answer

1) Broderick (B) and Darrell (D) Both Liable to Elmer (E) - Privity of Contract and Estate

Elmer's Rights in Whiteacre

Elmer received a quitclaim deed in Whiteacre from Caspar, and thus now owns whatever interest Caspar received from Arthur. Because Aruthur assigned all rights, which necessarily included the lease with Broderick and a reversionary interest in Whiteacre, to Caspar; Elmer owns Whiteacre in its entirety, subject to the lease.

Broderick's Liability to Elmer

Broderick entered a lease agreement with Arthur for a tenancy for six years. Broderick then assigned his interest to Darrell. An assignment of a lease does not release the assignor from liablity. Thus, Broderick, as the assignor, is still liable for rent and unpaid taxes to Elmer, if Elmer is unable to recover against Darrell.

Darrell's Liability to Elmer

Darrell is the assignee of Broderick's lease agreement described above. However, Darrell is not in privity of contract with Elmer, since Caspar did not assign his rights under the lease to Elmer but instead issued a quitclaim deed. Therefore, Darrell is liable to Elmer only for any express covenants in the lease agreement only if those covenants "run with the land." Here it is likely that all parties intended that these agreements pass to successive holders, since both covenants concern the costs associated with the ownership of the land. Moreover, agreements to pay rent and taxes always run with the land.

Thus, Darrell is liable to Elmer for the rent and taxes. Darrell's rent payments, however, are subject to Elmer's duty to mitigate any losses, and because Elmer did nothing for one month, Darrell is not liable for that month's rent.

b. Arthur and Caspar's Liability to Darrell for His Cost in Repairing and repainting the building exterior

Arthur's liability to Darrell

Arthur's ownership interest was transferred to Caspar, and he is not in privity of contract with Darrell. As an assignor, Arthur is liable for express covenants in the lease agreement only if such covenants run with the land. The original agreement specifically provided that the landlord agreed to keep the exterior of the building in good repair during the rental term. Express agreements to repair always run with the land. Thus, Arthur is liable to Darrell, for the cost of repairing and repainting the exterior.

Caspar's Liability to Darrrell

Caspar received his assigned interest in Whiteacre one year before Darrell received his leasehold from Broderick and thus Caspar and Darrell are in privity of estate and privity of contract. Thus, Caspar is liable, for any express covenants in the lease agreement and therefore is liable to Darrell for the cost of repairs and repainting, provided that Darrell notified Caspar of the same and Caspar failed to repair the premises.

Darrell's Liability to Caspar for Remodeling the Building and Removing Plumbing and Air Conditioning

As a tenant, Darrell has a duty not to commit waste. Even where a tenant commits ameliorative waste, the tenant must return premises in the same nature and character as when they were received. Thus, Darrell had the obligation to remove the plumbing and air conditioners to restore the building to its original condition. Darrell may also be required to pay the cost of returning the building to its condition before it was remodeled.

However, modern law allows a change in character where the value of premises decreases, the change increases the value of the premises and the waste is performed by a long term tenant. If six years is considered to be "long term" and Darrell's remodeling increased the value of the building, he will not be liable to Caspar for the cost of restoring the building to its original condition.

How will Bill's estate be distributed? Bill died testate. Therefore, his estate should be distributed under the terms of his validly executed will.

A. Bill's Stamp Collection: The first issue to be determined is whether Nellie has a right to Bill's stamp collection under Paragraph 1 of Bill's will.

Integration into Will. A writing may be integrated into a will if (1) the testator intended the writing to be integrated, and (2) the writing was present when the testator executed his will.

Testator's intent.

The testator must intend the writing to be integrated into his will. Bill's will did indicate that his stamp collection should go to "a memo that can be found in the drawer of my night table." That reference is evidence that Bill did intend to integrate the memo into his will. However, the memo listing Nellie as the beneficiary of the stamp collection was found "in Bill's home." Because the memo was not clearly found in the drawer of Bill's night table, the reference in Bill's will may not be sufficient evidence of his intent to integrate the memo into his will.

Presence at execution of will.

To be integrated into a will, a writing must be present when the will is executed. The memo concerning the stamp collection was not present when Bill executed the will.

Conclusion on integration

The will's reference to the memo may not be sufficient evidence of Bill's intent to integrate the memo into his will. Further, the memo was not present when Bill executed his will. Therefore, the memo concerning the stamp collection may not be integrated into Bill's will. Because the memo may not be integrated into Bill's will, Nellie may not claim the stamp collection under the doctrine of integration.

Incorporation by Reference

A writing that is in existence when a will or codicil is executed may be incorporated by reference, if the language of the will or codicil (1) manifests intent to incorporate, and (2) describes the writing sufficiently to permit its identification. In addition, the writing may not be altered after the execution of the will.

Identification of Writing

The will must describe the writing with sufficient specificity. Bill's will did identify "a memo that can be found in the drawer of my night table." However, as discussed above, the memo was found simply "in Bill's home." Because the memo was not clearly found in the drawer of Bill's night table, the identification in the will may not be sufficient.

Writing in existence at execution of will. To be incorporated by reference into a will, a writing must be in existence when the testator executes her will. The memo found in Bill's home after his death was not dated. Therefore, the writing may not have been in existence when Bill executed his will.

1. Owen's Rights Against Tim for Rent Payments

Tim, the tenant, entered a leasehold agreement with Owen, the landlord, for a term of ten years. Because their agreement was for a fixed period of time, the leasehold is characterized as a tenancy for years, which automatically terminates without notice at the end of the leasehold period. Tim had the right to use and possess the land and Owen retained a reversion in Parcel A.

Tim owed Owen the duty to pay rent in monthly installments as provided by the lease, unless he can successfully assert a defense to non-payment of rent.

Impossibility

Tim will first assert the defense of impossibility. The land was rented for the purpose of habitation. Since the damage to the house was material, Tim will claim the land can no longer be used for the purpose intended. However, under common law, the duty to pay rent is independent of any other duty, and a tenant who suffered destruction of the rental premises through no fault of the landlord was still required to pay rent. Thus, under this view, Owen could still collect rent from Tim.

However, many states have enacted statutes that hold the destruction of the premises ends tenant's duty to pay rent. Even in such a jurisdiction, because the house was not completely destroyed, Owen would argue that the duty to pay rent was not terminated, and most courts would probably agree, since Tim may still live in the damaged house.

Implied Covenants of Quiet Enjoyment

Tim would argue alternatively that the damage to the house constitutes a breach of implied covenants of quiet enjoyment and habitability. The covenant of quiet enjoyment insures that the landlord will not act in a manner to deprive tenant of use of the property. Assuming that the lease does not specify whether Tim or Owen has the duty to repair, Tim has no duty to repair the damage to the house, and may refuse to pay rent if Owen failed to repair the damage after being notified of the same. Alternatively, Tim may claim that Owen breached the implied covenant of habitability by failing to repair if the home is now uninhabitable due to the material damage. If this defense is sustained, Tim may abandon the premises, as he did, and refuse to pay rent, or make the repairs himself and deduct the costs from his rent.

If, however, the above defenses are found not to apply, Owen has no duty to mitigate and may still collect rent from Tim.

2. Owen's Rights Against Neil for Damage to House

Owen, as a landowner, has the right to subjacent and lateral support of his land and structures on the land. Neil's excavation of her adjoining land caused the land under Owen's land to subside, and violated Owen's rights as a landowner. In order to recover, Owen must demonstrate that Nell's contractor was negligent, or that his land would not have collapsed in its natural star. Because these facts are unknown, this issue cannot be resolved.

3. Nell's Right to Use the Road

Nell's right to use the road depends on its characterization as an easement. An easement is the right to use the land of another. Because no express agreement was created regarding Nell's use of the road, she would be limited to arguing that her use of the road was created by "necessity," or "implication".

An easement by necessity is created where the dominant and serviette tenements were under common ownership at one time. Because both Parcel A and B were previously owned by Grant who subdivided the land in 2002, an easement by necessity was created in favor of Nell only if it is necessary for Nell to use the road in order to gain access to her land. The easement terminates when the necessity ceases, and if another alternative route exists. Nell has no right to use the road under this theory.

Nell may also argue that she has an easement by implicated grant. If the easement was used for the same purpose during common ownership of both parcels, an easement for that use will be implied. Because Grant allowed access to Parcel B through the road before parcel A was conveyed to Owne, Nell has a right to use the road under this theory if it is reasonably necessary to the use of her land.

July 1989 Question 6 [Professional Responsibility] [Criminal Law]

A. Providing the Gun to the Prosecutor

Len owes a duty to be candid with the court regarding material evidence in his possession, and cannot act affirmatively to hide or destroy evidence. Len also owes a duty not to reveal a client's confidence or disclose those confidences to others, including the tribunal.

The information regarding the location of the gun was obtained during Len's representation of Bill. Thus it is protected by the attorney-client privilege and Len's ethical duty to preserve Bill's confidences. Len's mere knowledge of the whereabouts of the gun was therefore privileged and he was not required to disclose such knowledge to anyone. However, once Len received the gun from Bill, he was required to turn it over to the proper authorities after obtaining any information from it fro defense purposes, e.g., fingerprinting or ballistics tests. By removing the gun from its hiding place, Bill destroyed incriminating evidence by altering the location of the gun.

Thus, Len acted properly in handling the gun over to the prosecution, and not revealing Bill's confidences as to how he learned of its whereabouts. Case law has struck a compromise by requiring the attorney to disclose the location where the weapon was found, but not revealing the source of the information. Thus, Len would have to tell the prosecutor where the weapon was found, if he knows, but not the source of the information. Because Len himself did not find the gun, but received it from Bill, any information conveyed by Bill as to where he obtained the gun would be privileged and could not be revealed by Len.

B. Len's Representation of Art and Bill

A lawyer must not represent multiple clients in a criminal case unless the lawyer reasonably believes he can represent all clients effectively and all clients consent to the multiple representation. Here, Len has been assigned to represent both Art and Bill, and under the Code and Model Rules, properly spoke to each defendant to determine if an actual conflict of interest existed.

Art's best defense may be to place all the blame on Bill for the shooting of Chuck. Art did not know Bill was armed and did not participate in the shooting. According to his statement, he did not plan of anticipate Bill's attack on Chuck. Art's statement of the event also impliedly conflicts with Bill's Art stated that they approached Chuck to ask for a cigarette. This conflicts with Bill's statement that he approached Chuck because he believed Chuck was a member of a rival gang, and thus Art's and Bill's statements of the events are inconsistent with one another. Because their defenses would conflict, an actual conflict existed and Len should have concluded he could not represent both Bill and Art unless both Art and Bill consent to joint representation.

However, a remaining issue exists as to whether Len should continue representing either Bill or Art. Because he has now received confidential communications from both Bill and Art, he may be tempted to use those communications to the advantage or disadvantage of whomever he continues to represent. If Len chooses to represent Art, he may use Bill's statements to impeach him later if Bill testifies at trial, or may use Bill's statements to prove Bill's guilt and to exonerate Art. Unless Len can represent Art or Bill without revealing the confidences obtained from the other, he must withdraw and cannot represent either Art or Bill.

Owen’s rights against Tim for rent payments

Owen’s rights against nell for damage to house

Nell’s right to use the road

Owen’s Rights against Tim for Rent Payments

A. Identify the Type of Ownership Interest

Presently Owned/Possessed

Leasehold Land: Tenancy for Years

B. What Characteristics Are Inherent in such Ownership and What Rights and Duties Arise from such Ownership?

Tenant has Duty to Pay Rent

Defenses to Rent: Impossibility; breach of implied covenant or quiet enjoyment; breach of the implied covenant of habitability

C. Are There any Limitations on Such Ownership?

No.

D. Land Sale Contract Issues?

No.

Tim owed Owen the duty to pay rent in monthly installments as provided by the lease, unless he can successfully assert a defense to non-payment of rent.

However, many states have enacted statutes that hold the destruction of the premises ends tenant’s duty to pay rent. Even in such a jurisdiction, because the house was not completely destroyed, Owen would argue that the duty to pay rent was not terminated, and most courts would probably agree, since Tim may still live in the damaged house.

Tim would argue alternatively that the damage to the house constitutes a breach of the implied covenants of quiet enjoyment and habitability. The covenant of quiet enjoyment insures that the landlord will not act in a manner to deprive tenant of use of the property. Assuming that the lease does not specify whether Tim or Owen has the duty to repair, Tim has no duty to repair the damage to the house, and may refuse to pay rent (if Owen failed to repair the damage after being notified of the same. Alternatively, Tim may claim that Owen breached the implied covenant of habitability by failing to repair if the home is now uninhabitable due to the material damage. If this defense is sustained, Tim may abandon the premises, as he did, and refuse to pay rent, or make the repairs himself and deduct the costs from his rent.

If however, the above defenses are found not to apply, Owen has no duty to mitigate and may still collect rent from Tim.

Owen’s Rights Against Nell for Damage to House

Owen, as a landowner, has the right to subjacent and lateral support of his land and structures on the land. Nell’s excavation of her adjoining land caused the land under Owen’s land to subside, and violated Owen’s rights as a landowner. In order to recover, Owen must demonstrate that Nell’s contractor was negligent, or that his land would not have collapsed in its natural state. Because these facts are unknown, this issue cannot be resolved.

Nell’s Right to Use the Road

Nell’s right to use the road depends on its characterization as an easement. An easement is the right to use the land of another.

Because no express agreement was created regarding Nell’s use of the road, she would be limited to arguing that her use of the road was created by “necessity,” or “implication.”

An easement by necessity is crated where the dominant and servient tenements were under common ownership at one time. Because both Parcel A and B were previously owned by Grnt who subdivided the land in 2002, an easement by necessity was created in favor of Nell only if it is necessary for Nell to use the road in order to gain access to her land. The easement terminates when the necessity ceases, and if another alternative route exists, Nell has no right to use the road under this theory.

Nell may also argue that she has an easement by implied grant. If the easement was used for the same purpose during common ownership of both parcels, an easement for that use will be implied. Because Grant allowed access to Parcel B through the road before parcel A was conveyed to Owen, Nell has a right to use the road under this theory if it is reasonably necessary to the use of her land.