University of Kentucky Exam No.

College of Law Final Exam / Fall 1994

Professor Goring Room 110

December 9, 1994

PROPERTY I \ LW-807-2

Time Limit: 3 Hours

INSTRUCTIONS

This examination consists of 24 multiple choice questions and two essay questions. The multiple choice questions are worth 2.5 points each for a total of 60 points. The multiple choice questions must be answered on the computer scorable answer sheet provided using a lead pencil. Enter your exam number and not your name on the answer sheet. You should spend no more than 60 minutes on this portion of the exam.

Write your answers to the essay questions in your blue books. The essay questions are worth a total of 120 points. The number of points allocated to each question indicates how much time you should spend on it. Do not write your name on any part of the exam. Write your exam number on the cover of each of your blue books and number the books consecutively. If you are handwriting, please write legibly, skip lines, and write on only one side of the page. If you are typing your exam, please double space. Start a new blue book (or page of typing paper) for each answer.

The examination is closed book. Casebooks, class notes and other materials may not be used and should not be left near your desk. Do not ask me any questions about the multiple choice questions. Be sure to budget your time carefully. No further writing will be allowed once time is called. Be sure to write your exam number on each blue book you submit.

Assume, unless instructed otherwise, that traditional common law rules, such as the destructibility of contingent remainders, the Doctrine of Merger, the Rule in Shelley's Case, the Doctrine of Worthier Title, and the Rule Against Perpetuities (RAP), are applicable. Assume that remainders are in fee simple unless they are specifically identified as remainders for life.

Essay Questions

Question 1 (60 minutes).

Due to a boiler explosion, the sanctuary used by the Third Street Congregational Church located in New Town burned to the ground. After the fire, members of the congregation attempted to salvage the Church's valuable artwork and religious items. These items included stained glass windows, gold statuary and ancient scrolls given to the church by its founder. Third Street's most valuable religious item was a priceless ivory cross, trimmed in gold and encrusted with precious metals. This cross was donated to Third Street over 150 years ago by the church's founder, and was rumored to convey mystical powers and good fortune on its possessor. Although the congregation's members searched diligently among the ruins of the burned out church for the cross, it was never recovered. Since one of the principle tenets of the Church was mistrust of any governmental authority, the disappearance of the cross was never reported to the police.

Although active, the congregation could not raise enough money to rebuild the Church. Widow Thompson, a longstanding member of the Church, owned a city block on 53 street in New Town. She agreed to finance construction of a new church building on her property, and to permit the Third Street Congregation to occupy the entire block, which included the site of the new church and the adjacent vacant lot for church purposes. This arrangement continued amicably for eight years.

Widow Thompson died leaving an invalid will devising the entire block to the Third Street Congregational. Following her death, the Church continued to occupy and use the church building and the lot in all respects as it had before the widow's death. The congregation conducted services in the church and used the adjacent lot to park cars every Sunday morning. Use and occupation of the block was done, however, under the devise in the invalid will.

Widow Thompson did not have any children. Her only heir is her niece, Samantha Scott, who lives 1200 miles away in Romantown. Ms. Scott, upon learning that the Church was occupying the property, wrote several letters to Third Street advising it that the Widow's will was invalid. Ms. Scott insisted that the Church cease using the property for church purposes, and in the absence of cessation, that the Church occupy the property only if it executed a 15 year lease with her. The leader of the Church believed that Ms. Scott was demoniacally possessed, and assumed that she was fabricating the story about the will. As a result, the Church refused to answer Ms. Scott's letters and continued to use the property for church purposes for the next five years. During this period, Ms. Scott made repeated demands that the Church vacate the property, but since she could not afford a lawyer, she did not pursue the matter in court.

During the Church's occupancy of the property, the neighborhood surrounding the church began to change. Affluent, young families and upscale businesses moved into the area. This economic development caused the value of the property to triple. The Church's leadership, realizing that the church could derive a substantial profit from the recent neighborhood improvements, sold the entire block for $1.7 million to Fundamental Real Estate Developers. As proof of ownership, the Church presented a copy of Widow's Thompson's will to Fundamental. The Church executed a deed purporting to convey the property to Fundamental, however, the legal description in the deed inadvertently described the block located immediately across the street from the site of the church.

Thereafter, Fundamental began immediate construction of a retail shopping mall on the property. Approximately two years later, Ms. Scott visited New Town and discovered the shopping mall on her late aunt's property. Ms. Scott knew that her aunt, who was a very religious woman, wanted the property to be used only for church purposes, and would be mortified to see a mall on the site. Incensed, Ms. Scott mortgaged her home, and retained a lawyer to file an ejectment action against Fundamental.

Members of Third Street Congregational Church also visited the mall, and were equally incensed, but for a different reason. For years the Church's members throughout the United States and Canada actively searched for the ivory and gold cross that mysteriously disappeared in the fire, but every search and inquiry proved unsuccessful. However, the Church's members found the cross displayed in a jewelry store located in the mall. When asked about the cross, the store owner indicated that the cross was a family heirloom given to her by her deceased mother-in-law on her wedding day two years ago. Although the Church's leadership demanded the immediate return of the cross, the jewelry store owner refused to part with it. The Church retained counsel to file a replevin action against the jewelry store owner.

The senior partner of your law firm has asked you to prepare a memorandum regarding the merits of the actions filed by Ms. Scott and Third Street Church. The partner is especially concerned about (i) the merits of Ms. Scott's adverse possession action; (ii) the merits of the Church's replevin action; and

(iii) possible defenses to each cause of action.

Question 2 (60 minutes)

On July 1, 1993, John Tenant executed a one year lease to rent a four bedroom townhouse in the Crown Oaks Apartment complex. The owner of Crown Oaks, Mike Landlord, thought that it was strange for a single man to rent such a big house, but agreed to lease the unit to John after John told him that his brothers were going to occupy the house with him. Although John was a generally honest person, he was afraid that Mike would not rent the townhouse to him if he disclosed that he was opening a hospice for AIDS patients. The patients were all college friends of John's, including his lover of many years, David Anderson. Due to the shortage of available housing in New Town, the city council passed a rent control ordinance last year which restricted the amount of rent that Mike could charge to lease the townhouse to $500 per month.

From the moment John took possession of the townhouse, neighbors began noticing unusual occurrences. Medical supplies and equipment were moved into the house. Medical personnel, ambulances and other emergency vehicles frequented the house. The neighbors also noticed that some of John's garbage was in sealed red bags marked "Contaminated medical Waste." These red garbage bags were collected by a special disposal service. However, on several occasions, neighborhood children opened the bags, and were found playing with used needles. After about six months, the neighbors realized the true nature of John's occupancy, and began complaining to Mike.

In addition to marketing itself as a safe, welcoming community for families, Crown Oaks was also known for its cleanliness and well-maintained units. Although Mike made every effort to promptly repair and maintain the other 29 town homes in the complex, he refused to enter John's residence. Over a period of time, numerous housing, health and building code violations became apparent. Vandals broke windows and doors, the ceiling developed leaks, the water heater and furnace developed problems and garbage was not collected. After making repeated demands on Mike to repair the house, John ceased making rent payments to Mike, and reported the conditions to the appropriate governmental authorities. John put the rental payments in an interest bearing escrow account. After making repeated demands on John for payment of the rent, Mike served John with a seven (7) day Notice of Eviction. John refused to vacate the townhouse. On July 1, 1994, John requested that Mike renew his lease for another one year period. Mike refused to renew the lease. Thereafter, Mike initiated summary proceedings to evict John.

Mr. And Mrs. Ralph Boxton and their four children live next door to John. Mrs. Boxton became concerned about John when she found her children playing with the contaminated needles from John's garbage. Although she complained to Mike about John and the hospice, she recently renewed a two year lease on her townhouse, and did not want to move. The Boxtons, who were deeply religious, became even more concerned when protest groups picketing John's residence on the anniversary of the Stonewall riots, threw debris and bottles at their building. Mr. Boxton, was especially upset by the recent events because he bypassed cheaper apartments to move into Crown Oaks when he learned that the lease warranted that Crown Oaks was a safe, family oriented community.

Last week, John died of AIDS. Mike amended his eviction complaint, and served all residences in John's townhouse, including David Anderson.

The senior partner in your law firm recently read an article in the New Town Herald about this matter. He would like the firm to represent David Anderson and the other tenants of the AIDS hospice, but he is also sympathetic to the plight of the Boxton family. Prepare a memorandum that thoroughly discusses the conflict between the landlord and the tenants of Crown Oaks. Your memorandum should emphasize (i) the merits of the claims and defenses raised by John, Mike and David; (ii) the grounds for a possible cause of action on behalf of the Boxton family against Mike; and (iii) possible defenses on behalf of Mike against the Boxtons.