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Examination Number____________
UNIVERSITY OF DAYTON
SCHOOL OF LAW
Property – Section 01
MIDTERM EXAMINATION
Professor J.G. Durham September 27, 2002 4:00-5:00 p.m.
INSTRUCTIONS
- You have one (1) hour to complete the examination.
- The examination consists of one essay question with seven parts. The number of points allocated to a part is indicated at the end of the part. You should read all seven parts before answering any part.
- Please write legibly, on every other line, and only on the fronts of pages. You may use as many blue books as you need, so there is no value in saving space.
- The examination is closed book. You may bring no written or printed materials into the examination room.
- Be sure to sate any assumptions you make and the bases for your conclusions.
QUESTION
You are an associate attorney in a law firm. Your supervising partner comes to you with a client’s story involving adverse possession. The client is Anna Part, the owner of Lot 38 in the Elm Street Subdivision. The south border of Lot 38 is Elm Street. On the west Lot 38 is bordered by Lot 37, and on the east it is bordered by Lot 39; all three lots are 100’x150’ (100 feet wide and 150 feet deep). On the north Lot 38 is bordered by a treeless, grassy 10 acre parcel of land owned by Opal Oster, the developer of the Elm Street Subdivision. There are overhead electric wires strung from poles and running along the north borders of Lots 37, 38 and 39 (and
the other lots on Elm Street).
Adam Preston bought Lot 38 in 1977. In 1978 he built a home on Lot 38, and the original structure complied with the setback requirements for the Elm Street Subdivision (at least 25’ from the street, at least 5’ from each side lot line and at least 40’ from the rear lot line).
In 1979 Adam created a large vegetable garden at the rear of Lot 38. He dug up the grass that was in his backyard and some grass that was on the 10 acre parcel. Opal was doing nothing with 10 acres, and, in fact, she had put the land up for sale for commercial use. Adam figured he might as well make good use of land that otherwise was going unused. Adam’s vegetable garden went from one side of his lot to the other (100’) and encroached 20’ into the 10 acre parcel. Adam built a 3’ tall white picket fence all the way around the garden in order to keep animals out.
In 1982 Adam built a garage behind the house on the west side of Lot 38, but, mistakenly, not all on Lot 38. Lot 37 was a vacant lot so Adam had a surveyor resurvey his lot in order to determine its boundaries before he poured the foundation for the garage. Unfortunately, the surveyor made a mistake and located the west boundary of Lot 38 10’ to the west (10’ onto Lot 37). Adam carefully observed the 5’ side lot line setback requirement and built his garage 5’ from the newly, and mistakenly, located west border of Lot 38. So Adam’s new 20’ wide 2-car garage actually was 15’ on Lot 38 and 5’ on Lot 37, and the concrete driveway, which ran directly from the garage to the street, also encroached 5’ onto Lot 37.
In 1983 Omar Ott bought Lot 37 and built a house on it. Omar did not have Lot 37 surveyed, so he did not realize that Adam’s garage and driveway encroached 5’ onto his lot. Omar and Adam became good friends, and they frequently (summer and winter, spring and fall) played basketball on the driveway in front of Adam’s garage, and Adam allowed Omar to store his boat in Adam’s garage during the winter.
In 1984 Adam built a new 10’x10’ garden shed behind the house and on the east side of Lot 38. This time Adam did not have a survey done (after all, it was just a small shed that could be moved if need be), but he carefully located the shed 5’ from where he thought the boundary line was between Lots 38 and 39. At the time Adam built the shed, Lot 39 was vacant. Adam located the garden shed completely on Lot 39.
In 1995 Adam stopped tending to his garden. He had been using the garden for 16 years and he was tired of gardening. In early 1996, Adam took a new job in a distant city and put his house up for sale. Adam had to move before the house was sold, and during 1996 the house was empty for 6 months before it was sold and the new owner moved in. Omar was nice enough to help Adam by mowing the grass and otherwise keeping up Adam’s yard. Omar also continued to
END OF EXAM
PROPERTY 2002
FIRST MIDTERM – GRADING OUTLINE
NOTE: Below is my “grading outline.” I grade in 5 point “clusters,” that is I assign 5 points to one topic (or more) and after reading the student’s answer on that topic determine how many points to award. The points are awarded on your exam answer sheet in the order on my outline. If a student addressed an issue “out of order” (many students did not include tacking in “a.” but that is where I had it, so you may notice a number crossed out on “a.” and a higher number replacing it), I put the points where they were on my outline. Finally, getting a “5” is a big deal. That means that you hit everything I could have asked for, both in terms of using the law and applying it to the relevant issue. Following are three exams, “A+ Exam,” “A Exam #1,” and “A Exam #2” exactly as submitted by the students who received the three top grades on the exam.
a. Can Anna establish actual possession for 15 years of each of the three parcels?
5 Garden. Adam used the garden as would the owner of a residential lot. He made regular and seasonal use of it by planting, tending and harvesting the garden, had physical control of it, and he excluded all others by building the fence, a permanent physical presence. Opal could argue that he did not use it as she intended (as commercial property), but that should fail because Adam’s use was an extension of his residential land which was immediately adjacent.
5 Garage and driveway and garden shed. Adam and Anna together had both significant physical improvements in place and used them. The physical structures being under their control and for their use should satisfy any formulation of “possession.” Anna may “tack” her possession on to Adam’s because Adam conveyed to Anna any rights he had to these two areas along with his ownership of Lot 38.
b. Can Anna establish that each of the possessions was exclusive?
5 Garden and garden shed. There is no indication that anyone else used these during the 15 year period. What is an “exclusive use” is determined by what the use is. In this case, the garden was fenced and the garden shed was an enclosed building. When you have
an enclosed area or an enclosed structure being regularly used with no evidence that others used, then it is an exclusive use.
5 Garage and Driveway. The same could be said about these, except the driveway was not enclosed, Omar played basketball in the driveway, and Omar stored his boat in the garage during the winter. The non-enclosure of the driveway should not be a problem because of Adam’s and Anna’s regular use of the driveway. As to Omar’s playing basketball with Adam, storing his boat in the garage and keeping the yard up during the six months after Adam moved and before Anna moved in, the point is that all of these were permissive. Omar did so with Adam’s permission so that Omar was not asserting a possession as an owner, but assenting to Adam’s possession by using the driveway and
garage with Adam’s permission and assisting Adam’s possession but keeping the yard up.
c. Can Anna establish that each of the possessions was continuous?
5 Garden. No problem. Adam possessed the garden for 16 years, and the statute is only 15 years. The type of use was continuous for what it was (I assume he did nothing in the garden during the winter), and the 15 years was satisfied before Adam stopped using the garden. Adam owned it at that point (assuming all other factors are met). The facts that Adam stopped using the garden, that no one used it for six months during the summer of 1996, and that Anna put a fence right through it, are all irrelevant because Adam already owned it (if the other factors are met).
5 Garage and driveway and garden shed. To comply with the 15 year statute Anna can tack her possession to Adam’s, unless a court finds that the six months that the house was empty was too long. Six months is not a long time, and Adam had Omar keeping the yard up for him. Omar was acting as Adam’s agent so what Omar did was as if Adam did it, even as to possessing against Omar’s Lot 37.
d. Can Anna establish that each of the possessions was open and notorious?
5 Garden. The power lines ran behind the lots and in between the lots and the 10 acre parcel. Adam built a white picket fence that should have stuck out in a treeless, grassy 10 acre parcel, particularly if you stood under the power lines and looked east or west: the fence jutted out into the 10 acre parcel. The counter argument is that it is a small area and it would be difficult to determine just where the property line is. You could call it either way.
5 Garden shed. If Adam and Anna maintained the west 10’ of Lot 39 so that it looked like the shed was just part of Lot 38, this may be so small as to not be open and notorious.
Adam’s garage), then a court could order Omar to convey the relevant parcels to Anna upon Anna’s payment of the fair value of the land. This is an equitable remedy based on the hardship it would cause the innocent improver and the lack of hardship on the adjacent owner.
5 Garden shed. It is more likely that a court will tell Anna to move the garden shed, however. First of all, Adam was not as innocent. Second, if the garden shed can easily be moved, there is not much hardship on Anna. Finally, the lot is vacant and it could result in a big drop in value if a court orders 10’-15’ to be conveyed to Anna (the shed plus the required sideyard).
g. Does the fact that Opal became mentally incompetent make any difference?
5 It depends on the statute. In Ohio, no because the disability did not exist “when the cause of action accrues.” In other states, it may toll the running of the statute of limitations so that Anna would have no adverse possession as to either the garden or the garden shed since Opal became incompetent less than 15 years after the beginning of the possessions.
A+ EXAM GRADING SHEET
a. (10) 3+5 8
b. (10) 3+3 6
c. (10) 4+3 7
d. (15) 4+2+3 9
e. (15) 3+2+4 9
f. (10) 5+2 7
g. (5) 2 2
Total Points 48
Grade A+
A+ EXAM
A) The first question is whether Anna can establish actual possession of the three parcels of land that being, the 20ft. encroachment in Opal’s yard to the North, the encroachment into Omar’s lot 37 and the encroachment of the shed on vacant lot 39. Starting with the 20ft encroachment to the north, Adam built the garden in 1979. In building the garden he took physical possession of the land, and used it for his own purposes. The fence and the garden all clearly show that he had physical possession of the land in question for the statutory period and thus it would be considered actual. As far as the encroachment on Omar’s land, one would likely consider that to be actual as well. His garage and driveway encroached five feet on to Omar’s land, he physically claimed that area and occupied it for his own personal purposes thus it would be an actual possession. Lastly, the encroachment of the shed on to lot 39 would also be considered to be an actual possession because he placed the shed on the land, and again took physical possession of it treating the land as his own. Although the shed was moveable, he did not move it and thus was considered an actual possession of the land.
B) I believe in all three circumstances Anna shows that the possessions are exclusive. First dealing with the land to the North, in 1979 Adam built a garden and a fence. He was the only person to use that garden from 1979 to 1995 when he quit gardening. Opal never claimed dominion over the garden and she was content to just let her land go unused till she sold it. Anna would also have an exclusive possession of the land the shed was on in lot 39. Again, at no time during the statutory period did anyone enter upon the land in lot 39. The shed sat there on an unoccupied parcel of land owned by Opal Oster which was for sale. Adam built the shed and exerted control over the land as if it were his own. It may be a little more difficult to prove if Anna had exclusive possession over the land between her and Omar’s house. Her garage encroached 5 feet onto his property as well as the driveway. Omar would frequently use the driveway to play basketball on and store his boat. However, even though this was the case, Anna would have exclusive possession because all of Omar’s activities were with the permission of
these claims. He built the shed on what he thought was the property line, and if he would be told otherwise he would have moved it. He cared for the land as his own because of his mistake, thus a court would likely find that he showed good faith. As far as the garage, he definitely shows good faith. He builds it according to the survey that was done. Although the survey was incorrect, this gives Anna color of title to encroachment that the garage was on, and therefore she acted in an appropriate manner placing the garage on that lot. A few other minority states ask that there be intent to claim the land in order for there to be color of title. If Anna needed to prove this she would keep the garden because, Adam knowingly took the land because it was empty and had intent to claim. She would lose the land the shed is on because Adam said he would move it if it was determined to be on someone else’s land. Most likely he would keep the land his garage was on since he could show color of title which proves his intent to use it for his own.
F) If Anna cannot establish ownership to the driveway or garden shed she could ask the court to convey it to her under the innocent improver doctrine. Under this doctrine if a mistaken improver improves upon the land which is not his, and the true owner comes along for an ejectment action, she may be able to keep the land, if she can prove that the removal of her hardship will be more expensive that the detriment received to the person holding title to the land. The court would most likely make the owner of record title convey that land to Anna for a specified price or if Anna had to remove the property, the title owner may have to pay for the removal. As far as the shed goes, she would probably have to move it, since it is a cheap shed and easily moveable, it would not require a lot of cost to move it from the neighbor’s property to her own property. She would likely be able to get a conveyance of the driveway and garage because they were very expensive to build and thus removing them would be at an enormous cost to her. Omar may argue that the driveway causes too much harm to his land because under zoning law he may be unable to sell his house or improve upon it. There, Anna may lose possession of the 5 feet the garage is on and it may need to be removed.
G) Opal’s disability will not make a difference in this case. The disability is only relevant if it is in place at the time the cause of action accrues. In 1979 when Adam built the garden Opal was under no disability. She also was under no disability in 1984 when he built the shed. Therefore, the cause of action started to accrue from that point and the fact that Opal became disabled later is immaterial for she should not have sat on her rights to the point that she did.
END OF A+ EXAM
A EXAM # GRADING SHEET
a. (10) 3+5 8
b. (10) 2+3 5
c. (10) 3+4 7
d. (15) 3+3+2 8
e. (15) 4+3+2 9
f. (10) 1+2 3
g. (5) 2 2
Total Points 42
Grade A
A EXAM
In order for Anna to establish adverse possession. We must first look at what Adam did because he was the first owner discussed. The five elements are actual, open and notorious, exclusive4, continuous, and hostile. First of all as long as we can show Adam had adverse possession, Anna will have as well since the two were in pivity of each other, we can tack the time together to equal the statue of limitations. HE sold her the land and that created her relationship that as long as Adam proved adverse possession, it would carry on to her as well and she would get that land.
and the fact he even had a survey done to make SURE he was not encroaching, it was not his faulty the surveyor messed up. He might not have wanted to claim the land against Omar, his friend or he might not have intentionally put the shed on someone else=s land. Maine looks into intent, and intent is hard to prove. Next is Conn.,which says claims can meet the hostility requirement even if by mistake and they can be conditional. Adam would surely meet hostility in Conn. with regards to the driveway, shed, and garage because he did use them as his own, even if it was by mistake and would have not built them or stopped using them had it been shown they were not his. For the garden, it would be harder because that was not really a mistake, because he knew the land was being sold. He could be called a squatter with regards to that piece of land. However he might have won in Conn. because he was using the land as his own and he might have been able to say he would have stopped had Opal asked him to. And in the Iowa doctrine, he Adam would have only established hostility to the garage and driveway because he had color of title to that land and a good faith claim. It does not matter that it was wrong because he has some type of claim to it and was not a mere squatter. The shed and garden would not meet hostility under Iowa because he knew the garden was not part of his land and he did not have a color of title to the shed (like Carpenter and Repeurto, he was squatting and trespassing on something he knew was not his, at least with regard to the garden). He should have had a survey done or not built the shed so close to the border is what Iowa courts might have told him he needed to do.
f. Anna can ask Omar to sell her the land that the garage and shed are on for a fair market price. Since the total land he would be selling would be 10 feet, not an enormous amount. The cost and hardship to move or destroy the garage and dig up the driveway would be absurd and a court might look at that when deciding this case. However since the shed is entirely on lot 39, she can either have it moved onto her land, sell the shed (at a fair market price) to the owner of 39 (when there is one) or just wait and see what a knew owner would say or not say then she could keep the shed where it is and still possess it. Another option is if she buys the land the shed is on and just adds it to her property. That would make the most sense and should not be too difficult to just draw new deed up making? 39, for the new owner, 10 x 10 feet smaller. She probably can get adverse possession of the driveway and garage, but would lose the land the garden was on for sure. The shed would be hard since no one is living in that lot yet?
g. Because Opal was not under disability when the possession took place in 1979 (she became disabled in 1988) her disability bears no effect on this case. One must be disabled at the time of the adverse possession, not after it has already begun.
END OF A EXAM #
A EXAM # GRADING SHEET
a. (10) 3+4 7
b. (10) 3+3 6
c. (10) 4+3 7
d. (15) 4+2+2 8
e. (15) 3+4+3 10
f. (10) 2+0 2
g. (5) 2 2
Total Points 42
Grade A
A EXAM
Transcribed exam answer:
a. The issue in this case is whether Anna can establish adverse possession of all three parcels of land in question. To establish adverse possession, one must show that possession was actual, exclusive, continuous, hostile, and open and notorious for the statutory period of fifteen years. There is no question that Adam’s possession of the 20’ of Opal’s 10-acre parcel was actual. He used the land as a reasonable owner in a subdivision would by making a vegetable garden. This
1 e. Hostility will be a problem for Anna. Under the Maine Doctrine, Adam would have adverse possession of the garden and the shed only. This would be true because the doctrine requires possession without owner’s consent with intent to claim the land as your own no matter what.
- Under the Iowa Doctrine, Adam would get only the garage because he had color of title due to the fact the survey as misrepresented the boundaries. This good faith claim of right is required by the doctrine and would not be met by the other parcels.
- Under the Connecticut Doctrine, Anna would get all parcels because intent doesn’t matter, only her use of the land. Adam had color of title for the garage and driveway, (intent under IA) the intent to claim the garden even though he knew it wasn’t his (hostility under ME) but in this case the shed would be hostile too even though he conceded that he would move it if the owner of the land asked. Since Adam had hostility, Anna would too.
f. If Anna couldn’t establish ownership of the garage, driveway, and shed she might be able to still acquire the land. Usually if removing physical structures places undue burden on the improves, the court will order the rightful landowner to sell the property on which the improvement sits to the improves for a fair price.
Overall, I feel Anna met all requirements for adverse possession for the garden but failed to...
g. The fact that Opal became mentally incompetent does not make any difference in this case. His disability began after Adam had begun adversely possessing her property so there is no additional time added to the 15 year period needed to gain adverse possession. The only way a disability will ad time is if it exists at the time the adverse possession begins.
END OF A EXAM #
