PROPERTY A SLIDES

Thursday March 26 Music (to Accompany Ray): Barry Manilow: Summer of ‘78 (1996) Annual NCAA Sweet 16 Contest (“Marc Madness”) High Score from Section A Gets Free Dinner Electronic Forms on Course Page entry to me by 4:30 Today (OR) Hard Copy Forms Here Today Can hand-in to me at break or after class. Can deliver to me or to my assistant Tina by 4:30 Today.

LOGISTICS Chapter 4 Test Chapter 4 Test Can Get Individual Results from Tina Sutton After Class Blind Grading = Do NOT Tell Me/Let Me Know/Hint How You Did Answers & Explanations on Course Page; if Qs On Course Page Chapter 6 (Easements): Supplement & Updated Syllabus Updated Assignment Sheet with Info on All 2d Critiques Final Version of Sample Exam Review Instructions with Available Problems from Chapters 5 & 6 (due Saturday April 18)

CHAPTER 5: ADVERSE POSSESSION OVERVIEW (Continued)

Adverse Possession: Overview Justifications/Purposes: Recap Purposes of AP Repose Like SoL Generally: Act Before Evidence Lost plus Quiet Titles; Promote Alienability/Investment Punish Sleeping OO Like SoL Generally: Discourage Sitting on Rights plus Address Social Costs of Not Monitoring Land Reward Beneficial Use/Labor by APor Protect Connection/Investment of APor

YELLOWSTONE DQ GIANT GEYSER

Adverse Possession: Color of Title Writing (Incorrectly) Purporting to Give Title Often Defective Will or Deed Need to Have Good Faith Belief in Document Significance: Makes it Easier for APors to Prove Case Examples in Readings

Adverse Possession: Color of Title Yellowstone DQ 5.02 Writing (Incorrectly) Purporting to Give Title Significance: Makes it Easier for APors to Prove Case DQ5.02: Why do states have stricter requirements for AP w/o Color of Title?

Adverse Possession: Boundary Disputes v. AP of Complete Parcel AP regarding overlapping borders, not whole lots. Most Common Type of AP Case We’ll Do Miami Herald Article Next Week About Particularly Egregious Local Case Significance: Changes Requirements/Elements in Some States We’ll Go Through Specifics as We Cover Indiv. Elements Talk More About Generally Next Week & Rev. Prob. 5H

Adverse Possession: Boundary Disputes Yellowstone DQ 5.03 AP regarding overlapping borders, not whole lots Significance: Changes Requirements/Elements in Some States DQ5.03: Why Treat Boundary Disputes Differently? (Preliminary Ideas) (Cross-Reference Easements by Estoppel in Chapter 6)

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities Primary: Redwood Rev. Prob. 5A: Redwood (In Class Tues 3/31)

Adverse Possession Actual Use: Overview 1. Focus: What has APor Done on Land a. Has to be some physical possession/entry to trigger SoL b. In practice need much more to satisfy element (LMN) 2. Many State-specific legal tests/examples in materials a. In real case, check specifics in your state b. On exam: Note & Deal w Possibilities i) Lawyering Q ii) Issue-Spotter or Short Problem

Adverse Possession Actual Use: Overview 1. Focus: What has APor Done on Land 2. Many State-specific legal tests/examples in materials a.Common: Version of “Use Like Ordinary Owner of Similar Property.” E.g., Ray (similar test for both Actual & Continuous) Lutz Dissent (quoting Ramapo) b.Common: Cultivation, Enclosure, Improvements (CEI) NY & Florida Statutes

Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) Rough Definitions Cultivation = Growing things; some sense of crops for food or sale Enclosure = Surrounding land in Q w fences/walls Improvements (Technical Legal Term) = Substantial Building or Repairs Not Just “Making Property Better”

Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) Part of DQ5.05: When statute says CEI, can you have AP if residing or operating biz from pre-existing bldg.? Probably. No FL case holds otherwise; cases fall back on “ordinary use” if no CEI In practice, CEI = steps sufficient to show “possessing” land when not actually in residence or running business

Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) CEI = steps sufficient to show “possessing” land when not actually in residence or running business Likely Source: Where land undeveloped, what are beneficial uses that give notice to OO? Build Grow crops Graze animals + Enclosure (Grazing alone may not be sufficient claim of ownership)

Adverse Possession Actual Use: Overview Fit into AP Purposes Purposes of APRole of Particular Element ReposeTriggers SoL Punish Sleeping OOEnough Activity to Give Notice to Reasonable OO? Reward Beneficial Use/Labor Type We Want to Reward? Protect Connection/ Investment Sufficient to Merit Protection?

Adverse Possession Actual Use: Overview Easy Qs/Hard Qs Relatively Easy YES Relatively Easy YES Use same as surrounding lots Use same as surrounding lots CEI covering entire claimed area CEI covering entire claimed area Residing or Operating Business using Most of Parcel Residing or Operating Business using Most of Parcel Relatively Easy NO: Use significantly less than surrounding lots Marginal CEI

Adverse Possession Actual Use: Overview Easy Qs/Hard Qs Hard Qs Not a lot of use but more than surrounding lots (Ray, Bell, Vezey) Some non-trivial CEI but incomplete/imperfect (Lutz) Rev Prob 5A (next Mon) addresses some hard Qs

REDWOOD: DQ REDWOODS & FERNS

Actual Use Element in the Cases DQ5.04: Lutz (NY 1952) Squatters’ Garden Thrives During the Great Depression Billie Holiday Sings

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression Why no focus on Charley Residing? Maybe b/c area very small Maybe b/c anticipated problem with claim of title. Even dissent seems to focus more on cultivation So we’ll look mainly at CEI

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression If Need CEI: Enclosure: Some boundary line around garden; long row of logs & brush Not Discussed by Majority Maybe too low; maybe not complete enough Maybe not claimed by Attys

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression If Need CEI: Cultivation: Evidence Here? Evidence Here? Why Rejected by Majority? Why Rejected by Majority? Why Did Dissent Disagree? Why Did Dissent Disagree?

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression ASIDE: Why should appellate courts defer to the factual findings of a trial court if the appellate judges believe the findings are incorrect?

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression Appellate courts defer to factual findings b/c of relative advantages of trial judges (& juries): Visual Observation of Witnesses Hearing Testimony

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression Ability to Hear Testimony her She wants me to take her to the dance.

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) Some Small Stuff Insufficient Portable chicken coop Cutting of brush and trees Placing various rubbish on premises.

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) Some Small Stuff Insufficient Built Shack: What’s Wrong with? Garage Partly Over Boundary Line: What’s Wrong With?

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression Looking at Case as a Whole Meet Purposes of Actual Use Element? Doing enough to give notice to reasonable OO? Doing enough to create connection to land? Type of use we want to reward?

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression Looking at Case as a Whole Meet Purposes of Actual Use Element? Has some cultivation, some improvements, some partial enclosure Court chooses not to look at together Another court might do differently

Actual Use: DQ5.04 (Redwood) Lutz: Garden of Great Depression Looking at Case as a Whole Meet Purposes of Actual Use Element? Might look at CEI cumulatively Lutz in casebooks b/c generally thought to be wrong.

Actual Use: DQ5.05 (Redwood) Ray: Creepy Summers in Empty Resort Evidence of Actual Use? i) Summer residence, but not emphasized by itself ii) Lower Ct: Notice of claim given by constant & conspicuous use & bounded on all sides by path, rock garden, etc. (MAF: flimsy kind of enclosure) iii) CtApp adds: Installation of utilities + Preservation of cottage (substantial structure) How Does Court Deal with CEI Requirements? Seems unconcerned w technical reqmts (cf. Lutz) Focuses instead on: Adequate to give notice (purpose) Usual acts of ownership

Actual Use: DQ5.06 (Redwood) E. 13 th St.: Coalition of Squatters Possible Evidence of Actual Use Imagination Exercise Like Fact Research for Lawyering Q How Prove “Living” in Apts in Q? How Prove “Living” in Apts in Q?