998, the Bank conveyed its title to dozens of homes thought to be vacant and neglected in West Oaktown (including the Foreclosed House) to the Martin Luther King Redevelopment Project (the “Project”). Because of a heated legal dispute with a local homeless shelter in a different phase of its renovation, the Project did not immediately turn its attention to redevelopment of homes on the Smiths’ block. In early July 2000, a representative from the Project, accompanied by police, began her inspection of the homes on the Smiths’ block with the intention of evicting all drug dealers, vagrants, and squatters from the homes purchased by the Project. When the Project’s inspector arrived at the Foreclosed House, she found Mildred and Bill Manns present, and instructed them to leave immediately.
The Smiths have come to your law office seeking advice, and the partner has turned to you for a memorandum on the issue. You have carefully checked, and there are no statutes relevant to the problem other than the 10-year statute of limitations on ejection actions. Although Confusion follows majority common law rules, no court has considered a fact pattern identical to the one at issue. About three-fourths of your memorandum to the partner should explain and analyze: (1) the rights of the Smiths against the Project; and the remaining one-fourth should discuss (2) policy rationales as to why a court should and should not apply arguably relevant legal doctrine in this situation.
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 3: (60 minutes - 60 points) (nuisance)
West Oaktown, a neighborhood in Oaktown, Confusion, used to be a thriving residential area for blue-collar families. In the early 1980s, however, most of Oaktown’s manufacturing plants closed and severe unemployment resulted. Many of West Oaktown’s homes became run-down and were abandoned, social ills such as alcohol and drug dependency multiplied, and homelessness emerged as a significant problem.
The Cesar Chavez Shelter (the “Shelter”) provides free lodging from 10:00 p.m. to 7:00 a.m. to West Oaktown’s homeless. The Shelter was opened in 1988 and has been in continuous operation on the same site since that time. Because it only has 120 beds and is the only such lodging for the homeless in West Oaktown, the Shelter regularly has an overflow and several dozen homeless persons are turned away. Consequently, many of its patrons line up for a bed well before 10:00 p.m. (the Shelter is closed between 7:00 a.m. and 10:00 p.m.). To accommodate waiting patrons, the Shelter has acquired and fenced a vacant lot next to its building. The Shelter is in compliance with all applicable zoning regulations.
In an attempt to reverse urban decay and improve the quality of life for the residents of West Oaktown, in 1996 several pastors from churches located in West Oaktown organized the Martin Luther King Redevelopment Project (the “Project”), a community development project designed to use private markets to spark redevelopment in West Oaktown. The Project hoped to purchase abandoned housing in certain blocks of West Oaktown, renovate the housing, and sell it to apartment dwellers from the nearby city of San Franklin who can not afford housing in San Franklin.
At a cost of $2 million, the Project completed Phase I in 1998, sold each of the homes for about $200,000, and used the profits to purchase and renovate homes on a neighboring block in West Oaktown (“Phase II”), which also happens to be the location of the Shelter. The Project hopes to continue this process by selling the Phase II homes and using the profits to purchase, renovate, and sell homes on other blocks in West Oaktown (“Phases III, IV and V”). The ultimate objective is to eventually restore the entire neighborhood. The board members of the Project believe middle-class couples attracted to West Oaktown will be followed by restaurants, coffeehouses, bookstores, and other small businesses, which will in turn provide jobs for many of West Oaktown’s unemployed, including those who are presently homeless. Indeed, in response to the success of Phase I, a well known ice cream company (known for its socially responsible involvement) has already opened a store on the edge of Phase I closest to Phase II and has hired previously unemployed West Oaktown residents.
The board members of the Project, however, believe that the Shelter is not compatible with a residential neighborhood. A handful of the Shelter’s patrons roam the area before and after the Shelter’s hours. A few patrons occasionally trespass on neighborhood yards, drinking, littering, and sometimes urinating on Phase II homesites. Those turned away from the Shelter (because it is filled to capacity) occasionally sleep in the doorwells of the renovated, but not yet sold and occupied, housing in Phase II. Private security guards hired by the Project have not eliminated the problems. The Shelter’s management has complained, however, that the guards unreasonably intimidate many patrons lawfully walking to and from the Shelter.
After consulting with its accountants and real estate appraisers, the Project has discovered that, due to the Shelter, it will not lure to Phase II the middle-class purchasers who attract small businesses, will only be able to sell the renovated housing in Phase II at a loss, and will be forced to cancel its plans for Phases III-V.
The board members of the Project believe that the Shelter is a nuisance, and they are contemplating a lawsuit against the Shelter. They seek your advice. Advise them as to the strength of their common law private nuisance claim, possible responses the Shelter might have, and possible outcomes, including remedies, of any such lawsuit.
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 4: (40 minutes B 40 points) (nuisance)
Clone Industries (Clone) is located in the two-block biotechnology corridor in the town of Silicone Valley. Founded in 1995, Clone is a private company that conducts medical research and development, and the company=s founders expect that the company=s cutting-edge work will produce cures to terminal diseases. By being located in the biotech corridor, Clone=s employees informally interact and share ideas with employees of neighboring biotech companies, accelerating both Clone=s research and the productivity of other biotech companies. While Clone has yet to turn a profit, its management believes that it is on the verge of a scientific breakthrough that will mean hundreds of millions of dollars of revenue per year to Clone.
EMS, Inc. (EMS) is a private company that plans to provide emergency ambulance service in Silicone Valley. After extensive study, EMS determined that it can afford to build only one emergency response station in Silicone Valley. EMS=s research also shows that an emergency response station situated in the biotech corridor, which is centrally located and has highway access, would allow it to respond most quickly to medical emergencies in Silicone Valley. The emergency response station would be the only one in Silicone Valley. In 1999, EMS purchased a parcel adjoining Clone=s parcel and opened a temporary emergency response station consisting of a small portable shed. EMS has realized $500,000 a year in revenue as a result of the temporary response station, and the company plans to construct a permanent emergency response station on the site. Both the temporary emergency response station and the plans for the permanent station are in compliance with all applicable zoning regulations.