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.
1
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
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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.
3
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.
4
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.
5
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.
EMS ambulances respond to emergencies approximately five times a day, and leave the
emergency response station with their sirens blaring. The sound from the EMS sirens disturbs the
sensitive processes and experiments at Clone, where the laboratories have not been soundproofed.
Clone management believes that the fiscal stability of the company is jeopardized. No other
biotechnology companies have experienced similar problems. Clone is contemplating a lawsuit against
EMS. The company comes to your law firm for advice. Prepare for Clone a memorandum that
analyzes the issues and the likely outcome of any such lawsuit.
6
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 5: (60 minutes - 60 points) (servitudes)
In 1970, Susan, a developer, owned a 175-acre tract of land. Susan divided up 100 acres of the
tract into 10-acre lots, and built luxury single-family-estate homes on each of the 10 lots. Susan then
conveyed the remaining 75 acres to Arnold, and Arnold recorded his deed that contained the following
language:
Grantee promises to use this tract only as a golf course. While Grantee may open up
membership at the golf course to others, Grantor shall enjoy a full right of use over the golf
course for recreational purposes. These agreements shall bind and inure to the benefit of all heirs
and assigns of the respective parties.
Susan then sold Lot 1 to Evita, who immediately recorded her deed. Two days later, Susan sold
Lot 2 to Hillary, and Lots 3-10 to other individuals. The deeds for Lots 2-10 contained the following
provision: “Grantee covenants that this tract will not be used for any purpose other than a single,
residential, luxury estate home.” The owners of Lots 2-10 recorded their deeds. Arnold built and
operated the golf course, and Evita, Hillary, and the other owners enjoyed living and playing golf in the
upscale community.
In 1995, Evita decided that the community should be accessible to working class people, and
thus divided her tract into 80 lots that were under an eighth of an acre each, and built a subdivision of
small homes. Hillary and the owners of Lots 3-10 were disturbed by the development. In 1996, Arnold
conveyed the tract featuring the golf course to Jack. A year later, after heavy financial losses due to a
declining membership base, Jack conveyed the course to Tiger. In 1998 Evita rented or sold all of the
homes in the newly subdivided development. The population of the area jumped from about 30 to 400
residents over the course of a few months. Evita rented one of her working-class houses to Fannie Lou
under a 6-year rental agreement.
In June 2000, Fannie Lou began to ride her skateboard on the golf cart paths on the course, and
Tiger notified her that this activity was prohibited. In July 2001, Evita invited Fannie Lou to play golf at
the course. Fannie Lou had never played golf, and Evita last played the course in 1995. As the two
approached the tee on the first hole, Tiger told Evita and Fannie Lou that they were trespassing on
private property and instructed them to leave. In April 2002, discouraged by a lack of interest in golf,
declining membership, and financial problems, Tiger announced his plans to shut down the golf course
and convert the use of the property to a more lucrative recreational park. The park will feature miniature
(“putt-putt”) golf, a go-cart track, skateboarding, and a BMX bicycling off-road racetrack. Hillary, as
well as a few other residents who enjoy golf, are furious about the conversion. The owners of Lots 3
through 10 were so disturbed that they moved out and conveyed their properties to developers, who plan
to divide the properties into smaller lots and build homes similar to those built on Lot 1 by Evita in
1995. Write a memorandum detailing possible legal claims and an analysis of such claims.
7
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 6: (60 minutes B 60 points) (servitudes)
In 1988, Cisneros Development Company (“Cisneros”) built a 10-lot development called
Conyers Estates in Dade County, a large county in the State of Confusion. Cisneros described the
development in the sales brochure and advertising as “an exclusive residential subdivision where
successful people can feel at home.” After constructing 10 large, luxury homes on the lots (a single
home on each lot), in September 1988 Cisneros sold Lots 1-6, and the buyers immediately moved in.
George Sr., a government worker, purchased Lot 6 from Cisneros. The deeds to the first 6 homes (Lots
1-6) contained the following provision: “Residential Restriction: The property shall be used exclusively
for residential purposes, with no commercial or business use allowed.” All of the deeds were properly
recorded.
In October 1988, the economy took a downturn, Lots 7-10 did not attract any buyers over the
next six months, and Cisneros reduced the prices of Lots7-10 by 20%. Subsequently, George Sr.
purchased Lot 7 (which was next door to Lot 6), so that his friend, Dan, would have a place to live
(George Sr. retained title to Lot 7). The deeds to the remaining homes (Lots 7-10) did not contain the
residential restriction mentioned above, and were properly recorded.
In 1992, both George Sr. and Dan decided to retire and move to other parts of the country.
George conveyed Lot 7 to Bill with a deed containing the following (and only) restriction: “Garage
Restriction: The Lot 7 garage shall not protrude beyond the front porch on Lot 7, and this restriction
shall be considered a covenant running with the land which shall bind and inure to the benefit of all heirs
and assigns of the respective parties.” Bill’s deed was properly recorded, and he moved into Lot 7.
A few days later, George Sr. moved to Houston, and conveyed Lot 6 to his son, George W.
George W. moved in immediately.
By November 2000, the neighborhood was still completely residential and high end.
Nevertheless, Bill decided it was time to retire from his government job and move to New York, but he
did not want to sell Lot 7. Therefore, he rented Lot 7 to his friend Al, and the 10-year rental agreement
contained none of the restrictions mentioned above. Al moved into Lot 7 and, having recently lost his
job following a contentious employment dispute, decided to sell software from home out of Lot 7.
Business grew quickly, with noisy UPS delivery trucks regularly dropping off inventory, and scores of
customers coming by Lot 7 to buy software. Al soon decided he needed more space, and started
constructing an expansion on the Lot 7 garage so that it would extend well beyond the front porch.
George W., who still owns and lives on Lot 6, threatens to bring suit, claiming that he is entitled
to: 1) an injunction against Al to prevent him from selling any more software from Lot 7; 2) an
injunction against Al to stop expansion of the garage; 3) an injunction against Bill to stop expansion of
the garage; 4) money damages from Al to compensate him for the expansion of the garage; and / or 5)
money damages from Bill to compensate him for the expansion of the garage.
8
You are an associate at Ginsburg & O’Connor, and Al retains your firm in anticipation of
litigation. Al has told a partner at your firm that he would like to expand the garage regardless of
whether he continues to sell software from Lot 7. The partner already has a memo from another
associate discussing whether Bill can demand damages from Al and end Al’s tenancy, as well as
possible nuisance claims by George W. against Al. The partner asks you for a memo detailing any other
possible theories upon which George W. can seek the five forms of relief listed above and analyzing
whether George W. is likely to succeed on any of these theories.
9
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 7: (60 minutes - 60 points) (landlord-tenant, takings)
Lenny Helmsley is a multimillionaire landlord who owns hundreds of rental properties in the
state of Wonderland. A few years ago, his apartment complexes in the city of Sunnydale became
overrun with violent, drug-dealing gangs. Last year, in order to provide rental housing that is safe and
free from illegal drugs, Lenny inserted the following clause into all of his Sunnydale rental leases:
“Zero-tolerance” clause. Tenant may be immediately evicted without notice or hearing if tenant
or any household member or guest is found possessing or using illegal drugs.
Britney Spearamint and her grandmother moved into one of the Sunnydale apartments six
months ago. Britney likes to party, often with friends who consume illicit drugs. Her neighbor, Bernie
Mac, has complained to Lenny in writing that Britney’s friends appear violent and dangerous. On
several occasions Bernie’s young children have seen gun-wielding drug dealers outside the apartment
getting into loud arguments. Bernie’s three kids are too scared to sleep in their bedrooms, which have
windows facing the street, and for the past 5 months have slept in their parents’ room. The Macs are
often afraid to go in and out of their apartment, fearing drive-by shootings. Receiving no response from
Lenny, Bernie has withheld rent for the past three months, hoping to get Lenny’s attention. Tenants in
another of Lenny’s Sunnydale apartment buildings, led by Peter Parker, have filed a complaint with the
local housing board about the conditions of their homes, alleging the use of recalled furnaces,
mushrooms sprouting from carpets, and mold and mildew. Lenny has done virtually no repairs on these
properties despite collecting about $17 million in rent since he had the Sunnydale properties built.
Lenny told the tenants to make their own repairs since the homes rented for below-market rates.
Last week Lenny announced that he would be selling all of his rental properties in Wonderland.
Some 600 tenants in these properties received 30-day eviction notices in accordance with their rental
agreements and with Wonderland state law. A spokesman for the tycoon landlord explained that the
immediate sale of the properties within 30 days was necessary to finance a deal in which Lenny stood to
make close to a billion dollars. Real estate experts have pegged the properties as worth $200 million.
News of the “mass evictions” has attracted national media attention; the media portrayed Lenny as a
heartless, greedy landlord who gave hundreds of tenants a mere 30 days to pack up furnishings, pull kids
from school, and uproot settled lives. The rental vacancy rate in the jurisdiction is 3 percent. In
response to the “mass eviction” controversy, the Wonderland state legislature immediately passed a bill
to extend the minimum 30-day eviction notice requirement to 60 days if the jurisdiction’s rental vacancy
rate is less than 10 percent. The bill applies to Lenny’s properties. Meanwhile, two days ago, Lenny
came by to inspect his Sunnydale properties and caught Britney smoking marijuana in the apartment
complex parking lot. Lenny unlocked Britney’s apartment door and moved Britney’s furniture—and
grandmother—out, evicting them for breaching their lease. He had Britney’s apartment locks changed
the same day. You are Lenny’s lawyer. Write him a memo detailing possible legal claims and an
analysis of such claims.
10
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 8: (60 minutes B 60 points) (landlord-tenant)
Donald leases luxury apartments to the rich and famous. All of Donald’s leases run for 2 years
and include the following provisions:
Para. 3:
If Tenant fails to pay rent when due or otherwise breaches this lease, Landlord
shall have the right to enter peaceably and retake the premises.
Para. 6:
Tenant shall not assign or sublet the premises without Landlord’s prior written
consent.
Para. 7:
Tenant shall not disturb the quiet enjoyment of other tenants.
In November 2000, Donald leased an apartment to Mia, a famous soccer player. Shortly after
Mia moved in, Donald rented the next-door apartment to a television and movie star, Robert. Robert
threw crazy parties several nights a week, which resulted in loud music, talking, and occasional puddles
of vomit in the hallway. Mia, who could not sleep during the parties, complained to Donald. Donald
twice told Robert that the noise from the parties disturbed neighbors and each time the parties subsided
for a few days.
Mia sought to assign her lease to Steve, a wealthy but nerdy high-tech entrepreneur who was
looking for a more exciting lifestyle. Donald refused to grant permission, telling Mia that he would not
consent because there were empty apartments in the building that might accommodate the substitute
tenant, and that Steve was not famous and would not contribute to the “prestige” of the community. The
loud parties continued. In January 2001 Mia stopped paying rent, and three months later Mia moved
out.
A week later, Robert lost his lucrative role on a once-popular television series due to a recurring
substance abuse problem. While Robert was away at a drug treatment facility, Donald used a master
key to enter Robert’s apartment. Donald carefully moved Robert’s possessions to a secure on-site
storage facility, and changed the locks to the apartment. Three weeks later when Robert returned,
Donald refused to allow Robert to reenter the apartment, but gave him access to the storage facility so
that he could retrieve his possessions.
Assume that all relevant parties have been properly joined in a lawsuit that has made its way to
the highest court in the jurisdiction. The only relevant cases in the jurisdiction are some ancient
decisions giving landlords the right to use self-help to evict tenants. There is a Commercial LandlordTenant Act, which declares that consent to assignment of commercial property may be withheld by a
landlord only if she has a reasonable objection.
You are a law clerk at the court. Write your justice a memorandum analyzing the legal
issues and how they would best be resolved.
11
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 9: (45 minutes B 45 points) (takings and right to exclude)
The year is 2002, and the City Council of Silicon Peaks believes it can greatly improve the
quality of its citizens’ lives through the Internet. The Council would like to upgrade its municipal
services on-line, providing detailed information about health, welfare, and safety to its citizens. The
Council also wants to use the Internet to enhance democratic political participation through “Virtual
Town Hall” meetings, where citizens can participate in a town hall meeting from the comfort of their
living rooms via the Internet, complete with a video and audio broadcast of the meeting and the ability
to ask questions or make contributions “live” from one’s home computer. The Council realizes that the
success of these projects will turn on whether its citizens have “high speed Internet access.” High-speed
Internet access lets consumers surf the Internet at much greater speeds and allows for consumers to
consume much greater amounts of data, including video and audio transmissions (which would be
necessary to participate in a “Virtual Town Hall” meeting).
The Council is concerned that a “digital divide” threatens this goal. Currently homeowners are
much more likely to have high-speed Internet access than are tenants in large apartment buildings,
whose landlords control the availability of the physical wiring needed for high-speed Internet access.
Only one percent of residential apartment buildings nationwide have high-speed Internet access. While
most apartment buildings in Silicon Peaks are not wired for high-speed Internet access, recently some
landlords in the city have been quick to realize that providing high-speed Internet access can actually be
a profitable business. These savvy landlords have entered into exclusive arrangements with high-speed
Internet service providers. In exchange for an exclusive right to service a landlord’s buildings, the highspeed Internet service provider wires the landlord’s buildings for free and then shares revenue from
selling Internet services to tenants with the landlord. Some companies have even thrown in stock
options for landlords. These deals have resulted in high monthly fees to tenants who subscribe to highspeed Internet access. Tenants complain they are unable to obtain high-speed Internet access through
cheaper competitors.
The Council is considering passing a new law called the Competitive High-Speed Access
Ordinance. The Ordinance would require residential apartment building landlords to grant access to
Cheap DSL, Inc., an inexpensive high speed Internet access provider, if a tenant so requests. The
Ordinance would prohibit landlords from entering into an exclusive agreement with just one high-speed
Internet access provider. Under the Ordinance, landlords would receive “just compensation” for the
permanent presence of satellite dishes or cable boxes necessary for the provision of high-speed Internet
access. The proposed law does not mention compensation for anything else. The Council says the
Ordinance will improve citizens’ access to information and political participation, bridge the digital
divide, and enhance consumer choice.
You are a lawyer who has been asked to testify as an expert before the City Council on (a)
whether landlords have a common law right to exclude high-speed Internet service providers and
(b) the constitutionality of the proposed Ordinance. For purposes of this question, cite any of the
cases we studied, regardless of jurisdiction.
12
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
PROPERTY PRACTICE EXAMINATION QUESTION
PROFESSOR SPENCER OVERTON
QUESTION 10: (45 minutes B 45 points) (intellectual property)
The year is 2004. The events described in this question take place in the State of Tallula.
Tallula generally has statutory and decisional law typical of the other states in the United States.
Abraham Lincoln University (ALU), a prestigious private university located in Tallula City, Tallula,
enjoys a typical urban university setting. The University is situated in a section of Tallula City called
Misty Mews, a liberal bastion that is home to many anti-war activists. The University has long been
renowned for being in the center of political activity, and its reputation as a political hotbed has in fact
drawn students to the University and enhanced its popularity. In the past year in particular, the
University has found itself involved in a series of political protests involving the War in Afghanistan and
the Bush Administration’s policies involving the war. Since the war began, ALU has made its pro-war
position publicly known. For example, President Bush and many Administration officials have been
invited to speak at ALU about the war and to tout what they believe to be the war’s many successes.
The University, however, has been quite intolerant of anti-war viewpoints.
A group of anti-war activists (calling themselves Mews Against the War or MAW) has sought to
protest the University’s position on the war, and the war itself, by selling anti-war merchandise,
including T-shirts, at its headquarters in Misty Mews and via its website MewsAgainstTheWar.com.
Toward that end, MAW took a popular logo of Abraham Lincoln University – consisting of a silhouette
of President Abraham Lincoln inside an oval – and has modified this image so that Lincoln appears to be
toting an assault weapon. MAW then worked with the Misty Mews Print Shop, a like-minded anti-war
local T-shirt shop, to have the modified ALU logo printed on the front of the T-shirts offered for sale.
For the back of these T-shirts, MAW has taken four lines from lyrics of the ALU “Fight Song” and
modified those lyrics in a manner critical of ALU’s position on the war. For example, instead of the
ALU Fight Song lyrics: “We will fight fight fight for our beloved ALU. We will proudly so proudly wear
the gold and the blue,” the modified lyrics printed on the back of the T-shirts offered for sale read: “We
will fight fight fight for our beloved petroleum. We will proudly so proudly let W have his fun.” A
number of ALU alumni have noticed individuals wearing the T-shirts on televised footage of the
protests, and have formed the belief that ALU modified its own logo to include Lincoln toting an assault
weapon in order to demonstrate ALU’s support for the war. The T-shirts have become quite popular
and have become a lucrative source of revenue for MAW (especially since the Misty Mews Print Shop
has donated its services and prints up the T-shirts free of charge to MAW). Sale of the T-shirts has also
had the unexpected consequence of increasing demand for the official CD of the ALU Fight Song,
which many anti-war protestors seem to be purchasing so that they can break the CDs into pieces in
conjunction with their protests.
The University seeks legal redress against MAW for its sale of the T-shirts and against the
Misty Mews Print Shop for its role in creating the T-shirts. Please advise the University as to its
legal rights and remedies. Where you need additional information, so state.
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FUTURE INTERESTS
1. Pinckney deeds Pinkacre "to Adams." Adams is alive at the time of the conveyance. What does
Adams have?
(A) life estate
(B) fee simple absolute
(C) fee simple determinable
2. Larry conveys Laughacre to Curly “for as long as it shall be used as a comedy club.” Twenty
years go by, and Mo, the heir of Curly, finally decides to sell Laughacre to Mr. Developer. The
new owner, Mr. Developer, immediately stops using Laughacre as a comedy club and starts
developing a luxury high-rise condominium on the site. Who owns Laughacre?
(A) Mr. Developer
(B) Mo
(C) Larry
3. In 2000, the Acme Steel Company sells the site of a defunct factory "to Andrew for life,
remainder to Beatrice." Ten months later, Andrew sells his interest to Cooper. Alas, Cooper
dies of a mysterious illness in December 2002. Andrew and Beatrice are both alive.
Who owns the present possessory interest in the land?
(A)
(B)
(C)
(D)
Cooper's heirs.
Andrew.
Beatrice.
The Acme Steel Company.
4. In February 2000, the Axle Motor Company conveyed its riverfront property "to Lucy Brewer
for life, then to her eldest daughter." At the time of the conveyance, Lucy has two daughters:
Annie, age 16; and Tanya, age 12. Two years later, when she turned 18, Annie conveyed her
interest in the land to the Prairie Land Trust. At the same time, Lucy leased the property "to
Dean Walter for five years." In January 2003, Lucy and Annie die in a car accident.
Who is most likely to have the possessory interest in the land following the fatal accident?
(A)
(B)
(C)
(D)
The Axle Motor Company.
The Prairie Land Trust.
Tanya.
Dean Walter.
5. The Mountain Realty Company conveyed ten acres of land "to Elaine for life." Two years later,
Elaine drafted a will devising all of her property to her son Randy. Then Randy sold his interest
in the land "to Sara so long as she does not allow a SUV to enter the property." Next Elaine
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sold the land "to the county for use as a park." Finally, Elaine dies.
Who owns the possessory interest in the ten acres of land?
(A)
(B)
(C)
(D)
Mountain Realty Company.
Randy.
Sara.
The county.
RAP
6. The Midwestern Automotive Society conveys a former used car lot "to Alexandra for life, then
to Alexandra's siblings." Alexandra's parents are alive, and Alexandra has a brother Bertrand
and a sister Sonja.
Is Bertrand's property interest valid under the traditional common law Rule against
Perpetuities?
(A)
(B)
(C)
(D)
Yes, because it is not subject to the Rule.
Yes, using Alexandra as the measuring life.
Yes, using Alexandra’s parents as the measuring life.
No, because Alexandra's parents might have more children.
7. William Henderson Johnson III just died with a will leaving "all of my earthly belongings to
Stuart for life, remainder to such of Stuart's lineal descendants as are alive on January 1, 2010."
Who cannot serve as the measuring life to validate the contingent remainder held by "such of
Stuart's lineal descendants as are alive on January 1, 2010"?
(A)
(B)
(C)
(D)
Stuart.
Stuart’s current wife.
Any of Stuart's living children.
Any of Stuart's children who are born after William died but before January 1, 2010.
8. Angela was born in 1936. She never married, and she does not have any children. She does own
lots of land, though. So in 1990, Angela wrote a will devising all of her land "to my favorite
nephew Jackson for life, then to the first daughter of Jackson whenever born who becomes a
medical doctor." Jackson's first daughter Jenny is born in 1999, a few months before Angela
dies. Jackson has not had any more daughters since then, and Jenny is in grade school.
Jenny owns what interest in the land?
(A)
(B)
(C)
None.
Vested remainder.
Contingent remainder.
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(D)
Shifting executory interest.
9. In 2002, Linda Klein Jackson died with a will leaving her lake home "to Andrew for life, then
to such of the grandchildren of Andrew who reach the age of 21." At the time of Linda's death,
Andrew was 43 years old, and he had two daughters Katy and Christina.
Upon Linda's death, Andrew owned which interest in the lake home?
(A)
(B)
(C)
(D)
Life estate.
Life estate subject to condition subsequent.
Fee simple.
Fee simple subject to condition subsequent.
CO-OWNERSHIP
10. In 1990 Anna conveys Blueacre "to Bob and Charlie." In 1991, Charlie dies, leaving all of his
property in a valid will to "Dina and Eve, as joint tenants with right of survivorship." In 1992,
Dina dies, leaving all of her property to Frank. In 1993, who owns Blueacre?
(A) Bob, Eve, and Frank as tenants in common.
(B) Bob and Eve as tenants in common.
(C) Bob and Eve as joint tenants.
(D) Bob.
11. O properly conveys Blackacre “to A and B and C and their heirs.”
Thereafter, A properly executes a deed which purports to convey her interest to D and her heirs.
Then B dies testate (with a will). B’s last will and testament devises all of her property to E and
her heirs.
Applying traditional common law presumptions, what is the state of the title?
(A)
(B)
(C)
(D)
D holds an undivided 1/3 interest, and C holds an undivided 2/3 interest, as
tenants in common.
C, D and E hold undivided 1/3 interests as tenants in common.
C holds fee simple absolute.
C and D hold undivided 1/2 interests as tenants in common.
12. O properly conveys Blackacre “to A and B and C and their heirs.”
Thereafter, A properly executes a deed which purports to convey her interest to D and her heirs.
Then B dies testate (with a will). B’s last will and testament devises all of her property to E and
her heirs.
Applying modern trend presumptions, what is the state of the title?
(A)
D holds an undivided 1/3 interest, and C holds an undivided 2/3 interest, as
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(B)
(C)
(D)
tenants in common.
C, D and E hold undivided 1/3 interests as tenants in common.
C holds fee simple absolute.
C and D hold undivided 1/2 interests as tenants in common.
LANDLORD TENANT
13. Which tenant is most likely to be able to leave her premises without having to pay further rent
or otherwise honor the terms of the lease?
(A)
(B)
(C)
(D)
Despite Linus Landlord's repeated repair attempts, the water in Tanya Tenant's
apartment has not worked since she moved in six weeks ago.
The air conditioning in Terri Tenant's apartment breaks down on an afternoon when it is
104 degrees outside, and Lou Landlord tells her that he will not be able to fix it until the
next day.
Twyla Tenant suspects that the two men who live in the apartment unit next to her are
dealing drugs.
The lock on the front door of Tori Tenant's store has not worked since she rented the
premises thirteen months ago, but Larry Landlord tells her that she should fix it herself.
14. In January 1995, Lance Landlord leased his country estate to Thelma Tenant for ten years at a
monthly rent of $10,000. Thelma immediately moved into the estate. Then in August 2000,
while Thelma was out of the country on a weekend trip, Francis Freeloader moved into the
estate and installed her bodyguards to prevent anyone - including Thelma - from entering the
property. It took Thelma four months to get the local government to evict Francis so that
Thelma could move back into the estate in December 2000. Thelma refuses to pay Lance any
rent for the four months that Francis possessed the house.
Which resulting lawsuit is most likely to be successful?
(A)
(B)
(C)
(D)
Lance’s suit against Thelma for the $40,000 unpaid rent.
Lance's suit against Francis for the $40,000 unpaid rent.
Thelma's suit against Lance for breach of an implied covenant.
Thelma’s suit against Lance for breach of an implied warranty of habitability.
15. The Restaurant Association of America (RAA) has rented property from the Urban Realty
Partnership (URP).
In which instance is the RAA still obligated to pay rent to URP?
(A)
(B)
The RAA entered into a tenancy at will with URP for a downtown lot on which the
RAA planned to host an outdoor demonstration kitchen, but which the RAA decided it
could not afford to operate given an economic downturn.
The RAA rented an office suite in a building owned by URP which the city condemned
by its eminent domain power, tore down, and replaced it with a new sports stadium.
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(C)
(D)
The RAA entered into a five year lease with URP for three floors in a downtown office
tower, then three months later the RAA leased those three floors for three years to a
local law firm that offered to pay the RAA double the rental amount to use those three
floors for the next three years. Within the year, the law firm disbanded and stopped
paying rent to the RAA.
A and C.
16. Which landlord is most likely to regain possession of his property from the current tenant?
(A)
(B)
(C)
(D)
Allen, who declined to renew his tenant Anthony's apartment lease for a tenancy at will
when Allen discovered that Anthony had posted complaints about the apartment on the
city housing department's web site.
Bryce, who leased farmland to Boyd for one year based on Boyd's local reputation as an
excellent hog farmer, and who objects to Boyd's plan to sublease the property to a
college friend who wants to live in the country for a while.
Celia, who leased a house to Chris with explicit notice of the house's many failings, and
who now seeks to evict Chris, who refuses to pay the rent until Celia fixes the pipes to
provide water to the home.
Deborah, who rented office space to David, a doctor who refuses to pay the rent
because the noise from the city hospital next door makes it impossible for him to work
there.
17. On January 15, 2001, Lucy Landlord leased her farm to Calvin Swine for a period of three
years. On January 15, 2002, Calvin entered into an agreement with Donna Developer in which
Calvin "subleases, transfers, and assigns" his interest in the farm to Donna for one year. By
December 2002, neither Calvin nor Donna had paid any rent to Lucy for over six months.
Which remedies are available to Lucy?
(A)
(B)
(C)
(D)
She can sue Calvin for rent, but she cannot evict Donna.
She can sue Calvin for rent, or she can evict Donna.
She cannot sue Calvin for rent, nor can she evict Donna.
She cannot sue Calvin for rent, but she can evict Donna.
RECORDING ACTS
18. A jurisdiction has adopted the following recording act: “Every conveyance of real property or
an estate for years therein, other than a lease for a term not exceeding one year, is void against
any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith
and without notice and for valuable consideration, whose conveyance is first duly recorded, and
as against any judgment affecting the title, unless the conveyance shall have been duly recorded
prior to the record of notice of action.”
The statute sets for which approach to the recording acts?
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(A) A race recording act.
(B) A notice recording act.
(C) A race-notice recording act.
19. The Long Acres Development Corporation (LADC) owned 199 acres of farmland that it
planned to subdivide for a new housing development. On June 1, 2000, LADC conveyed Lot
43 to the Van Burens as joint tenants. Four months later, and for a much higher price, LADC
conveyed Lot 43 to Emily Harrison. The Van Burens did not record their deed, and Emily had
no reason to know of the earlier conveyance, so Emily recorded her deed immediately upon
receiving it. Then, in March 2003, Emily sold Lot 43 to Hugh Thomas, who already owned the
neighboring Lot 42. Thomas knew that the Van Burens had purchased Lot 43 in 2000, but he
declined to tell Emily or anyone else about these events. Instead, he simply recorded the deed
that he received from Emily. Soon thereafter, the Van Burens arrived with a building contractor
to plan their new home, only to be greeted by another contractor who was working for Hugh.
Who owns Lot 43?
(A)
(B)
(C)
(D)
LADC.
The Van Burens.
Emily.
Hugh.
20. In March 2002, Jennifer Young purchased ten acres of land from the Suburban Development
Corporation (SDC). She did not record her purchase. In November 2002, Jennifer’s ex-husband
Matthew purchased the same ten acres from SDC, knowing that Jennifer had already purchased
that land. Matthew immediately recorded his deed to the property.
Matthew owns the land according to a jurisdiction following:
(A)
(B)
(C)
(D)
The common law rule.
A race statute.
A notice statute.
A race-notice statute.
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