PROPERTY A SLIDES

Friday March 27 Music to Accompany E. 13 th Street (& Squatters Everywhere) Rent (Original Broadway Cast) (1996) NCAA Sweet Sixteen Contest (Day 1 Leaders) Perfect Scores (7/7 points): Fellig; Gillum; Silverberg; Yaniz Tied for 5 th (6/7): Castillo; Dahle; Ghomeshi; McGee; Plowden; Whitley; [Jarzabek] Tied for 11 th (5/7): Ayoub; Kaleel

PROPERTY A: 3/27 BaCK UP YOUR WORK: KROW RUOY PU KCAB INSIGHTS GAINED FROM PUTTING THINGS INTO ESREVER: REVERSE

PROPERTY A: 3/27 WHY ARE SOME CARS NOT VERY TRENDY NO MATTER HOW [OFTEN] THEY’RE REDESIGNED?

PROPERTY A: 3/27 WHY ARE SOME CARS NOT VERY TRENDY NO MATTER HOW [OFTEN] THEY’RE REDESIGNED? SUBARU = U R A BUS

PROPERTY A: 3/27 WHAT DO YOU BECOME IF YOU CONSTANTLY WEAR EARBUDS?

PROPERTY A: 3/27 WHAT DO YOU BECOME IF YOU CONSTANTLY WEAR EARBUDS? I-POD = DOPI

PROPERTY A: 3/27 WHAT KIND OF PEOPLE PAY MONEY FOR BOTTLED WATER?

PROPERTY A: 3/27 WHAT KIND OF PEOPLE PAY MONEY FOR BOTTLED WATER? EVIAN = NAIVE EVIAN = NAIVE

REDWOOD: Actual Use & DQ REDWOODS & FERNS

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

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

Actual Use: DQ5.06 Bell: Floating House & Shifting Outhouse Evidence of Actual Use? 1.Cultivation, Improvements, Enclosure (& Residence)? 2.Activity Like Owners of Similar Property? 3.Fit Purposes of AP/Actual?

Actual Use: DQ5.06 Bell: Floating House & Shifting Outhouse Evidence of Actual Use? Cultivation, Improvements, Enclosure (& Residence) No Cultivation or Enclosure Improvements: Sauna, Woodsheds, Moving Outhouse Residence: Not Really; Lives on Houseboat Activity Like Os of Similar Property? Tricky. Fit Purposes of AP/Actual? Notice v. Labor/Connection

Actual Use: DQ5.06 Bell: Floating House & Shifting Outhouse Washington S.Ct. Decides Case on “Exclusive” Doesn’t Rule on “Actual Use” BUT Could Easily Have Held Insufficient Evidence

Actual Use: Vezey & DQ5.07 What evidence of “actual use” is noted in the two opinions in Vezey? Why did the dissent find this evidence insufficient? Why did the majority remand instead of reversing? Is the majority’s analysis on this issue consistent with the majority opinion in Lutz? How might the Alaska court distinguish Lutz?

Actual Use: DQ5.07 Qs on “Actual Use” Element?

LOGISTICS: Review Problems Old Short Exam Problems; One AP Element Each I’ll Give You a Slide w Some Guiding Qs at End of the Classwork on the Relevant Element Treat Authority from Specific States as Persuasive (Not Binding)

LOGISTICS: Review Problems Old Short Exam Problems; One AP Element Each Students on Responsible Panels:Students on Responsible Panels: Prepare Strongest Arguments re Guiding Qs If Just One Panel, Arguments for Both Sides If Two Panels, Arguments for Your Side ( & Try to Anticipate Theirs) Stick to the Element in Q If There’s a Critiquing Panel:If There’s a Critiquing Panel: Critique the “Lawyers’” Arguments; Not the Underlying Law Stick to the Element in Q

Review Problem 5A: “Actual Use” Element In-Class Arguments Tuesday 3/31: Redwood Arguments/Missing Facts? 1.Cultivation, Improvements, Enclosure a.Enclosure Separately b.All Three Together 2.Activity Like Owner of Similar Property? 3.Activity Meet Purposes of AP/Actual Use?

SHENANDOAH: OPEN & NOTORIOUS (O&N) & DQ APPALACHIAN TRAIL

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

Open & Notorious: Background Important Distinction Actual Knowledge (Fact Q): Person in Q is Actually Aware of Relevant Fact (Return to with Vezey) v. Notice (Legal Q): Under the Circumstances, Person in Q Should Be Aware of Relevant Fact “Ignorance of Law is No Excuse”: People Have Sufficient Notice of What Law Is (Even if no Actual Knowledge) You Are Supposed to Be Monitoring Your Own Property, so if Activity is Deemed “Open & Notorious”, You Will Be Treated as Having Notice of the AP Claim

Adverse Possession Open & Notorious: Overview Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Florida Version: “Sufficient to put a person of Ordinary Prudence on Notice”

Adverse Possession Open & Notorious: Overview The Reasonable ManOrdinary Prudence

Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Not Concerned with Visibility by Neighbors Common Error: Concern re Sneaking or Hidden from Street (v. on Surface) Common Error: Concern re Sneaking or Hidden from Street (v. on Surface) Cf. P114: Use should not be “surreptitious.” BUT even if APor acts “surreptitiously” (e.g., at night), still meet test if s/he leaves visible evidence (improvement; cultivation, etc.)

Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Many States also allow Many States also allow Reputation Evidence –OR-- Reputation Evidence –OR-- Availability of Info in Public Records Availability of Info in Public Records

DQ5.08 (Shenandoah) Open & Notorious & AP Purposes Fit into AP Purposes Purposes of APRole of Particular Element Repose Punish Sleeping OOEnough Notice to Show that OO Who Misses is Truly Asleep Reward Beneficial Use/Labor Protect Connection/ Investment

Adverse Possession Open & Notorious: Overview Easy Qs/Hard Qs Easy YES: Very Hard to Lose on O&N if Meet “Actual Use” Hard Qs: 1. Marengo Caves (P114-15) 2. Boundary Disputes & Small Overlap (e.g., 2 feet) (Rev. Probs. 5B & 5H)

Open & Notorious: Hard Qs Shenandoah DQ5.10: Marengo Caves (P114-15) Describe Facts. Why Was Use of Caves not Open & Notorious?

Open & Notorious: Hard Qs Shenandoah DQ5.10: Marengo Caves (P114-15) Upshot of Result Normal O&N: Q of notice not actual knowledge Comes from responsibility to monitor land Marengo Seems to require actual knowledge for underground AP. Means normal responsibility to monitor surface doesn’t apply underground Pros & Cons of Result?

Open & Notorious: Hard Qs Shenandoah DQ5.10: Marengo Caves (P114-15) Case Means Normal Responsibility to Monitor Surface Doesn’t Apply Underground Facts Missing from Note in Textbook APor had Given Tours of Caves for 46 Years (Well-Known; Big Signs) OO had Taken Tour of Caves Himself Modern Commentators Suggest Result is Wrong Hard to See What More APor Could Do On Test, Can Treat as Non-Binding Authority

Adverse Possession Open & Notorious: Overview Easy Qs/Hard Qs Easy YES: Hard to Lose on O&N if “Actual Use” Hard Qs: 1.Marengo Caves 2.Boundary Disputes & Small Overlap (e.g., 2 feet) (We’ll Come Back to) Issues re Notice v. Knowledge Similar to Underground See Review Problem 5B (Short Problem for DF) See Review Problem 5H (Opinion/Dissent in Class on Thurs 4/9)

Shenandoah DQ5.08: 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 Existence of Small Buildings Unrelated to OO Moving Outhouse Might Help for Periods He’s in Residence in Houseboat

Shenandoah DQ5.08: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On?

Shenandoah DQ5.08: 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

Shenandoah DQ5.08: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Lower court found element of “continuity” not met; thrust was that one month/year insufficient Court of Appeals discussion of evidence really encompasses “actual” & “O&N” & “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.

Shenandoah DQ5.11: Open & Notorious Evidence E. 13 th St.: Coalition of Squatters No Real Discussion of Element in Case Problem: Sometimes Use Apparent, Sometimes Not Could Characterize Problem 2 Ways Not Open & Notorious Not Continuous

Shenandoah DQ5.11: Open & Notorious Evidence E. 13 th 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)

Shenandoah DQ5.09: Open & Notorious Evidence inVezey Vezey says that the claimant met this requirement because the record title holders had actual knowledge that she was possessing the parcel in question (P110). Would she have met the requirement if they had not? Note that court assumes actual knowledge is sufficient to meet O&N requirement.

Open & Notorious Qs on “Open & Notorious” Element?

Review Problem 5B: Open & Notorious Element Arguments in DF Today & Tuesday 3/31 Incorporates Hard Policy Qs Should OO of Large Wooded Lot Be Responsible for Knowing Where Boundary Lines Are?Should OO of Large Wooded Lot Be Responsible for Knowing Where Boundary Lines Are? If Encroachment Over Boundary Line is Slow Growth Over Extended Time, When (if Ever) Does It Become O&N?If Encroachment Over Boundary Line is Slow Growth Over Extended Time, When (if Ever) Does It Become O&N?

ARCHES: Continuous & DQ DELICATE ARCHES

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Continuous 4. Exclusive 5. Adverse/Hostile Panel Responsibilities Primary: Arches Rev. Prob. 5G: ALL (In DF Today & Tues 3/31) Rev. Prob. 5F (Tue 4/7) Biscayne (Plaintiff) Arches (Defendant) Shenandoah (Critique)

Adverse Possession Continuous: Overview Focus: Time Used Without Interruption Again Two Issues (We’ll Do Separately) (1) What constitutes sufficient interruption to stop clock? (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: When can you add the time of successive Os or APors to get to SoL

Continuous: Overview Fit into AP Purposes Purposes of APRole of Particular Element ReposeEnough Time to Merit Repose Punish Sleeping OOConstant Notice; OO who Misses Must Be “Asleep” Reward Beneficial Use/Labor Labor More Likely Beneficial if Activity Continuous, Not Sporadic Protect Connection/ Investment Connections More Likely Strong if Activity Continuous, Not Sporadic

Continuous Overview: Easy Qs, Hard Qs Easy Cases YES: No Interruptions in Use at All Easy Cases NO: Significant Interruption(s) Different from Ordinary User Harder Cases Regular seasonal interruptions See Ray & Rev Prob 5G Irregular interruptions: emergencies etc. See Rev Prob 5F

Arches DQ5.17: Continuous Evidence Ray: Creepy Summers in Empty Resort Court: Same Evidence as for O&N Sufficient to Put OO on Notice Court Says Time Spent was “Most of Colonel Ray’s Leave Time.” Why Relevant?

Arches DQ5.17: Continuous Evidence Ray: Creepy Summers in Empty Resort Test (P198): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Need to check character of disputed lot “Continuous” differs for, e.g., wild & undeveloped land residential agricultural

Arches DQ5.17: Continuous Evidence Ray: Creepy Summers in Empty Resort Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Under Tests Like This, Lots of Cases Say Seasonal Use of Seasonal Property is Sufficiently Continuous E.g., Summer Houses and Ski Cabins (Howard v. Kunto) Generally No Requirement of Evidence of Use in Off-Season Pros & Cons of Approving Seasonal Use for AP?

Continuous: Seasonal Use Seasonal Use Fit into AP/Continuous Purposes? Purposes of APRole of Particular Element ReposeEnough Time to Merit Repose Punish Sleeping OOConstant Notice; OO who Misses Must Be “Asleep” Reward Beneficial Use/LaborLabor More Likely Beneficial if Activity Continuous, Not Sporadic Protect Connection/ InvestmentConnections More Likely Strong if Activity Continuous, Not Sporadic

Arches DQ5.17: Continuous Evidence Ray: Creepy Summers in Empty Resort Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Seasonal Use of Seasonal Property is Sufficiently Continuous Generally No Requirement of Evidence of Use in Off-Season Note: Residence in Ray Shorter than Typical Seasonal Use One month v. 3-4 month season Court seems to allow b/c year-round evidence of presence Suggests argument that unusual interruptions OK under test if sufficient evidence of use remains (blurs O&N/Continuous)

Arches DQ5.16: Continuous Evidence Other Cases Ray Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Lutz: Garden of Great Depression? Bell: Floating House & Shifting Outhouse? Vezey: Past as Key to the Present

Washington List of Elements v. Ours Bell List of Elements (S116) #2: “actual & uninterrupted” = What we would call both “actual” and “continuous”

Continuous: More Hard Cases Ray Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” This test also creates issues re i) Emergency interruptions ii) Unusually long vacations (if residence or business) Presumably can follow Ray and ask re evidence of use that remains when APor is absent

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 Os or APors to get to SoL? Add time of both if privity But don’t if consecutive unrelated trespassers

Arches DQ5.18: Continuous Evidence in E. 13 th 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?

Shenandoah DQ5.15: Continuous Evidence in E. 13 th Street: Context Intermediate Appellate Court (Supreme Court Appellate Division v. NY Court of Appeals) Like Lutz: Overturning lower court decision despite supposed requirement of deference. Dissent: Enough evidence facts are like Ray to affirm. Equivalent of preserving space in Ghost town APors part of “cohesive group” (not quite privity)

Questions on “Continuous”?

Review Problem 5G: Continuous Element Arguments in DF Today & Tuesday 3/31 Incorporates Hard Policy Qs Is Use of Area Next to Amphitheater Every Time Amphitheater is Used be Equivalent to Seasonal Use?Is Use of Area Next to Amphitheater Every Time Amphitheater is Used be Equivalent to Seasonal Use? Does it Matter to Problem What Sort of Traces D’s Use Leaves Behind? What Sorts of Evidence Might There Be?Does it Matter to Problem What Sort of Traces D’s Use Leaves Behind? What Sorts of Evidence Might There Be? Ask David about his cool experiences hanging out with rock stars.Ask David about his cool experiences hanging out with rock stars.

Review Problem 5F: “Continuous” Element Review Problem 5F: “Continuous” Element (Tue 4/7) Biscayne (In-Class for Plaintiff) Arches (In-Class for Defendant) Shenandoah (Critique) Arguments/Missing Facts 1.Should the Five-Month Interruption for Medical Emergency in Problem Break Continuity? 2.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) 3.What is the Legal Significance of D not doing what M asked? (Yet another problem with David in it)