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Week 12
7. Defendant Tubbs met her fiancé, Church, over the Internet. After several years of correspondence and visits, they became engaged in February 2000. Church and Tubbs planned to be married in Las Vegas in July 2000. Two months before the engagement, Church paid off $ 4,100 of Tubbs’s credit card debt. He also gave Tubbs an engagement ring that he purchased for $ 7,274.42. On March 15, 2000, he deposited $ 194,852.56 in Tubbs’s bank account to fund the purchase of land and a residential home in Michigan. Tubbs purchased the home in both of their names as joint tenants, on Church’s instruc-tions, and in April she moved in. Church moved some personal property to the residence, including a family heirloom diamond ring. On June 5, 2000, Tubbs e- mailed Church stating that their relation-ship was over because she was horrified after seeing his “ bizarre and abnormal behavior” on the Internet and because she had discovered that he led a “ risqué lifestyle as a cross- dresser and bi- sexual.” Tubbs rejected Church’s demands to repay the $ 4,100 and to return the engagement ring, his personal property, and her interest in the Michigan home. On July 24, 2000, Church died in England. Church’s estate subsequently filed suit to recover the property. The court entered a final judgment enti-tling the estate to the rings or a money judgment for their values; the real property, partitioned as a matter of law to account for its appreciation; complete right, title, interest, and possession of the land and residential home, free and clear of any claim, right, title, or interest of Tubbs; and a money judgment in the amount of $ 75,000 ( the amount of Tubbs’s homeequity mortgage), less credits to Tubbs of $ 13,000 for property taxes she paid from 2000 through 2005, or a modified money judgment in the amount of $ 62,000. Tubbs appealed. What arguments might she have made on appeal? How do you think the appellate court ruled in this case, and why? [ Salens v. Tubbs, 2008 WL 4072342 ( C. A. 6 Mich.).]
8. Davis and Hansen own adjacent lots. When Davis bought his lot in 1984, the warranty deed contained an easement across the lot he was purchasing to the property now owned by Hansen. The easement in the deed to Davis from the seller, Rodgers, stated that the easement on the land “ shall be only for the benefit of Grantor [ Rodgers], his grantees, heirs and assigns.” Davis had been advised by a lawyer that the easement was not legally enforceable, so Davis put a garden on the easement area. Hansen bought his lot in 2006 and offered Davis $ 5,000 for an easement to access the property. Davis said no. Hansen then purchased the easement written in 1984 from Rodgers’ widow, who had inherited Rodger’s property. Once he had bought the easement, Hansen told Davis he was going to use his easement and he immediately cleared the easement on Davis’s property for a road and water and sewer lines. Davis then sued Hansen for trespass. Hansen counter-sued, seeking to prove ownership of the easement. The trial court ruled in favor of Davis, holding that Hansen had engaged in adverse possession of the easement by planting a garden over the ease-ment, which extinguished it, and ordered Hansen to pay $ 13,345 in “ restoration” damages. Hansen appealed. What do you believe happened on appeal? Why? Hansen v. Davis, 220 P. 3d 911 ( Sup. Ct., Alaska, 2009)
8. Carol Matoush owns property that grants her an easement dating back to 1901. The easement at issue here creates a right- of- way across David and Debra Lovingood’s property for access between Matoush’s property and an alley adjacent to the Lovingoods’ property. The easement has not been used as a surface right- of- way across the Lovin-goods’ property since at least 1969. At some point before 1969, fences were built to enclose most of the easement area within the Lovingoods’ backyard. Matoush attempted to sell her property to a buyer who inquired about using the easement as a drive-way for vehicle access between Matoush’s property and the alley. There is a driveway on Matoush’s property that provides vehicle access to a garage located on Matoush’s property. The buyer has pro-posed removing the driveway, relocating the garage, paving the easement area, and using the easement as a driveway for vehicle access between the alley and the new garage. Matoush brought an action against the Lovingoods to enforce her right to use the easement as a right- of- way for vehicle access between her property and the alley. The Lovingoods counterclaimed that use of the easement as a right-of- way was terminated by either abandonment, due to the lack of use, or adverse possession, due to the construction of fences obstructing the easement in 1969. Does Matoush still possess the easement across the Lovingoods’ land? Why? [ Matoush v. Lovingood, 177 P. 3d 1262 ( Colo. 2008).]
9. After they were married, Helen and Burr Dietz purchased real property as tenants by the entirety. Helen subsequently moved out, and the partiesagreed that if they were to become divorced, they would share the proceeds of the sale of their prop-erty. Helen and Burr divorced, and their tenancy by the entirety was converted into a tenancy in com-mon. Burr continued to live in the residence, and Helen brought an action for the partition or sale of the property. She sought to receive
half of the pro-ceeds of the sale and rent for the period that she did not live on the property. The trial court deter-mined that the property could not be partitioned, and therefore it directed the parties to sell the property and divide the proceeds accordingly. Burr did not want to sell the property and appealed the court’s decision. How do you think the case was decided on appeal? [ Deitz v. Deitz, 664 N. Y. S. 2d 868 ( 1997).]
