February 2025 Retest · ORIGINAL INSTRUCTIONAL EXAMPLE

Essay 5: Remedies
Sample Answer & Question Pointers

February 2025 Retest California Bar Examination · Fact-specific analysis, an issue outline, and pointers on the official question.

By Bar Exam Doctor · Published November 4, 2026

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This is an original, ungraded instructional response. It is not an official State Bar selected answer, a scored student submission, or a claim of attorney review. Use it to compare reasoning and organization after attempting the question. Alternative reasoned analyses may be possible.

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The actual question, with pointers

Official source text with our added highlights and numbered notes. The PDF preserves the source layout. For the PT, the task, file, and substantive library pages appear below; the complete packet includes the instructions and dividers.

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Official source page 10

QUESTION 5 Denise plans to build an in-ground swimming pool on her property. For her ideal-sized pool to comply with regulations requiring a surrounding fence, Denise needs to build the fence five feet onto the property of her elderly neighbor, Paula. Their respective houses are separated by a large, empty grass field with nothing marking the legal boundary line. While speaking on Paula’s front porch about one hundred feet from the property line, Denise explained that the fence would be built “a couple feet onto Paula’s land,” pointing to six cones that accurately marked the proposed location. In fact, the cones were 10 feet onto Paula’s property. Glancing toward the cones, Paula told Denise “Let me get my glasses1. With my failing eyesight, it’s hard for me to see that far.” Denise immediately responded, “That’s really not necessary. I know that everything is fine.” Paula replied, “Well, I guess if that is all it is, it’s ok. I have not done anything with that side lot in 30 years.” Shortly after construction of the pool and fence was completed, Paula decided to sell her house. After conducting a land survey, Paula’s real estate agent informed Paula that Denise’s fence was 10 feet onto Paula’s property. If the fence remains where it is, the estimated fair market value of Paula’s property is $480,000. The estimated fair market value of the property is $500,000 if the fence is moved to the property line. It will cost $25,0003 for Denise to remove the fence, rebuild it on her side of the property line, and reduce the size of her pool. Paula has sued Denise to have the fence removed and, alternatively, for damages. Because Paula wants to resolve this issue before selling her property, she has filed a motion for a preliminary2 injunction. 1. How should the court rule on Paula’s preliminary injunction motion? Discuss. 2. How should the court rule on Paula’s entitlement to a permanent injunction? Discuss. 3. If the court rules for Paula on liability but denies the permanent injunction, how are her damages measured? Discuss.

Before you write: issue outline

  1. Analyze whether consent covers the actual ten-foot encroachment.
  2. Distinguish preliminary mandatory relief from the permanent remedy.
  3. Use the $20,000 loss and $25,000 removal cost for their different purposes.

Underlying right and consent

Building and maintaining a fence on Paula’s land is an intentional physical invasion unless authorized by a valid property right or consent. Denise knew the actual proposed boundary extended ten feet but described it as only a couple of feet and discouraged Paula from obtaining the glasses needed to assess it. Paula’s conditional assent therefore does not necessarily authorize the materially larger invasion.

Consent obtained through the stated material deception is vulnerable, and conduct outside the permission’s scope remains unprivileged. There is no written easement or sufficiently developed adverse-possession period. Denise’s own wrongful inducement also undermines an equitable estoppel argument based on her reliance on Paula’s permission. Paula has a strong trespass claim after the survey reveals the true extent.

Preliminary injunction

A preliminary injunction depends on likely success, threatened irreparable harm, the balance of hardships, and the applicable equitable considerations. Paula’s merits case is strong, and land is unique. A continuing encroachment can impair control of the property and complicate a proposed sale.

However, the requested order would require dismantling an already completed fence and shrinking a pool. It is mandatory relief changing the existing physical condition, not merely preserving an unbuilt boundary while the case is heard. Courts generally scrutinize such preliminary relief especially carefully because it may effectively grant the final remedy before a full determination.

Paula can identify an impending sale, but wanting a quick resolution is not by itself irreparable injury. The appraised difference between $500,000 without the encroachment and $480,000 with it provides a measurable monetary loss. Denise’s bad faith weakens her hardship position, but the court can still conclude that a final hearing, rather than immediate compulsory reconstruction, is the appropriate way to resolve the dispute. Preliminary relief is therefore less certain than ultimate relief and may be denied despite Paula’s strong claim.

Permanent injunction

After success on the merits, Paula can seek an order ending the continuing trespass. Damages may be inadequate to vindicate continuing exclusive control, and an award alone can effectively force her to sell a property interest she did not agree to transfer.

Denise will argue relative hardship: moving the fence and shrinking the pool costs $25,000, while Paula’s measured diminution is $20,000. But the disparity is modest, and equitable protection for an encroacher ordinarily depends heavily on innocent conduct. Denise knew the true extent and deliberately obtained permission through misleading assurances. She cannot create a costly encroachment in bad faith and then insist that the owner accept damages solely because removal costs more.

There is no stated long delay after discovery, so laches is weak. The court can tailor the order to remove the unauthorized encroachment and restore Paula’s rights without directing unnecessary work unrelated to the invasion. A permanent mandatory injunction is therefore substantially stronger than the preliminary request, although equitable discretion and the exact scope of valid permission remain relevant.

Damages if permanent relief is denied

If the court allows the encroachment to remain and awards permanent damages, the stated diminution is $20,000: $500,000 minus $480,000. The $25,000 figure measures Denise’s cost of moving her improvements; it is not automatically Paula’s compensatory loss.

Any independently proved past loss of use or other consequential harm must be supported and must not duplicate the permanent value award. A temporary-trespass or restoration measure would require a different remedial premise and appropriate reasonableness analysis. The court should not award both permanent diminution and full restoration for the same injury.

Denise’s intentional deception could support discussion of punitive relief if properly pleaded and proved under the applicable standard. It is not an automatic extra $25,000 or a substitute for identifying compensatory damages. The strongest requested final result is removal; the stated monetary alternative, if permanent removal is refused, is the proved $20,000 reduction in value.

Sources and further comparison

The official question controls its facts and jurisdiction. These responses address the exam scenario; subsequent legal changes and other fact patterns may require a different analysis. The PT uses the supplied fictional Columbia library, which must not be replaced with outside law.