ESSAY EXAM QUESTIONS AND ANSWERS

ANSWER TO QUESTION 2

         Adverse Possession (“AP”):  One obtains title to real property by AP where he/she, under a claim of right, enters upon and exclusively occupies another’s land in an open, notorious and hostile manner throughout the requisite statutory period. Danny (“D”) could claim that by remaining at Sweetholm after the sale to Alicia (“A”) without the latter’s explicit permission, the “claim of (“A”) without the latter’s explicit permission, the “claim of right” and “hostile” elements are satisfied. Additionally, creating a separate mailbox and putting out a welcome sign which bore his name met the “open” and “notorious” requisites. Finally, D’s occupation of the guest house continued for a period of time in excess of the applicable Statute of Limitations. Thus, D could assert ownership to the guest house (along with an easement hereto and therefrom) under AP.

In some jurisdictions, the claim of right requirement is not satisfied unless the adverse claimant went upon the land with the belief that he/she was entitled to possess it. If this were such a jurisdiction, D’s claim of AP would fail. In most states, however, the claim of right element is satisfied merely by the adverse possessor being aware that his/her habitation of the land in question was without the owner’s permission. If this jurisdiction adhered to the latter view, A could contend that Jennifer (“J”) had presumably advised D of her statement that it would be “all right” for D to remain on Sweetholm. If it could be shown that J had so informed D, A should prevail on this issue.

A could alternatively claim that D’s occupation of the guest house was not “hostile.” While this element is usually satisfied by the claimant’s use of the land in an “open and notorious” manner, an exception to this rule exists where the rightful owner would not necessarily recognize that the adverse possessor’s occupation of the land is hostile to his/her ownership interest (even though aware of it). In such situations the adverse claimant must communicate (via clear words or actions) that the land is being held in derogation of the legal owner’s rights thereto. Holdover tenancies often constitute such a situation, since a holdover tenant is usually deemed to be occupying the premises with the landlord’s implicit permission.

A could contend that D should be viewed as either having been her guest (i.e., a continuation of the relationship which D enjoyed with J) or a tenant at sufferance. In either event, D would have been obliged to either (1) inform A that his occupation of the guest house was hostile to A’s claim of ownership thereto, or (2) have done acts which clearly communicated this view (i.e., prevented A from entering the structure, built a fence around it, etc.). The mailbox would not suffice, since A could have presumed that while D had felt comfortable in permitting J (his cousin) to receive his mail, he would not have the same trust in a stranger. Finally, A would assert that the doormat was not adequate to inform her that D was claiming superior title to the guest house.

A would probably prevail upon the “hostile” issue, and therefore it is unlikely that D would prevail upon his claim of AP.

If, however, D’s claim of AP were successful, he would have a right of action against A for evicting him. D would probably be entitled to recover the reasonable rental value of the land during his eviction, as well as any other costs and expenses attendant upon the interference with his right to possession.

          Injunction sought by Trivers (“T”):  T might initially contend that A had granted an express easement to Wilson (“W”) to permit animals involved in the experiment to roam throughout Sweetholm, and easements will automatically run with the benefitted estate.

A would initially argue that the right given to W was a license. An easement is ordinarily described as the right of one person to make a particular use of another’s land. A license, however, is usually defined as the right to do a particular thing on another’s land. A could assert that no right was granted to W to use her land. Rather, A merely indicated that W’s wolves could randomly traverse Sweetholm. Thus, A would contend that the grant made to W was a license, and such interests are (1) ordinarily not assignable, and (2) revocable at any time by the licensor (subject to the licensee’s right to recover for monetary damages resulting from the revocation). However, T could argue in rebuttal that since he was engaged in an experiment whereby the wolves wandered onto A’s land, W (and now T) was actually using the land for a particular purpose (i.e., to record the results of an experiment).

Even assuming the grant to W was an easement, A could contend that it was an easement in gross (rather than an appurtenant easement). Many courts view easements in gross as ordinarily being non-assignable. Easements in gross are those which personally benefit the holder thereof (as opposed to easements appurtenant, which primarily benefit the latter’s land). The grant in question appears to have been made for the purpose of facilitating W’s experiment (rather than enhancing the use or accessibility of Laurel Hill). While T could argue that the use of Laurel Hill is enhanced by having the right to permit animals involved in experimentation to cross into adjoining land, A’s grant would probably be characterized as an easement in gross.

T might contend, however, even assuming the grant to W was deemed to be an easement in gross, it should be viewed as being “commercial” in nature. Such interests have been deemed to be assignable where, for example, a severe disruption to a utility (i.e., telephone and sewer lines) would otherwise occur. Although T could contend that maintenance of the fence by A would disrupt an experiment which has been carried on for a 14- year period, it is unlikely that T’s easement in gross would be considered “commercial.” Thus, A would probably prevail on this question.

Finally, T might argue that A’s written statement to W, whereby A had agreed that she would take no action to prevent W’s animals from coming upon Sweetholm, constituted a covenant which ran with the benefitted land. Since T is seeking an injunction, the covenant must be analyzed as an equitable servitude (“ES”). For the benefit of an ES to run against the covenantor: (1) the original parties must have intended it to run, and (2) it must touch and concern (affect the value or use) of the burdened land. Although there was no “successors, heirs and assigns” language, some courts take the view that where the promise touches and concerns the burdened parcel, the original parties probably intended for the covenantor’s promise to run with the benefitted land. The value and use of Sweetholm is arguably diminished by the fact that wild animals could roam free on a portion of the land. However, A could probably successfully contend in rebuttal that there was no intent that the promise run with the land since it was given specifically to W for the purpose of permitting the latter to complete his experimentation.

Thus, T probably cannot obtain an injunction against A.

Ownership of Sweetholm:  Richard (Ludwig’s sole heir) could contend that the conveyance by Vladimir to Josiah was a fee tail (since the grant to Josiah is followed by the words “and the heirs of his body”). Therefore, when Josiah died without issue (J was merely his niece, rather than a lineal descendant), Sweetholm became the property of Ludwig (and his heirs).

A could argue in rebuttal that in many states the fee tail has been abolished entirely, and it is viewed as a fee simple absolute. In such case, Josiah would have been entitled to transfer the property to J. In other jurisdictions, however, the failure to have issue results in the estate terminating upon the death of the originally designated party. Under the latter view, Ludwig’s heirs (Richard) would obtain title to Sweetholm upon Josiah’s death. However, in such instance A could probably claim superior title to Sweetholm through AP. While it is not clear when Josiah died and J succeeded to possession of Sweetholm, the facts do indicate that A has apparently occupied the realty for 11 years and paid taxes on it. Having purchased the land from J, A presumably went into possession of Sweetholm under color of title. It therefore appears that A could defeat any claim of Richard to the property. Richard’s remainder is vested, so it is not subject to the RAP.

Josef could, however, contend that J had a fee simple determinable or fee simple subject to a condition subsequent with respect to the provision pertaining to animals, and that the triggering event occurred when D retained one of the animals for a two-week period. However, A could contend in rebuttal that whichever future interest was held by Josef is unenforceable because implicit in the grant was that the grantee (rather than some other person who undertook such conduct without the owner’s knowledge or consent) would not “keep” animals on Sweetholm. A should prevail on this argument, and therefore it is unlikely that Josef could presently claim paramount title to Sweetholm.