PROPERTY D SLIDES

PROPERTY D SLIDES3-25-14

Tuesday March 25 Music (to Accompany Tuesday March 25 Music (to Accompany Ray):Ray):

Barry Manilow: Summer of ‘78 Barry Manilow: Summer of ‘78 (1996)(1996)

Annual NCAA Sweet 16 Contest (“Marc Madness”)

• High Score from Section D Gets Free Dinner • Electronic Forms on Course Page • E-Mail entry to me by 4:30 Thursday

• (OR) Hard Copy Forms Here Today & Thursday• Can hand-in to me at break or after class.

• Can deliver to me or to my assistant Michelle by 4:30 Thursday.

ELEMENTS OF ADVERSE POSSESSION

Our Sequence1.Actual Use (cont’d)2.Open & Notorious3.Exclusive4.Continuous5.Adverse/Hostile

Panel Responsibilities

Rev. Prob. 5A (3/27):

In-Class: YellowstoneCritique: Arches

Actual Use: DQ5.06Bell: Floating House & Shifting Outhouse

Evidence of Actual Use?1.Cultivation, Improvements, Enclosure (& Residence)?2.Activity Like Owners of Similar Property? 3.Fit Purposes of AP/Actual?


Evidence of Actual Use?•Cultivation, Improvements, Enclosure (& Residence)• No Cultivation or Enclosure• Improvements: Sauna, Woodsheds, Moving

Outhouse• Residence: Not Really; Lives on Houseboat

•Activity Like Os of Similar Property? Tricky.•Fit Purposes of AP/Actual? Notice v. Labor/Connection


• Washington S.Ct. Decides Case on “Exclusive”• Doesn’t Rule on “Actual Use”• BUT Could Easily Have Held Insufficient

Evidence

Qs on “Actual Use” Element?

LOGISTICS: Review Problems 5A, 5D, 5E

Old Short Exam Problems; One AP Element Old Short Exam Problems; One AP Element EachEach–I’ll Give You a Slide w Some Guiding Qs at End of the Classwork on the Relevant Element

– Treat Individual State’s Law as Persuasive Authority

– Students on Responsible Panel:Students on Responsible Panel:• Prepare Strongest Arguments on Both Sides of Guiding Qs• Stick to the Element in Q

LOGISTICS: Review Problems 5A, 5D, 5E

Old Short Exam Problems; One AP Element Old Short Exam Problems; One AP Element EachEach–We’ll Do at the Start of the Class for which the Problem is Assigned• Four Students Will be Assigned to Represent Each Party• I’ll Put Up Slide With Assignments By 7:35 so You Can Do Extra Prep

–I will primarily work with the assigned lawyers, so keep hands down until I ask for more general input–Critiquing Panel: Critiquing Panel: • Critique the “Lawyers’” Arguments; Not the Underlying Law• Stick to the Element in Q

Review Problem 5A: “Actual Use” Review Problem 5A: “Actual Use” Element (3/27)Element (3/27)

In-Class Arguments: Yellowstone In-Class Arguments: Yellowstone Critique: Critique: ArchesArches

Arguments/Missing Facts?Arguments/Missing Facts?1.Cultivation, Improvements, Enclosure

a. Enclosure Separately b. All Three Together

2.Activity Like Owner of Similar Property?3.Activity Meet Purposes of AP/Actual Use?


Our Sequence1.Actual Use

2.Open & Notorious3.Exclusive4.Continuous5.Adverse/Hostile


Primary: Biscayne

Review Problem 5B(for Dean’s Fellow)

Open & Notorious: BackgroundOpen & Notorious: Background Important Distinction Important Distinction

• Actual Knowledge (Fact Q): Person in Q is Aware of Relevant Fact v.

• Notice (Legal Q): Under the Circumstances, Person in Q Should Be Aware of Relevant Fact• “Ignorance of Law is No Excuse”: People Have

Sufficient Notice of What Law Is (Even if no Actual Knowledge)

• You Are Supposed to Be Monitoring Your Own Property, so if Activity is Deemed “Open & Notorious”, You Will Be Treated as Having Notice of the AP Claim

Adverse Possession Adverse Possession Open & Notorious: OverviewOpen & Notorious: Overview

1. Focus: Visibility/Notoriety to OO Checking Property•Common Test: “Use Visible to one on Surface of Property”•Florida Version: “Sufficient to put a person of Ordinary Prudence on Notice”


The Reasonable Man Ordinary Prudence


1. Focus: Visibility/Notoriety to OO Checking Property•Common Test: “Use Visible to one on Surface of Property”• Not Concerned with Visibility by Neighbors• Common Error: Concern re Sneaking or Hidden from Common Error: Concern re Sneaking or Hidden from

Street (v. on Surface)Street (v. on Surface)• See Casebook @ P119: Use should not be “surreptitious.”• BUT even if APor acts “surreptitiously” (e.g., at night), still

meet test if s/he leaves visible evidence (improvement; cultivation, etc.)


1. Focus: Visibility/Notoriety to OO Checking Property•Common Test: “Use Visible to one on Surface of Property”•Many States also allow Many States also allow • Reputation Evidence –OR-- Reputation Evidence –OR-- • Availability of Info in Public RecordsAvailability of Info in Public Records

BISCAYNE: DQs 5.07-5.09

SUNRISE AT ADAMS KEY

DQ5.07 (Biscayne)DQ5.07 (Biscayne)Open & Notorious & AP Purposes Open & Notorious & AP Purposes

Fit into AP Purposes?

Purposes of AP Role of Particular ElementReposePunish Sleeping OOReward Beneficial Use/LaborProtect Connection/ Investment

DQ5.07 (Biscayne)DQ5.07 (Biscayne)Open & Notorious & AP Purposes Open & Notorious & AP Purposes

Fit into AP Purposes

Purposes of AP Role of Particular ElementReposePunish Sleeping OO Enough Notice to Show that

OO Who Misses is Truly AsleepReward Beneficial Use/LaborProtect Connection/ Investment


Easy Qs/Hard Qs•Easy YES: Hard to Lose on O&N if “Actual Use”•Hard Qs:

1. Marengo Caves2. Boundary Disputes & Small Overlap (e.g., 2 feet)

Open & Notorious: Hard QsOpen & Notorious: Hard QsBiscayne DQ5.08: Biscayne DQ5.08: Marengo Caves (P119-Marengo Caves (P119-

20)20)

• Describe Facts• Why Was Use of Caves not Open &

Notorious?


20)20)• Upshot of Result• Normal O&N: • Q of notice not actual knowledge • Comes from responsibility to monitor land

• Marengo • Seems to require actual knowledge for

underground AP.• Means normal responsibility to monitor surface

doesn’t apply underground

Pros & Cons of Result?Pros & Cons of Result?


20)20)• Case Means Normal Responsibility to Monitor

Surface Doesn’t Apply Underground

• Facts Missing from Note in Textbook• APor had Given Tours of Caves for 46 Years (Well-

Known; Big Signs)• OO had Taken Tour of Caves Himself

• Modern Commentators Suggest Result is Wrong• Hard to See What More APor Could Do• On Test, Can Treat as Non-Binding Authority


Easy Qs/Hard Qs•Easy YES: Hard to Lose on O&N if “Actual Use”•Hard Qs:

1. Marengo Caves2. Boundary Disputes & Small Overlap (e.g., 2 feet)

(We’ll Come Back to)• Issues re Notice v. Knowledge Similar to Underground• See Review Problem 5B (Short Problem for DF)• See Review Problem 5H (Opinion/Dissent for Your Review)

Biscayne DQ5.07: Biscayne DQ5.07: Open & Notorious EvidenceOpen & 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• Existence of Small Buildings Unrelated to

OO• Moving Outhouse Might Help for Periods

He’s in Residence in Houseboat

Biscayne DQ5.07: Open & Notorious Biscayne DQ5.07: Open & Notorious EvidenceEvidence

Ray: Ray: Creepy Summers in Empty ResortCreepy Summers in Empty Resort

• Court: “Constant & Conspicuous Use”

• Evidence Relied On?


Ray: Ray: Creepy Summers in Empty ResortCreepy Summers in Empty Resort• Court: “Constant & Conspicuous Use”

Evidence Relied On?


Ray: Ray: Creepy Summers in Empty ResortCreepy 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


Ray: Ray: Creepy Summers in Empty ResortCreepy Summers in Empty Resort• Lower court found element of “continuity”

not met; thrust was that one month/year insufficient

• Court of Appeals discussion of evidence really encompasses “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.


E. 13E. 13thth St.: St.: Coalition of SquattersCoalition 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


E. 13E. 13thth St.: St.: Coalition of SquattersCoalition 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?


Our Sequence1.Actual Use2.Open & Notorious

3.Exclusive4.Continuous5.Adverse/Hostile


Primary: RedwoodRev. Prob. 5D

(3/31):In-Class: Redwood

Critique: Shenandoah

Adverse Possession Adverse Possession Exclusive: OverviewExclusive: Overview

Focus: Use by Others Beside APor. Two Issues (We’ll Do Separately)

1.Less Common Issue: Also use by other third parties (non-owners)2.More Common Issue: Also use by OO

Exclusive (Use by Other 3d Parties)Exclusive (Use by Other 3d Parties)OverviewOverview

• Need to behave like O vis-à-vis public• If you look no diff from public, no good• FL: use of land by public in way that suggests public

right defeats exclusivity of individual APor• BUT Penn. case (S121): 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 P121).

REDWOOD: DQ 5.11-5.12

REDWOODS & FERNS

Exclusive (Use by Other 3d Parties):Exclusive (Use by Other 3d Parties):Redwood: DQ5.11: Redwood: DQ5.11: BellBell

Bell: Floating House & Shifting Outhouse

•What Was Evidence of Others’ Use?•Why Did Court Say Bell Loses?

Exclusive (Use by Other 3d Parties):Exclusive (Use by Other 3d Parties):Redwood: DQ5.11: Redwood: DQ5.11: BellBell

Bell quoting Wood (S116)“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 achieve • Can physically chase away• Can grant permission/accept money for use

Exclusive (Use by Other 3d Parties)Exclusive (Use by Other 3d Parties)OverviewOverview


Purposes of AP Role of Particular ElementReposePunish Sleeping OOReward 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?

Exclusive (Use by OO)Exclusive (Use by OO)OverviewOverview

• More Common Issue: Use by OO

• Focus/Relevant Evidence: What did OO do on claimed land during AP period



Purposes of AP Role of Particular ElementReposePunish Sleeping OO

Reward Beneficial Use/LaborProtect Connection/ Investment



Purposes of AP Role of Particular ElementReposePunish Sleeping OO OO not sleeping if using

claimed landReward Beneficial Use/LaborProtect Connection/ Investment

Exclusive (Use by OO)Exclusive (Use by OO)Overview: Easy QsOverview: Easy Qs

• Easy Cases YES: No use at all by OO duiring relevant period (Lutz; Ray; Bell)

• Easy Cases NO: • If court treats as literal, any knowing use by

OO defeats AP• NY Case (S121): 3 Weeks Storage of

Construction Materials Defeats Exclusivity• Note re Lawyering• Note re Strong Anti-AP Approach

Adverse Possession Exclusive (Use by OO): Hard Qs

1. Use by OO, but Not as Owner• OO unaware of own interest• OO acting with permission of

APor.

2. Short/Partial/Ineffective Assertions of OO Rts


1. Use by OO, but Not as Owner2. Short/Partial/Ineffective

Assertions of OO Rtsa. Significance of ineffective

attempts to bar entry?• Usually insufficient if don’t exclude

AP’or for significant period of time• Arguably true in E 13th St.


1. Use by OO, but Not as Owner2. Short/Partial/Ineffective Assertions

of OO Rtsa. Significance of ineffective attempts to

bar entry?b.Should limited acts by OO be enough?c. Use of road on edge of 100 acre lot (Rev Prob

5C)d. See Miller in Note on S121: overhanging

eaves allowed owner to keep just area under eaves, not whole lot. Could suggest as solution for other cases with small OO use.

Review Problem 5D: “Exclusive” Review Problem 5D: “Exclusive” Element (3/31)Element (3/31)

In-Class Arguments: Redwood In-Class Arguments: Redwood Critique: Critique: ShenandoahShenandoah

Arguments/Missing Info?Arguments/Missing Info?If jurisdiction accepts literal argument, D wins. Assume it

doesn’t1.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.2.Discuss whether a court should consider what D has done enough in light of the policies implicated by this element.3.Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome?

Redwood: DQ5.12Exclusive & Penn. Statute §5530(B)

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


Our Sequence1.Actual Use2.Open & Notorious3.Exclusive

4.Continuous5.Adverse/Hostile


Primary: Shenandoah

Rev. Prob. 5E (4/1):In-Class: Biscayne

Critique: Yellowstone

Adverse Possession Adverse Possession Continuous: OverviewContinuous: 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 (we’ll look at later)

Continuous: OverviewContinuous: Overview


Purposes of AP Role of Particular ElementReposePunish Sleeping OO

Reward Beneficial Use/LaborProtect Connection/ Investment

Continuous: OverviewContinuous: Overview


Purposes of AP Role of Particular ElementRepose Enough Time to Merit ReposePunish Sleeping OO 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

Continuous Overview: Easy Qs, Hard QsContinuous 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

5F• Irregular interruptions: emergencies etc. See Rev

Prob 5E

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