MODEL ANSWERS

PROPERTY I - FALL 1994

Professor Goring

Note: The following answers are representative of some the best answers submitted f or this exam. Note that the answers are not perfect - they may contain minor errors. Therefore, use these answers to help you develop your exam taking techniques, but rely on your class notes and your textbook for substantive information.

I. Question 1 (two examples are provided:

MODEL ANSWER 1: The first issue to address is the merit of Ms. Scott's adverse possession action. More specifically, the issue is whether or not the Congregational obtained ownership of the property through adverse possession in spite of the invalid will, thus making their conveyance to Fundamental valid. The purpose of adverse possession is to give possessors an element of certainty about ownership by eliminating stale claims and to put land to its most productive use. There are 6 elements to an adverse possession claim. The first is that ownership must be actual. The adverse possessor must use the land as a record owner would. Applying the facts of this case, Congregational's use of the property by building a church on it is not inconsistent with use of a record owner. It is clear from the facts that "the congregation conducted services in the church and used the adjacent lot to park cars." Ms. Scott may claim that construction of a church in a well-developed residential area is not consistent, but she will probably fail on this point.

The second element of adverse possession is that ownership must be open and/or notorious. This means that use of the property must be such as to give the record owner reasonable notice that the non-record owner is occupying the property with possessory intent. Nothing in the facts indicates that use was not open. In fact, it can be assumed that the public in general was welcome. Ms. Scott may argue that since she lived 1200 miles away, it would not be reasonable for her to notice the occupation. The courts would probably find for the Congregation on this element, however. It is the record owner's duty to check the property in a way that would give her reasonable notice.

The third element of adverse possession is that use must be exclusive; that is to say that occupation of the property was not shared with the record owner. Nothing in the facts indicates otherwise, so courts would f ind this element met. The fourth element is that use must be continuous. From the facts, nothing indicates that use was interrupted when Fundamental began immediate construction, it is clear that there was "privity.

The fifth element is that possession must be adverse or hostile. If courts use the objective test, the state of mind of the adverse possessor doesn't matter. The issue is simply: "was there permission?" For the first eight years., the period Ms. Thompson was the record owner, occupation was permissive. Adverse possession is therefore not an issue until her death. If the will in which Ms. Thompson conveyed the property to the Congregation is invalid, it can be assumed under intestacy laws that her sole heir, Ms. Scott, is the new owner. It is clear that Ms. Scott did not give permission, so under the majority objective test, possession is hostile. Under the minority subjective test, courts can look at this element two ways. First, was there permission and was there a mistake. In these jurisdictions, only "good faith" mistakes occupancy can yield ownership through adverse possession. In these jurisdictions, the Congregation would qualify. The second way courts can look at the subjective test is if there was permission and did the adverse possessor intend to claim ownership rights through adverse possession. In these jurisdictions, Ms. Scott would win. It is clear that ownership is a mistake, in two situations: the church thought they owned the land and the mistake in the conveyance to Fundamental. The church even thought Ms. Scott was possessed, further indicating a good faith mistake. Courts may also look at the state of mind of the record owner. The majority of courts use presumptively nonpermissive, where the record owner must then prove permission. The minority uses presumptively permissive, where the adverse possessor must prove no permission. It is clear from the letters that no permission was given. Courts may also imply hostility if all other requirements are met such as in Tioga. Although generally reserved for harder disputes, his may work. The final elements is that occupation must be for the duration of the statutory period. That period is five years in this jurisdiction, so that element is met. The Congregation occupied for five years and Fundamental occupied for two. This is called "tacking", and is permitted under the continuous element if occupation is in privity.

The second issue is the merits of the Church's replevin action. A replevin action deals with adverse possession of personal property. The current possessor of the cross, the jewelry store, will try to claim ownership by adverse possession. All of the elements are the same, the difference is in the statute of limitations and when it starts accruing. The first element, actual, is met. The store used the cross as a record owner would. The second element, openness, is also met. it was at a mall for everyone to see. The third element, exclusiveness, is also met in that the store did not share ownership with the church. The fourth element is also met under the objective test - there was no permission. Under the subjective tests, there will be hostility if the courts look at permission plus mistake, but there won't be hostility if the courts look at permission plus intent to claim. If the courts look at the state of mind of the record owner, either presumptively nonpermissive or presumptively permissive, it would be easy to show in either case a lack of permission. The final element, "for the statutory period," is the element in question. The issue is when does the statute of limitations begin accruing? Some courts look to the Discovery Rule. Under this rule, the statute of limitations does not start accruing until the true owner has discovered or should have reasonably known the location of the missing items. Along with this rule, there must be a factual inquiry into whether or not the true owner used "due diligence" to locate the missing item. From the facts, the church would show due diligence in that for years, "members throughout the U.S. and Canada actively searched" for the item. The store would try to show lack of due diligence in that the theft was never reported to the proper authorities. The issue would then be a question for the fact finder. If no due diligence was found, the statute of limitations starts from the time the item was stolen and the store will win because the statute of limitations is 5 years. Courts may also use the Demand and Refusal Rule to determine when the statute of limitations begins accruing. Under this rule, it does not start accruing until a demand for the item was made by the true owner and the demand was refused by the possessor. Courts like this in that it doesn't encourage an underground market. The burden is also shifted from the true owner, who under the Discovery Rule must use "due diligence," to the possessor, who now must determine whether or not the purchased good was stolen. This rule could be applied here in that it is clear from the facts a demand was made and refused. The church would then retain ownership.

MODEL ANSWER 2:

I. Merits of Ms. Scott's Adverse Possession Claims

Ms. Scott's claims against the adverse possession of the church may be with merit. The six elements of adverse possession of real property are (1) actual possession, (2) adverse or hostile possession, (3) open and notorious possession, (4) continuous possession, (5) exclusive possession, and (6) meeting of statutory time limits. Each of these topics will be examined in detail.

(A)Actual Possession - Actual possession just means that the adverse possession (AP) uses the land as any other owner would use it (i.e. farmland as a farm). Here, the land is used as any person would use it, it used for a church and later for commercial purposes.

(B)Adverse or Hostile Possession - Adverse or hostile possession means that the land was used without permission of the owner. There are two rules that apply when talking of adverse possession or hostile possession when trying to determine whether or not it was permissive. The first rule is the majority rule. It states that AP's use of land is presumptively non-permissive. The burden is on the owner of the land to prove that they gave permission for use on land. For the first eight years, it appears that the use of the land was permissive, but it is up to Ms. Scott to prove that her aunt gave them permission to use her land.

The second rule is that AP's use of land is presumptively permissive which means that the AP must prove that they did not have the permission to possess the land. For the last seven years the adverse possessors can prove that they did not have permission, but it will be hard to prove that their use while the aunt was alive was non-permissive, since she agreed to finance the church and to "permit" them to use the block.

With adverse and hostile possession there are three rules which govern. The Majority rule is that the subjective intent of the AP is irrelevant in determining whether or not the use is hostile. This is the "Objective" test. Using the objective test then it doesn't matter whether the church or the shopping center intentionally dispossessed or by mistake had the wrong deed to the land, They can adversely possess it for any subjective reason.

The second test is the "Subjective" test called "Intentional Disposition of Property." Here the AP must intentionally desire to eject the title owner from the land; it can't be by mistake of color of title. The church after the first eight years would fit into this category. It made it known by their actions not leaving the property that it was intending to eject Ms. Scott from the land. However, the shopping center may not fall into this category because it was possessing the deed to the block across the street. Therefore, it fails this part of the test, if the jurisdiction adheres to it.

The second subjective test is the "good faith" test. It states that AP can only be attained by mistake in title. Here, the church will fail the test because it is not in mistake of color of title. They are intentionally trying to dispossess Ms. Scott. However, the church may claim that the will left an invalid title therefore, they were in mistake of color of title also. It depends on how the court interprets the church's actions. The shopping center definitely falls within this category. It was on the wrong plot by mistake of deed, arguably.

(C)open and Notorious - All "open and notorious" means is that the AP made it clear that it was using the land. This is open and visible communication to the public that it is acting as if it were the title holder. This is easy to evaluate in this case because the church continued operation even after the request to leave. They acted openly as if they owned the land, and used it as a normal title owner would.

(D)Continuous Possession - As noted the church will have problems proving that the first eight years were non-permissive. But if the court says that the first eight years were non-permissive then the church may meet the continuous requirement. This requires that the AP's occupy the land without skipping a year for the entire statutory period. This does not mean that the have to possess the property 24 hours a day and 7 days a week. They just have to use land as any other owner would. The church can claim it possessed the land for eight years while she was alive and then five years after her death. Then using the rule of tacking that the AP in privity of contract or privity of possession can add time of AP(A) and AP(B) together to equal statutory limit. However, since the statutory period is only 5 years then the tacking = 7 years and continuous is met. Here the church and shopping center were in privity of possession by contract they occupied the same land. This means that they were together on land for 15 years - the typical statutory period.

(E)Exclusive - All exclusive means is that the AP was the one using land and as the true owner would. There is no problem with this element because as previously mentioned they were using the land as an owner would.

(F)Statutory - As noted, the typical statutory period is 15 years. If the church is non-permissive of the first eight years, the objective test is applied to the AP\Hostile requirement, and the court allows tacking, then the statutory period is satisfied. However, since the statutory period is only 5 years then the statutory period is met.

Conclusion

It appears that Ms. Smith has a good claim against the churches adverse possession. Mostly because the first eights years seems permissive.

II. Church's Re-plevin Action

The store will be able to meet the elements of AP mentioned above. The possessor by the store was actual, open and notorious (trying to sell it). Continuous (for at least 2 years and if heirloom probably longer using tacking of possession between mother and daughter). Exclusive (using as owner would), and if the continuity of possession is over the statutory period then it meets this element).

Or does it? The question in replevin actions is when does the statutory period begin to accrue. The majority rule is the Discovery rule. The statutory period is 5 years so the store must prove they had it at least 5 years including tacking to even have claim to property. Under the Discovery rule the statute doesn't accrue until the title owner knew or should have know who had actual possession as long as the title owner uses due diligence in its search. Under Greek Church of Cypress due diligence can mean an active search but without notifying authority. The authorities never have to be notified. Here the church members searched nationwide and in Canada for the items. It is likely that the court will say it used "due diligence". The reason authorities never have to be notified is that notification may seem the artifact further underground and it would never be found.

If the court uses the minority rule, Demand and Refuse. The time of statutes doesn't begin accruing until the title owner demands return of the piece and the AP refuses. This is subject to laches, which says if the title owner doesn't exercise legal rights within a reasonable period of time then they lose the right to bring action. Again the church is likely to in because it gave a demand for return and was refused and then brought an action for replevin immediately.

III. Defense for the COA'S

A)Ms. Scott may also claim by not responding to her demand to vacate the premises that the church assented to her 15 year lease. However, the failure to pay rent and the fact that a lease over a year must be in writing nulls this argument.

Stores Claim

The store may claim as noted above that laches prevents the church from taking the property, but it appears that the church acted in a reasonable time. The church can also claim that the property was stolen and that a thief can never gain actual (good) title to the property. The store will just have to show that a merchant sold her mother the piece and then good title was passed.?

II. Question 2 (three examples are provided):

MODEL ANSWER 1: The first set of issues to tackle in this case are the merits of the claims and defenses raised by John, Mike and David. The first issue is on the summary proceedings against John. Mike will claim that he is entitled to evict John because John failed to pay the rent and that John violated his "good faith" obligation as a tenant by opening a hospice and that he violated a lease term by making the complex no longer a "safe, family oriented community." Mike will claim that, under the statute, this is indeed "good cause." Section l(a) states that failure to pay rent is indeed a good cause. Mike will also claim under Section l(b) that John disturbed the "peace and quiet" of the other tenants by moving equipment and requiring special garbage delivery. Mike will use as evidence the many complaints he received from the other tenants. Mike will also allege under Subsection C the by operating an AIDS hospice and exposing the building to obvious protest violence, John in fact allowed damage to the premises through gross negligence.

In defense, John will first point out that nothing in the facts indicates any written notice was received by John to cease in such activities. John may also bring up several violations made by the landlord himself. John will say that Mike violated the implied warranty of habitability by refusing to maintain and repair John's residence. John will point out that, after all, this lease is a contract for the service of housing and that the historical notions of caveat emptor no longer apply due to the change in the housing industry. As a result of Mike's breach, John may try to claim constructive eviction, stating that Mike's actions or inactions rendered the premises uninhabitable and unfit for their intended purpose. Mike will retaliate and state that since John did neither evacuate the premises or part of the premises, John was not in fact constructively evicted. John will then claim that the eviction and refusal to renew the lease was in fact retaliatory. John will point out that he complained to the proper authorities and that the eviction and refusal to renew was in retaliation. Mike will claim that the two were unrelated, and that he has a right to refuse renewal for any reason as long as he shows good cause and the refusal is not discriminatory, in response to elderly\handicapped claim or retaliatory eviction. The impact on all of this on the summary judgement is that it is no longer summary at all. With all of the defenses and breaches by Mike that John can raise, it is almost as if John has been given a life estate. David will argue that he cannot be evicted because the courts have expanded their view of "family," and that an eviction would be a violation of Section 3. David will argue that an emotional and financial commitment, along with interdependence is enough to qualify John and David as "family". As evidence, David will point out that he and John have been "lovers for many years" and that in John's weakened condition they were more dependent on each other than ever. Dave will also point out that this expanded definition is consistent with the purpose of rent control legislation-to provide affordable housing and limit eviction. Mike will try to point out the lack of financial interdependence, but will probably fall short.

The other claims to consider are those of the Boxton family. Their first claim will be that Mike violated their implied covenant of quiet enjoyment. The Boxton's will claim Mike violated the lease by not operating a safe, family oriented community. As evidence of Mike's breach of the covenant of quiet enjoyment, the Boxton's will point out that the landlord is responsible for breaches of other tenants of this covenant if it is reasonably apparent at the time of leasing to the other tenant (John) that doing so may disturb other tenants. Mike will then contest that although he thought it strange that one person would need four bedrooms, he could not have reasonably foreseen that John would breach the implied covenant of quiet enjoyment by starting a hospice, which gave rise to violent protest which disturbed the Boxton's. The Boxton's may also have tort claims against Mike in that their children were playing with contaminated needles from John's apartment. If the injuries occurred in a common area, which we can't tell from the facts, the Boxton's would have a tort claim against Mike, if civil liability now recognizes fear of AIDS as a cognizable injury. I f the injuries did not occur in a common area, the Boxton's may have claims under Consumer Protection Statutes. This is because leases today are viewed as contracts for services. The Boxton's will allege that by using "deceptive housing" (breach of implied warranty of quiet enjoyment, etc... ) Mike violated the Consumer Protection Statute and the Boxton's should recover. Mike will counter and claim that he is not the type of landlord who was ever designed to be governed by these statutes in that he does not lease in a commercial setting.

MODEL ANSWER 2:

John Is lease is a term of year lease because it is written, it is for a period of a year. John has possessory rights and Mike has a reversion after the expiration of the tenancy. However, rent control turns a term of years into a life estate because of difficult of eviction). Mike cannot evict without just cause and a 30 day notice. Mike can claim that he and John initiated a residential lease and John was using the land for commercial purposes (a hospice). However, this is likely to fail if Mike was not making money off of it and since a Hospice is charity that will probably be the case.

The main claim that Mike has against John is that John has stopped paying rent. John will claim that the reason he has begun withholding rent is because of Mike breaching the implied warranty of habitability. Traditionally a landlord did not have a duty to keep land repaired. It was based on the Doctrine of Caveat Emptor (let the buyer beware) . Therefore, the tenant took land and housing as is. However, times have changed; society is more industrialized and urban. Appliances are not easily repaired and many residents don't have the expertise for repair. Therefore, in 1970 the court in Javins made an implied warranty of habitability based on housing codes and consumer protection (housing as a service). Under it the tenant has many avenues of remedy including rent withholding to force landlord to repair deteriorated and substandard living conditions. The other remedies include abatement, recession, withholding, repair and then charge landlord (subject to statutory limits) , administrative (calling housing authorities) and criminal proceedings.

John will also claim that the eviction is without "good cause" and retaliatory. In rent controlled buildings a landlord cannot terminate a lease or evict a person for good cause. Mike will claim that rent control will allow eviction for failure to pay rent (Section l(A) (John will claim justification) and that John is affecting the quiet enjoyment of the neighbors under Section l(B). The failure to pay rent has been discussed, so now the implied covenant of quiet enjoyment must be addressed.

Under the traditional rule the landlord had to refrain from taking action which deprived others of quiet enjoyment. Now under the modern rule the landlord has a duty to uphold the neighbors right to implied covenant of quiet enjoyment if he has control over the tenant causing the disturbance.

It appears from the statute that the landlord has control over John and can evict if he has given written notice for John to cease. There is no evidence that Mike ever submitted to John a letter asking John to cease. Mike just brought an action to vacate premises; therefore, Mike has not met his burden of good cause.

John will also claim that his eviction is retaliatory and therefore illegal. John can claim that he complained to the housing authorities of the housing code violation, that he informed Mike of the problems and Mike refused to come into the house and repair them and that Mike is retaliating for John withholding rent which is a remedy under the implied warranty of habitability (all pursuant to Section 2(a)(b)(c)).

Mike will argue that it is his property and that rent control is a taking without due process and just compensation. Therefore, he should be able to evict for any reason (as long as not discriminatory, retaliatory, and against disabled or elderly). He will argue that he was not retaliating for reporting him to the authorities. He made efforts to evict before the calls to the housing authority. The city will claim that it has a legitimate state interest in preventing the eviction of tenants like Mike. That otherwise, people would be on the street. The city has the obligation to prevent homelessness, address the housing shortage, and to see that prices don't exceed reasonableness.

Mike v. David

Mike will claim now that John is dead he can evict David because he is not "family". Under Section 3 of the housing code, a landlord cannot dispossess a surviving spouse or "family". However, this claim will not stand because of the Braschi Doctrine. The Braschi case was a homosexual couple living together and the court defined them as family. The test the court applied is whether there is "emotional and financial interdependence between the couple".

David will have to show things such as joint checking accounts, time lived together, joint tax return, combined property and that David was John's heir to prove the emotional and financial interdependence.

Boxton v. Mike

Boxton has 2 claims against Mike. One claim is the tort liability of Mike; and the other is the breach of the implied covenant of quiet enjoyment.

Boxton will bring the tort liability claim under the consumer protection act. Traditionally, landlord did not have tort liability for their rented property because of Doctrine of Caveat Emptor (as explained above). The consumer protection laws didn't apply because there were other acts to cover housing (such as housing codes). But their housing became known as service and therefore fell into the realm of consumer protection. Boxton, will want to bring it under consumer protection because if offers recovery in double or triple the damages.

Boxton will claim that Mike is liable for the negligent acts it allowed by permitting John to stay and that these acts caused him severe emotional distress. Mike recklessly caused emotional distress. These acts were outrageous and extreme. The acts caused his distress and that his distress was severe.

Boxton will also claim that Mike interfered with his implied covenant of quiet enjoyment discussed above. That he has a right under the lease to his house to quiet enjoyment and that Mike could have done something about it under Section (1) (b) but didn't.

Mike's Defenses

Mike will try to claim that you need physical injury in order to claim emotional distress and that Boston's ED is not severe. Even if it is severe, he didn't cause it. Mike will fail to prove that the emotional distress requires physical injury because under §46 of Rest. of Torts, ED does not require physical injury. He will also argue that being upset is not severe under Int'l infliction of emotional distress and may succeed because of §46's strength on the severity issue (cannot claim ED for ordinary and non-severe distress such as being upset) . He will claim that he is not responsible for John's acts to Boxton, that he is responsible just for tort actions to John and his tenants.

Mike will also claim he had no control over John and the implied covenant of quiet enjoyment. He will argue that John's lease did not give Mike the right to control John and therefore he has no liability for it.

MODEL ANSWER 3:

The question asked is the merits raised by each of the parties (John, Mike and David) . Also raised is the cause of action in behalf of the Boxton family against Mike and the possible defenses to their claims.

The first issue to address is the type of tenancy. John had a periodic tenancy which would expire at the end of the period, in this case one year. As a tenant he was expected to pay the rent and maintain the premises in a similar condition to which he found them. He was also to follow the terms of the lease agreement. Mike will argue that John failed to keep his part of the bargain. First, he stopped paying rent. Next, he failed to maintain the promises in a similar condition. Third, he violated the lease agreement by stating his brothers would be staying in the town home, instead of revealing his true intention of opening a hospice.

John will counter that he put the rental income in an interest bearing account until repairs were completed. He will also note that the duty of landlord is to maintain the premises not the tenant. This is due to the change in society from agrarian to industrial, and the unfair burden it would place on a tenant to be responsible for repairs of a building. Next, he can state that his failure to disclose the nature of the use of the premises should be permissible considering the stigma placed upon AIDS patients in society.

In addition, John's estate will argue that there was an implied warranty of habitability. According to this covenant, the landlord has an affirmative duty to keep the premises safe, and in good repair. The landlord failed to fulfill this obligation by ignoring John's request for repair, and allowing numerous housing, health and building code violations to exist.

Furthermore, this amounted to a substantial interference with the use of the premises. John may argue that this substantial impairment was effectively a constructive eviction. Constructive eviction applies when the premises have become so unhabitable that they are no longer fit for the purposes that they were designed.

John would have a problem with this argument, because a tenant in this situation is suppose to move out. The court may entertain reasons for his not doing so.

Mike may raise the claim that as a landlord he has the ability to evict whom he does, especially if there is good cause. He will note that the non-payment of rent coupled with the end of , the lease term give him good cause to evict. He can point out that John is a holdover tenant, and since he does not accept his tenancy, he has become a tenancy at sufferance.

With respect to David, he will argue that this is a rent control building, and as such he is entitled to remain in possession of the premises, because he was John's lover. Under the Braschi test, David may be considered a family member and entitled to the possession of the premises. David will have to establish that he and John were financially and economically interdependent. He will have to demonstrate the exclusivity and the longevity of the relationship, and whether they held themselves out to the public as such.

Mike will argue that the Braschi test should not apply. Rather he will argue that the laws of intestate should apply. Under the intestate laws a family member is determined by blood or marriage, and of course David will not fall into this category.

A major issue will be if Mike has the ability to evict the rent control tenants. Rent control housing was designed to provide affordable housing to all members of society. Thus, policy dictates that certain restrictions be placed upon landlord's desire to evict. The courts will weigh the landlord's interest against the tenant's in determining who should prevail. Although each side has a valid argument, it will be for the court to determine who's interests is better served.

The last issue is that of the Boxton family. They will make several arguments against Mike. First, they will argue that their quiet enjoyment of the premises was interfered with. A tenant has an implied right to undisturbed use of the premises. The Boxton's will argue that this right was interfered with when ambulances and other emergency vehicles frequently came into the neighborhood. The garbage was left uncollected and protest groups began picketing the premises throwing debris and bottles at their building.

Furthermore, the lease expressly (through warranty) provided for a safe, family-oriented community. The Boxton's will argue the neighborhood is not safe because of rioters and contaminated needles. Also it is not family oriented with male patients of AID's who are living together.

In addition, the Boxton's will argue that the premises have basically become uninhabitable and they are afraid to go outside or allow their children out because of the needles and violence.

Mike will counter that he is not responsible for the actions of his tenant, especially when that tenant violated the terms of the lease agreement.

Moreover, with regard to the contaminated needles, Mike will argue under the common law he could not be held totally responsible for what the children have gotten into. He will argue that the parents are contributory negligent for not supervising the children. It is likely the court will agree with this point.

The Boxton's will, of course, desire to have consumer protection laws extended to apply to this case. They will argue that the landlord knew or should have known the conditions of the premises. As such, he had an affirmative duty to take some action to repair the condition. Since this was a common area, he is responsible for latent defects.

He will, of course, counter, he had no reason to know of the defects and no duty to repair. one issue which remains for John is retaliatory eviction. Retaliatory eviction occurs which a landlord evicts a tenant for joining an apartment association or reporting the landlord to the proper authorities. John did report Mike and he will argue that his subsequent eviction is the result of that reporting.

Mike will note that the two incidents are unrelated. However, if the eviction comes before six months after the reporting, the courts will presume that retaliatory eviction has occurred.