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Final Exam 2006 - Massachusetts School of Law at Andover

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Final Exam 2006 - Massachusetts School of Law at Andover ...

    PROPERTY

    FINAL EXAMINATION

    Professor Peter M. Malaguti

    Fall 2006 Semester

YOUR ENTIRE SOCIAL SECURITY NUMBER:

    ____ ____ ____ --- ____ ____ --- ____ ____ ____ ____

INSTRUCTIONS:

    The instructions run onto the next page. You may read this page and then turn the page to finish reading the instructions. You are not to look beyond the second page of instructions until you are instructed to begin the exam.

Please take three (3) blue books. Please write “Scrap” on one of the blue books.

    Please write “Two” and “Three” on each of the other two blue books. Please write your

    social security number on all four blue books.

    Please do not identify yourself in any way other than by social security number. Please do not write any information in your blue book, scrap book, or this exam booklet that might reveal who you are.

    This is a closed-book examination; other than writing implements, you are not to have any materials on your table or at your feet. Please place all books, knapsacks, briefcases, etc. at the side or front of the room.

    Please do not use your own scrap paper. You may use the blue book labeled “Scrap” as scrap paper. Please turn in your scrap blue book with your exam blue book and this exam booklet. I will not accept any blue books after you have turned in your exam materials -- no exceptions.

    During this exam, unless otherwise stated or implicated by the facts, you are to use multistate law.

This examination consists of three parts:

    Part One consists of 10 short fact patterns, each of which has a number of questions that follows and inquires about the law and analysis that applies to the particular fact pattern. You are to read each fact pattern carefully and answer each question that follows. There are a total of 50 questions, and you are to answer them all. The suggested time for Part One is two hours (120 minutes).

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Please place your answers to Part One in the space provided in this exam book, not in

    the blue book. Please limit your answers to the lines provided below each question. I will not read beyond the lines provided under each question. Please make each answer readable in terms of neatness and the size of your handwriting. (I will not use a magnifying glass to read your answers.) Please answer the question responsively; don’t provide information not asked for in the question. For example, if the question asks “Who wins?” please state the name of the person who wins; don’t state why he or she wins. Please state your reasoning only if the question asks for it. Part One counts

    for 70% of your exam (70 out of 100 points).

    Part Two consists of one (1) medium-length essay question. Please put your answer in a blue book entitled “Part Two,” and not into this examination booklet. Please limit your answer to four (4) single-spaced bluebook pages. The suggested time for Part Two is

    forty (40 minutes). Part Two counts for 20% of your exam (20 out of 100 points)

    Part Three consists of one (1) short essay question. Please put your answer in a blue book entitled “Part Three,” and not into this examination booklet. Please limit your answer to four (4) single-spaced bluebook pages. The suggested time for Part Three is

    twenty (20 minutes). Part Three counts for 10% of your exam (10 out of 100 points).

Please take note again that Parts Two and Three are to go in separate blue books. Do

    not put both parts in the same blue book.

    Despite the fact that the suggested time for all three parts is three hours, I will give you three and one-half (3.5) hours to complete the exam. You may use the extra half hour however you like, if you choose to use it at all.

    Please make your answers legible. There is a bathroom book at the front of the room. Please sign out and in when you leave the room.

    You have three and one-half (3-1/2) hours to complete the exam. We will tell you when there are 15 minutes left, at which point no one may leave the room. We will also warn

    you when there are 5 minutes left and 1 minute left. When we call time, you are to bring up your exam and blue books immediately.

    Please use multistate law unless the facts or instructions suggest otherwise.

    GOOD LUCK!

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    QUESTIONS

    PART ONE

DIRECTED ESSAYS

SUGGESTED TIME: TWO HOURS (120 MINUTES)

    PERCENTAGE OF EXAM POINTS: 70%

INSTRUCTIONS FOR PART ONE:

    This part consists of ten (10) short fact patterns, each of which has a number of questions that follows and inquires about the law and analysis that applies to the particular fact pattern. You are to read each fact pattern carefully and answer each question that follows. There are a total of 50 questions, and you are to answer them all.

Please place your answers in the space provided in this exam book, not in the blue book.

    Please limit your answers to the lines provided below each question. I will not read beyond the lines provided under each question. Please make each answer readable in terms of neatness and the size of your handwriting. (I will not use a magnifying glass to read your answers.) Please answer the question responsively; don’t provide information not asked for in the question. For example, if the question asks “Who wins?” please state the name of the person who wins; don’t state why he or she wins. Please state your reasoning only if the question asks for it.

    Please work quickly but carefully through these questions. You will have enough time to answer all of the questions within the suggested time if you have adequately learned the law.

    If you have not finished this Part of the exam when the suggested time is up, you should go onto the next part of the exam, and come back to finish it later.

QUESTIONS:

Questions 1 through 16 are based on the following facts:

    Elaine Blaustein (Elaine) is a resident of Newton and owns the property known as 163 Beach Avenue, Hull, Massachusetts, which contains 5,107 square feet (the Blaustein lot). Fred and Maryann Marmo own the adjacent lot at 161 Beach Avenue, Hull, Massachusetts (the Marmo lot). The Marmos live in Wakefield, Massachusetts, and the Marmo lot is undeveloped. A sand dune covered with beach grass encompasses approximately one-third of the total lot area of the Marmo lot. In the center of the Marmo lot were a few large pieces of concrete that remained from a building that once stood on the property. Tall, unkempt shrubs were located south of the concrete pieces and extended to the southern boundary line of the Marmo lot. Most of the remainder of the Marmo lot was essentially a grass area that measured approximately 3,189 square feet (grass area).

    Elaine purchased the Blaustein lot on May 23, 1962. At the time Elaine bought the Blaustein lot, William L. Starr (Starr) held title to the Marmo lot. On August 17, 1966, Starr conveyed the Marmo lot to Max Salk (Salk). By deed dated September 10, 1966, Salk conveyed the Marmo

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    lot to Harry Avnet, who in turn deeded the Marmo lot to Paul and Hilda Moses on January 6, 1971.

    Shortly after taking title in 1962, Elaine built a single-family house on the Blaustein lot. She installed a concrete driveway (driveway) on the Blaustein lot at the time they built the house. Since its construction, the driveway has not been expanded or widened. Measured along the westerly line of Beach Avenue, the driveway encroaches onto the Marmo lot by one and three-tenths (1.3) feet. The driveway encroachment occupies thirty-five (35) square feet of the Marmo lot.

    Soon after moving into their house, Elaine and her husband began to park their two cars on the Marmo lot every day. Guests of the Blausteins frequently parked on the Marmo lot. As many as eight or nine cars belonging to Blaustein guests parked on the Marmo lot on a busy summer day. For a period of time after moving into their house, the Blausteins maintained a swing set on the Blaustein lot until it rotted. Thereafter, the Blausteins placed a new swing set on the Marmo lot. At various times, the swing set was relocated onto the Blaustein lot. Consequently, there were periods of time during which no swing set was located on the Marmo lot. The last swing set on the Marmo lot was removed in or about 1978.

    The Blaustein children played on the Marmo lot in their youth. In more recent years, the grandchildren of Elaine have used the Marmo lot as a play area. The Blausteins planted a vegetable garden on the Marmo lot in or about 1971. The garden was no longer there when the Marmos purchased the Marmo lot in 1973. Several years later, however, the Blausteins again planted a garden on the Marmo lot. Elaine’s son, Craig, mowed the grass area on the Mamo lot

    from approximately 1976 until 1999.

    On September 4, 1973, Paul and Hilda Moses conveyed the Marmo lot to the Marmos. No swing set was present on the Marmo lot when they purchased the property. During the first three summers after they bought the property, the Marmos went onto the Marmo lot a few times a month. While at the Marmo lot, the Marmos used the beach that is situated directly across Beach Avenue. When at the beach, the Marmos parked on the Marmo lot, along the side of, but not on, the driveway built by Elaine. Occasionally, the Marmos parked further into the Marmo lot if the Blausteins had a number of cars already parked on the Marmo lot. Nancy, Fred, and their children often parked on the Marmo lot on weekdays and weekends during the summer months of 1974 through 1976. Outside of the summer months, Nancy Marmo went to the Marmo lot six to eleven days a year when visiting friends or enjoying the local amenities. Beginning in the summer of 1977, Nancy and Fred visited the Marmo lot on alternate weekends. At some point between 1978 and 1980, Nancy and Fred stopped going to the Marmo lot on a regular basis. The last time that Nancy parked on the Marmo lot was in or about 1992.

    At various times, a person from the Blaustein house would move automobiles to permit Nancy to park on the Marmo lot. Fred Marmo had a friendly relationship with Elaine’s husband. In the

    presence of Nancy Marmo, Elaine’s husband had a conversation with Fred Marmo in the

    summer of 1974 during which Elaine’s husband discussed his family's use of the Marmo lot to

    park cars. Fred Marmo gave Elaine’s husband permission to park their cars on the Marmo lot.

    In a second conversation in the summer of 1975 or 1976, Elaine’s husband stated that the area

    was getting crowded and asked if there was anything that could be done. In the presence of Nancy Marmo, Fred Marmo gave Elaine’s husband permission to do anything he wanted on the

    Marmo lot. In neither conversation did Elaine’s husband and Fred Marmo discuss the driveway.

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    Elaine never authorized or directed her husband to talk with the Marmos on her behalf about using the Marmo lot.

    At some point, Elaine placed one- or two-foot-long segments of telephone poles on the Marmo lot, which remained in place until the Blizzard of '78. For a number of years, Ms. Blaustein maintained wine barrels on the Marmo lot that were used for flowers and a tomato plant (the planters). For approximately ten years, Elaine stored firewood on a portion of the Marmo lot along the side of the garage standing on the Blaustein lot.

    In 1982, the Blausteins established their primary residence in Newton, Massachusetts. Thereafter, the Blausteins lived full-time on the Blaustein lot only during the summer months. In 1987, Meredith Murphy bought a lot neighboring the Marmo lot, at 159 Beach Avenue, Hull, Massachusetts (the Murphy lot). Meredith observed people passing through the Marmo lot on their way to and from the beach. As the dune grass grew higher on the Marmo lot, people crossed from the Marmo lot onto the Murphy lot to use the concrete walkway situated thereon. After her children grew older, Meredith asked for and received the permission of Mr. Marmo for her children to play on the Marmo lot. Meredith’s children played on the Marmo lot along with

    other neighborhood children. Meredith's children called a portion of the Marmo lot on which they played "the bunny fort."

    Eventually, Meredith became concerned about the increased number of persons cutting through the Marmo lot and the Murphy lot for access to the beach. In 1991, Meredith and Elaine discussed erecting a fence along the rear or westerly boundary of the Marmo lot (proposed fence) which would connect with a fence that Meredith intended to erect along her northerly boundary. Meredith informed Elaine that she was going to request permission from Mr. Marmo to erect the proposed fence. Following a telephone conversation with Fred Marmo, Meredith wrote a letter to Fred dated June 24, 1991, to summarize the conversation. The letter first gave Fred background information concerning individuals using the Marmo lot and her efforts to stop that use. Meredith then wrote that "Elaine Blaustein and several other property owners on Beach Avenue have suggested that we erect a fence from the Blaustein property, across the back of your property and subsequently connecting with my fence. We are willing to pay for the labor and materials provided you sign a permission document."

    After receiving the letter from Meredith, Fred Marmo called Meredith and gave her his permission to erect the proposed fence. Subsequently, Fred Marmo visited Meredith at her home and discussed the erection of the proposed fence. Elaine gave money to Meredith's husband who contracted to have fences, including the proposed fence, erected.

    In the Spring of 2004, the Marmos had the Marmo lot surveyed because they were thinking of selling it. The survey revealed that the 1.3 foot strip of Elaine’s driveway sat on the Marmo lot. The Marmos then demanded that Elaine rip up the portion of the driveway that sat on their land. Elaine refused and commenced an action for adverse possession as to the portion of the driveway that sat on the Marmo lot and the grass area.

    1. In regard to the Marmo lot, what was the status of Elaine when she caused the concrete driveway to extend into the Marmo lot in 1962?

    ____________________________________________________________________________

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    2. Please state and explain the legal reason you chose your answer to the prior question.

    ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

3. Please list the five elements of adverse possession.

A. __________________________________________________

    B. __________________________________________________

    C. __________________________________________________

    D. __________________________________________________

    E.. __________________________________________________

Go on to the next page.

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    4. Please describe each of the elements you listed above in your answer to Question 3. A.

    ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________ B.

    ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________

C.

    ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________

D.

    ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________

E.

    ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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5. Briefly apply each of the elements stated in your answer to Question 3 to the Elaine’s

    claim of ownership of the driveway on the Marmo lot. Don’t forget to state whether each

    element is satisfied.

    A.______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

    B.______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

    C.______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

Go on to the next page.

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    D.______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

    E..______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

6. Briefly apply each of the elements stated in your answer to Question 3 to the Elaine’s

    claim of ownership of the grass area on the Marmo lot. Don’t forget to state whether each

    element is satisfied.

    A.______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

Go on to the next page.

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    B.______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

    C.______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

    D.______________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________

Go on to the next page.

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