QUESTION TYPE 3: OPINION/DISSENT
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.
3G. Tony Tenant rented a 2-bedroom house in a rundown neighborhood in the State of Crisis. After two months, the roof began to leak. He requested that the landlord, Linda, fix the leak, but she refused. She correctly pointed out that the lease was silent as to who was responsible for repairs and that Crisis had no statute or caselaw that forced a residential landlord to bear the cost of repairs.
Tony sued Linda in state court, demanding that she fix the roof and asking the state court to adopt an implied warranty of habitability in residential leases or to fashion some other appropriate remedy. The trial court, finding "almost unanimous agreement among American jurisdictions" that such a warranty should be implied, found for Tony. The Court of Appeals reversed, arguing that a warranty would unnecessarily interfere with the landlord's contract and property rights and would lead to homelessness. Tony appealed to the Supreme Court of Crisis.
Write an opinion and shorter dissent for the Supreme Court of Crisis addressing whether the state should imply a warranty of habitability in residential leases, adopt a different remedy, or leave Tony remedyless.
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.
3J. Andrew owns a large undeveloped lot in the state of Readiness. The lot is bordered on the south side by a state highway and on the other three sides by lands owned by other parties. Bob wants to purchase the northern half of Andrew’s lot to create a residential subdivision. He is aware that the parcel he wishes to purchase is landlocked, but he intends to buy the more attractive parcel immediately to the north to extend his subdivision and provide access to public roads. Andrew and Bob negotiate the following provision, which appears in the final deed of sale:
The parties recognize that this parcel is landlocked, but intend that no easement by implication or necessity be granted over the seller’s remaining property.
Unfortunately, after he finalized the sale from Andrew, Bob was unable to complete a deal with the owners of the parcel to the north. Subsequently, Bob died, leaving all his property to his son Gilbert. Gilbert brought suit against Andrew to acquire an easement-by-necessity over Andrew’s land.
The trial court found that all of the elements of an easement-by-necessity were present and held that the intent of the parties was irrelevant because easements-by-necessity were created to further the public policy favoring productive use of land.
The court of appeals reversed, holding that the state should not create easements-by-necessity in favor of those who knowingly waived their rights to access. The state Supreme Court granted review to decide whether purchasers of landlocked parcels should ever be able to expressly waive their rights to access.
Draft the analysis sections of an opinion and of a shorter dissent for the Supreme Court of Readiness deciding this question in the context of the facts of this case. Assume that Readiness does not have a private eminent domain statute like the one described by the dissent in Brown v. Voss.
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.
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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.
3R. Longford is an old industrial city located in the state of Einstein. The city has financial difficulties, in part because, for decades, wealthy and middle class residents have been moving out of the city into newer, more attractive suburbs. The warehouse district in Longford contains a number of abandoned or barely used old factory and warehouse buildings.
The Longford city council developed a plan called the Longford Urban Planning Opportunity Land Initiative (LUPOLI). Under LUPOLI, the city would purchase a large section of the warehouse district through the use of its Eminent Domain power. It then would divide up the area it had bought into twenty lots of four square blocks each and auction them off to developers who could choose to build rental property or condominiums, but who would have to limit the land to residential uses and to create a minimum number of units. The city hoped that the rapid creation of a large neighborhood of brand new residences would attract wealthy and middle class residents back into the urban core.