Course: Instructor: Date:

Exam Notices:

PropertySpring 11 Professor Carpenter 4/29/2011

This examination has 18 pages. Student Examination Number Please note your student examination number on the cover sheet, on the Scantron sheet, and on any bluebooks that you use to write your essay answers. This exam will be graded anonymously. Please do not indicate your name, or any other self-identifying information, on the exam. Time This is a three-hour examination, with thirty multiple-choice questions and two essays. The grades will be weighted as follows: Part I Multiple Choice 30 points, Part II Essay 50 points, Part III Essay 10 points. Recommended time is approximately 60 minutes for Part I, 100 minutes for Part II, and 20 minutes for Part III. Planning, Organizing, and Writing Your Answers Please take a few minutes to think about and outline your answers before you begin writing. This will help ensure a well-organized response. Outside Materials This is an open book examination. You may use anything that is printed on paper. You may not use any material stored on, or accessed through, an electronic device. No student may, in any way, use any unapproved electronic device at any time during this examination. Any electronic device is unapproved unless it is a prescribed medical device, timepiece, or laptop computer used to write the examination in ExamSoft. Any unapproved electronic devices currently in your possession must be turned off and must remain off until you have turned in your examination and left the examination room. Other Instructions Please be sure to enter your multiple choice answers on the Scantron sheet, and provide the essay answers on the exam software or bluebooks. The professor will not grade any answer indicated on the exam itself. Finally, you must turn in to the proctors the entire examination and answer books at the end of the examination. You may not take the examination or any portion of it with you.

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Part I Multiple Choice Questions 1 and 2 are based on this fact pattern: Oscar is a squatter on a 1-acre parcel of land in a rural state where statutory law provides: an individual in possession of land for a period of 5 years who makes improvements thereon may apply for a patent to the property from the State Bureau of Land Management. Oscar has built a 1-room cabin on the property. In 2009, Oscar sells the land to Abel for $50,000 via quitclaim deed. Abel does not record the deed. In 2010, Oscar receives a patent from the State Bureau of Land Management, and then sells the same land to Brisco for $100,000 via quitclaim deed, which he promptly records. 1. In the ensuing lawsuit between Abel and Oscar, which is the most likely outcome? a. b. c. d. Abel loses because he failed to record the deed which therefore did not transfer title to him. Abel loses because a quitclaim deed is hardly worth the paper its written on. Oscar loses under a theory of deed by estoppel. Oscar loses under a theory shelter for bona fide purchasers.

Same facts as given for question 1. 2. In the ensuing lawsuit between Abel and Brisco, which is the most likely outcome if Brisco had no actual notice of the Oscar-Abel transaction? a. b. c. d. 3. Brisco wins in a race-notice jurisdiction, assuming that Abel had not taken possession of the property before Briscos purchase. Brisco automatically wins in a race-notice jurisdiction because Abel failed to record his deed. Abel wins in a notice jurisdiction. Abel wins in a race jurisdiction.

Your client Boulder State College changes its name to The University of Colorado at Boulder State. It promptly puts the new name and CU Boulder State logo on all of its signage, letterhead, website, and other media and communications materials. The day after all of this material becomes public, The University of Colorado at Boulder files a trademark infringement law suit. What happens? a. b. Your client prevails because trademark law protects original ideas fixed in a tangible medium, and not marks or logos used in the sale of goods or services. Your client prevails because trademark law is not specifically authorized by the Constitution which authorizes Congress to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Your client loses if The University of Colorado at Boulder demonstrates that consumers are likely to be confused as to whether educational services marketed under the new name are being provided by The University of Colorado at Boulder or your client. Your client loses but only if The University of Colorado at Boulder shows that your client engaged in a bad faith appropriation of the contested mark.

c.

d.

4.

Pyotr owned land surrounded by Duncan. Duncan gave Pyotr oral permission to use Duncans private road to get in and out of Pyotrs property. When potholes developed on the private road, Pyotr patched them. After a particularly heavy rain, Pyotr invested several hundred dollars to prevent further erosion of the road. In the 4 years since Pyotr began using the road, he has continued to improve upon his own property, building a shed and a chicken coop. Duncan has, nevertheless, now decided that he no longer wants Pyotr to use the road. He erects steel barricades to prevent Pyotr access. Pyotr sues and the court awards Pyotr an easement by estoppel. Which answer may explain the policy rationale underlying the decision? a. In balancing the owners right to exclude as against the non-owners right of access, a court will often qualify the exclusionary interest of a licensor who allows the detrimental reliance of the licensee. In balancing the owners right to exclude as against the non-owners right of access, a court will often defer to the bright line established by the Statute of Frauds, subject only to an exception for fraudulent conduct or necessity. In balancing the owners right to exclude as against the non-owners right of access, a court will often expect a reasonable licensee to engage in a survey and title search to determine the limits of his claim. In balancing the owners right to exclude as against the non-owners right of access, a court will often examine the degree to which the licensor has opened the property to the public, thereby diminishing his exclusionary interest.

b.

c.

d.

5.

Malcolm graduates from college, obtains a job as a management consultant making $90k/year, and decides to buy a house in Denver. Negotiating a price of $400K for the 2 bedroom home, Malcolm is able to put 20% down and obtains bank financing on the other 80% of the purchase price, repayable over 20 years, as guaranteed by a promissory note and secured by a mortgage. After losing his job, Malcolm decides to put the house on the market. Assuming that the buyer wants to purchase the house via a General Warranty Deed, which of the following is true? a. b. Malcolm must disclose the existence of the mortgage and any other burdens on the property, such as taxes, liens, easements, and covenants, consistent with the warranty against encumbrances. Malcolm cannot convey the property because, for most purposes, Colorado is a title theory state under which the bank is deemed to hold title to mortgaged properties, subject only to the borrowers right of redemption. Malcolm cannot convey the property because he cannot satisfy the covenant of future assurances. If Colorado follows the lead of Massachusetts in Commonwealth v. Fremont Investment & Loan, Malcolm can probably stay in his home without fear of foreclosure.

c. d.

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6.

Sedona is a famous hip hop artist who performs all over the United States, particularly in outdoor urban venues. She has a passionate following of fans, including some that have unfortunately begun to pursue her through disturbing messages on her Facebook account, calls to her home, and even following her tour bus, in ways that make Sedona uncomfortable, if not frightened for her safety. Her worst fears come true when, during a performance in New York Citys Central Park, a large man jumps up on the stage and rushes at Sedona, screaming, I love you! Her bodyguards tackle the man to the ground and the police drag him away. The man is charged with criminal assault, but Sedona also wants to take personal legal action against him, and sues him for civil assault, intentional infliction of emotional distress, and trespass to property, seeking damages. If she fails on the trespass claim, it will be because: a. b. Trespass is an unprivileged intentional intrusion on to property owned by someone else, and under these facts, it is unlikely Sedona can show that the offender had the requisite scienter. Trespass is an unprivileged intentional intrusion on to property owned by someone else, and under these facts, it is likely that the offender was authorized to be on the property through his ticket to the performance. Trespass is an unprivileged intentional intrusion on to property owned by someone else, and under these facts, it is unlikely Sedona can show a sufficient property interest. Trespass is an unprivileged intentional intrusion on to property owned by someone else, and under these facts, the courts would not recognize an interest in barring a fan from a place that has been opened to the public.

c. d.

7.

The holding of Johnson v. MIntosh can be properly expressed as follows: a. Although they were citizens of pre-existing sovereigns, Indians were savages whose principal occupation was war; therefore they could not have acquired the kind of property rights recognized among civilized nations in the 19th century. As pre-existing sovereigns, Indian nations retained complete property rights of alienability and occupancy cognizable in the U.S. courts. As pre-existing sovereigns, Indian nations retained qualified property rights of alienability and occupancy cognizable in the U.S. courts. Although they were pre-existing sovereigns, Indian nations lacked property rights because, unlike agriculturalists, they did not mix their labor with the soil.

b. c. d.

8.

Patrishka is a superficial and shallow woman. At the age of 45, she marries 78-year-old Joe for his money. She really wants to get her hands on Joes summer estate, Rolling Hills. Unfortunately for Patrishka, Joe has a daughter, Wendelyn, who also has her heart set on inheriting Rolling Hills. Realizing the conflict between his daughter and his new wife, in an inter vivos conveyance, Joe makes the following gift: I, Joe, hereby convey Rolling Hills to my daughter, Wendelyn, for life, but if she ever tries to sell her interest in Rolling Hills, then her interest shall go to my cousin, Carl. Wendelyn immediately takes possession of Rolling Hills. Soon thereafter, Joe dies with a will leaving his estate to Patrishka. Wendelyn dies mysteriously by falling from a horse. Patrishka is still alive. Who owns Rolling Hills? a. b. c. d. Wendelyns heirs or devisees under her will. Carl. Patrishka. Joes next of kin.

9.

A conveyance reads: Odette to Adam for life, and then 17 years later to Brianna in fee simple absolute. A contemporary court is most likely to hold: a. b. c. d. Adam has a life estate, Odette has a reversion subject to an executory limitation, and Brianna has a springing executory interest. Adam has a life estate, Odette has a reversion, and Brianna has a contingent remainder in fee simple absolute. Adam has a life estate determinable and Brianna has both a remainder and an executory interest. Adam has a life estate, Odette has a remainder subject to executory limitation, and Brianna has a springing executory interest.

10. In 2011, Tommy drafts the following conveyance: I, Tommy, grant to my wife Karen and her heirs the copyright in my bestselling book, The Four-Hour Work Day: A Guide to Living Easy, on the condition that if I die during her lifetime, she not remarry, and if she does remarry, then to our children Caden and Jasper, as joint tenants with rights of survivorship. Assuming Tommy drafted the conveyance in Colorado, and the conveyance is eventually interpreted by a court of law, which of the following is the most likely outcome? a. b. c. d. The court will reform the conveyance, setting aside the restraint on marriage, which violates fundamental rights of liberty and association. The court will set aside the conveyance altogether because copyright to a literary work is not a property interest that can be granted through an inter vivos transfer. The court will interpret the conveyance to grant Karen a fee simple subject to condition subsequent and her kids will share a right of entry in joint tenancy. The court will interpret the conveyance to grant Karen a fee simple to executory limitation and her kids will share an executor interest in joint tenancy.

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11. Olivia grants Rockacre to Abby and her heirs, but if Barnaby ever graduates from CU Law School, then immediately to Barnaby. What result? a. b. c. d. Abby has a fee simple subject to condition subsequent, and Barnaby has a shifting executory interest. This conveyance violates the Rule Against Perpetuities and so, to reform it, a court will interpret Abby to have a fee simple absolute. Abby has a fee simple subject to an executory limitation and Barnaby has a shifting executory interest. Abby has a fee simple subject to an executory interest, Barnaby has a springing executory interest, and Olivia has a reversion.

12. Sam and Dan, neighboring landowners, enter into a written agreement embodying their arrangement that Dan, as owner of Blackacre, will have a right of access across Sams property to fish in the lake that fronts Sams property. This agreement is supported by good and valuable consideration and may run with the land as the parties intend. After many years of crossing Sams property for fishing, Dan gets married. He finds he has no time for fishing, as he and his new wife immediately start a family. After their fifth child is born, Dan tells Sam he would like to resume using the easement for fishing. Sam balks, saying, Dont think youre going to allow all those little brats on my property! Besides, I dont want to be liable if one of them falls in the lake! Dan sighs. When Sam puts his property up for sale the next year, Dan buys it. Evaluate the current state of the easement. a. Dans right of way is appurtenant to the land, as it is clear that was the intent of the parties, as the language refers to Dan as owner of Blackacre, which could be any subsequent purchaser for value. Dans right of way is extinguished because the dominant and servient estates have merged. Dan has an easement appurtenant over Sams land, which can be used by his entire family, because the easement is intended to benefit the entire dominant estate. Any objection by Sam will have to be made on the basis of undue burden, not according to the nature of the easement. Dans right of way does not run with the land because the parties are not in privity.

b. c.

d.

13. Lauren is a real estate broker in Florida, representing her step-father in the sale of the family home where she grew up. As she knows, the basement laundry room floor floods on rainy days, a problem of water seeping up through the faulty foundation which would be very expensive to fix. Just before her step-father goes to list the home, she advises him on a number of measures to make the home look more appealing: painting the exterior, purchasing decorative houseplants, reducing clutter, and replacing the stained carpet in the laundry room with off-white tile. If Lauren succeeds in selling the home to a buyer who is unaware of the seepage problem in the laundry room, she may be liable for: a. b. c. d. Nothing because Florida has maintained the rule of caveat emptor in residential real estate sales, subject only to the common law rule prohibiting affirmative material misrepresentations. Nothing because the seller, and not his agent, has the obligation to disclose latent material defects. Fraud, misrepresentation, and failure to disclose latent facts materially affecting the value of the property. Fraud, misrepresentation, and failure to disclose facts materially affecting the value of the property, but only if the buyer asked, and Lauren lied about, the previous seepage in the basement.

14. Melissa owns a property in Massachusetts that she rents to a residential tenant, though a leasehold containing the provision: Tenant may not assign, sublease, or otherwise alienate her leasehold interest without my express written consent, which I may withhold at my discretion. Her tenant Chris, who has nine months left on a twelve month lease, learns that his job has been transferred to Ohio. He asks Melissa for permission to either sublet or assign his leasehold to Patrick, a credit-worthy individual who has a steady, documented income that would allow him to make the lease payments. Melissa denies the permission, citing the lease, and Chris goes to court asking to have the lease provision set aside as an unreasonable restraint on alienation. What result? a. b. Chris is likely to prevail because, as the New Hampshire court held in Horse Pond Fish & Game Club, complete restraints on alienation are disfavored in the law. Chris is likely to prevail because, as the court held in Slavin v. Rent Control, the right of Massachusetts landlords to deny consent to sublease or assignment is now qualified by a reasonableness test. Melissa is likely to prevail because, as the Massachusetts court held in Slavin v. Rent Control, the right of Massachusetts landlords to deny consent to sublease or assignment is not qualified by a reasonableness test. Melissa is likely to prevail because residential leaseholds are not property interests, and therefore are neither alienable nor compensable.

c.

d.

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15. In McCoy v. Love, what would have happened if Mrs. Elliot sued Mr. Russell for cancellation of the 1972 deed before he had conveyed the contested property to subsequent purchasers? a. b. c. d. Mrs. Elliot would have prevailed because a fraudulently induced deed is voidable against the individual who wrongly procures it. Mrs. Elliot would have prevailed because a fraudulently induced deed is void against the individual who wrongly procures it. Mr. Russell would have prevailed because the deed was merely fraudulent in the inducement but still contained Mrs. Elliots valid signature. Mr. Russell would have prevailed because he paid substantial pecuniary value for the property, making him a bona fide purchaser.

16. Dover has crossed Eberts property to get to the beach for his daily swim every day since 1990. Dover is neither a family member nor a neighbor of Eberts. Despite the fact that Ebert has a sign along that path, reading, Trespassers beware!, Dover continues to use the path and even hangs his towel on the sign while he swims. In 2001, Ebert brings suit seeking to exclude Dover from his property. Assume that the applicable statute of limitations for both adverse possession and prescriptive easements is ten years. Which result is most likely? a. b. c. d. Dover prevails on a defense of having established title to the path on Eberts property by adverse possession. Dover prevails on a defense of having established a right to use the path on Eberts property a prescriptive easement. Because Dover acquiesced to Eberts ownership, he cannot prevail on a defense of having established a prescriptive easement across Eberts property. Because Dover sought access to the beach, a public resource, Ebert cannot exclude him from the path.

Questions 17 and 18 are based on this fact pattern: Franny owns a condo in Westmoreland that she inherited from her mother. Franny rarely visits the condo and does not hire anyone to look after it when she is away. In the summer of 1990, Zooey moves into Frannys condo. She places a welcome mat on the front stoop, installs her prize-winning tomato plants on the deck, and gets to know the neighbors, among whom she becomes well-known for sharing her tomatoes every summer. She lives in the condo for nine years without interruption. When Zooeys niece, Esmee, graduates from college, Zooey gives Esmee the condo as a gift. Esmee lived in the condo for six years when Franny brings an action to eject her. The Adverse Possession Statute in the jurisdiction of Westmoreland provides that: (1) The statute of limitations for adverse possession is fifteen years. (2) Tacking is allowed, but the parties must be in privity with one another. (3) If a disability is present at the time the cause of action begins to accrue, the statute of limitations shall be tolled until the disability is lifted. For purposes of this statute, disability includes insanity or imprisonment. 17. Frannys action to eject Esmee will: a. b. c. d. Fail, because Zooey obtained title by adverse possession and transferred ownership to Esmee. Fail, because Esmee obtained title by adverse possession. Prevail, because Zooeys welcome mat defeats the adverse requirement. Fail, because Esmee has obtained title by adverse possession through the doctrine of tolling.

Same facts as given for question 17. 18. Which of the following facts, if known by the court at the time of the action for ejectment, would be most beneficial to Franny? a. b. c. d. Franny was away in California from 1990 onward caring for her mentally disabled aunt and was unable to monitor the use of the condo. Franny was an acquaintance of Zooeys and gave her permission to stay in the condo. Franny paid all taxes on the property from 1990 onward. Franny was unaware of the doctrine of adverse possession.

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19. Olga owns Blueacre in fee simple absolute. By will, Olga devises Blueacre to any husband who survives me for his life, with remainder to such of my children as are living at his death. Olga is survived by Harry, her husband, and by three children, Colgate, Crest and Casta. Thereafter, Crest dies and devises her entire estate to David. Later, Harry dies. In a lawsuit to which Colgate, Casta and David are parties, title to Blueacre is at issue. In such lawsuit, judgment should be that title to Blueacre is in: a. b. c. d. Colgate, Casta and David, because remainders are descendable and devisable, so Crest had the authority to convey her interest to David by will. Colgate, Casta, and David because Olga intended for her children to share equally in Blueacre. Colgate and Casta, because Crests remainder must descend by intestacy and is not devisable. Colgate and Casta, because the remainders were contingent upon surviving the life tenant.

20. Which of the following statements is accurate? a. b. c. d. A deed that lacks the signature of the seller can give rise to a claim for adverse possession under a claim of right theory. A deed that lacks a signature of the seller can give rise to a claim for adverse possession under a color of title theory. A deed that is void for the lack of the signature of the seller cannot give rise to any title claim by the recipient. A deed that is void for lack of the signature of the seller can be validated for purposes of title if it is duly recorded in the registry of deeds.

21. As a matter of real covenants law, horizontal privity refers to: a. b. c. d. A non-hostile relationship between a property owner and his successor in interest. An interest in property that affects the value, economic or otherwise, of land. An oral promise made between neighbors. A relationship between parties who have a mutual, simultaneous interest in one others real property.

22. Gladys conveys Blackacre to my three children, Xanders, Yooloo, and Zimmy as co-owners. Merely one month after taking possession, Xanders is killed in a tragic car accident while talking to Zimmy on the phone. Xanders will indicates that she wants her interest in Blackacre to be split between her children, Alba and Briana. Who owns Blackacre? a. b. c. d. Yooloo owns 100% of Blackacre because Zimmys portion was forfeited after Zimmy was partly responsible for Xanders death. Yooloo and Zimmy each own a 1/2 interest in Blackacre as joint tenants, because they took pursuant to the right of survivorship. Yooloo and Zimmy each own a 1/2 interest in Blackacre, and Alba and Briana will inherit their portion after Yooloo and Zimmys deaths, because they took pursuant to Xanders will. Yooloo and Zimmy each own a 1/3 interest in Blackacre and Alba and Briana each own a 1/6 interest in Blackacre, all as tenants in common.

23. After a long battle with cancer, Olympia dies. She leaves her home, Homeacre, to her daughter, Adelphia for life. Olympias will stipulates that Adelphia will possess Homeacre until she (Adelphia) dies, at which point Homeacre will go to Babbettes firstborn child. If Babbette has a child during Adelphias life, what has Olympia (or her estate) retained? a. b. c. d. Olympia has nothing, because Babbettes firstborn child held a vested remainder absolute. Olympia has nothing, because Babbettes firstborn child held a vested remainder subject to open. Olympia has a reversion in fee simple absolute, because this is the interest in a grantor that follows an inherently limited estate. Olympia has a remainder in fee simple absolute, because this is the interest in a grantor that follows an inherently limited estate.

24. Two brothers, Jared and Hared, owned real estate as joint tenants. Jared granted a 1-year leasehold in his interest in the property, and then died the next day. Hared claims full ownership of the property under the right of survivorship in the joint tenancy. What result? a. b. c. d. In a state that subscribes to a lien theory, the leasehold will not be deemed to sever the joint tenancy. Under the rule of Tenhet v. Boswell, Hared will take full ownership of the property, subject to the term of the lease. Under the rule of Tenhet v. Boswell, Hared will take full ownership of the property, not subject to the term of the lease. Under the rule of Tenhet v. Boswell, Hared will take only his share of the property because the lease severed the joint tenancy.

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25. According to Property Law scholars Henry Smith and Thomas Merrill, the numerus clausus principle, as illustrated in Johnson v. Whiton, is justified primarily because it: a. b. c. d. Limits the forms of property such that participants in the market can readily identify and value prospective purchases. Recognizes that human beings form attachments to property, particularly as handed down among generations of families, that cannot be economically compensated if lost. Effectuates the interests of owners and non-owners, consistent with human values and social relations. Rewards those who mix their labor with real property, thereby creating value and vesting title appropriately in the owner.

26. In 2001, Mary places a $3M stock portfolio in a revocable trust, with dividends and other annual income to be distributed to her daughter Ann, for her health, education, and maintenance at the discretion of the trustee, with the principal transferring to Ann at Marys death. When Ann finds herself in divorce proceedings with her husband Tom, a Colorado court is likely to: a. b. c. d. Treat the stock portfolio as separate property because Ann received it as a gift from her mother. Treat the stock portfolio as joint property because Colorado is a community property state. Treat the stock portfolio as an expectancy interest. Divide the stock portfolio through equitable distribution because Colorado is a no-fault divorce state.

27. Oscar deeds his property to the Catholic Church so long as it is used for church purposes, then to the Red Cross. In a legal action to have the conveyance set aside for violating the Rule Against Perpetuities, what result? (The action is filed in a jurisdiction that applies the common law RAP, with no exceptions for charities): a. b. c. d. The conveyance stands because the rule does not apply to it. The conveyance stands because the conveyance does not violate the rule. The conveyance is reformed to give Oscar a possibility of reverter in the property. The conveyance is reformed to give the Catholic Church a fee simple in the property.

28. In Pierson v. Post, Pierson won the case because: a. b. c. He had met or exceeded the standard of mortal wounding necessary to demonstrate possession of the fox in satisfaction of the rule of capture. He established a reasonable certainly of acquiring possession by hunting, chasing, and pursuing the fox, with notice to Post. Having submitted the dispute to the opinion of sportsmen, the court determined that custom would award the fox to Pierson at the point of full pursuit, established by following the beast with large dogs and hounds. The court wanted to incentivize efficient fox hunting and Post was chasing the fox with beagles only, a means that was not reasonably calculated to lead to a reasonable prospect of capture.

d.

29. Victoria Fadel passed away in 2007. Her will left a trust to my daughter Zakia and her heirs, because I am confident that Zakia and her daughters will carry on our family tradition of honoring our Lebanese heritage by donating a significant portion of annual interest on the trust corpus to the Lebanese American Association (LAA). Victoria, whose parents immigrated in the late 1800s from Lebanon, was a charter member of the LAA. During her lifetime, she wrote dozens of articles and letters articulating her very strong belief in LAAs mission to promote Lebanese culture, the Arabic language, and the education of Lebanese youth, and opining on the obligation of Lebanese descendants to support the organization. At the time of Victorias death, Zakia had two daughters, Yasmeen and Alia. In 2008, Zakia died with a will leaving her property to her daughters. After Zakias death, Yasmeen made regular donations of the annual interest on the trust corpus to the LAA, but Alia did not. In 2009, Yasmeen sues Alia, on the theory that their present possessory interest in the property was conditioned on making donations to the LAA; because Alia has failed to meet the condition, Yasmeen has a right of entry in the estate which she now seeks to assert. What result? a. b. Yasmeens claim is likely to prevail because any restriction imposed on the original conveyance to Zakia will pass to her daughters through actual notice, even if it is not specified in her will. Yasmeens claim is unlikely to prevail because any purported limitation on Victorias conveyance to Zakia would be deemed mere precatory language, and in any event, Zakias will had no mention of the limitation. Yasmeens claim is unlikely to prevail because racially restrictive limitations on property dispositions are strongly disfavored in the law. Yasmeens claim is likely to prevail because Victorias conveyance to Zakia was ambiguous, thereby allowing Yasmeen to present extrinsic evidence of Victorias strong intent to condition the gift on continued donations to the LAA.

c. d.

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30. Under the recent amendments to Colorados adverse possession law, which of the following is true? a. A party possessing land under a mistaken understanding, in her favor, about the location of a boundary line is unlikely to prevail on claim for adverse possession because the statute now requires clear and convincing evidence. The statutory period of possession required for an adverse possession claim under claim of title has been extended to 18 years and is now consistent with the statutory period required for a claim of right. Anyone admitted to the Colorado bar is estopped from bringing an affirmative claim of adverse possession, but can use adverse possession as a defense to a trespass claim. A party possessing land under a mistaken understanding, in her favor, about the location of a boundary line may prevail on a claim for adverse possession, so long as she has clear and convincing evidence of the other required factors.

b.

c. d.

Part II Essay 50 points While this essay refers to actual places in Boulder, CO, the facts are entirely fictional. In 1950, Lloyd New, a wealthy real estate developer, formed an entity called The Newlands Corporation, which purchased 240 acres of land at the foot of Mt. Sanitas, in the northwest corner of Boulder, Colorado. Lloyd served as CEO of the Newlands Corporation and, in that capacity, formed a plan for the Newlands Neighborhood. At the northernwestern corner of the land, Newlands would retain title to, and leave intact the historic 10-acre apple, peach, and plum orchard. The Orchard would be surrounded by four 1-acre lots, each of which would have a single family home built on it. The remaining 230 acres would be developed into a large neighborhood of approximately 920 homes, each built on a 0.25-acre lot. The homes would be laid out on a grid, with north-south roads named 3rd-11th Streets, and the east-west roads named alphabetically for trees Aspen, Balsam, Cedar, Dellwood, Evergreen, Forest, Grape, Hawthorn, and Iris, and organized around the existing Boulder County Hospital and North Boulder Park. Running along the western edge of Newlands, at the foot of Mt. Sanitas, was the Silver Lake Creek which fed into Boulder Creek, a major waterway in the city. The Newlands Corporation filed a narrative description of the plan and a map, roughly representing the contours of the project, in the Boulder County Registry of Deeds in 1950. (See attachment showing this map). Lloyd personally purchased a 1-acre lot adjoining the Orchard and built a lovely home there. Later that year, the Newlands Corporation sold another 1-acre lot adjoining the Orchard to Cathy Connors. At the closing, Lloyd said, Please feel free to come into the Orchard, via the Orchard path, anytime to pick fruits for your family. Cathy received a deed to her property and promptly recorded it in the Boulder Country Registry of Deeds. Using Cathys deed as a model, Lloyd entered into transactions to sell the other two lots adjoining the Orchard that year and told each new Owner that she or he too was welcome to come into the Orchard, via the Orchard Path, anytime to pick fruits for his or her family. Soon there were four families, who quickly formed a tightly-knit neighborhood, living alongside the Orchard. (See map these four houses are located at 3rd & Forest Ave, on Forest Ave, and at 4th & Forest Ave). During the summer fruit season, Cathy entered the Orchard nearly every day to pick fruits for her pies, which she shared with Lloyd and the other neighbors. In 1952, the Newlands Corporation took the profits from the early sales and invested them in the construction of new homes on the remaining lots in Newlands. Beginning in 1953, Lloyd sold 10 of the nearly completed homes to buyers, one of whom was named Marilyn Masters. These ten homes were near, but not adjoining, the Orchard. (See map these ten homes are located on the blocks just south and east of the original 4 Newlands properties adjoining the Orchard). Marilyn and each of the other buyers received a deed at the closing that provided, in relevant part: Buyer, on behalf of himself, his heirs and assigns, agrees that he will use his lot for a single family residence only, and never subdivide or partition the lot. This promise shall be construed as a covenant that runs with the land, binding on all future owners of the property, for the benefit of the Newlands Corporation and residents of the Newlands Neighborhood. The Newlands sales were incredibly successful, and by the end of 1960, the Newlands Corporation had sold all of the remaining Newlands lots. (See map the Newlands homes filled in the entire neighborhood depicted). All of the Newlands deeds executed from 1953 to 1960 contained the same restriction as Marilyns and were recorded. In 1965, Cathy sold her lot to David and Donna Drummond, who seemed quite neighborly at first, but soon showed their true entrepreneurial colors. First, Donna started canning apple, peach, and plum jam all made from fruit picked in the Newlands Orchard to sell at the newly-established Farmers Market in Boulder. To keep up with the demand, she hired a couple of high school kids to help her with the fruit harvest. As a result of these activities, the trees were heavily picked and, finally, in 1975 the other neighbors began to complain to Lloyd that there was no fruit left for them. Lloyd told everyone not to Professor Carpenter, Property Final Exam, Spring 2011 Page 15 of 18

worry, that the Newlands Corporation would take action to keep Donna out of the Orchard. Second, and also in 1975, David who was himself a real estate developer took a look around the lot and realized it that it was oversized in comparison to other lots in the neighborhood. Their house, plus the outdoor space they used for a driveway and yard, only occupied 0.25 acre of the 1-acre lot. David convinced Donna that they should subdivide their property into four lots, selling off the remaining three for new home construction. But as soon as the neighbors got wind of the Drummonds plans, they began to complain. Marilyn Masters daughter Nancy Masters, who had inherited her mothers home, threatened to file a lawsuit, saying to whomever would listen: All of these lots are restricted to one single family home and against subdivision or partition. I am going to sue to enforce our rights. Life continued peacefully in the Newlands for quite some time, but then in 2009, a dispute arose between two neighboring families, the Henrys and the Winklemans. The Winklemans had since the 1980s been encroaching on the southeast corner of the Henrys property, first storing tools and in 1990, the Winklemans built a small storage shed there. The shed was fully within the Henrys property. The Winklemans regularly cut back the cottonwood trees and grasses growing around the shed, and the Henrys never said a word. But when the youngest Henry, a first year law student, came home on Spring Break, he immediately told his parents that they had to act to protect their property rights. In 2011, the City of Boulder discovered that the soil in several historic fruit orchards within City limits was contaminated with a toxin that had been used in pesticides from 1950-1975. Deeming this situation to present a public health concern, Boulder adopted a municipal ordinance requiring all orchards to undergo a soil decontamination process, undertaken at the Citys expense. The project would deny all citizens, including owners, access to the orchards for a period of one year, during which time various pieces of heavy equipment would be placed in the orchards, for use by a team of environmental experts who would engage in a painstaking process of cleaning the soil. On May 1, 2011, a notice was issued to the Newlands Corporation that the Orchard would be closed from June 1, 2011 May 31, 2012, for this purpose. Joe Jameson, who had taken over for Lloyd New as the CEO of the Newlands Corporation, was incensed, saying, This violates our Fifth Amendment Rights. I am going to sue! (a) Identify and analyze the legal claims that Lloyd New or the Newlands Corporation might bring against Donna Drummond in 1975. (15 points) (b) Identify and analyze the legal claims that Nancy Masters might bring against the Drummonds in 1975. (15 points) (c) Identify and analyze the legal claims that the Henrys might bring against the Winklemans in 2009. (10 points) (d) Identify and analyze the legal claims that the Newlands Corporation might bring against the City of Boulder in 2011. (10 points)

Professor Carpenter, Property Final Exam, Spring 2011

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Part III 10 points We have studied six theoretical approaches to Property Law (ownership, social relations, labor, law & economics, personhood, and critical race theory). Identify the theory that you think best explains the field of Property Law, and substantiate your argument through discussion of three cases that support your theoretical approach to the field. THIS IS THE END OF THE EXAMINATION. HAVE A WONDERFUL SUMMER!