1. 4-12-19 NATIONAL GRILLED CHEESE SANDWICH DAY
PROPERTY B SLIDES
NATIONAL GRILLED CHEESE SANDWICH DAY

2. PLEASE PICK UP CHAPTER 3 TEST SCORE (IF YOU HAVEN”T DONE SO)
Music to Accompany Technical Difficulties Fajer, “$$#(*& !~!>>*”
PLEASE PICK UP CHAPTER 3 TEST SCORE (IF YOU HAVEN”T DONE SO)
Last Few DF Sessions:
Review Problem 4M (Lauren: AP Lawyering): Today & Next Wed 4/17
Review Problem 5G (Brendan: Short Easement Prob) Next Mon 4/15 & Next Fri 4/19
CORRECTION: Chevy P771 6th Line from Bottom: “dominant” should be “servient” P789 Last Paragraph Line 5: “licensor” should be “licensee”

3. COMPLETING ADVERSE POSSESSION 4/8
Closing Up Prior Material
Review Problem 4I: Continuous (Emergency Absence)
Adverse/Hostile Element & State of Mind & Misc.
Boundary Disputes (SEQUOIA/ME)
DQ 1.22 (Policy Implications)
SEQUOIA: (a) Lessons from Cases
OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins)
ME: (c) Color of Title & Alaska & Washington Statutes
BADLANDS: (d) Environmental Concerns
EVERGLADES: (e) Homelessness

4. Arguments/Missing Facts
Closing Up Review Problem 4I Continuous: Five-Month Absence for Medical Reasons
Arguments/Missing Facts
Role of David:
Significance of Cat (Litter Box/Food)
Significance of D not doing what M asked? Policy Q
Focus on APor: Reward for Doing Best She Could?
Focus on OO: Should only count whast inspection would reveal
Ray Analysis: This class didn’t have Ray, so not in comments/models; If state applies Ray analysis, probably easy if clothes & furniture remain in house

5. Closing Up Adverse/Hostile State of Mind
Review Prior Slides on Adv/Host/SoM. Some Key Ideas :
Adverse/Hostile always includes lack of permission
Most States Do Not Require Any Particular SoM
If Required,
Sometimes Under Adv/Host;
Sometimes Called Claim of Right or Claim of Title
Big Trend Since 2008 Real Estate Crash:
Eliminate or Limit AP w/o Color of Title (Alaska/Wash/FL)
Limit to Good Faith (Alaska re Boundasry Disputes)

6. Lutz v. Ray: Why Might NY Ct. App. Be More Generous to Rays
Lutz v. Ray: Why Might NY Ct.App. Be More Generous to Rays? Possibilities:
My Original List
Although Rays not claiming under color of title, D’s predecessors never paid her for cottage, so maybe some rights retained.
Better proof of specific area claimed.
Lutz Majority might not have liked changing litigation strategy.
Other Ideas from Prior Classes
Socio-Economic Differences (Summer Home Os v. Unemployed)
Ray’s Military Service
Maybe Upkeep in Abandoned Resort seen as More Socially Useful

7. Adverse/Hostile & State of Mind Bell & DQ4.18
Bell Arguments that state of mind should be irrelevant:
AP depends on “character of [APor’s] possession,” not of APor’s “secret thoughts.” Can’t get AP by thoughts alone, so can’t think yourself out of it.
Doctrine protects both knowing & unknowing APors
Law Clearer w/o Intent = Presumably difficult to prove, especially on old claims

8. Adverse/Hostile & State of Mind Bell & DQ4.18
Other arguments that state of mind should be irrelevant:
Trespass doesn’t require particular state of mind: SoL is running regardless
Encourages lying by APor
Repose & Sleeping OO Concerns Not Connected to State of Mind

9. Adverse/Hostile & State of Mind Bell & DQ4.18
Reasons to Have State of Mind Requirement
Maybe inappropriate to reward knowing “theft” of land
Maybe inappropriate to reward mistake w no intent to claim
BUT any SoL means that people can get away w tort or breach of contract w no liability
What state of mind requirement best serves the purposes of AP (if no color of title)? (For You)

10. State of Mind Famous Scholarly Debate Noted in Textbook
Regardless of Doctrine/Language About State of Mind, Cases Tend to Favor Parties Acting in Good Faith
Arguably consistent with Our Primary Cases
E.g., No Technical Color of Title in Ray or Vezey; Unclear in Howard, BUT
Claimants arguably acting in good faith under circumstances.
Claimants treated generously by courts
HOLD QS ON STATE OF MIND FOR AFTER CLASS OR S.

11. COMPLETING ADVERSE POSSESSION 4/8
Closing Up Prior Material
Review Problem 4I: Continuous (Emergency Absence)
Adverse/Hostile Element & State of Mind & Misc.
Boundary Disputes (SEQUOIA/ME)
DQ 1.22 (Policy Implications)
SEQUOIA: (a) Lessons from Cases
OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins)
ME: (c) Color of Title & Alaska & Washington Statutes
BADLANDS: (d) Environmental Concerns
EVERGLADES: (e) Homelessness

12. Adverse Possession Boundary Disputes: Overview
Some States : Different requirements for Boundary Disputes. Either or both of:
APor must have “bad” state of mind
Knows it isn’t hers and intends to take
Sometimes called “Maine Doctrine”
Open & Notorious = Actual Knowledge by OO that on OO’s land (cf. Marengo Caves)

13. Adverse Possession Boundary Disputes: Overview
Some States : Different requirements for Boundary Disputes. Either or both of:
APor must have “bad” state of mind
Open & Notorious = Actual Knowledge by OO
Either Rule Means No AP by Mutual Mistake in Boundary Disputes
Policy Arguments Basis for Rev. Prob. 4K (Opinion/Dissent; Can Do for 2d Window Submission)

14. Adverse Possession Boundary Disputes: Overview
Alaska Statute (a) (S97):
Explicitly allows AP of Border Strips where mutual mistake, although increases SoL to 10Y (from 7)
Direct contrast to states that use O&N or State of Mind to prevent AP of border strips by mutual mistake.

15. Why might states treat boundary disputes differently?
DQ4.19: Boundary Disputes: Policy Considerations Recap from Beginning of Chapter
Why might states treat boundary disputes differently?
Concern re Neighborly Relations
Maybe discourage lawsuits by neighboring APors by making difficult to win; requiring testimony re own “bad faith”
Maybe Different Expectations re Diligent Behavior by OO
Often hard to be exact about property line; maybe shdn’t have to be aware of w precision
Much less likely to be missing dangerous use of claimed land
Much less need for productive use of bortder strip

16. Nightmare on 68th Street & DQ4.20
Miami Herald Article on Boundary Dispute
Raises Policy Qs I Gave You in DQ4.20
Should Deed plus [Good Faith Belief in] Incorrect Survey = Color of Title for Disputed Strip?
If so, APor Likely Wins
If No Color of Title …

17. Nightmare on 68th Street & DQ4.20
Article Raises Policy Qs I Gave You in DQ4.20
Should Deed plus [Good Faith Belief in] Incorrect Survey = Color of Title for Disputed Strip?
If so, APor Likely Wins
If No Color of Title, APor Must Pay Taxes in FL & Some Other States
Should good faith payment of all taxes assessed meet statutory reqmt?

18. Nightmare on 68th Street & DQ4.20
Article Raises Policy Qs I Gave You in DQ4.20
If Deed plus [Good Faith Belief in] Incorrect Survey is NOT Color of Title AND
Good faith payment of all taxes assessed does NOT meet statutory reqmt for taxes where no color of title…
There will almost never be successful boundary dispute AP (Similar policy considerations to O&N and state of mind for boundary disputes).

19. SEQUOIA (A-K): DQ4.21
SEQUOIAS

20. Nightmare on 68th Street & DQ4.21
SEQUOIA (A-K) What lessons might you draw from the “Nightmare” article about the best ways to handle the legal issues raised in DQ4.19 & and 4.20?
LESSONS FROM CASES IDEA:
IN Q3, can use or distinguish facts of cases in materials or of problem to further policy points in support of rule.
IN Q2/Q4, can use or distinguish facts of cases in materials to help support arguments for either party,

21. Nightmare on 68th Street & DQ4.21
SEQUOIA (A-K) What lessons might you draw from the “Nightmare” article about the best ways to handle the legal issues raised in DQ4.19 & and 4.20?
How do we want to treat BD, especially in Good Faith Like Nightmare
Re State of Mind of Apor & O&N (= SoM of OO)
Re What constitutes color of title/payment of taxes

22. COMPLETING ADVERSE POSSESSION 4/8
Closing Up Prior Material
Review Problem 4I: Continuous (Emergency Absence)
Adverse/Hostile Element & State of Mind & Misc.
Boundary Disputes (SEQUOIA/ME)
DQ 1.22 (Policy Implications)
SEQUOIA: (a) Lessons from Cases
OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins)
ME: (c) Color of Title & Alaska & Washington Statutes
BADLANDS: (d) Environmental Concerns
EVERGLADES: (e) Homelessness

23. DQ4.22: Adverse Possession Policy: Legislative Debate
State Legislature considering overhaul of Adv. Possession doctrine.
You are legislative aides addressing specific Qs.
So make arguments as to legislature
We’ll Go Through a few points for each

24. SEQUOIA (A-K): DQ4.22(a)
SEQUOIAS

25. DQ4.22(a) : AP Policy: Legislative Debate
SEQUOIA (A-K)
What arguments about the appropriate scope of adverse possession are suggested by the facts of the cases we covered in this chapter (other than Devins)?
Pick a case & formulate a position

26. COMPLETING ADVERSE POSSESSION 4/8
Closing Up Prior Material
Review Problem 4I: Continuous (Emergency Absence)
Adverse/Hostile Element & State of Mind & Misc.
Boundary Disputes (SEQUOIA/ME)
DQ 1.22 (Policy Implications)
SEQUOIA: (a) Lessons from Cases
OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins)
ME: (c) Color of Title & Alaska & Washington Statutes
BADLANDS: (d) Environmental Concerns
EVERGLADES: (e) Homelessness

27. OLYMPIC: DQs 2.22(b)
EEL GLACIER

28. Some Exceptions/Limits to AP Based in Difficulty of Enforcement
AP normally doesn’t run against future interest holder (e.g., successful AP while legal owner has life estate just gets the life estate, not any remainder)
States have different provisions that toll the statute of limitations if listed “disability” exists at time AP begins.
Helpful to have a general sense of the possible categories from readings (e.g., for Lawyering Q)
Don’t need to know specifics of operation
AP historically doesn’t run against the gov’t
“Time Doesn’t Run Against the King”
Trend is changing this (Devins)

29. Devins (NJ 1991): Key Points
Limits Traditional Rule; Can AP against Govt IF Not Used for (or Dedicated to) Public Purpose)
Notes Legal Trend to Limit Traditional Rule (# of State Laws Listed)
Reasons for Limiting Traditional Rule Here
Rule is Not Statutory, but Based in Caselaw
Prior Decisions Have All Involved Land Dedicated/Used for Public Purpose
Usual AP Concerns: Repose; Certainty; Stale Evidence
Incentives for Municipalities to Care for Land (Not Too Burdensome) & Make It Productive (Tax Rolls)
OLYMPIC (2.22(b)): Strengths & Weaknesses?
TESTED 2017 IN LAWYERING PROBLEM

30. COMPLETING ADVERSE POSSESSION 4/8
Closing Up Prior Material
Review Problem 4I: Continuous (Emergency Absence)
Adverse/Hostile Element & State of Mind & Misc.
Boundary Disputes (SEQUOIA/ME)
DQ 1.22 (Policy Implications)
SEQUOIA: (a) Lessons from Cases
OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins)
ME: (c) Color of Title & Wash. & Alaaska Statutes
BADLANDS: (d) Environmental Concerns
EVERGLADES: (e) Homelessness

31. DQ4.22: Adverse Possession Policy: Legislative Debate
(c) Shift Away from AP w/o Color of Title.
At time casebook went to print, New Mexico was only state that disallowed AP w/o Color of Title
Since housing crash in 2008 & resulting foreclosures, # of states have changed rules to eliminate or limit AP w/o coilor of title
Examples:
Florida 2011 statute makes it almost impossible
Alaska statute (S97) eliminates except for good faith border disputes
Washington statutes (S100-01) eliminate & add other limits (see njext slide)

32. DQ4.22: Adverse Possession Policy: Legislative Debate
(c) Washington Statutes on S
requires color of title and payment of taxes (7 years).
Result in Howard should be unchanged.
Bell & Lutz would fail for lack of color of title.
: Allows AP of vacant land with color of title simply by paying taxes for seven years.
: For Forestland (Seems aimed at Bell) : Increases SoL to 10 years
& Requires substantial improvements for whole period unless
good faith reliance on boundary markers set by registered surveyor OR
OO owns less than 20 acres of forestland in Washington

33. COMPLETING ADVERSE POSSESSION 4/8
Closing Up Prior Material
Review Problem 4I: Continuous (Emergency Absence)
Adverse/Hostile Element & State of Mind & Misc.
Boundary Disputes (SEQUOIA/ME)
DQ 1.22 (Policy Implications)
SEQUOIA: (a) Lessons from Cases
OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins)
ME: (c) Color of Title & Wash. & Alaaska Statutes
BADLANDS: (d) Environmental Concerns
EVERGLADES: (e) Homelessness

34. BADLANDS: DQ2.22(d)
NORBECK PASS

35. DQ4.22: Adverse Possession Policy: Legislative Debate
State Legislature considering overhaul of Adv. Possession doctrine.
You are legislative aides with each panel addressing specific Qs:
(d) (BADLANDS) What positions might environmental advocacy groups take on adverse possession generally?
On Devins?
See slide above re Washington Forestland Provision

36. COMPLETING ADVERSE POSSESSION 4/8
Closing Up Prior Material
Review Problem 4I: Continuous (Emergency Absence)
Adverse/Hostile Element & State of Mind & Misc.
Boundary Disputes (SEQUOIA/ME)
DQ 1.22 (Policy Implications)
SEQUOIA: (a) Lessons from Cases
OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins)
ME: (c) Color of Title
BADLANDS: (d) Environmental Concerns
EVERGLADES: (e) Homelessness

37. EGRET IN MANGROVE SWAMP
EVERGLADES: DQ2.22(e)
EGRET IN MANGROVE SWAMP

38. DQ4.21: Adverse Possession Policy: Legislative Debate
State Legislature considering overhaul of Adv. Possession doctrine.
You are legislative aides with each panel addressing specific Qs:
(e) (EVERGLADES) What positions might groups representing the interests of homeless people take on adverse possession generally?
On Devins?

39. Chapter 5: Easements Introduction
Terminology
Overview of Chapter 5 (+ Comparison to Others)
Interpreting Language: Scope of Express Easements
Positive Easements
Negative Easements
Implied Easements
By Estoppel
By Implication and/or Necessity

40. Chapter in Perspective
Chapter 5: Easements
Chapter in Perspective
Paradigm Conflicts:
Chapter 3 (& Some of 2): Present Rights v. Future and/or Conditional Rights
Chapters 1 & 4: Legal Owners v. Others Who Wish to Use (Implied Easements Similar)
Chapter 2: Express Division in Property Rights Created by Contract (Express Easements Similar  Let’s Compare)

41. Easements Landlord-Tenant
Divided Rights in the Same Piece of Land: Two Sets of Property Rights to Consider
Easements
Holder of Easement
Owner of Underlying Land (Servient Tenement)
Landlord-Tenant
Leaseholder (Term of Years)
Landlord (Holds Reversion)

42. Written Document Creating Express Easement
Divided Rights in the Same Piece of Land: Paradigm is Contractual: Terms/Intent Important -- Objective Manifestations of Parties’ Intent -- Reasonable Understanding under All the Circumstances
Easements
Written Document Creating Express Easement
Landlord-Tenant
Written Lease

43. Implied & Statutory Terms
Divided Rights in the Same Piece of Land: Paradigm is Contractual, BUT -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights
Easements
Written Document Creating Express Easement 
Implied Easements
Landlord-Tenant
Written Lease 
Implied & Statutory Terms

44. Easements Landlord-Tenant
Divided Rights in the Same Piece of Land Different Primary Skills Focus for Each
Easements
Using Stated & Unstated Facts to Work with Legal Rules/Standards
Landlord-Tenant
Working with Statutory Provisions
(though also some work with stated/ unbstated facts)