1. 2-23-15 NATIONAL BANANA BREAD DAY
PROPERTY D SLIDES
NATIONAL BANANA BREAD DAY

2. Last Lunch Today: Meet on Brix @ 12:25
Tuesday Feb 23 Music to Accompany Ray: Barry Manilow: Summer of ‘78 (1996)
Last Lunch Today: Meet on 12:25
Castillo * Clifton * Florio
Kuehl * Monje
J.Roberts * Sanz * Smith
Dean’s Fellow This Week:
Rev. Prob. 2D (Arguments from Poletown & Hatchcock)
Rev. Prob. 2G (General Approach & Sample Arguments)

3. Chapter 2: The Eminent Domain Power & the Public Use Requirement
Different than ConLaw I & CrimPro Issues:
Not trying to reconcile cases into coherent whole
Federal Rules + Separate/Different State Rules
Need good working understanding of each
To use on a short problem/issue-spotter
To identify relevant facts on a lawyering Q
To argue strengths & weaknesses on an issue-spotter
Need similar familiarity with elements of AP, etc.

4. Some General Concerns (can use to assess other rules in course)
Subject Matter Relevant & Important v. Irrelevant or Unimportant
Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough
Test is Workable v. Too Complex or Too Vague

5. Chapter 2: The Eminent Domain Power & the Public Use Requirement
Federal Public Use Standards
Background: Rational Basis
Possible Limits from Majority/KND in Kelo
State Public Use Standards
Poletown
Hatchcock

6. Rev. Prob. 2G & Rational Basis
Means: Rationally Related to Legitimate State Purpose
Essentially Complete Deference to Political Branches
Considerations:
Obviously a Workable Test
Deference here is good because…
Too much deference here is problematic because…

7. Chapter 2: The Eminent Domain Power & the Public Use Requirement
Federal Public Use Standards
Background: Rational Basis
Possible Limits from Majority/KND in Kelo
Mostly looking for evidence of corruption
Very specific list of facts; no guidance on how to use
State Public Use Standards
Poletown
Hatchcock

8. Some General Concerns (can use to assess other rules in course)
Cases Where Land Ends Up in Private Hands
Subject Matter Relevant & Important v. Irrelevant or Unimportant
Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough
Test is Workable v. Too Complex or Too Vague

9. Chapter 2: The Eminent Domain Power & the Public Use Requirement
Federal Public Use Standards
Background: Rational Basis
Possible Limits from Majority/KND in Kelo
State Public Use Standards
Poletown: Looking at Extent/Weight of Public Benefit
Hatchcock

10. Some General Concerns (can use to assess other rules in course)
Cases Where Land Ends Up in Private Hands
Subject Matter Relevant & Important v. Irrelevant or Unimportant
Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough
Test is Workable v. Too Complex or Too Vague

11. Chapter 2: The Eminent Domain Power & the Public Use Requirement
Federal Public Use Standards
Background: Rational Basis
Possible Limits from Majority/KND in Kelo
State Public Use Standards
Poletown
Hatchcock:
Three Narrow Doors Through
Meant to Stop Cases Like Poletown & Probably Kelo

12. Rev. Prob. 2G & Hatchcock Situation #2
Cases Where Land Ends Up in Private Hands
Accountability: Pros & Cons of Test
Means: Private entity remains responsible to public for its use
Considerations:
Subject Matter Relevant & Important v. Irrelevant or Unimportant
Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough
Test is Workable v. Too Complex or Too Vague

13. Some General Concerns (can use to assess other rules in course)
Cases Where Land Ends Up in Private Hands
Subject Matter Relevant & Important v. Irrelevant or Unimportant
Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough
Test is Workable v. Too Complex or Too Vague

14. CHAPTER 3: ADVERSE POSSESSION OVERVIEW (Continued)

15. Adverse Possession: Justifications DQ3.01: AP as SoL
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?

16. Adverse Possession: Justifications DQ3.01: AP as SoL
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?

17. Adverse Possession: Justifications Purposes Behind Adverse Possession More Broadly
Potential Ds: Adverse Possessors (APors)
Repose (Quiet Titles)
Reward/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

18. 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

19. 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 of Rules Doing This

20. Adverse Possession: Color of Title Olympic DQ 3.02
Writing (Incorrectly) Purporting to Give Title
Significance: Makes it Easier for APors to Prove Case
DQ3.02: Why do states have stricter requirements for AP w/o Color of Title?
Reward good faith; reward better title

21. Adverse Possession: Boundary Disputes v. AP of Complete Parcel
AP regarding overlapping borders, not whole lots.
Most Common Type of AP Case
Shows Up in Some of My Old Problems
Significance:
Changes Requirements/Elements in Some States
We’ll Go Through Some Specifics as We Cover Indiv. Elements
Won’t be Main Focus of Any Problem on Your Test

22. Adverse Possession: Boundary Disputes Olympic DQ 3.03
AP regarding overlapping borders, not whole lots
Significance: Changes Requirements/Elements in Some States
DQ3.03: Why Treat Boundary Disputes Differently?
1. Tension re diligent owners v. friendly relations w neighbors. (Cross-Reference Easements by Estoppel in Chapter 5)
2. Maybe different expectations re OO’s diligence (Al-Qaeda & 5-foot strip)
3. Less concern about underutilization of land

23. ELEMENTS OF ADVERSE POSSESSION
Our Sequence
Actual Use
Open & Notorious
Exclusive
Continuous
Adverse/Hostile
Panel Responsibilities
Primary: Acadia
Rev. Prob. 3A: Everglades
(In Class Thursday)

24. 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

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

26. Adverse Possession Actual Use: Overview
Cultivation, Enclosure, Improvements (CEI)
Rough Definitions (can check local law)
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”

27. Adverse Possession Actual Use: Overview
Cultivation, Enclosure, Improvements (CEI)
Part of DQ3.05: 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

28. 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)

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

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

31. 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 3A (Thurs) addresses some hard Qs
Qs on Overview of “Actual Use”?

32. Review Problem 3A: “Actual Use” Element Everglades: Thursday
Arguments/Missing Facts?
Cultivation, Improvements, Enclosure
Enclosure Separately
All Three Together
Activity Like Owner of Similar Property?
Activity Meet Purposes of AP/Actual Use?
Only Doing This One Element; Assume Others Met!!

33. Acadia: “Actual Use” in the Cases: DQ3.04-3.07
Acadia Sunrise

34. Actual Use Element in the Cases DQ3.04: Lutz (NY 1952)
Squatters’ Garden Thrives
During the Great Depression
Billie Holiday Sings

35. Actual Use: DQ3.04 (Acadia) Lutz: Garden of Great Depression
Why no focus on Charley Residing?
Maybe b/c area very small
Maybe b/c anticipated problem with [no] claim of title (we’ll come back to with both improvements in a couple of slides & with state of mind on Friday/Monday)
Even dissent seems to focus more on cultivation
So we’ll look mainly at CEI

36. Actual Use: DQ3.04 (Acadia) 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

37. Actual Use: DQ3.04 (Acadia) Lutz: Garden of Great Depression
If Need CEI:
Cultivation: “usually cultivated”
Evidence Here?
Why Rejected by Majority?
Why Did Dissent Disagree?

38. Actual Use: DQ3.04 (Acadia) 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?

39. Actual Use: DQ3.04 (Acadia) 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

40. Actual Use: DQ3.04 (Acadia) Lutz: Garden of Great Depression
Ability to Hear Testimony
She wants me to take her to the dance.

41. Actual Use: DQ3.04 (Acadia) 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.

42. Actual Use: DQ3.04 (Acadia) 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?

43. Actual Use: DQ3.04 (Acadia) 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?

44. Actual Use: DQ3.04 (Acadia) 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

45. Actual Use: DQ3.04 (Acadia) Lutz: Garden of Great Depression
Looking at Case as a Whole
Meet Purposes of Actual Use Element?
Might look at CEI cumulatively
Lutz in many casebooks b/c generally thought to be wrong.

46. Actual Use: DQ3.05 (Acadia) 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

47. Actual Use: DQ3.06 (Acadia) E. 13th St.: Coalition of Squatters
Possible Evidence of Actual Use
Imagination Exercise
Like Fact Research for Lawyering Q
How Prove “Living” in Apts in Q?