PROPERTY B SLIDES 4-8-19

Review Problem 4M (Lauren: AP Lawyering): Fri 4/12 & Wed 4/17 Music to Accompany E. 13th Street (& Squatters Everywhere) Rent (Original Broadway Cast) (1996) (Disc Two) Last Few DF Sessions: Rev Prob 4F (Exclusive) Monday @ 9:40 (Brendan) Wed @ 9:40 (Lauren) Review Problem 4M (Lauren: AP Lawyering): Fri 4/12 & Wed 4/17 Review Problem 5G (Brendan: Short Easement Prob) Mon 4/15 & Fri 4/19 Some Notes on Assignments This Week: Wed: Begin with Intro to Chapter 5 & Short Acadia Problem 5A Then Olympic Coninuous Prob 4I Then Sequoia for Boundary Disputes Nightmare on 68th Street DQ2.22(a) Fri: Rest of DQ2.22 Split betw Badlands/Olympic/Everglades (See Course Page Tomorrow for More Details)

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

MoNday Pop Culture Moment

Previously in Property B Adverse Possession Cont’d Actual Use (& Rev. Probs. 4A & 4B) Cultivation, Enclosure, Improvements Ordinary Owner of Similar Property Open & Notorious (& Rev. Prob. 4C Today) Exclusive Acts of Other Third Parties (Bell) Acts of OO & Rev. Prob. 4D (& Rev. Prob 4E Today) Continuous (Started Last Time Interruptions by APor Tacking (Today) Rev. Prob. 4H Today (Rev. Prob. 4I Wed.)

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) Self-Interruptions by APor: Legal test often as in Ray: Use like an ordinary owner of similar property Rev Prob 4H

Adverse Possession Rev Prob 4H (Continuous) D owns outdoor amphitheater & rents it to theater companies/rock groups. Events 30-40 days a year, usually on weekends, usually in summer. A hillside, owned by someone else, overlooks the amphitheater. For length of SoL, when amphitheater used for event, D’s employees rope off the hillside and place sound/lighting equipment there until event is over No other use is made by anyone of the hillside. Ordinary use of similar property? Amount of use? Policy re labor v. policy re notice?

Arguments/Missing Facts Olympic: Review Problem 4I (Wednesday) Last Names KO-Z (for APor M) Last Names A-KL (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?

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?

EVERGLADES: Review Problem 4E EGRET IN MANGROVE SWAMP

OO (Dolly) inherits lot w summer home & visits in 1990. EVERGLADES: Rev. Prob. 4E Last Names A-D (for OO = D) Last Names E-Z (for APor = N) OO (Dolly) inherits lot w summer home & visits in 1990. APor (Nicole) Purchases w Good Faith Color of Title in 1992 Spends Every Summer on Lot 1992-2007 OO visits in October 1999; plants flower bulbs in 15’ x 2’ strip. Never goes in house; doesn’t return again until 2007 Flowers come up every spring.

EVERGLADES: Rev. Prob. 4E Last Names A-D (for OO = D) Last Names E-Z (for APor = N) Arguments/Missing Info? If jurisdiction accepts literal argument, OO wins. Assume it doesn’t. Which facts in the problem (other than the passing of time) are helpful for each side? Be prepared to respond to other side’s claims.

EVERGLADES: Rev. Prob. 4E Last Names A-D (for OO = D) Last Names E-Z (for APor = N) Arguments/Missing Info? If jurisdiction accepts literal argument, OO wins. Assume it doesn’t. Should a court consider what OO has done sufficient to defeat exclusivity in light of the policies implicated by this element?

EVERGLADES: Rev. Prob. 4E Last Names A-D (for OO = D) Last Names E-Z (for APor = N) Arguments/Missing Info? If jurisdiction accepts literal argument, OO wins. Assume it doesn’t. Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome.

ELEMENTS OF ADVERSE POSSESSION Our Sequence Actual Use Open & Notorious Continuous Exclusive Adverse/Hostile Panel Responsibilities ALL DQ4.17-4.18 PAY ATTENTION Lecture at Speed!

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 (usually limited to Boundary Disputes)

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 3 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?