1. 4-3-19 National Chocolate Mousse Day National Tweed Day
PROPERTY B SLIDES
4-3-19
National Chocolate Mousse Day
National Tweed Day

2. Next Few DF Sessions: Rev Prob 4A (Actual)
Music to Accompany Bell The B-52s, COSMiC ThiNG (1989) featuring “Love Shack”
Next Few DF Sessions:
Rev Prob 4A (Actual)
9:40 (Lauren)
12:30 (Brendan)
Rev Prob 4F (Exclusive)
9:40 (Brendan)
Wed 9:40 (Lauren)
Friday’s Class (7:55-9:55)
Completion of Exclusive (EVERGLADES)
Course Selection Advice
Continuous (OLYMPIC)
Adverse/Hostile/State of Mind (Lecture)

3. On Course Page by Friday
LOGISTICS
On Course Page Now
Complete Supplements for Chapters 4 & 5
Complete Syllabus
Slides for 3/22, 3/27, 4/1
Detailed Instructions for In- Class Review Problems for Monday April 8 (Everglades, Badlands, Olympic)
On Course Page by Friday
Complete Assignment Sheet
Updated Instructions for Sample Exam Answer Submission Window #2
Answers/Explanations Memo from EFI Test (We’ll E- Mail You When Individualized Scores/Results are Available for Pick Up from Tina Sutton)

4. ELEMENTS OF ADVERSE POSSESSION
Our Sequence
Actual Use
Open & Notorious
Exclusive
Continuous
Adverse/Hostile
Primary Panel Responsibilities
BADLANDS
DQ (Cont’d Today but Mostly Lecture)
Review Problem 4C (Mon 4/8)

5. 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

6. 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. BADLANDS: DQ4.07 & Ray
NORBECK PASS

8. Court: “Constant & Conspicuous Use” Evidence Relied On?: (Lots!!)
Badlands DQ4.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort
Court: “Constant & Conspicuous Use”
Evidence Relied On?: (Lots!!)

9. Court: “Constant & Conspicuous Use” Evidence Relied On?: Lots!!
Badlands 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

10. Badlands 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 THREE 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.

11. 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 Two Ways
Not Open & Notorious
Not Continuous

12. 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?

13. BADLANDS 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/Tests:
Be Prepared to Argue Pros & Cons of Your Rule
Assume Test Must Be Met for Whole AP Period
Assignments by Last Name
A-E: Traditional O&N
F-PI: Sensory Traces on Surface (Duty to Inquire for Reasonable OO)
PO-Z: Marengo Rule

14. ACADIA: Review Problem 4B
Acadia Sunrise

15. ACADIA Review Problem 4B: “Actual Use” Element
Facts: AP Lives Next to Vacant Lot
Initially: Stone walls on 3 sides; graffiti; garbage
AP repaints walls; removes garbage; plants hedge across 4th side of lot.
For 10Y: AP washes off new graffiti, removes garbage; trims hedge.
Just looking at Actual Use; assume other elements met.

16. ACADIA Review Problem 4B: “Actual Use” Element
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!!

17. 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 (Mon 4/8)

18. 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)

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

20. 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

21. Exclusive (Use by OO) Overview: Easy Qs
Easy Cases YES: No use at all by OO during relevant period (Lutz; Ray; Bell;’Howard)
Easy Cases NO:
If court treats requirement “literally,” any knowing use by OO defeats AP
E.g.: NY Case (S118) 3 Weeks Storage of Construction Materials Defeats Exclusivity
Note re Lawyering
Note re Strong Anti-AP Approach

22. 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

23. 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)

24. 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-4G
c. See Miller in Note on S118: Overhanging eaves allowed owner to keep just area under eaves, not whole lot. Could suggest as solution for other cases with small OO use.

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

26. EVERGLADES: DQ4.13 Exclusive & Penn. Statute §5530(B)(S99)
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)?

27. 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/activity until 2002.
APor (John) Purchases w Good Faith Color of Title in 1992
Moved onto lot (10/1/92); grew plants for sale for 10Y 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

28. Very Hard to Resolve from Your Materials
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 SoL
Very Hard to Resolve from Your Materials
If state accepts literal argument, OO wins.
Can make this point quickly
Spend bulk of time on what happens if state doesn’t do literal.
Look for Arguments/Missing Info (E.g., Does Miller govern so just let OO keep what he used)
Be very careful to keep track of who is APor and who is OO and to focus on whether OO did enough (Big Prob 2017)