PROPERTY D SLIDES Super Tuesday & National Pig Day

Tuesday March 1 Music: Vivaldi, Four Seasons (1723) Tuesday March 1 Music: Vivaldi, Four Seasons (1723) Itzhak Perlman, Violin London Philharmonic Orchestra (Recording 1977; Remastered 1987) 1978 Grammy Award for Best Classical Performance (Soloist with Orchestra) OLYMPIC Critique of Rev. Prob. 3F Due 10 a.m.

Review Problem 3K: Part of Issue-Spotter Review Problem 3K: Part of Issue-Spotter Badlands (In-Class for Plaintiff MM) Everglades (In-Class for Defendant AA) Sequoia (Critique 10 a.m. Thursday) In-Class: Arguments/Missing Facts re Northacre 1.Assuming the other elements were met, were AA’s acts fixing up Northacre and operating the summer camp sufficient to meet the “Actual Use” element? 2.Assuming the other elements were met, was AA’s operation of the summer camp sufficient to meet the “Continuous” element? DF This Week: Arguments/Missing Facts re Southacre (Focus on “Exclusive” and “Open + Notorious”)

EVERGLADES: Review Problem 3A (Cont’d) EGRET IN MANGROVE SWAMP

EVERGLADES Review Problem 3A: “Actual Use” Element Facts: AP Lives Next to Vacant Lot Initially: Stone walls on 3 sides; graffiti; garbageInitially: Stone walls on 3 sides; graffiti; garbage AP repaints walls; removes garbage; plants hedge across 4th side of lot.AP repaints walls; removes garbage; plants hedge across 4th side of lot. For 10Y: AP washes off new graffiti, removes garbage; trims hedge.For 10Y: AP washes off new graffiti, removes garbage; trims hedge. Just looking at Actual Use; assume other elements met.Just looking at Actual Use; assume other elements met.

EVERGLADES Review Problem 3A: “Actual Use” Element Arguments/Missing Facts? 1.Cultivation, Improvements, Enclosure a.Enclosure Separately (Last Week) b.All Three Together 2.Activity Like Owner of Similar Property? 3.Activity Meet Purposes of AP/Actual Use?

EVERGLADES Review Problem 3A: “Actual Use” Element Arguments/Missing Facts? 1.Cultivation, Improvements, Enclosure 2.Activity Like Owner of Similar Property? (Means?) 3.Activity Meet Purposes of AP/Actual Use?

EVERGLADES Review Problem 3A: “Actual Use” Element Arguments/Missing Facts? 1.Cultivation, Improvements, Enclosure 2.Activity Like Owner of Similar Property? 3.Activity Meet Purposes of AP/Actual Use? Triggers SoL Sufficient Notice to OO? Sufficient Labor/Connection by APor?

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Continuous 4. Exclusive 5. Adverse/Hostil e Panel Responsibilities Primary: Everglades

Adverse Possession Adverse/Hostile (& State of Mind): Overview States Vary on Terminology: Element called “Adverse” or “Hostile” (or both) In Every State Means (At Least) Lack of Consent/ Permission from OO Usually NOT about APor's state of mind

Adverse Possession Adverse/Hostile (& State of Mind): Overview Adverse/Hostile ≥ Lack of Consent/Permission from OO If permission, SoL not running Consensual Possessor can start AP SoL by rejecting permission Difficult to do Rejection must be explicit & clear

Adverse Possession Adverse/Hostile & State of Mind: Overview ALL States Require Lack of Consent/ Permission from OO ALL States Require, If Color of Title, Good Faith Belief in Deed or Will Providing CoT SOME States Also Require, if no CoT, that APor Have a Specific State of Mind May call this as “claim of right” or “claim of title” Occasionally states discuss it as part of “adverse/hostile”

Adverse Possession: State of Mind Requirements if No Color of Title Variations state to state Variations: Boundary Disputes v. Other AP Alternatives 1. Most States: State of mind irrelevant 2. Some States Require Good Faith: Fatal to know that you are not true O 3. Some States Require Bad Faith: Must know it’s not yours

EVERGLADES: DQ3.20 EGRET IN MANGROVE SWAMP

Adverse/Hostile & State of Mind Everglades: Lutz & DQ3.20 From Last Week: Lutz Majority makes apparently contradictory statements re necessary state of mind: Charlie’s Shack No Good: Knew it wasn’t their landCharlie’s Shack No Good: Knew it wasn’t their land Garage No Good: Thought it was their land.Garage No Good: Thought it was their land. Ways to Reconcile?

Adverse/Hostile & State of Mind Everglades: Lutz & DQ3.20 At Least 2 Ways to Reconcile: 1.Rule: APors Must Knew It’s Not Theirs But Intend to AP Anyway (not met for either building) 2.Different Rules for Ordinary AP and for Boundary Disputes Ordinary AP (C’s Shack): Need Good Faith Ordinary AP (C’s Shack): Need Good Faith Boundary Disputes (Garage): Need Bad Intent (“Maine Doctrine”) Boundary Disputes (Garage): Need Bad Intent (“Maine Doctrine”)

Adverse/Hostile & State of Mind Lutz: Significance of Waiver In earlier litigation, Attorneys for Lutzes stated that land belonged to VanValkenberghs Majority Interpretation: Concession = Lutzes waived ownership rights “Disseisin by Oral Disclaimer”

Adverse/Hostile & State of Mind Lutz: Significance of Waiver In earlier litigation, Attorneys for Lutzes stated that land belonged to VanValkenberghs Dissent Interpretation:Dissent Interpretation: Still enough evidence to support lower courtStill enough evidence to support lower court Behaved like true owner = claim of titleBehaved like true owner = claim of title Irrelevant what he thought as long as intent to acquire and use land as his own.Irrelevant what he thought as long as intent to acquire and use land as his own. Waiver after fact irrelevant; title already passedWaiver after fact irrelevant; title already passed

Adverse/Hostile & State of Mind Timing of Waiver & AP Period Waiver before AP period ends may make it non- adverse; equivalent to permissionWaiver before AP period ends may make it non- adverse; equivalent to permission Waiver afterward different (important concept):Waiver afterward different (important concept): Once statute has run, if you’ve met elements, title passesOnce statute has run, if you’ve met elements, title passes Magic moment when legal ownership transfers (cf. Chapter 4 issue: Possibility of Reverter becoming Fee immediately when condition violated)Magic moment when legal ownership transfers (cf. Chapter 4 issue: Possibility of Reverter becoming Fee immediately when condition violated)

Adverse/Hostile & State of Mind Timing of Waiver & AP Period Waiver before AP period ends may make it non- adverseWaiver before AP period ends may make it non- adverse Waiver afterward different:Waiver afterward different: Title passes the moment APors meet all elementsTitle passes the moment APors meet all elements From that momentFrom that moment APors no longer have to meet elementsAPors no longer have to meet elements Statements re lack of ownership not legally bindingStatements re lack of ownership not legally binding State presumably can’t take away w/o paying.State presumably can’t take away w/o paying. Questions on Waiver or Lutz ?

Lutz v. Ray: Why Might NY Ct.App. Be More Generous to Rays? Possibilities: My Original List Although Rays not claiming under color of title, D’s predecessors never paid Ray’s mother for cottage, so maybe some rights retained. Better proof of specific area claimed. Lutz Majority might not have liked changing litigation strategy. Other Ideas from the 2014 Class Socio-Economic Differences (Summer Home Owners v. Unemployed) Ray’s Military Service Maybe Upkeep in Abandoned Resort seen as More Socially Useful

Adverse/Hostile & State of Mind Bell & DQ3.21 Bell Arguments that state of mind should be irrelevant: AP depends on “character of [APor’s] possession,” not of APor’s “secret thoughts.” Can’t get AP by thoughts alone, so can’t think yourself out of it. AP depends on “character of [APor’s] possession,” not of APor’s “secret thoughts.” Can’t get AP by thoughts alone, so can’t think yourself out of it. Doctrine protects both knowing & unknowing APors Doctrine protects both knowing & unknowing APors Law Clearer w/o Intent = Presumably difficult to prove, especially on old claims Law Clearer w/o Intent = Presumably difficult to prove, especially on old claims Other arguments that state of mind should be irrelevant: Trespass doesn’t require particular state of mind: SoL is running regardless Trespass doesn’t require particular state of mind: SoL is running regardless Encourages lying by APor Encourages lying by APor Repose & Sleeping OO Concerns Not Connected to State of Mind Repose & Sleeping OO Concerns Not Connected to State of Mind

Adverse/Hostile & State of Mind Bell & DQ3.21 Reasons to Have State of Mind Requirement Maybe inappropriate to reward knowing “theft” of land Maybe inappropriate to reward mistake w no intent to claim BUT any SoL means that people can get away w tort or breach of contract w no liability What state of mind requirement best serves the purposes of AP (if no color of title)? (For You)

State of Mind Famous Scholarly Debate Noted in Textbook Regardless of Doctrine/Language About State of Mind, Cases Tend to Favor Parties Acting in Good Faith Arguably consistent with Our Primary Cases E.g., No Technical Color of Title in Ray or Vezey, BUT Both claimants arguably acting in good faith under circumstances. Both claimants treated generously by courts QS ON STATE OF MIND?

WHITE BROWN WHITE v. BROWN

White White v. Brown (S83-87) Interprets Jessie Lide’s Will I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold. Issue: What Interest in the Home Does This Language Create?

Olympic: DQ EEL GLACIER

White White v. Brown DQ4.01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership.” Why is it significant?

White White v. Brown DQ4.01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership.” Significance Includes: 1.Allows land to move to owner who can make most valuable use of it 2.Means land is relatively liquid asset maximizing owner’s control & freedom (can sell or mortgage for $).

White White v. Brown Olympic: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. The White majority complains that “the words chosen by the testatrix are not specific enough to clearly state her intent."

White White v. Brown Olympic: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. What do you think Jessie Lide’s intent is? Why must house not be sold?

White White v. Brown Olympic: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. Why does the majority have problems discerning Jessie Lide’s intent?

White I wish Evelyn White to have my home to live in and not to be sold. White v. Brown: Possible Characterizations I wish Evelyn White to have my home to live in and not to be sold. Fee Simple Life Estate Conditional Fee So long as not sold So long as E lives there Conditional Life Estate

White White v. Brown Olympic: DQ4.03 WHAT ARE THE MAJORITY’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

White White v. Brown Olympic: DQ4.03 MAJORITY ARGUMENTS (FEE SIMPLE) Presumption: Grant Conveys Whole Estate JL had FSA, so presume she gave FSA to EW Same idea as “default estate today is fee simple” No Gift Over (Will describes no interest in home after EW’s death) Partial Intestacy Disfavored (Try to read will to address all of JL’s property)