4-3-19 National Chocolate Mousse Day National Tweed Day PROPERTY B SLIDES 4-3-19 National Chocolate Mousse Day National Tweed Day

Next Few DF Sessions: Rev Prob 4A (Actual) Music to Accompany Bell The B-52s, COSMiC ThiNG (1989) featuring “Love Shack” Next Few DF Sessions: Rev Prob 4A (Actual) Today @ 9:40 (Lauren) Friday @ 12:30 (Brendan) Rev Prob 4F (Exclusive) Monday @ 9:40 (Brendan) Wed 4/10 @ 9:40 (Lauren) Friday’s Class (7:55-9:55) Completion of Exclusive (EVERGLADES) Course Selection Advice Continuous (OLYMPIC) Adverse/Hostile/State of Mind (Lecture)

On Course Page by Friday LOGISTICS On Course Page Now Complete Supplements for Chapters 4 & 5 Complete Syllabus Slides for 3/22, 3/27, 4/1 Detailed Instructions for In- Class Review Problems for Monday April 8 (Everglades, Badlands, Olympic) On Course Page by Friday Complete Assignment Sheet Updated Instructions for Sample Exam Answer Submission Window #2 Answers/Explanations Memo from EFI Test (We’ll E- Mail You When Individualized Scores/Results are Available for Pick Up from Tina Sutton)

ELEMENTS OF ADVERSE POSSESSION Our Sequence Actual Use Open & Notorious Exclusive Continuous Adverse/Hostile Primary Panel Responsibilities BADLANDS DQ4.07-4.09 (Cont’d Today but Mostly Lecture) Review Problem 4C (Mon 4/8)

Adverse Possession Open & Notorious: Overview (Recap) Focus: Visibility/Notoriety to OO Checking Property Usually Q of Notice not Actual Knowledge Common Test: “Use Visible to one on Surface of Property” Not Concerned with Visibility of APor but of Use Not Concerned with Visibility by Neighbors Many States also allow Evidence of Reputation in Community as Owner –OR-- Availability of Info in Public Records

DQ4.07: Open & Notorious Evidence Lutz: Garden of Great Depression Pretty Easy Case: Lots Visible Crops w Boundary Logs, Shack, Garage Plus Reputation Evidence Bell: Floating House & Shifting Outhouse If Actual Use Elemet Met, Should Be OK Existence of Small Buildings Unrelated to OO Moving Outhouse Might Help for Periods He’s in Residence in Houseboat

BADLANDS: DQ4.07 & Ray NORBECK PASS

Court: “Constant & Conspicuous Use” Evidence Relied On?: (Lots!!) Badlands DQ4.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On?: (Lots!!)

Court: “Constant & Conspicuous Use” Evidence Relied On?: Lots!! Badlands DQ4.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On?: Lots!! Visible on Surface: Residence; No Trespass Signs; Bars, Shutters, Padlocks on Cottage; General Maintenance; Comparison to Rest of Community Less Obvious (all forms of Public Record): Payment of Taxes & Insurance; Enforcement ag. Trespassers; Voting Address

Badlands DQ4.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Lower court found element of “continuity” not met; thrust was that one month/year insufficient CtApp discussion of evidence really encompasses THREE eements: “actual” & “open & notorious” & “continuous.” Implicitly saying: Incorrect to focus on one month a year for “continuous.” Ps’ use met Actual + O&N because of range of visible and other evidence present all year round.

DQ4.09: Open & Notorious Evidence E. 13th St.: Coalition of Squatters No Real Discussion of Element in Case Problem: Sometimes Use Apparent, Sometimes Not Could Characterize Problem Two Ways Not Open & Notorious Not Continuous

DQ4.09: Open & Notorious Evidence E. 13th St.: Coalition of Squatters Sometimes Use is Apparent, Sometimes Not Could Address as O&N or as Continuous cf. Ray on Gaps in Time: Maybe View as: Summer Use = Normal Use (~Continuity Q) Evidence of Use Even When Gone (~O&N Q) Qs on “Open & Notorious” Element?

BADLANDS for Monday: Review Problem 4C Opinion Dissent Q from Spring 2016 What Should O&N Rule Be for Underground AP? Lower Courts Identify 3 Possible Rules/Tests: Be Prepared to Argue Pros & Cons of Your Rule Assume Test Must Be Met for Whole AP Period Assignments by Last Name A-E: Traditional O&N F-PI: Sensory Traces on Surface (Duty to Inquire for Reasonable OO) PO-Z: Marengo Rule

ACADIA: Review Problem 4B Acadia Sunrise

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

ACADIA Review Problem 4B: “Actual Use” Element Arguments/Missing Facts? Cultivation, Improvements, Enclosure Enclosure Separately All Three Together Activity Like Owner of Similar Property? Activity Meet Purposes of AP/Actual Use? Only Doing This One Element; Assume Others Met!!

ELEMENTS OF ADVERSE POSSESSION Our Sequence Actual Use Open & Notorious Exclusive Continuous Adverse/Hostile Panel Responsibilities EVERGLADES DQ4.10-4.13 Rev. Prob. 4D (me) Rev. Prob. 4E (Mon 4/8)

Adverse Possession Exclusive: Overview Focus: Use by Others Beside APor. Two Issues (We’ll Do Separately) More Common Issue: Also use by OO Less Common Issue: Also use by other third parties (non- owners)

Exclusive (Use by OO) Overview More Common Issue: Use by OO Focus/Relevant Evidence: What did OO do on claimed land during AP period

Exclusive (Use by OO) Overview Fit into AP Purposes Purposes of AP Role of Particular Element Repose Punish Sleeping OO OO not sleeping if using claimed land. Reward Beneficial Use/Labor Protect Connection/ Investment

Exclusive (Use by OO) Overview: Easy Qs Easy Cases YES: No use at all by OO during relevant period (Lutz; Ray; Bell;’Howard) Easy Cases NO: If court treats requirement “literally,” any knowing use by OO defeats AP E.g.: NY Case (S118) 3 Weeks Storage of Construction Materials Defeats Exclusivity Note re Lawyering Note re Strong Anti-AP Approach

Adverse Possession Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner OO unaware of own interest OO acting with permission of APor. Short/Partial/Ineffective Assertions of OO Rts

Adverse Possession Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner Short/Partial/Ineffective Assertions of OO Rts Note 10 (P118): OO Generally Can Break Exclusivity by Physically Excluding APor; OR Suing to Recover BUT Physical exclusion usually insufficient if doesn’t really exclude APor for significant period of time (arguably true in “Rent” and E.13th Street)

Adverse Possession Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner Short/Partial/Ineffective Assertions of OO Rts Ineffective attempts to bar entry. [When] should limited acts by OO be enough? Policy Q I like!! Tested in Review Problems 4D-4G c. See Miller in Note on S118: Overhanging eaves allowed owner to keep just area under eaves, not whole lot. Could suggest as solution for other cases with small OO use.

EVERGLADES: DQ4.13: “Exclusive” & the Penn. Statute EGRET IN MANGROVE SWAMP

EVERGLADES: DQ4.13 Exclusive & Penn. Statute §5530(B)(S99) No entry upon real property shall toll the running of the period of limitation specified [21 years], unless a possessory action shall be commenced therefor within one year after entry. What does “toll” mean here?  Effect of this provision? Purpose of this provision? Good idea? Qs on Exclusivity (Use by OO)?

Rev. Prob. 4D: (Exclusive: Use by OO) Lot in Q = Farm that is square (one-half mile on each side). OO (Kindon) purchases in 1992; no visits/activity until 2002. APor (John) Purchases w Good Faith Color of Title in 1992 Moved onto lot (10/1/92); grew plants for sale for 10Y AP period. 8/02: OO decides to use lot as horse farm; hires G as agent G hired workers who built 1/2-mile fence just inside property line. Fence complete in late Sept.; G inspects lot & finds J & business. G tells K a few days later; K files ejectment action on 10/5/02 Lawsuit too late unless earlier use broke exclusivity

Very Hard to Resolve from Your Materials Rev. Prob. 4D: OO Only Use: Hired workers who built 1/2-mile fence just inside property line on 100 Acre lot in last 2 months of SoL Very Hard to Resolve from Your Materials If state accepts literal argument, OO wins. Can make this point quickly Spend bulk of time on what happens if state doesn’t do literal. Look for Arguments/Missing Info (E.g., Does Miller govern so just let OO keep what he used) Be very careful to keep track of who is APor and who is OO and to focus on whether OO did enough (Big Prob 2017)