1. 4-3-17 National Chocolate Mousse Day National Tweed Day
PROPERTY A SLIDES
4-3-17
National Chocolate Mousse Day
National Tweed Day

2. Gonzaga Wins = Ortega Wins North Carolina Wins = Ezell Wins
Music to Accompany Bell The B-52s, COSMiC ThiNG (1989) featuring “Love Shack”
NCAA Contest Status
Gonzaga Wins = Ortega Wins
North Carolina Wins = Ezell Wins
Tomorrow’s Class
Course Selection Advice
Rev. Prob. 4E (Everglades)
Set-Up for DQ1.21 (All for Thurs.)
Intro to Chapter 5

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

4. MoNday Pop Culture Moment

5. Previously in Property A
Adverse Possession
Justifications: Statute of Limitations & Beyond
Color of Title & Its Significance
Elements: Rules, Focus, Evidence, Purpose
Actual Use (& Rev. Probs. 4A & 4B)
Cultivation, Enclosure, Improvements
Ordinary Owner of Similar Property
Open & Notorious (& Rev. Prob. 4C Today)
Exclusive
Continuous

6. Previously in Property A
Adverse Possession
Justifications: Statute of Limitations & Beyond
Color of Title & Its Significance
Elements: Rules, Focus, Evidence, Purpose
Actual Use
Open & Notorious
Exclusive
Acts of Other Third Parties (Bell)
Acts of OO & Rev. Prob. 4D (Rev. Prob 4E Tomorrow)
Continuous
Interruptions by APor & Rev. Prob. 4G (Rev. Prob. 4H Thurs.)
Tacking (Today)

7. COMPLETING ADVERSE POSSESSION 4/3-4/6
Rev. Prob. 4C: O&N Opinion/Dissent (ACADIA)
Continuous Element (Continued) (OLYMPIC/ME)
Adverse/Hostile Element & State of Mind (SEQUOIA/ME)
Boundary Disputes /Other Issues Outside the Elements (SEQUOIA/ME)
Set-Up for DQ 1.21 (Policy Implications) (ME)
Adv. Poss. of Gov’t Property (Davins)
2011 Florida Statutory Changes
Review Problem 4E: Exclusive (Minimal OO Use) (EVERGLADES)
Review Problem 4H: Continuous (Emergency Absence) (OLYMPIC)
DQ1.21 (Policy Implications) (ALL PANELS)

8. ACADIA: Review Problem 4C
Opinion Dissent Q from Spring 2016
What Should O&N Rule Be for Underground AP?
Lower Courts Identify 3 Possible Rules: ACADIAS each to Argue Pros & Cons of One Rule
Posture of Case Means No Need to Apply Rules to Facts/Allegations in Case (Can Use Story as Example of Why Rules are Good or Bad)

9. ACADIA: Rev. Prob.4C: Pros & Cons of Specific Rules
Rule from Marengo Caves :
Claimant of Underground Property Must Show that, for the Entire AP Period, OO had Actual Knowledge of Claimant’s Use of the Property. (Not Alleged in Case)
Pros & Cons?
(Last Names P-Z)

10. ACADIA: Rev. Prob.4C: Pros & Cons of Specific Rules
Ordinary O&N Rule
Claimant of Underground Property Must Show that, for the Entire AP Period, an OO Standing in the Claimed Area Should Be Made Aware of Claimant’s Use of the Property. (Alleged and Presumably Easily Met in Case)
Pros & Cons?
(Last Names A-F)

11. ACADIA: Rev. Prob.4C: Pros & Cons of Specific Rules
Concurrence’s Sensory Traces Rule
Claimant of Underground Property Must Show, for Entire AP Period:
Either Actual Knowledge by the OO (Not Alleged)
OR that the underground possession created traces such as noise, smoke, smells, light or vibrations
that could be sensed by humans on the surface of the OO’s lot
sufficient to create a duty to inquire in a “reasonably prudent person.”
(Roughly Alleged in Complaint)
Pros & Cons? (Last Names G-O)

12. COMPLETING ADVERSE POSSESSION 4/3-4/6
Review Problem 4C: O&N Opinion/Dissent (ACADIA)
Continuous Element (Continued) (OLYMPIC/ME)
Adverse/Hostile Element & State of Mind (SEQUOIA/ME)
Boundary Disputes /Other Issues Outside the Elements (SEQUOIA/ME)
Set-Up for DQ 1.21 (Policy Implications) (ME)
Adv. Poss. of Gov’t Property (Davins)
2011 Florida Statutory Changes
Review Problem 4E: Exclusive (Minimal OO Use) (EVERGLADES)
Review Problem 4H: Continuous (Emergency Absence) (OLYMPIC)
DQ1.21 (Policy Implications) (ALL PANELS)

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

14. 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) Interruptions by APor:
Legal test often as in Ray:
Use like an ordinary owner of similar property
(2) Tacking: (Today)

15. Arguments/Missing Facts
Olympic: Review Problem 4H (Next Thursday) Last Names M-Z (for APor M) Last Names A-L (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?)

16. 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?

17. Everyone is One Lot Over from Their Deed
Cases: Brief Introduction with Memory Aids Howard v. Kunto (Wash. App. 1971)
Everyone is One Lot Over
from Their Deed

18. OLYMPIC: “Continuous” in E. 13th Street DQ4.16
EEL GLACIER

19. 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?

20. 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.

21. 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?

22. COMPLETING ADVERSE POSSESSION 4/3-4/6
Review Problem 4C: O&N Opinion/Dissent (ACADIA)
Continuous Element (Continued) (OLYMPIC/ME)
Adverse/Hostile Element & State of Mind (SEQUOIA/ME)
Boundary Disputes /Other Issues Outside the Elements (SEQUOIA/ME)
Set-Up for DQ 1.21 (Policy Implications) (ME)
Adv. Poss. of Gov’t Property (Davins)
2011 Florida Statutory Changes
Review Problem 4E: Exclusive (Minimal OO Use) (EVERGLADES)
Review Problem 4H: Continuous (Emergency Absence) (OLYMPIC)
DQ1.21 (Policy Implications) (ALL PANELS)

23. ELEMENTS OF ADVERSE POSSESSION
Our Sequence
Actual Use
Open & Notorious
Continuous
Exclusive
Adverse/Hostile
Panel Responsibilities
Sequoia DQ

24. 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

25. 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

26. 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”

27. 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

28. 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?

29. 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 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”)

30. 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”

31. 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

32. 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 4 issue: Possibility of Reverter becoming Fee immediately when condition violated)

33. 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?