PROPERTY D SLIDES

Thursday March 20 Music: Billie Holiday Sings (1952) TEST IS ESSENTIALLY DONE Some completely new problems Mostly questions/answers from posted Bank or Tests, some altered a bit, all with new names Contains names of all students from Redwood, Shenandoah & Yellowstone (I’m saving Arches & Biscayne for Final Exam) Apologies to those of you I had to kill off. OFFICE HOURS TODAY: 1-4 PM (NOT 9:45-10:45)

Adverse Possession: Justifications DQ5.01: AP as SoL (Yellowstone) Purposes Behind SoL Generally? (E.g., Torts/Contracts)

Adverse Possession: Justifications DQ5.01: AP as SoL (Yellowstone) Purposes Behind SoL Generally (E.g., Torts/Contracts) Potential Ds: Repose Legal System: Evidentiary Problems Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights) Apply to Actions for Possession of Land?

Adverse Possession: Justifications DQ5.01: AP as SoL (Yellowstone) Purposes Behind SoL Generally (Torts/Contracts) Potential Ds: Repose Legal System: Evidentiary Problems Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights Other Purposes for AP?

Adverse Possession: Justifications DQ5.01: AP as SoL (Yellowstone) Purposes Behind SoL: Adverse Possession Potential Ds: Repose (Quiet Titles; Protect Investment) Legal System: Evidentiary Problems (  ”Prescriptive Rights”) Potential Ps: Don’t “Sleep” on Your Rights Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda) Other Purposes for AP?

Adverse Possession: Justifications Purposes Behind Adverse Possession More Broadly Potential Ds: Adverse Possessors (APors) Repose (Quiet Titles) Protect Investment in Land Reward/Encourage Beneficial Uses Protect Psychic Connection (Holmes) Legal System: Evidentiary Problems Potential Ps (OOs): Don’t “Sleep” on Your Rights Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda) Encourage/Reward OOs who send clear timely notice of interest

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

YELLOWSTONE (DQ ) GIANT GEYSER

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 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?

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Our Coverage for Each Focus/Relevant Evidence Purpose Easy Cases/Hard Cases Judicial Opinions

Adverse Possession Memory Aids for Cases Lutz: Garden of Great Depression (Billie Holiday 1952) Ray: Creepy Summers in Empty Resort (Barry Manilow 1996) E. 13 th St.: Coalition of Squatters (Rent 1996) Bell: Floating House & Shifting Outhouse (B-52s 1989)

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities Primary: Arches Rev. Prob. 5A (3/27): In-Class: Yellowstone Critique: Arches

Adverse Possession Actual Use: Overview 1. Focus: What has APor Done on Land a. Has to be phys possession/entry to trigger SoL b. in practice need much more to satisfy 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) 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; w/o CEI cases fall back on “ordinary use” In practice, CEI = steps sufficient to show “possessing” land when not actually in residence or running biz

Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) CEI = steps sufficient to show “possessing” land when not actually in residence or running biz 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 Easy YES Use same as surrounding lots CEI covering entire claimed area 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) Some non-trivial CEI but incomplete/imperfect (Lutz) Rev Prob 5A (next Mon) addresses some hard Qs

ARCHES: DQs DELICATE ARCHES

Actual Use: DQ5.04 (Arches) 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 cultvation So we’ll look mainly at CEI

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

Actual Use: DQ5.04 (Arches) 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 (Arches) 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 (Arches) Lutz: Garden of Great Depression Hearing Testimony her She asked me to take her to the dance.

Actual Use: DQ5.04 (Arches) 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 (Arches) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) Built Shack: What’s Wrong with?

Actual Use: DQ5.04 (Arches) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) NO. Knew Shack Was on Someone Else’s Land Garage Partly Over Boundary Line: What’s Wrong With?

Actual Use: DQ5.04 (Arches) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) NO. Knew Shack Was on Someone Else’s Land NO. Thought Garage Was on Own Land We’ll Return to this with State of Mind. DQ: Can you see a way to reconcile majority positions on shack & garage?

Actual Use: DQ5.04 (Arches) 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 (Arches) 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 (Arches) 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 (Arches) Ray: Creepy Summers in Empty Resort Evidence of Actual Use? How Does Court Deal with CEI Requirements?

Actual Use: DQ5.06 (Arches) 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?

Actual Use: DQ5.06 (Arches) E. 13 th St.: Coalition of Squatters Possible Evidence of Actual Use Dissent: Improvements & Attempts to Preserve