Here is the distribution. On the whole, the papers were decent, and the class had a general grasp on the material. But, there is a lot of room for improvement, which is why we hold this midterm at the half-way point of the semester: there is time to correct errors.
Here are some high-level thoughts on the five questions:
- The first question concerned adverse possession of chattel (gold coins). You should have mentioned the O’Keeffe case, which discussed the discovery rule for adverse possession of the chattels. There were several issues involved with this question. First, there is no doubt there was entry, because Jack stole the coins. Second, was the continuity requirement satisfied? Jack will unable to tack his time with Will, because the two were not in privity (the former stole it from the latter, and kept it a secret). Third, was keeping the treasure buried in the sand open and notorious? There is a good argument that it is not, though in the normal course of treasure, they are usually kept hidden. Fourth, what was the claim of right? Jack would fall into the aggressive trespasser framework.
- The second question concerned trespassing claims for two areas: (a) the camp on the shoreline, and (b) travelling to the stream. A number of students only answered half the question. This result in only partial credit. (A) required an application of the public trust doctrine. The question was deliberately vague about what the “shoreline” was, so you could have argued either way–that the camp was on the dry sand, or the wet sand. If you chose the former, then the claim for trespassing was actionable. If you chose the latter, the trespassing claim would fail because Elizabeth did not own the wet sand. (B) required a discussion of easement by necessity, because the “continuous” requirement for prescription was not satisfied.
- The third question concerned issues arising from the foreclosure sale–namely whether the sale was held in conformity with law, and whether a deficiency judgment was appropriate for the second bank. A number of students wrote about latent defects for this question, but that was the correct answer for question #4. (This is why I tell you to read all of the questions before writing your answer.)
- The fourth question was a spin on Stambovsky, as it considered whether a spirit was a latent defect, as well as whether the spirit had a superior claim. An additional wrinkle concerned the fact the fact that Elizabeth noted the spirit’s interest on the deed, but it was not written in the contract of sale from the bank. There are different standards when suing on the contract, rather than suing on the deed–very few students pick up on this distinction.
- The fifth question was the general policy question, which asked you to opine on adverse possession with respect to fairness and efficiency. Many of you did not mention either fairness or efficiency in your answer, which is inexplicable. Some of you rehashed the answer to question #1, even though the question told you not to do that. Answers that got more credit were those that showed deeper analysis, and not simply reciting the elements of adverse possession.
When comparing your exam to the A+ paper, please note that the A+ paper is not perfect, and received only 43 points out of 50 (on a 100-scale, that would translate to an 86). Though, that score was good enough to secure a ticket to see Hamilton when it comes to Houston. Please see me to claim your ticket.