PART B

(130 Points/ 130 Minutes)

Property I - Professor Goetzl

INSTRUCTIONS

2. Read, think, and outline your answer BEFORE you begin to write.

Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them.

If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.

Your answer should be complete, but you should not volunteer information or discuss legal doctrines which are not pertinent to the solution of the problem.

4. Observe the recommended time allocations!

On January 1, 1987, Ellen rented a large home on a 10 acre parcel ("Tenacre") out in the county on a month to month basis from Owen who lived in a neighboring state. Although Tenacre fronted on the county road, Ellen sought permission from her rear neighbor, Noah, to ride her mountain bike across his empty 160 acre parcel because that would provide Ellen with a pleasant shortcut to her workplace. Noah, who lived some 20 miles away, was willing either to give Ellen an oral permission which he could revoke whenever he chose or to sell Ellen a right-of-way for a term of fifteen years. Desiring more security than the "permission" which Noah had offered, on March 1, 1987, Ellen paid $500 for a written grant of a right-of-way to bicycle across Noah's land for 15 years.

On April 1, 1987, Ellen commenced building a detached office for herself on Tenacre. Construction was completed by the end of June, 1987. Early in February, 1988, Ellen decided to move and, accordingly, sent Owen a letter expressing her intent to terminate her tenancy at Tenacre effective March 31, 1988. Before the end of March, 1988, Ellen had moved out.

By late summer, 1988, Ellen had come to regret having left Tenacre and, realizing Tenacre was vacant, determined to return there. Upon discovering that Owen had died in mid1988, Ellen decided simply to move back onto Tenacre and, on August 1, 1988, did so. Ellen resumed using the right-of-way across Noah's land as before except that now Ellen drove her car across.

In May, 1995, Ellen decided to pursue an M.B.A. She asked a local real estate agent to procure a suitable renter to occupy Tenacre during her absence and moved to Boston to attend school. Ten weeks later, Tim signed a lease of Tenacre for a term of two years, through July 31, 1997, and moved in. Tim remained in possession of Tenacre through July, 1997. During Tim's tenancy, Tim also drove across Noah's land. Following her graduation in early June, 1997, Ellen vacationed overseas for two months, returning to Tenacre in the middle of August, 1997.

As it happens, Owen left a will devising Tenacre "to his friend, Alan, for life, then to his son, Bob." In 1999, Alan, who never showed any interest in Tenacre, died leaving all his property to Carla.

Last month (April, 2000) Ellen learned that Bob and Carla had each filed an eviction suit against her. In addition, she learned that Noah had filed suit to prevent her from crossing his land.

Write a concise but thorough, well-organized memorandum to Ellen describing her rights, if any, in and to Tenacre and her rights, if any, to drive across Noah's land. You should anticipate the claims and arguments that can be expected to be made in opposition.

QUESTION 2 (55 points/55 minutes)

Abby owns a lovely home ("Home") with a splendid view of the waterfront overlooking a flat, vacant lot ("Lot") which her dad had willed upon his death in 1986 to Abby and her siblings, Bart and Cass "as joint tenants with the right of survivorship". Lot is zoned commercial and the local rules will allow office buildings up to 4 stories high within that zone.

In 1997, Abby and Bart leased Lot to Medical Office Builders, Inc. ("MOB") for a term to last until June 30, 2047. That lease, which was signed by Abby and Bart as well as the appropriate agent for MOB, included, inter alia, a covenant by MOB not to erect any structure that would extend over 25 feet high on Lot.

In 1999, Abby died. Her will left Home to her husband, Hal, and her interest in Lot to her friend, Inge. Cass, who had been living incommunicado in a cult-affiliated monastery since 1985, has recently returned to town and is in the process of seeking to reestablish a "normal" life.

Your client, MOB, now wishes to build a four story medical office building and has recently consulted you. The new regional hospital, which opened just last year, is only two blocks away and the demand for doctor's offices is high. MOB disclosed all the above facts to you.

MOB wishes to learn whether or not it may construct this four story office building. What, if any, risks would MOB incur by undertaking this construction? How might MOB mitigate those risks? Write a concise but thorough, well-organized memorandum fully advising MOB.

QUESTION 3 (20 points/20 minutes)

You were asked to read from the following list of books:

(1) Should Trees Have Standing?

(2) Cadillac Desert

(3) In the Absence of the Sacred

(4) Lies My Teacher Told Me

(5) Playing Darts With A Rembrandt