Prop2 Final Exam Comments

Hello everyone. I apologize for interrupting your summer vacations with this note. I have submitted grades for Property II.  I am very proud of all of you. On the whole, you nailed it. I put together really difficult fact patterns that were quite open-ended, with the intent that there would be many, many, many correct answers. I thought I had considered all the possible answers, but several of you came up with things I didn’t even think of. Well done.
Additionally, many of you incorporated various concepts we talked about in class that were not in the textbook (such as the Coase Theorem, various constitutional concepts, etc.).
Finally, despite all of your concerns, almost every single one of you managed to completely answer the question within the word limit. In other words, the differences between the A, B, and C was not due to an inability to write within the word limits.
You can download the exam here: Property2-Exam-Blackman-Spring2013. There was one small typo. In part 3 of question 1, I accidentally wrote “Gunston intervened.” I meant to write “Gayson intervened.” About 95% of the test-takers figured out what I meant, and I did not penalize those who missed it.
The Grades
First year classe are subject to the school’s mandatory grading curve (see p. 84 of the handbook):
grades assigned in classes of 40 or more students shall conform to a mandatory grading distribution. That distribution provides for a required 9-16 percent for A+/A, a required 16-30 percent for A+/A/A-; a required 16-30 percent for C+/C/C-/D+/D/F; and a required 9-16 percent for C/C-/D+/D/F. The class average shall be 2.85-3.15.
I think you will find that I maximized the grades here. I approached the upper limits of the grades allowed above an A-, and approached the lower limits of grades below C+. In addition, the class average was very close to the upper limit (3.15). In other words, there were more As than Cs, and the class averages were quite high.
Here is the full breakdown.

Average: 3.147
A and above -12.0%
A- and above – 25.3%
C+ and below: 17.3%
C and below: 9.3%

Thank you all for a great semester.
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Demolition Begins For Construction of Ashby High Rise

Courtesy of Miya Shay.
I repost my coverage of the Ashby High Rise from my Property class.
Here are some articles about the Ashby High Rise, which should be completed in 2014.

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There was massive opposition to the site, which will be completed in Spring 2014 at Bissonnet and Ashby, north of Rice University.



Here is a recent article from the Houston Chronicle about “income segregation.”

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Prop2 Class 27 – Final Exam Review

The lecture notes are here and the livechat is here.
Thank you all for a great semester. Today we will go over the sample exam question, the sample answer question, and questions people emailed me in advance. After that, I will take questions, but they must be somewhat focused, and show me that you have already worked through an answer. I will not take “Can you explain this topic…” type questions today.
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Prop2: Sample Final Exam Question and Answer

The Question
Instructions: You are an associate at a law firm. Your lazy partner, who is quite short on time, asks you to prepare a memorandum of no more than 500 words addressing a situation affecting a client. You are in a jurisdiction that, for the most part, adopts the rules of the Restatement (First) of Property, but is gradually moving towards the Restatement (Third) of Property. The jurisdiction has a “Notice” recording statute. The period required for adverse possession is ten years with color of title, and twenty years without color of title .
Here are all the facts. If you draw any inferences beyond these facts, please explain why you drew those inferences.
On January 1, 2011, your client Aladdin purchased Blackacre from Oliver with a general warranty deed for $100,000. Oliver told Aladdin that he owned the land in fee simple, and that there were no encumbrances on the title.
Aladdin, who was otherwise involved in a bitter dispute with his girlfriend Jasmine (she acted like such a Princess!), delayed recording until January 1, 2012.
Unbeknownst to Aladdin, Oliver also sold Blackacre to Bambi for $50,000 on June 1, 2011. Oliver gave Bambi a quit-claim deed, though Oliver never signed it. Bambi recorded the same day, on June 1, 2011. However, the clerk who recorded the deed accidentally wrote “Greyacre” instead of “Blackacre.” Bambi knew nothing about the sale of Blackacre to Aladdin.
Bambi did not enter the property right away, as she was grieving the tragic death of her mother.
On January 2, 2012, Aladdin finally enters Blackacre, and decides to open the forest, which is extremely over-populated with deer, to hunters for a fee. WIthin 24 hours, Aladdin sells out hunting passes for the year for $20,000.
Gaston, a renowned hunter, enters the land, fires his gun, and kills a deer.
Captain Hook, who owns Whiteacre, which is adjacent to Blackacre, is startled by the gunshot, and comes running over and yells at Aladdin, telling him hunting is not allowed on the land. The Captain is very sensitive to sound.
The Captain says, “Look around at every other plot of land in the area. There is no hunting allowed anywhere in the county!” Aladdin said he didn’t even notice.
Aladdin told the Captain that his land was so over-populated by deer, who were eating all of his crops, that he needed to do something to reduce the number of deer. Aladdin said “this was the only way I could save my land!”
The Captain tells Aladdin that when he sold Blackacre to Donald Duck thirty years ago, the Captain added an easement on the deed, stating that hunting would not be allowed on Blackacre.
Aladdin tells the Captain that he “purchased Blackacre in fee simple from Oliver, not Donald Duck.” Aladdin had no clue who Donald Duck was. The Captain looks confused, and said that he had seen Oliver on the land occasionally over the last 5 years, and before that Eeyore had lived on the land continuously for six years. Oliver claimed he acquired a deed from Eeyore, but it was never recorded. Eeyore obtained a deed to the land from a sheriff’s sale. Eeyore never recorded his deed. However, years later–after Oliver acquired title from Eeyore and entered the land–a court determined that the the sheriff’s sale was based on an invalid foreclosure. Oliver had no notice that the foreclosure sale was invalid. The Captain said he did not mind that Eeyore and Oliver were on the land, as they were quiet. However, the Captain said that Donald Duck was the lawful owner. Aladdin said he had never even heard of Donald Duck.
Shortly thereafter, Bambi, still traumatized from the death of her mother, enters Blackacre, and discovers to her absolute shock and horror, that Aladdin is allowing deer-hunters onto the land.
The Captain filed suit to enjoin hunting on Blackacre, and claimed that the noise from the gunshots constitute a nuisance, seeking $5,000 in damages. Bambi filed an action to quiet title, and to oust Aladdin from Blackacre.
What are Aladdin’s best defenses against the suits brought by Captain Hook and Bambi? What actions may exist against Oliver? What should Aladdin do (and no, Genie can’t help)?
The Answer (Exactly 499 Words)
First, the court must determine if Oliver–the common grantor to grantees Aladdin and Bambi–had title to Blackacre. Even though the deed Eeyore obtained from the sheriff’s sale was invalid, he lived on the land continuously for six years under color of title (defective deed). Oliver obtained a deed from Eeyore, so the two are in privity. Oliver’s five years of use may be tacked to Eeyore’s six years. However Oliver only frequented the land “occasionally.” If a court finds that Oliver’s use is sufficient to satisfy the jurisdictions 10-year adverse possession statute under color of title, Oliver had title to Blackacre. If not, Oliver lacked title. But, ultimately, this doesn’t matter as both Aladdin and Bambi were subsequent purchasers for value without notice.
Whether or not Oliver had a valid title to Blackacre, as between Aladdin and Bambi, Bambi has superior title in a notice jurisdiction. Bambi was a subsequent purchaser for value without notice. Though Oliver never signed the deed, the receipt of $50,000 and actual transfer of the deed is sufficient to imply delivery. The fact that the clerk mistakenly recorded the deed as “Greyacre” rather than “Blackacre” would not change the fact that Bambi has superior title with respect to Aladdin as she took without notice. However Bambi’s misrecorded deed wouldn’t be effective against subsequent purchasers as it outside the ascertainable chain of title. The fact that Bambi did not enter till much later is immaterial.
Though the deed from Captain to Donald 30 years ago contained a negative easement limiting hunting, Eeyore and Oliver jointly obtaining Blackacre through adverse possession following the sheriff’s sale breaks the chain of title. Thus, the negative easement does not apply to Aladdin’s deed. A court may find that there is an implied negative easement against hunting in light of the fact that hunting is not allowed anywhere else in the county. However, it is much less likely that a court would imply a positive easement to permit hunting in light of the fact that hunting was the only way to “save” the land from deer overpopulation. Courts in First Restatement jurisdictions tend to construe the absolute necessity of implied easements strictly, though the modern trend is to recognize implied easements by necessity more easily.
A court may find that Aladdin is liable to Captain for a nuisance, irrespective of any easements, though the Captain’s idiosyncratic sensitivity to sound may weaken this claim. Because Aladdin earned $20,000 from hunting licenses, and the Captain is only suing for $5,000, Aladdin should consider settling with the Captain for some amount greater than $5,000. This will leave both parties better off.
Aladdin could sue Oliver under the general warranty deed for a breach of the covenant of seizin, and seek the return of the $100,000 purchase price to restore the status quo, but could not recover the $20,000 for hunting passes. Bambi could not sue Oliver because she only obtained a quitclaim deed, which provides no guarantees.
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Prop2 Class 26 – Regulatory Takings: Balancing III

Today we cover three cases that wrap up the regulatory takings unit. First, Tahoe-Sierra v. Tahoe Regional Planning Authority, which largely cabins Lucas v. South Carolina. Second and third, two related and rhyming cases on exactions–Nollan v. California Coastal Commission and Dolan v. City of Tigard.
The lecture notes are here and the live chat is here.
Lake Tahoe is a large freshwater lake on the border of Nevada and California.

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This is the original bungalow from Nolan.

Here is an aerial view of the new Nollan house.
This is the strip of beach behind Nolan’s house where the California Coastal Commission wanted to have an easement.

Here is a photo of the store from Dolan v. City of Tigard, and the creek behind the store.

Here is an aerial view of the property from Dolan.

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