4-3-17 National Chocolate Mousse Day National Tweed Day PROPERTY A SLIDES 4-3-17 National Chocolate Mousse Day National Tweed Day

Gonzaga Wins = Ortega Wins North Carolina Wins = Ezell Wins Music to Accompany Bell The B-52s, COSMiC ThiNG (1989) featuring “Love Shack” NCAA Contest Status Gonzaga Wins = Ortega Wins North Carolina Wins = Ezell Wins Tomorrow’s Class Course Selection Advice Rev. Prob. 4E (Everglades) Set-Up for DQ1.21 (All for Thurs.) Intro to Chapter 5

MoNday Pop Culture Moment BOBBY JONES, THE MASTERS & AUGUSTA NATIONAL GOLF COURSE

MoNday Pop Culture Moment

Previously in Property A Adverse Possession Justifications: Statute of Limitations & Beyond Color of Title & Its Significance Elements: Rules, Focus, Evidence, Purpose Actual Use (& Rev. Probs. 4A & 4B) Cultivation, Enclosure, Improvements Ordinary Owner of Similar Property Open & Notorious (& Rev. Prob. 4C Today) Exclusive Continuous

Previously in Property A Adverse Possession Justifications: Statute of Limitations & Beyond Color of Title & Its Significance Elements: Rules, Focus, Evidence, Purpose Actual Use Open & Notorious Exclusive Acts of Other Third Parties (Bell) Acts of OO & Rev. Prob. 4D (Rev. Prob 4E Tomorrow) Continuous Interruptions by APor & Rev. Prob. 4G (Rev. Prob. 4H Thurs.) Tacking (Today)

COMPLETING ADVERSE POSSESSION 4/3-4/6 Rev. Prob. 4C: O&N Opinion/Dissent (ACADIA) Continuous Element (Continued) (OLYMPIC/ME) Adverse/Hostile Element & State of Mind (SEQUOIA/ME) Boundary Disputes /Other Issues Outside the Elements (SEQUOIA/ME) Set-Up for DQ 1.21 (Policy Implications) (ME) Adv. Poss. of Gov’t Property (Davins) 2011 Florida Statutory Changes Review Problem 4E: Exclusive (Minimal OO Use) (EVERGLADES) Review Problem 4H: Continuous (Emergency Absence) (OLYMPIC) DQ1.21 (Policy Implications) (ALL PANELS)

ACADIA: Review Problem 4C Opinion Dissent Q from Spring 2016 What Should O&N Rule Be for Underground AP? Lower Courts Identify 3 Possible Rules: ACADIAS each to Argue Pros & Cons of One Rule Posture of Case Means No Need to Apply Rules to Facts/Allegations in Case (Can Use Story as Example of Why Rules are Good or Bad)

ACADIA: Rev. Prob.4C: Pros & Cons of Specific Rules Rule from Marengo Caves : Claimant of Underground Property Must Show that, for the Entire AP Period, OO had Actual Knowledge of Claimant’s Use of the Property. (Not Alleged in Case) Pros & Cons? (Last Names P-Z)

ACADIA: Rev. Prob.4C: Pros & Cons of Specific Rules Ordinary O&N Rule Claimant of Underground Property Must Show that, for the Entire AP Period, an OO Standing in the Claimed Area Should Be Made Aware of Claimant’s Use of the Property. (Alleged and Presumably Easily Met in Case) Pros & Cons? (Last Names A-F)

ACADIA: Rev. Prob.4C: Pros & Cons of Specific Rules Concurrence’s Sensory Traces Rule Claimant of Underground Property Must Show, for Entire AP Period: Either Actual Knowledge by the OO (Not Alleged) OR that the underground possession created traces such as noise, smoke, smells, light or vibrations that could be sensed by humans on the surface of the OO’s lot sufficient to create a duty to inquire in a “reasonably prudent person.” (Roughly Alleged in Complaint) Pros & Cons? (Last Names G-O)

COMPLETING ADVERSE POSSESSION 4/3-4/6 Review Problem 4C: O&N Opinion/Dissent (ACADIA) Continuous Element (Continued) (OLYMPIC/ME) Adverse/Hostile Element & State of Mind (SEQUOIA/ME) Boundary Disputes /Other Issues Outside the Elements (SEQUOIA/ME) Set-Up for DQ 1.21 (Policy Implications) (ME) Adv. Poss. of Gov’t Property (Davins) 2011 Florida Statutory Changes Review Problem 4E: Exclusive (Minimal OO Use) (EVERGLADES) Review Problem 4H: Continuous (Emergency Absence) (OLYMPIC) DQ1.21 (Policy Implications) (ALL PANELS)

ELEMENTS OF ADVERSE POSSESSION Our Sequence Actual Use Open & Notorious Exclusive Continuous Adverse/Hostile Panel Responsibilities Olympic DQ4.14-4.16 Rev. Prob. 4G (ME Last Time) Rev. Prob. 4H (Thursday)

Adverse Possession Continuous: Overview Focus: Time Used Without Interruption Two Issues (1) What constitutes sufficient interruption to stop clock? (Last Time) (a) Interruptions by OO (we cover under Exclusive) (b) Interruptions by APor: Legal test often as in Ray: Use like an ordinary owner of similar property (2) Tacking: (Today)

Arguments/Missing Facts Olympic: Review Problem 4H (Next Thursday) Last Names M-Z (for APor M) Last Names A-L (for OO) Arguments/Missing Facts Should the Five-Month Interruption for Medical Emergency in Problem Break Continuity? (Why or Why Not?) Assuming Five Months with no Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the Five Months M Was Away to Retain Continuity? (Ray Analysis) What is the Legal Significance of D not doing what M asked? (i.e., should M get credit for what she asked D to do or only for what he actually did?)

Adverse Possession Continuous: Overview of Tacking Focus: Time Used Without Interruption (1) What constitutes sufficient interruption to stop clock? (2) Tacking: When can you add the time of successive OOs or APors to get to SoL? Add time of either line if privity But don’t if consecutive unrelated trespassers Issue in Howard: Tacking OK if Documents Incorrect?

Everyone is One Lot Over from Their Deed Cases: Brief Introduction with Memory Aids Howard v. Kunto (Wash. App. 1971) Everyone is One Lot Over from Their Deed

OLYMPIC: “Continuous” in E. 13th Street DQ4.16 EEL GLACIER

DQ4.16: Continuous Evidence in E. 13th Street Why did the claimants not satisfy the “continuous” element? Is the case distinguishable from Ray? What other evidence would have been helpful to claimants on this issue? Should it matter/count if all belong to same organization?

DQ4.16: Continuous in E. 13th Street: v. Ray Intermediate Appellate Court (NY Court of Appeals = Highest Court) Supreme Court Appellate Division (“My son ….”) Not Binding on Meaning of Ray Like Lutz: Overturning lower court decision despite supposed requirement of deference.

DQ4.16: Continuous in E. 13th Street: v. Ray Intermediate Appellate Court (Like Lutz: Overturning lower court decision despite requirement of deference). Dissent: Enough evidence facts are like Ray to affirm. Equivalent of preserving space in Ghost town [ME: Could look at evidence of use when not in residence] [ME: Though not seasonal so less reason for gaps] APors part of “cohesive group” (= not quite “privity”). [For You: Good idea to Allow? ] Qs on Continuous?

COMPLETING ADVERSE POSSESSION 4/3-4/6 Review Problem 4C: O&N Opinion/Dissent (ACADIA) Continuous Element (Continued) (OLYMPIC/ME) Adverse/Hostile Element & State of Mind (SEQUOIA/ME) Boundary Disputes /Other Issues Outside the Elements (SEQUOIA/ME) Set-Up for DQ 1.21 (Policy Implications) (ME) Adv. Poss. of Gov’t Property (Davins) 2011 Florida Statutory Changes Review Problem 4E: Exclusive (Minimal OO Use) (EVERGLADES) Review Problem 4H: Continuous (Emergency Absence) (OLYMPIC) DQ1.21 (Policy Implications) (ALL PANELS)

ELEMENTS OF ADVERSE POSSESSION Our Sequence Actual Use Open & Notorious Continuous Exclusive Adverse/Hostile Panel Responsibilities Sequoia DQ4.17-4.18

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 Vezey: “presumption of permissive use” b/c she held from her grandparents Majority: claimant “rebutted the presumption” Lots of evidence land intended as gift and g-parents treated her as owner

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 Most States: State of mind irrelevant Some States Require Good Faith: Fatal to know that you are not true O Some States Require Bad Faith: Must know it’s not yours

Adverse/Hostile & State of Mind Sequoia: Lutz & DQ4.17 From Last Week: Lutz Majority makes apparently contradictory statements re necessary state of mind: Charlie’s Shack No Good: Knew it wasn’t their land Garage No Good: Thought it was their land. Ways to Reconcile?

Adverse/Hostile & State of Mind Sequoia: Lutz & DQ4.17 At Least 2 Ways to Reconcile: Rule: APors Must Knew It’s Not Theirs But Intend to AP Anyway (not met for either building) (See Note 5 on “Claim of “Right”@ P115) Different Rules for Ordinary AP and for Boundary Disputes Ordinary AP (Charlie’s Shack): Need Good Faith 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: Still enough evidence to support lower court Behaved like true owner = claim of title Irrelevant what he thought as long as intent to acquire and use land as his own. Waiver 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 permission Waiver afterward different (important concept): Once 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)

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