Exam Number: Professor Danaya Wright PROPERTY EXAMINATION May 3, 2013 This is a 4.5 hour OPEN book exam You may use your book, commercial outlines, treatises, your own outline, and any other written material except your neighbor’s answer You may not use any electronic sources or devices other than your laptop with ExamSoft You may not begin writing/typing your exam answer until 30 minutes have passed Use that time to read the ENTIRE exam briefly, and then begin to outline or chart your answer to question You will only have hours to write/type your answer Therefore, if you begin writing too soon, you will be cut off by ExamSoft after hours and will lose the extra time I repeat: DO NOT BEGIN WRITING/TYPING YOUR ESSAYS FOR 30 MINUTES I highly recommend that you follow as closely as possible the times allocated for each question There is an unallocated twenty minutes you might want to save to use to go back and add discussion points you missed the first time around You may handwrite your exam or use ExamSoft If you handwrite the exam, please leave adequate space on the left and right margins for comments and points and use a pen with blue or black ink If you use ExamSoft you may use the spell checker but you will need to keep track of the word limits yourself as the program will not cut you off when you reach the maximum word limit I will, however, stop reading after you hit the word limit By participating in the exam and turning in your answer, you certify that: 1) you have neither received nor given any aid beyond the allowed use of materials, 2) that your work is original and is in no way improperly copied from any source, and 3) that you have complied with all applicable instructions and rules, including, but not limited to, those set forth herein and in the Univ of Florida College of Law Student Honor Code I will be in my office (311 Holland Hall) to answer questions But if you not wish to take the time to run up there, and you feel you need more information to answer a question correctly, then state in your answer what assumptions you are making about the facts and then answer as though those assumptions were part of the facts given If you have any doubts, simply state the grounds and move forward When you are finished, upload your exam, RETURN THE EXAM BOOKLET, and turn in your scratch paper This exam consists of pages, including this cover page Please be sure your exam is complete Please be sure that you use your exam number (not your student ID number or social security number) PLEASE DO NOT TURN THIS PAGE UNTIL THE PROCTOR GIVES THE SIGNAL Question Thirty minutes – maximum 600 words Hard as it is to imagine, it is true: Bart and Lisa Simpson have grown up Well, maybe not Bart, though they have reached the age of adulthood Maggie too has grown up, and Marge and Homer are getting grey; Marge is rather bluish-grey They may even be grandparents soon But right now Bart and Lisa have a problem – they are really mad at each other As one would expect, Lisa grew up to be incredibly successful; she is the managing partner at a major law firm in Springfield, has invested her money very well, plays saxophone in a popular jazz band that tours regularly, and lives in a mansion next to Mr Burns (the owner of the Springfield nuclear power plant and Homer’s boss) Bart hasn’t done so well – with a loan from Lisa he bought a small skate-board and scooter repair shop next to the Kwik-E-mart Homer and Marge still live in the same old house with their geriatric dog (Santa’s Helper) Maggie is away at college What started this particular feud was that Bart stumbled across a computer floppy disk when he was looking for some old skate board bearings in the attic of his parents’ house The disk had Lisa’s name on it, but was carefully tucked into one of Bart’s boxes of childhood toys where it had lain unknown to the true owner for at least 15 years Bart had hidden it from Lisa when he was mad at her years ago for winning the State’s geography bee He couldn’t remember what was on it but distinctly remembered Lisa’s insistence that Bart had taken her computer disk because it wasn’t where she left it She then put hair remover in his shampoo the next day as pay back, but he never relented and told her he had the disk Over the years he had forgotten all about it, although he blamed her for the ever-expanding bald spot he was sporting as he hit his 30s When he dragged up an old computer and plugged it in, he found that the disk had a bunch of Lisa’s old term papers Of course, Lisa received A+s on everything she ever did Looking at the papers, Bart thought of a great way to make money He set up a web site to sell term papers over the web to students who hadn’t allowed themselves enough time to all of their homework themselves The site was called “ATermPapers.com” and it very quickly was doing a thriving business The money started rolling in But Bart was smart enough to realize that he couldn’t sell the same papers over and over again Teachers and professors would begin to recognize them He needed a way to make each one he sold different from the others, so he hired his old childhood friend, Milhouse, to personalize each term paper Sometimes this meant simply doing a global search and replace of “dolphin” to “sea mammal” or “elm tree” to “motorboat.” Sometimes, though, it meant cutting and pasting portions of different terms papers into new ones And the buyers, too, didn’t seem to notice that a term paper on dolphins spent a lot of time talking about aloe vera plants and the planet Neptune Milhouse was very good, however, at formatting them in nice pretty ways, with lots of headings, and nifty fonts, so they looked very different from the old papers Lisa had written Bart also realized that he needed to expand his market base and his stock for these term papers, so he decided to have Milhouse his magic on some of Bart’s F papers, reformatting them and changing the headings, and he sold these at bargain basement prices “Wanna just pass the course?” and “Don’t want to raise any red flags by suddenly turning in an A paper?” and “Here are the mediocre papers just for you average students” he advertised But he still couldn’t keep up with demand He needed more papers So he started a new business: “Bart’s School Warehouse Clearance Company, Inc.” He offered, at a very low price, to go through school basements, offsite warehouses, and long forgotten locked filing cabinets and shred or otherwise “destroy” all old papers, everything from student term papers to old student applications, from accident forms that had to be filled out in triplicate to copies of report cards and transcripts Most of this stuff he did shred, but the term papers he kept, scanning them, reformatting them, and finally posting them on his website for sale As the business grew, he hired a team of 10 of his old Springfield buddies to go around the state emptying school files And not surprisingly, the first thing Bart did was permanently erase the name of the original author and then shred the hard copies so no one could trace the original authorship of any of the papers But one day Lisa realized that her papers were floating about when a recent law graduate applying for a job used one of her old papers as a writing sample Once she saw it, she knew Bart was behind it all What was probably most annoying of all to her, though, was how Bart was butchering her papers When she finally tracked the paper down to Bart’s website she was amazed to see all the papers he had for sale He could only have gotten that many through some kind of trickery, so Lisa went to see Principal Skinner of the Springfield High School, who confirmed that Bart had emptied out the school’s basement, which housed hundreds of file cabinets and filing boxes filled with papers of all kinds According to Groundskeeper Willie, it would be like “searchin’ for a needle in a field o’ potatos” to get just the term papers out of the mass of other papers in the school’s basement But Willie was thrilled that all those old flammable papers were gone and he didn’t really care what had happened to them so long as they were out of his control Lisa then talked to a couple of their childhood buddies, Ralph and Milhouse, and both told her that they were flattered their old papers were being bought and re-used It meant that all that work they put into them wasn’t wasted; it was being recycled and that was very environmentally friendly They didn’t even want any compensation because they knew the papers were worthless to them – they didn’t want to go to all the trouble of setting up a website and reformatting or, heaven forbid, typing them in by hand just to make a couple of dollars But Lisa didn’t like the idea, nor did Principal Skinner, who felt that the school should be benefitting off of the papers, if anyone did, because the poor underpaid teachers had done so much of the work Lisa’s law student applicant, however, Lizzy Hashburn, was not at all embarrassed about having bought a term paper rather than doing one herself As she explained to Lisa, “lawyers plagiarize all the time – you should hire me because I’m doing what all lawyers I bought it, it’s mine now and I’m going to publish this as my law review note.” Believing she was the true owner of her papers, Lisa filed suit in Springfield District Court, against Bart, Bart’s company ATermPapers.com and Bart’s School Warehouse Clearance Company, Inc., Milhouse, and Lizzy, demanding her paper back, or compensation and damages at the least Principal Skinner interpleaded on the ground that the school should be deemed the owner of all of the papers, even Lisa’s and Bart’s papers, because they were produced as school work You are a law clerk for Judge Smithers who would like an analysis of the property rights implications of all of the potential parties in this case And he needs it right NOW – in the next half hour Question One Hour – maximum 1200 words Bart didn’t have time to worry too much about a lawsuit from Lisa; he had his skate board shop to run and things were heating up between him and Apu, the owner of the Kwik-EMart, who was his neighbor The Kwik-E-Mart was owned by Apu, as was the surrounding parking lot and a small outbuilding next to the Kwik-E-Mart building that was originally built as storage for frozen and refrigerated goods Once electricity came to Springfield, the outbuilding was used to store extra goods for the Kwik-E-Mart But with the downturn in the economy in 2008, and after Homer had an accident at the nuclear power plant and was bedridden for months and couldn’t come in to buy beer, Apu needed money So he decided to sell the small outbuilding to Bart for his skate board and scooter repair shop The conveyance was a standard deed, but provided as follows: The deed provided that Bart would not sell any food or drinks in competition with the Kwik-E-Mart for the next fifty years The deed provided that approval was required for the grantee to lease or sell the building and that approval would not be withheld except for reasonable reasons The deed noted that the sale was for the purpose of a skate-board shop only and that any use that interfered with the Kwik-E-Mart or any neighboring properties within a 2block radius was prohibited The deed also had the following language: “Upon violation of any condition, limitation, covenant, or restriction in this deed, the land shall be forfeited upon the payment by the grantor, or any neighbor within a 2-block radius, of a sum equal to the purchase price paid by the grantee.” The deed was silent as to the use of the Kwik-E-Mart’s parking lot for parking for Bart’s skate board shop customers but there was no other parking nearby as there was none on the street and the neighboring lands were all residential homes Although things went along fine for the first few months, Apu’s customers began complaining that they were nearly run over by crazy kids on skate boards speeding up and down the parking lot It got even worse when Bart built a half-pipe beside his shop so kids could test run their skate boards Kids were constantly hopping the curb in front of the Kwik-E-Mart, and if they rode their bicycles to Bart’s shop, they often blocked Apu’s doors and fire exits After asking Bart many times to control his customers, Apu finally put up chains around the parking lot with signs saying that parking was for customers of the Kwik-E-Mart only Apu also called Chief Wiggum over nearly every day to give out tickets to the kids for trespassing on his parking lot After explaining numerous times to Apu that he couldn’t control his customers, and that having no parking lot and giving out tickets was bad for both businesses, Bart decided to fight dirty He posted signs all over his building that said things like “Apu’s hot dogs are rotten,” or “Don’t buy from Apu, he discriminates against kids,” or “If you want to get cheated, shop here” with a big arrow pointing to the Kwik-E-Mart Then, on the sidewalk right beside his skate shop, Bart offered space for a farmers market and produce stand Local farmers set up stands on Friday afternoons and soon townspeople from all over were flocking to Apu’s parking lot Word of the great produce spread, and soon every Friday afternoon the entire street was blocked with customers for the farmers market When his customers got thirsty, Bart sold them gatorade, sodas, and other beverages, as well as power bars and trail mix Bart of course charged the produce stands a small fee each week to set up a table next to his building but nothing was put into writing To annoy Apu even more and to attract more customers for the farmers market, Bart decided to have a jazz band play music every Friday afternoon to entertain the customers of the farmers market He set them up inside his skate board shop with the doors open and speakers outside on the roof of his shop This brought even more people to the area who never shopped at the Kwik-E-Mart They brought their own bottles of wine and fancy picnics and tailgated all night listening to the music in the parking lot of the Kwik-E-Mart And because parking was even tighter with all of this activity, many patrons of the farmers market and jazz band started parking in the driveways of the neighboring residences, especially on the enormous lawn of Mr Burns’ mansion that was located just behind the Kwik-E-Mart and Bart’s shop Mr Burns owned the Springfield Nuclear Power Plant and was a grumpy old man who hated to see all those people enjoying themselves, especially the kids on skate boards After suffering his third straight month of losses at the Kwik-E-Mart, Apu was on his way to tell Bart that he was exercising his rights to repurchase the outbuilding and requesting that Bart convey the building back to him, when he was tripped by a skateboarder Apu fell down, hit his head on the curb, and died instantly Apu’s son, Apu Jr was his only heir and he became owner of the Kwik-E-Mart and continued to run it after his father’s tragic death Apu Jr found Apu’s letter to Bart claiming to exercise his rights to repurchase the outbuilding in his father’s pocket and decided to serve it on Bart and pursue his rights to get Bart out of there Bart refused to reconvey the property and Apu Jr filed suit for a declaratory judgment to affirm his rights to reclaim the outbuilding and for damages for the harm to the business caused by Bart’s breach of the restrictions He also sent notices to all of the farmer’s market vendors and the jazz bands, informing them that they were trespassers if they returned the next Friday to sell their produce Mr Burns brought a trespass suit against Bart and Apu Jr for damages to his rhododendrons from the picnickers Bart answered, denying all claims and made assorted arguments You are a law clerk to Judge Smithers who is taking a break from Lisa’s lawsuit and needs a memo on the property rights involved in this suit in the next hour, before lunch is over, including the rights, if any, of the vendors Question 45 minutes – maximum 900 words Patty and Selma are Marge’s two sisters They both have big blue hair and look almost identical, but you can tell them apart by looking at their earrings: Selma’s are triangles and Patty’s are circles Anyway, they live together, though Selma has been married three times, though all three were unsuccessful Patty has never been married They were a bit bored with their current place, an apartment in downtown Springfield, and decided to move into the suburbs They found the perfect house, they thought, in the ritzy gated subdivision of Green Acres The house had a white picket fence, was two stories tall, had a two-car garage, and was in a cul-de-sac It was owned by Chief Wiggums who had inherited it when his mother-in-law died and he was renting it to help pay the college tuition for his children He had been renting the house for about 15 years now, and unfortunately it was a bit worn out on the inside, though the outside always looked good When he showed the house to Patty and Selma he told them that the current tenants were still in possession and so he couldn’t show them the inside, but he described it as beautiful, with natural wood floors, modern bathrooms, wall-to-wall carpet upstairs, a modern kitchen with all the amenities, including granite countertops, ceiling fans throughout, and a two-car garage Without seeing the inside, and on the basis of Chief Wiggum’s representations, Patty and Selma signed a two-year lease that provided as follows: Rent was $2,400 per year, payable monthly in $2,000 installments The leasehold was “as is” and the “right to possession” was guaranteed to begin on the 1st day of April, 2012 The landlord agreed to rent to the tenants the “entire premises.” The tenants agreed to pay $2,000 up front for security deposit, $2,000 for the last month’s rent, and $2,000 for the first month’s rent The tenants agreed that they would always park their cars in the garage or in the driveways because the subdivision had a covenant that prohibited parking cars on the street It was a violation of the subdivision covenants for anyone, including visitors, to park a car for longer than hours outside on the street at any time The tenants agreed that Chief Wiggums could store a “few items” of furniture in the basement which the tenants were permitted to use The tenants agreed that they would not assign the premises without the permission of the landlord On April 1, 2012 Patty and Selma showed up with their moving van full of all of their furniture, including Selma’s extensive hat collection and Patty’s collection of exercise equipment (treadmill, stationary bike, elliptical trainer, and a large collection of free weights) When they arrived at 10:00 in the morning, they roused the current tenant, Barney Gumble, who was sleeping off a hangover (like he did every morning) and who swore he still had another month to stay in the house With Patty and Selma standing on his doorstep, Barney checked his lease and, in his alcohol-induced state, realized that he was supposed to have been out of the house the day before (March 31st) In a panic, he called Chief Wiggums to ask for another month, but Wiggums told him he had to be out by the end of the day or else he would have to pay three-month’s rent plus whatever damages Patty and Selma incurred as a result of his delay Poor Barney He called his good friends Homer and Marge to help him move out that day But with just Homer and Marge’s station wagon they couldn’t even begin to make a dent in all the junk Barney had accumulated in the house By midnight, they had managed to clean out the kitchen and the living room, but no other rooms had been vacated But because Patty and Selma had no place to sleep, having vacated their downtown apartment that day, they left their furnishings and all their worldly possessions in the U-Haul truck parked on the street They couldn’t get it into the driveway because the overhanging trees had not been pruned in 15 years They slept on the floor in the now-vacated living room It took five more days for Barney to finally vacate the house, and when he did it was an utter pigsty Cabinet doors were hanging off their hinges in the kitchen, the walls were so filthy you couldn’t see the paint color of the rooms, only one toilet worked in the upstairs bathroom, and one sink worked in the downstairs bathroom No shower worked because the pipes had been allowed to leak for so long that Barney finally turned off the water to the tubs and showers and just took a shower outside in the backyard when no one was looking Not a single appliance worked except the refrigerator, which housed a remarkable collection of moldy take-out containers and three cases of beer The basement was stuffed to the rafters with boxes and old furniture belonging to Chief Wiggums and you couldn’t even get down the stairs And Barney’s run-down Ford Pinto was still up on blocks in the garage It hadn’t run in at least years It looked like the place hadn’t been cleaned in at least years Barney promised to remove the car sometime in the next month or so Horrified at the state of the house, Patty and Selma called their landlord Chief Wiggums to complain When he showed up to look at the place he was a bit annoyed at Barney and decided not to refund any of Barney’s security deposit But he also didn’t see why Patty and Selma couldn’t just fix the place up themselves He had already spent Barney’s security deposit and all the rent he had collected and couldn’t afford to fix the place up Besides, they seemed like strong, independent women to him In fact, Chief Wiggums informed them that people with big, curly, blue hair were clearly meant to hard physical labor and they could trim the trees and fix the house themselves and if they didn’t have it fixed within weeks, he would begin eviction proceedings against them and keep their last month’s rent, security deposit, and charge them for all the damages that Barney had done You see, Wiggums really didn’t like Patty and Selma because he thought they were lesbians Upset at this disaster, Patty and Selma decided to get out of their lease ASAP, and they found a tenant no one could object to: Ned Flanders and his family Ned Flanders is a devout evangelical Christian whose response to all questions is “okily dokily.” Ned was thrilled at the idea of being able to renovate the house and cleanse it of all its bad associations with liquor and debauchery from its prior tenants He would not pay the full $2,000 per month rent, however, if he was going to put his spirit and energy into fixing it up, so they agreed that he would pay Patty and Selma $1,500 per month and would take the tenancy for only 12 months When Patty and Selma told Wiggums that they had found a sub-tenant, he refused to give them approval for the sublease But in frustration, Patty and Selma signed a sub-lease anyway Flanders couldn’t move in for at least two months, however, during which Patty and Selma had to continue residing there because they couldn’t afford to move They also refused to pay Wiggums anything in rent for the time they were in possession, which was a total of months They were smart too and hadn’t paid him the first and last month’s rent or the security deposit Chief Wiggums then changed the locks on the doors and sued to evict Patty and Selma and they counterclaimed for damages, including $15,000 for damage to Selma’s hat collection caused by sitting in the hot, unvented U-Haul truck for days waiting for Barney to move out They also included a bill for $5,000 for damages incurred in losing days of their rental period while Barney was holding over This included incidental expenses and emotional distress, plus massages for Patty’s back when she couldn’t use her workout equipment You are the clerk for Judge Smithers who now has to deal with this mess and he needs an answer from you in the next 45 minutes as to the property rights of all of the parties because he needs to sign or deny the request for a preliminary injunction to evict Patty and Selma Question Forty-Five Minutes – maximum 900 words Marge and Homer Simpson have been married for over thirty years and they have three children, Bart, Lisa, and Maggie – all adults Lisa is a successful lawyer, Bart is a sometimes successful small business owner, and Maggie is still in college Homer worked his entire life at the Springfield Nuclear Power Plant where he was exposed to a variety of radioactive substances As a result, he was diagnosed with cancer at the age of 61 Finally becoming a bit serious about his life and past abuses, Homer decided to consult a lawyer and prepare a very good will for when his final day came The first thing he did was make the following will, which he executed with all the proper formalities I, Homer Simpson, make this to be my Last Will and Testament First, I give the old Station Wagon to Maggie so she will have a car while away at College but only on condition that she not marry any of Bart’s worthless friends Second, I give $15,000 to the Springfield Bank, to pay 75¢ per day to whoever is willing to take care of my dog, Santa’s Helper, until he dies a natural death At my dog’s death, I want the remainder of the money to pass to whichever of my issue are then living, in equal shares Third, I give $50,000 to Apu, the owner of the Kwik-E-Mart, to pay my tab with him, and for Apu to pay any remaining funds to Moe Szyslak, the owner of Moe’s Tavern, to pay my tab to him as well Any money left after paying my tabs is to go into the residue for distribution according to item Seventh of this Will Fourth, I give my half of the house I own as Joints Tenants with my wonderful wife Marge to her sisters, Patty and Selma, so the three sisters can once again resume living together as they did in blissful childhood Fifth, I give nothing to my daughter Lisa because she has become more successful than I, and that annoys me Sixth, I give nothing to my son Bart because he is even more of a goof-up than I was and I am sure he will squander anything I give him Seventh, I leave the rest and residue of my estate to my trusty executor, the Springfield Bank, to pay out as follows I want them to pay the income for life to my faithful wife Marge for her use in her sole and complete discretion Upon Marge’s death, I want the income to be paid one-third to my daughter Maggie for her life, and the remaining twothirds to Principal Skinner to be used for teaching students health and safety lessons that I neglected in my childhood Upon the death of Maggie, the balance of the fund is to be paid to my surviving grandchildren and great-grandchildren, and if I don’t have any grandchildren or great-grandchildren alive at Maggie’s death, then I want the remainder to be paid to the Town of Springfield so long as it is used for the purpose of funding health and safety education classes for the workers of the Springfield Nuclear Power Plant If the money is ever not used for this purpose, then I want the remainder to be paid to my wife, Marge’s, legal heirs alive at the time of distribution Eighth, if any property of mine fails to be distributed as I have designated above, for any reason, then I want the property sold and the proceeds used to sue the Springfield Nuclear Power Plant for my wrongful death with any damages awarded to go to my wife, Marge, who will suffer many years of loneliness because of my untimely death On his way back from executing his will, Homer died, not from the cancer, but from injuries sustained when he stepped off the curb to pick up a penny on the ground and was hit by a Springfield City Bus Marge has filed this will for probate You are a lowly law clerk for Judge Smithers, who moonlights in the probate division of the Springfield Civil Courts Judge Smithers needs a memo from you on the property rights and enforceability of the various provisions of Homer’s will And he needs it ASAP Question 20 minutes – maximum 300 words Lisa Simpson lives in the exclusive gated community of Green Acres, next door to Mr Burns She is a successful attorney whose primary practice is in real estate and property law In researching the history of Green Acres, she discovered that many, but not all, of the deeds to her neighbors’ lots included restrictions worded as follows: the said property is hereby restricted to the use and occupancy for the term of 50 years from this date, so that it shall be a condition all the time and shall attach to the land, as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be, for said term, occupied by any person who shall have blue hair, or be related by blood or marriage to any person who shall have blue hair Lisa would like a memo explaining the property issues involved in this deed restriction and the legal issues and precedents that pertain to its history, enforceability, and legality Question 20 Minutes – maximum 300 words If you could change one rule of Property law we learned about this semester, which rule would it be, how would you change it, and why? END OF EXAM WRITE NOTHING AFTER TIME IS CALLED