CLOSED BOOK
Your grade will be based upon your ability to recognize and resolve the various legal problems presented by the examination. Demonstrate an ability to think, rather than simply a rote memory. Do not state conclusions without reason.
If you believe it is necessary to assume any facts not given to answer any question, or part of a question, state those facts in your answer and indicate they are your assumptions. Be careful not to assume a problem out of existence.
If you wish to do so, you may use the initial letter of each party in your answer, rather than that party's full name.
The law of no particular jurisdiction is required. However, each of the problems presented below arises in the State of New Penn. New Penn has adopted the following, either as a part of the common law from England, or by a specific statute: Statute of de donis, Statute of Quia Emptores, Statute of Uses, "English" Statute of Frauds, Forcible Entry and Detainer Statute, Equal Rights Provision in New Penn Constitution, and a twenty-one year Statute of Limitations for actions to recover the possession of land. To the extent that it is important, the "lien theory" prevails for mortgages. A modern statewide Housing Code exists. In addition, fee tail estates and primogeniture have been abolished by statute. Intestate property is distributed first to issue per stirpes who survive the decedent; if none survive, then to parents who survive the decedent; if no parent survives, to the parents' issue who survive the decedent; if the decedent is not survived by issue, parents, brothers, or sisters, then to the decedent's grandparents and their children who survive the decedent. If no one within these classes survives the decedent, the property passes to the state. The following Recording Act has been adopted:
A conveyance of an interest in real estate, other than a lease for a term of less than three years, is not effective as against any person except the grantor, his heirs, devisee and donees, and persons having notice of the conveyance, until recorded in accordance with this act.
1.
Alice and her husband, Bill, and Carl and his wife, Dot, bought 100 acres of land in a rural part of Norden County. The duly and timely recorded deed to them reads: "to Alice and Bill, her husband, and Carl and Dot, his wife, as joint tenants with right of survivorship and not as tenants in common." Each couple built a summer home on the land, connected to the main road by a common driveway.
The four of them granted a power line easement over a portion of the land to The eLecTric, the local power company. This easement was immediately recorded but has never been used.
They also leased 25 acres to Noah, a neighboring farmer, as pasture for his dairy herd. All four of them signed the lease. Noah never recorded the lease, but has regularly used the 25 acres for pasture during the spring and summer. The lease has a term of 10 years.
At the time of their purchase, Walt had been occupying a cabin and 1 acre in a remote corner of the 100 acres for 17 years without permission from anyone. Walt used the cabin for hunting in the fall and fishing in the spring. He has never visited the place in winter. Although Alice, Bill, Carl, and Dot knew of Walt's activities, he was not bothering them so they decided not to do anything about it. Walt uses a dirt road over the 100 acres to get to the cabin.
Alice and Bill liked the area so much that they bought another 50 acres next to the side on which their house was located. The duly recorded deed reads "to Alice and Bill, her husband." They made no improvements on this 50 acres.
Alice died three years later. She left all of her property to her daughter by a previous marriage, Edna. Bill then married Lydia. Bill conveyed his interest in the 50 acres "to my son, Sam for life, remainder to those of Sam's children who survive him." Sam paid Bill $100 for the conveyance and promptly recorded it. Bill died a month later, devising all of his real estate to Lydia. Sam presently has no children.
It is now seven years since the four bought the 100 acres. LM Development, your client, wants to acquire both the 100 acres and the 50 acres. In addition to the transfers listed here, you have found a mortgage for the 50 acres from Bill and Alice to someone named Tom delivered and recorded 1 week before Bill and Alice's deed was delivered to them.
From whom will you recommend that LM seek deeds and WHY? To what extent would your answer differ if the doctrine of destructibility of contingent remainders is still in effect in New Penn? WHY?
2.
You are an Assistant Counsel to the New Penn Department of Environmental Protection (DEP). One of the duties of the DEP to administer the state's Wetlands Protection Program (WPP) under its Wetlands Protection Act of 1995 (Act). The Act contains extensive findings as to the ecological and economic importance of wetlands and the need for their protection. These findings conclude: "It is for the public good and the welfare of present and future citizens of this state to preserve and protect wetlands from despoliation and unregulated alteration."
Any draining, filling, or improvement of a "wetland" area requires a permit from the DEP. The Act prohibits the development of wetlands unless an equal area of other land in the state is made into a wetland under a "no net loss of wetlands" policy.
Owens purchased a 6 acre lot on the shore of Lake Nord from Gainor in 1977 for $20,000. It was one of 10 lake front lots being sold by Gainor. Although the entire area was rather swampy (now called "wetlands"), Owens drained one acre and built a $25,000 summer home there.
Owens sold the home and 2 acres to Parker for $75,000 in 1983. Owens planned eventually to drain one of the remaining 4 acres and build another home. In 1991, Owens sold 2 more acres to Quarry for $20,000. Both Owens and Quarry have submitted completed applications to the DEP requesting permits to drain one acre of each of their respective tracts and to erect a home on that acre.
The Wetlands Protection Board, which acts as fact finder and advisor to the Secretary of DEP, has recommended that both permits be denied because neither Owens nor Quarry have offered to provide substitute or replacement wetlands for the land to be drained.
The Secretary requires you to prepare a "regulatory analysis" for every permit application under the WPP. The purpose of the analysis is to aid her in determining the validity of permit denial and the economic consequences to the State if a permit is denied. Your analysis will not determine whether the Secretary will grant or deny the permit. Its purpose is only to inform her of the potential consequences of a denial. Write your analysis, giving your view as to the validity of the regulation and the probable results of any litigation if either permit is denied.
3.
Able owns a former gas station and auto repair facility in Herringdale. Able leased the facility to Baker for a term of five years beginning January 1, 2001. The lease was in writing and provided that Baker could use the premises for an auto rental agency or any other lawful use. The facility contains a small building used as an office and a larger building which Baker uses to service and repair its fleet of rental cars..
In the lease, Baker promised to maintain the property and buildings, to comply with all applicable laws, and to pay rent monthly to Able on the first of each month. The rent was to be calculated according to the number of rental cars Baker operated on the premises - $1.00 per car per day multiplied by the number of days in the month. Baker also promised to provide Able with a free service for Able's car as long as Baker operates the service and repair facility on the leased property. Able agreed to pay the real estate taxes.
When Baker began operations, it had approximately 50 rental cars per month from the property and paid L an average of $1,500 per month in rent. Business quickly increased and the Baker increased the number of rental cars to100 cars a month, at an average rental of $3,000 a month.
In January, 2002, Baker formed two corporations, CarCo and LimoCo. CarCo operates the car rental business with the 100 cars. All car titles have been transferred to CarCo. LimoCo provides limousine service to persons living or working in Herringdale with 5 limousines titled in its name.
In March, 2002, Baker assigned the lease to LimoCo. LimoCo then subleased the repair garage and vacant space adequate to hold 100 cars to CarCo for a term ending on December 29, 2005. CarCo provides maintenance service to LimoCo, charging the market rate for each service. Baker failed to pay the March rent ($3,000) to Able. LimoCo paid April's rent to Able based on the 5 limousines that it operates ($150). It has refused Able's request to tune up Able's car and to change the oil, asserting that it does not operate service and repair facilities.
Able comes to you for advice. Specifically, Able wants to know:
- Was $150 the correct rental amount for April?
- Can Able require LimCo or Baker to service Able's car?
- From whom can Able recover the March rent?
- Can LimCo or Baker compel Able to continue paying the real estate taxes on the property? These taxes are much more than $150 a month?
Answer Able's questions, giving REASONS for each answer.
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