1. 3-30-17 National Doctors Day National Pencil Day
PROPERTY A SLIDES
National Doctors Day
National Pencil Day

2. Posted on Course Page by Noon Saturday
Music to Accompany E. 13th Street (& Squatters Everywhere) Rent (Original Broadway Cast) (1996)
Posted on Course Page by Noon Saturday
Write-Ups of Review Problems 4A, 4B, 4D
Assignments for Next Week
Assignment Sheet through End of Semester
Revised Instructions for Submitting Sample Exam Answers with List of Questions for Second Window

3. ELEMENTS OF ADVERSE POSSESSION
Our Sequence
Actual Use
Open & Notorious
Exclusive
Continuous
Adverse/Hostile
Primary Panel Responsibilities
ACADIA
DQ (Cont’d Today)
Review Problem 4C (Mon 4/3)

4. 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

5. Adverse Possession Open & Notorious: Easy Qs/Hard Qs
Easy YES: Hard to Lose on O&N if “Actual Use”
Hard Qs:
Marengo Caves
Holds that for Undertground AP, Need Actual Knowledge to meet O&N
Treat as Non-Binding Precesedent
Boundary Disputes & Small Overlap (e.g., 2 feet)
Issues Similar to Underground re Notice v. Knowledge
See Review Problem 4J (Short Problem for DF in Two Weeks)
See Review Problem 4K (Opinion/Dissent for Your Review; Can Do as Sample Q for Second Window)

6. Acadia 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

7. Acadia 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

8. Acadia 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 3 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.

9. Acadia DQ4. 09: Open & Notorious Evidence E. 13th St
Acadia 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 2 Ways
Not Open & Notorious
Not Continuous

10. Qs on “Open & Notorious” Element?
Acadia 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?

11. ACADIA 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:
Be Prepared to Argue Pros & Cons of Your Rule
Assume Must Be Met for Whole AP Period
Assignments by Last Name
A-F: Traditional O&N
G-O: Sensory Traces on Surface (Duty to Inquire for Reasonable OO)
P-Z: Marengo Rule

12. ELEMENTS OF ADVERSE POSSESSION
Our Sequence
Actual Use
Open & Notorious
Exclusive
Continuous
Adverse/Hostile
Panel Responsibilities
Everglades DQ
Rev. Prob. 4D (me)
Rev. Prob. 4E (Tues 4/4)

13. 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)

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

15. 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

16. Exclusive (Use by OO) Overview: Easy Qs
Easy Cases YES: No use at all by OO during relevant period (Lutz; Ray; Bell)
Easy Cases NO:
If court treats requirement “literally,” any knowing use by OO defeats AP
E.g.: NY Case (S110) 3 Weeks Storage of Construction Materials Defeats Exclusivity
Note re Lawyering
Note re Strong Anti-AP Approach

17. 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

18. 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)

19. 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-4F
c. See Miller in Note on S110: Overhanging eaves allowed owner to keep just area under eaves, not whole lot. Could suggest as solution for other cases with small OO use.

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

21. EVERGLADES: DQ4.13 Exclusive & Penn. Statute §5530(B)(S95)
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)

22. 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 or activity until 2002.
APor (John) Purchases w Good Faith Color of Title in 1992
Moved onto lot (10/1/92); grew plants for resale for 10-year 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

23. 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 Adv. Poss. Period
Very Hard to Resolve from Your Materials
If jurisdiction accepts literal argument, OO wins. Assume it doesn’t.
Look for Arguments/Missing Info

24. Arguments/Missing Info?
EVERGLADES: Rev. Prob. 4E (Tuesday) Last Names A-M (for OO = N) Last Names N-Z (for APor = D)
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.
Discuss whether a court should consider what OO has done enough in light of the policies implicated by this element.
Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome.

25. 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)

26. Exclusive (Use by Other 3d Parties) Overview
Need to behave like O vis-à-vis public
If you look no different from public, no good
FL: use of land by public in way that suggests public right defeats exclusivity of individual APor
BUT Penn. case (S110): some limited trespasses by public OK if APor behaving like O
Small group working together can jointly AP land
BUT if large enough group, looks liked public again, so no good. Sanchez (cited at P116).

27. Exclusive (Use by Other 3d Parties): DQ4.10: Bell
Bell: Floating House & Shifting Outhouse
Evidence in Case:
2 families use similarly to Bell
No attempt to by Bell to exclude or behave as O
E.g., didn’t ask for $ or permission
Compare land to houseboat, which he did lease out to someone else
Wash SCt say Bell loses b/c not acting like true O
Suggests Bell not very different than others
So why give him title?

28. Exclusive (Use by Other 3d Parties): DQ4.10: Bell
Bell quoting Wood (103)
“Exclusive dominion over land is the essence of possession, and it can exist in unused land if others have been excluded therefrom. A fence is the usual means relied upon to exclude strangers and establish the dominion and control characteristic of ownership.”
As much about Actual as Exclusive
Fence not only way to establish dominion vis-à-vis strangers!!!
Can physically chase away
Can grant permission/accept money for use

29. Exclusive (Use by Other 3d Parties) Overview
Fit into AP Purposes
Purposes of AP
Role of Particular Element
Repose
Punish Sleeping OO
Reward Beneficial Use/Labor
Worth Rewarding if Acting Along w Other 3d Parties?
Protect Connection/ Investment
Enough Interest to Protect if Acting Along w Other 3d Parties?

30. 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)
Qs on Exclusive

31. ELEMENTS OF ADVERSE POSSESSION
Our Sequence
Actual Use
Open & Notorious
Exclusive
Continuous
Adverse/Hostile
Panel Responsibilities
Olympic DQ
Rev. Prob. 4G (ME)
Rev. Prob. 4H (Next Thursday)

32. 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

33. Continuous: Overview Fit into AP Purposes Purposes of AP
Role of Particular Element
Repose
Enough Time to Merit Repose
Punish Sleeping OO
Sufficiently Constant 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

34. 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 4G
Irregular interruptions: emergencies etc. See Rev Prob 4H

35. OLYMPIC: “Continuous” in the Cases DQ4.14-4.16
EEL GLACIER

36. Court: Same Evidence as for O&N Sufficient to Put OO on Notice
Olympic DQ4:15: 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?

37. OlympicDQ4:15: Continuous Evidence Ray: Creepy Summers in Empty Resort
Test (P98): “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

38. Pros & Cons of Approving Seasonal Use for AP?
Olympic DQ4:15: 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?

39. Pros & Cons of Approving Seasonal Use for AP?
Olympic DQ4:15: 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
Pros & Cons of Approving Seasonal Use for AP?
Easier for OO to Miss; Hard Lines to Draw v.
APor Shouldn’t Have to do More Than Ord. Owner

40. Continuous: Seasonal Use
Seasonal Use Fit into AP/Continuous Purposes?
Purposes of AP
Role of Particular Element
Repose
Enough Time to Merit Repose
Punish Sleeping OO
Sufficiently Constant 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

41. Seasonal Use of Seasonal Property is Sufficiently Continuous
Olympic DQ4:15: 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. 2-3 month season (NY Schools Out ~ June 22-Labor Day)
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 (again blurs O&N/Continuous)

42. Olympic DQ4:14: 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?

43. Washington List of Elements v. Ours
Bell List of Elements (S103)
#2: “actual & uninterrupted” =
What we would call both “actual” and “continuous”

44. 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
Review Problem 4G (S113)