PROPERTY D SLIDES3-31-14

Monday March 31 Music to Accompany E. 13th Street

(& Squatters Everywhere)Rent (Original Broadway Cast) (1996)

Review Problem 5D: •Redwood (In-Class Arguments)• For Plaintiff (OO): Caruso, Hubbard, Rosendorf, Tarafa • (Alts: Munroe, Martinez)

• For Defendant (APor): L-Gallagher, Hunter, Morey, Melendez• (Alts: Romero, Sigurani)

•Shenandoah Critique due Wed. 4/2 @ 10:00 am

Review Problem 5D: “Exclusive” Review Problem 5D: “Exclusive” In-Class Arguments: Redwood In-Class Arguments: Redwood Critique: Critique:

ShenandoahShenandoah

• OO (Dolly) inherits lot w summer home & visits in 1990.

• APor (Nicole) Purchases w Good Faith Color of Title in 1992• Spends Every Summer on Lot 1992-2007

• OO visits in October 1999; plants flower bulbs in 15’ x 2’ strip.

• Never goes in house; doesn’t return again until 2007

• Flowers come up every spring.

I messed up procedure from problem. Let’s assume OO is plaintiff in lawsuit.

Review Problem 5D: “Exclusive” Review Problem 5D: “Exclusive” In-Class Arguments: Redwood In-Class Arguments: Redwood Critique: Critique:

ShenandoahShenandoahFor Ptff (OO): Caruso, Hubbard, Rosendorf, Tarafa (Alts: Munroe,

Martinez)

For Dfdt (APor): L-Gallagher, Hunter, Melendez, Morey (Alts: Romero, Sigurani)

Arguments/Missing Info?Arguments/Missing Info?If jurisdiction accepts literal argument, D wins. Assume it doesn’t

•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.•Discuss whether a court should consider OO’s acts enough in light of the policies implicated by this element.•Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome?

PROPERTY D: 3/31

Another Opening Day: Another Opening Day: A Brief Tribute to Jackie A Brief Tribute to Jackie

Robinson Robinson & Branch Rickey & Branch Rickey

PROPERTY D: 3/31

Another Another OpeningOpening Day … Day …

… … in Brooklyn!!! in Brooklyn!!!

Previously in Property DPreviously in Property D

Adverse PossessionAdverse Possession1.Justifications: Statute of Limitations & Beyond2.Color of Title & Its Significance3.Elements: Rules, Focus, Evidence, Purpose

a. Actual Use (& Rev. Prob. 5A)• Cultivation, Enclosure, Improvements• Ordinary Owner of Similar Property

b. Open & Notoriousc. Exclusived. Continuous

Previously in Property DPreviously in Property DAdverse PossessionAdverse Possession

1.Justifications: Statute of Limitations & Beyond2.Color of Title & Its Significance3.Elements: Rules, Focus, Evidence, Purpose

a. Actual Useb. Open & Notoriousc. Exclusive• Acts of Other Third Parties (Bell)• Acts of OO (& Rev. Prob. 5D Today)

d. Continuous• Interruptions by APor (& Rev. Prob. 5E

Tomorrow)• Tacking (Today)

LOGISTICS: GOING FORWARD

• Chapter 6 Materials Online (Switched to Easements)• Tomorrow I’ll Do Intro Lecture• Read Through Review Problem 6A; I’ll Use to Set Up Issues in First Part of Chapter 6

NCAA SWEET SIXTEEN CONTESTIf Kentucky wins tournament: Shari Munroe winsShari Munroe winsIf Connecticut plays Wisconsin: Andrew Kratzer Andrew Kratzer

winswinsOtherwise: Nicole Halmoukos winsNicole Halmoukos wins

ELEMENTS OF ADVERSE POSSESSION

Our Sequence1.Actual Use2.Open & Notorious3.Exclusive

4.Continuous, cont’d5.Adverse/Hostile

Panel Responsibilities

Primary: Shenandoah

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

Critique: Yellowstone

Adverse Possession Adverse Possession Continuous: Overview of TackingContinuous: 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 Os or APors to get to SoL?• Add time of both if privity• But don’t if consecutive unrelated

trespassers

SHENANDOAH (DQ5.15)

APPALACHIAN TRAIL

Shenandoah DQ5.15: Shenandoah DQ5.15: Continuous Evidence in Continuous Evidence in E. 13E. 13thth Street 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?

Shenandoah DQ5.15: Shenandoah DQ5.15: Continuous Evidence in Continuous Evidence in E. 13E. 13thth Street: Street:

ContextContext• Intermediate Appellate Court (Supreme

Court Appellate Division v. NY Court of Appeals)

• Like Lutz: Overturning lower court decision despite supposed requirement of deference.

• Dissent: Enough evidence facts are like Ray to affirm.• Equivalent of preserving space in Ghost town• APors part of “cohesive group” (not quite

privity)

Questions on “Continuous”Questions on “Continuous”

ELEMENTS OF ADVERSE POSSESSION

Our Sequence1.Actual Use2.Open & Notorious3.Exclusive4.Continuous

5.Adverse/Hostile

Panel Responsibilities

Primary: Biscayne

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

Adverse Possession Adverse/Hostile (& State of Mind):

OverviewAdverse/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

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”

Adverse Possession: State of Mind Requirements if No Color of

Title• Variations state to state• Variations: Boundary Disputes v. Other AP• Alternatives

1. Most States: State of mind irrelevant2. Some States Require Good Faith: Fatal to

know that you are not true O3. Some States Require Bad Faith: Must know

it’s not yours

BISCAYNE: DQ5.16-5.17

SUNRISE AT ADAMS KEY

Adverse/Hostile & State of MindAdverse/Hostile & State of MindBiscayne: Biscayne: Lutz & Lutz & DQ5.16DQ5.16

Lutz Lutz Majority makes apparently Majority makes apparently contradictory statements re necessary contradictory statements re necessary

state of mind: state of mind:

•Charlie’s Shack No Good: Knew it wasn’t Charlie’s Shack No Good: Knew it wasn’t their landtheir land

•Garage No Good: Thought it was their land.Garage No Good: Thought it was their land.

Ways to Reconcile?

Adverse/Hostile & State of MindAdverse/Hostile & State of MindBiscayne: Biscayne: Lutz & Lutz & DQ5.16DQ5.16

At Least 2 Ways to Reconcile:1.1.Rule: APors Must Knew It’s Not Theirs But Rule: APors Must Knew It’s Not Theirs But Intend to AP Anyway (not met for either building)Intend to AP Anyway (not met for either building)

2.2.Different Rules for Ordinary AP and for Different Rules for Ordinary AP and for Boundary DisputesBoundary Disputes

1.1. Ordinary AP (C’s Shack): Need Good FaithOrdinary AP (C’s Shack): Need Good Faith

2.2. Boundary Disputes (Garage): Need Bad Intent Boundary Disputes (Garage): Need Bad Intent (“Maine Doctrine”)(“Maine Doctrine”)

Adverse/Hostile & State of MindAdverse/Hostile & State of MindLutz: Lutz: Significance of Waiver 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”

• Dissent Response?Dissent Response?

Adverse/Hostile & State of MindAdverse/Hostile & State of MindLutz: Lutz: Significance of Waiver Significance of Waiver

In earlier litigation, Attorneys for In earlier litigation, Attorneys for Lutzes stated that land belonged to Lutzes stated that land belonged to

VanValkenberghsVanValkenberghs•Dissent Interpretation:Dissent Interpretation:• Still enough evidence to support lower Still enough evidence to support lower

courtcourt• Behaved like true owner = claim of title Behaved like true owner = claim of title • Irrelevant what he thought as long as Irrelevant what he thought as long as

intent to acquire and use land as his own.intent to acquire and use land as his own.

• Waiver after fact irrelevant; title Waiver after fact irrelevant; title already passedalready passed

Adverse/Hostile & State of MindAdverse/Hostile & State of MindTiming of Waiver & AP PeriodTiming of Waiver & AP Period

• Waiver Waiver beforebefore AP period ends may make AP period ends may make it non-adverse; equivalent to permissionit non-adverse; equivalent to permission

• Waiver Waiver afterward afterward different (important different (important concept):concept):• Once statute has run, if you’ve met Once statute has run, if you’ve met

elements, title passes elements, title passes • Magic moment when legal ownership Magic moment when legal ownership

transfers (like possibility of reverter transfers (like possibility of reverter becoming fee immediately when condition becoming fee immediately when condition violated) violated)

Adverse/Hostile & State of MindAdverse/Hostile & State of MindTiming of Waiver & AP PeriodTiming of Waiver & AP Period

• Waiver Waiver beforebefore AP period ends may make it AP period ends may make it non-adversenon-adverse

• Waiver Waiver afterward afterward different:different:• Title passes the moment APors meet all Title passes the moment APors meet all

elementselements• From that momentFrom that moment• APors no longer have to meet elementsAPors no longer have to meet elements• Statements re lack of ownership not legally bindingStatements re lack of ownership not legally binding• State presumably can’t take away w/o paying. State presumably can’t take away w/o paying.

Questions on Waiver or Lutz?

Lutz Opinion v. Ray Opinion: Why Might NY Ct. App. Be More

Generous to Rays?

IDEAS?

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 Ray’s mother 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 the Class• Socio-Economic Differences (Summer Home Owners

v. Unemployed)• Ray’s Military Service• Maybe Upkeep in Abandoned Resort seen as More

Socially Useful

Adverse/Hostile & State of MindBiscayne: Bell & DQ5.17

DQ 5.17 What arguments does the Washington Supreme Court in Bell provide in support of its position that state of

mind is irrelevant?

Adverse/Hostile & State of MindBiscayne: Bell & DQ5.17

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

Other arguments that state of mind should be irrelevant?

Adverse/Hostile & State of MindBiscayne: Bell & DQ5.17

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

COUNTER-ARGUMENTS?

Adverse/Hostile & State of MindBiscayne: Bell & DQ5.17

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)? Save for policy discussion in DQ 5.21.

Qs on State of Mind?

Adverse Possession “Compounds”:Issues Beyond Individual Elements

1.Exceptions/Limits

2.Boundary Disputes (& Nightmare on 68th Street)

3.How Should AP Law Operate?

Note 7C: Exceptions/Limits to Adverse Possession (S125)

Details not important. Need to know:1.AP normally doesn’t run against the gov’t2.States have different disability provisions that toll the statute of

limitations– Helpful to have a general sense of the possible categories (e.g., for

Lawyering Q)– Don’t need to know specifics of operation

Adverse PossessionAdverse PossessionBoundary Disputes: OverviewBoundary Disputes: Overview

Some states have different requirements; 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)•Either = No AP by Mutual Mistake in Boundary Disputes