QUESTION I
ADVERSE POSSESSION
Actual B Although Rafaele has a deed, there is no reason to believe that his deed includes
the disputed territory, therefore color of title does not arise.
The statute requires either inclosure or improvements; cultivation is not an issue.
Dock and gazebo B These appear to be permanent improvements, but they cover a very
small part of the disputed territory, and they are so insubstantial they may not be enough in
themselves. So the real issue is the lake. The lake can be characterized as a substantial
investment/improvement. While water may be seem natural, a lake created through the act of
damming a stream is a human creation, and creating a lake on someone else=s land is an act of
trespass. So the area covered by the lake itself, together with the land under the dock, and
probably the gazebo plus a right of way to the gazebo may be subject to actual possession.
Exclusive B The neighbor children regularly use the lake; indeed, after Rafaele moves tgo
the city, they may use it more than he does. There are two responses: 1) tolerating neighbor
children=s recreational use is almost certainly permissive, and may be consistent with the
behavior of a true owner and 2) the children use the lake as a whole without distinguishing
between that part which R. actually owns and that which he adversely possesses. This suggests
that their use is not inconsistent with a claim of ownership.
Open and notorious B Clearly established.
Adverse and hostile B Jxs split three ways:
Objective test B depends on behavior;
Good faith B appears to be met, unless you argued that since R seems to have no
basis for his belief that the boundary extends to the old fence line, his mistaken belief cannot is
so negligent that it cannot constitute good faith;
Aggressive trespasser B If R is simply mistaken as to the boundary, can=t be met.
New jx: Note objective test, which is less likely to encourage perjury, may be modern trend
Continuous B Most important issues: 1) The fact that R moves to to the city, and lives on
the premises only on weekends is less important than the fact that he lowers the lake during the
winter. Since the lake itself constitutes the adverse possession, the fact that the lake is seasonal
affects continuity. The counter-argument would be a claim that seasonal variation in the size of
the lake is consistent with a continued claim to the entire area. This argument depends on some
consistency, however, in the size of the lake and the area it covers. There may be relatively few
(if any) other man-make lakes in the area, so customary use may be hard to establish. 2) A break
in possession between someone=s death and the new owner=s possession is not unusual; what is
more critical is the fact that the lake remains no more than a pond for such a long period
suggesting that the lake itself is not a permanent occupation of the disputed area.
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AGREED BOUNDARIES
Legal uncertainty B The surveyor easily established the true boundary; there is no
suggestion of legal uncertainty.
Agreement B There is also no evidence of agreement, but the neighbors review of the
plans comes close to implying lack of objection to the fence line as the boundary.
Acquiescence for the period of the statute of limitations B There=s clearly
acquiescence, but given that the lake has not extended over the boundary since R=s death, it=s
not clear whether it is for the statute of limitations. G can argue either that the neighbors=
acquiescence continued until the point of their objection or that reliance on their silence makes
agreed boundaries available well before the 10 years runs.
ESTOPPEL
This may be the best argument. Reliance: The fact that the neighbors express concerns,
inspect the plans and consult with the contractor creates more of an obligation on their part to
check the boundary line than it would if they had simply remained silent. So the neighbors=
silence may have convinced R that his assumptions about the boundary were correct. Detriment:
The second issue would then be the extent of the detriment. The facts suggest that without some
encroachment on the neighbor=s land, she could not fill the lake, leaving a small pond. The
detriment is then the wasted money spent on the dam, and the cost of restoring the land (under
water when the lake is full) to usable condition. The cost of the landscaping is less important
than the extent of the damage to the land from the presence of the lake. The cost of moving the
dock and the gazebo are so much less than the cost of restoring the land that they are unlikely to
give rise to estoppel in themselves. [There is also a substantial question as to whether G can
assert detrimental reliance by her uncle as a reason to estop the neighbors from enjoining her use
of the disputed area.]
TRESPASS/INJUNCTION
If R loses on everything else, G can argue that the neighbors= relief should be limited to
damages. Although the neighbor=s can clearly establish that loss of the land under the lake
would constitute irreparable injury, G can respond that an injunction enjoining her from filling
the lake would impose an undue hardship on her (or because the passage of time gives rise to a
defense of laches) in comparison with the relatively minor imposition on the neighbors. Again,
however, this depends on how much of a hardship the loss of the lake would impose on G.
To get full credit for these responses, it was necessary to recognize that these were separate
causes of action with different elements necessary for relief. If you discussed agreed boundaries
in the middle of the adverse possession discussion, or combined estoppel and balance of the
hardships, you were unlikely to get full credit. The class as a whole did relatively well on this
question, so it was important to discuss all of the issues to do well.
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QUESTION II
Grounds for eviction:
I. Non-payment of rent: Non-payment of rent is always ground for eviction; in
California, the LL need give only 3 days notice. Two weeks generally exceeds any reasonable
waiting period after the first of the month. So the key issue is whether the tenants have any
credible defenses. The IWH and discriminatory motive are worth exploring.
A. IWH: The tenants can argue that the combination of the dysfunctional elevator and the
wide slats on the balcony make the apartment uninhabitable. To prevail, however, they need to
establish that:
1. The jx recognizes the IWH. The instructions specify that this jx has never ruled on the
issue. This can mean one of two things: either the jx hasn=t gotten around to the issue yet, and
when it does it will simply adopt the standard prevalent in most other jxs or this jx is more
conservative, more rural or more free market in its orientation and is likely to recognize the IWH
in only a limited manner. If you concluded the former was true (and most students did), then you
should simply proceed to the next issue. If, however, you assumed the latter, you might assume
that the cts would be stricter about what constitutes a violation, and more lenient about the ability
to change the terms through specific provisions in the lease. Either way, I gave credit for noting
that the jx had not yet decided the issue and for some discussion of the policy concerns
underlying adoption of the IWH.
2. Is there a violation? It is clearly the LL=s responsibility to repair the elevator, but
mere failure to repair does not justify withholding rent. Walking up four flights of stairs does not
ordinarily make an apartment uninhabitable, and the fact that it is particularly onerous for the
new parents of quintuplets doesn=t change the standard. So the broken elevator is probably not
enough by itself, particularly if the elevator only worked sporadically at the beginning of the
tenancy. [Conversely, the tenants= argument would be stronger if the LL promised to repair it as
a condition of the lease.] The overly wide balcony slats pose a somewhat stronger argument
because they involve basic safety. The modern trend is to specify in building codes for new
construction (and sometimes housing codes that govern existing rentals) that balcony slats must
be designed so that children cannot squeeze through them. There was no mention in the
problem of building codes, however, so the question left that issue open. In the past, or in a more
conservative jx, this would be a minor issue, which the parents would be expected to deal with
on their own. It was possible to present the safety issue, however, as a potentially significant
consideration, particularly if you assumed either that housing codes were likely to address the
issue or that the modern trend views the width of balcony slats as a fundamental safety issue.
3. Did the tenants waive their ability to object? The tenants clearly rented the apartment
believing that they would have access to an elevator, so the only issue here is whether they knew
it was unreliable at the beginning of the rental. Fourth floor walkups are not uncommon; tenants
could clearly rent an apartment with no expectation of elevator access. If the LL failed to repair a
promised amenity, however, the tenants might have a claim for damages even if there was no
violation of the IWH.
The more important issue concerns the balcony slats. The width of the slats should have
been apparent from an inspection, and the lease specified that the apartment was not suitable for
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children so the tenants were on notice of the issue, and agreed not to hold the LL responsible for
the problem from the outset. [The width of the balcony slats does not pose a problem for adults;
only for children who might wiggle through. It=s the difficulty of supervising two year olds that
creates the danger.] To the extent that violation of the IWH turns on the balcony slats, therefore,
the LL can argue that the tenants rented the apartment with no expectation the apartment would
be suitable for children, and therefore no ability to withhold rent in response to an issue that they
agreed not to raise at the outset. The tenants can argue in response that they agreed only that the
LL would not be liable in tort; neither they nor the lease said anything about habitability. The LL
can respond that to the extent that the IWH is a creation of contract, that is, to the extent it is an
implied term that reflects the parties= agreement, the tort waiver negates any understanding that
might otherwise be implied about child safety. The tenants= response would then depend on the
underlying public policy objectives. (See below).
4. Will this jx enforce such waivers? The answer to this issue involved two
components: a) the general arguments for and against ever permitting waivers, and b) the
arguments for doing so here. To the extent that the IWH serves public policy (as opposed to
contractual) objectives, the jx is likely to make it difficult to waive, if it permits waivers at all. If
the jx adopts a code regulating the width of balcony slats, it is unlikely to permit leases that
change or waive the requirements. If there is no width specified, but unduly wide slats violate
basic standards of habitability, the jx may also find that parents cannot waive such requirements.
The fact that children are involved, and that they are third parties who cannot themselves
bargain, makes the argument against waiver stronger if the jx finds that basic safety is so
implicated that the apartment is uninhabitable. The LL=s response is likely to be that she entered
into an agreement to rent a two bedroom apartment to two consenting adults, and the alternative
for her would be to forbid children altogether at least from the dangerous balconies.
B. Discriminatory motive: The tenants can attempt to argue that the LL would otherwise
excuse a two week delay in rent payment, but for her desire to evict them because of their change
in familiar status as a result of the birth of the quintuplets. To establish a prima facie case, the
tenants would have to show that the LL has on other occasions excused a two week delay in rent
payment. They would also bolster their case if they could show that the eviction is in fact based
on her objection to having children in the apartment. Assuming that the tenants can establish a
prima facie case, the LL would then have the burden of articulating a good faith reason for the
eviction. [In evaluating her responses, it is important to note that non-payment of rent is
ordinarily a good reason for eviction, and the LL can also refuse to renew the lease for any reason
at all or for no reason. If, however, the tenants establish a prima facie case of discriminatory
motive, then the LL can rebut the inference of discrimination only by presenting a legitimate
good faith reason for her action.] She could argue that:
a. 6 people are too many for a two bedroom apartment. The number of people is distinct
from the presence of children and does not constitute discrimination in itself. The LL=s problem
would be that she has imposed no limits on the number of people in the apartment, and objecting
to these tenants on that ground may be inconsistent with her previous practices and therefore
unpersuasive.
b. The tenants are too noisy and the news media causes too much of a commotion. Noisy
children can be grounds for eviction. Here, however, the facts state only that the LL fears that
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they will be noisy. Moreover, the LL=s use of the photo with the five children suggests that she
may welcome the publicity. Again, the issue is the ability of the reason she gives to rebut the
inference of discrimination. The issue is whether it is persuasive or merely pretextual. The fact
that the LL could legitimately evict the tenants if the babies cry all night is irrelevant if her
proferred reason is unconvincing because the babies have been unusually quiet.
c. She objects to the tenants= failure to limit the number of embryos implanted. Many
students suggested that this was discrimination on the basis of religion. The problem, however,
said nothing about the LL=s religious beliefs and specified that she was offended by the failure to
limit the number of embryos implanted, rather than by the fertility treatments themselves.
Private LL=s are not bound by the First A., and they are free to discriminate all they want on the
basis of beliefs so long as they do not discriminate among tenants on the basis of their religious
beliefs and practices. So this argument could prevail if it is not a pretext for discrimination on
the basis of familial status.
d. Tenants= financial stability. It may be heartless, but legitimate, for the LL to regard
the two week delay in paying the rent as an indication that the tenants are likely to be financially
strapped by the birth of the quints, and therefore less reliable tenants in the future.
II. Termination of lease: The landlord can also evict at the termination of the lease,
raising the issue of what kind of lease the tenants have. The problem specifies that they entered
into a one year lease in January 1996, and that they have continued paying the same rent without
signing a new lease ever since. This suggests that they are holdover tenants. Jxs split as to
whether a holdover tenancy gives rise to a new one year term, in which case the LL can simply
evict them when the term expires on December 31st without notice, or a month-to-month tenancy,
which the LL can terminate by giving thirty days notice. [If the holdover gave rise to successive
one year terms, and the LL accepts rent for January 1st, however, the LL would be unable to evict
for another year.] So the LL is likely to be able to evict, if she acts quickly.
A. Defenses: Retaliatory eviction and discrimination on the basis of familial status (set
forth above.) If the LL attempts to evade the IWH by terminating the lease with a thirty day
notice (or at the end of the term), the tenants can argue retaliatory eviction. To prevail, they must
show that they have complained about the elevator and the slats (which they=ve done), and that
the complaints are legitimate, i.e., that they violate the IWH. If so, the LL can=t evict them for
non-payment, and can=t circumvent the non-payment issue by refusing to renew the lease. They
might also have a case for retaliatory eviction if the slats violate the housing code, but not the
IWH, but in that case they would have no defense to eviction for non-payment of rent. The
discrimination argument is the same as it would be as a defense to eviction for non-payment.
Compensation for use of the photo:
Pro: If the photo is a photo of the tenants, they are likely to have a strong case for
misappropriation of their likeness. Even if the tenants= consented to taking the photo, they
didn=t consent to this type of use. The owner of the photo, moreover, has a clear property
interest (copyright) in its reproduction.
If the photo is not one of the tenants, they can still claim that it is use of their likeness and
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identity, and that it is being used in a commercial context without their permission. The Middle
case involved a singer who sounded like Bette Middler; the Vanna White case involved a robot,
who didn=t look like her at all, but who recreated her image. The tenants= will argue that the
identification of the apartment with a family and five children is designed to identify the aparts
with John and Mary and their quintuplets.
Con: The LL can argue that the tenants have no unique identification with the presence of
five children of varying ages and races, that their identification with quintuplets is not the
product of commercial investment, and that they are not in the business of marketing an image of
quints or for that matter of competing with LL=s for apartment rentals.
Enforceability of the tort waiver: To get full credit, it was important to keep the tort issue distinct
from the IWH issues discussed above, even though they are closely related. LL will argue that
tenants are ordinarily responsible for childproofing living quarters, and the tort clause was meant
to underscore something apparent from a physical inspection of the premises: viz., that one to
two bedroom apartments on a busy street, with no play area were not designed for young
children. The alternative to the tort waiver was not so much higher rents, but a limit on the
number of children or (if the law permits) an outright ban on children below a certain age in the
apartments.
The tenants can respond that this clause was boilerplat inserted in every lease, with no
rent reduction and no opportunity for individualized bargaining. The law tends to disfavor
limitations on liability for personal injury; limitations whose principle effect is on children; and
limitations that go to basic safety issues. The tenants= argument would be particularly strong if
the width of the slats is governed by the housing code, or is otherwise regarded as a basic safety
requirement. If, on the other hand, the LL does not have a duty to guarantee slats of a particular
width, and if the existing balcony does not violate the IWH or other housing codes, then the
waiver of tort liability [as least with regard to this issue is more likely to be held enforceable.]
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