PROPERTY D SLIDES

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PROPERTY D SLIDES

• 3-25-14

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Tuesday March 25 Music (to Accompany
Ray)Barry Manilow Summer of 78 (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 430 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
  430 Thursday.

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ELEMENTS OF ADVERSE POSSESSION

• Our Sequence
• Actual Use (contd)
• Open Notorious
• Exclusive
• Continuous
• Adverse/Hostile

• Panel Responsibilities
• Rev. Prob. 5A (3/27)
• In-Class Yellowstone
• Critique Arches

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Actual Use DQ5.06Bell Floating House
Shifting Outhouse

• Evidence of Actual Use?
• Cultivation, Improvements, Enclosure (
  Residence)?
• Activity Like Owners of Similar Property?
• Fit Purposes of AP/Actual?

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Actual Use DQ5.06Bell Floating House
Shifting Outhouse

• 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

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Actual Use DQ5.06Bell Floating House
Shifting Outhouse

• Washington S.Ct. Decides Case on Exclusive
• Doesnt Rule on Actual Use
• BUT Could Easily Have Held Insufficient Evidence
• Qs on Actual Use Element?

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LOGISTICS Review Problems 5A, 5D, 5E

• Old Short Exam Problems One AP Element Each
• Ill Give You a Slide w Some Guiding Qs at End of
  the Classwork on the Relevant Element
• Treat Individual States Law as Persuasive
  Authority
• Students on Responsible Panel
• Prepare Strongest Arguments on Both Sides of
  Guiding Qs
• Stick to the Element in Q

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LOGISTICS Review Problems 5A, 5D, 5E

• Old Short Exam Problems One AP Element Each
• Well Do at the Start of the Class for which the
  Problem is Assigned
• Four Students Will be Assigned to Represent Each
  Party
• Ill Put Up Slide With Assignments By 735 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
• Critique the Lawyers Arguments Not the
  Underlying Law
• Stick to the Element in Q

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Review Problem 5A Actual Use Element
(3/27)In-Class Arguments Yellowstone
Critique Arches

• Arguments/Missing Facts?
• Cultivation, Improvements, Enclosure
• Enclosure Separately
• All Three Together
• Activity Like Owner of Similar Property?
• Activity Meet Purposes of AP/Actual Use?

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ELEMENTS OF ADVERSE POSSESSION

• Our Sequence
• Actual Use
• Open Notorious
• Exclusive
• Continuous
• Adverse/Hostile

• Panel Responsibilities
• Primary Biscayne
• Review Problem 5B
• (for Deans Fellow)

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Open Notorious Background 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

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Adverse Possession Open 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

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Adverse Possession Open Notorious Overview

• The Reasonable Man

• Ordinary Prudence

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Adverse Possession Open Notorious Overview

• 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 Street (v. on Surface)
• See Casebook _at_ 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.)

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Adverse Possession Open Notorious Overview

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

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BISCAYNE DQs 5.07-5.09
SUNRISE AT ADAMS KEY
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DQ5.07 (Biscayne)Open Notorious AP Purposes

• Fit into AP Purposes?

Purposes of AP Role of Particular Element
Repose
Punish Sleeping OO
Reward Beneficial Use/Labor
Protect Connection/ Investment
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DQ5.07 (Biscayne)Open Notorious AP Purposes

• Fit into AP Purposes

Purposes of AP Role of Particular Element
Repose
Punish Sleeping OO Enough Notice to Show that OO Who Misses is Truly Asleep
Reward Beneficial Use/Labor
Protect Connection/ Investment
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Adverse Possession Open Notorious Overview

• Easy Qs/Hard Qs
• Easy YES Hard to Lose on ON if Actual Use
• Hard Qs
• Marengo Caves
• Boundary Disputes Small Overlap (e.g., 2 feet)

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Open Notorious Hard QsBiscayne DQ5.08
Marengo Caves (P119-20)

• Describe Facts
• Why Was Use of Caves not Open Notorious?

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Open Notorious Hard QsBiscayne DQ5.08
Marengo Caves (P119-20)

• Upshot of Result
• Normal ON
• 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
  doesnt apply underground
• Pros Cons of Result?

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Open Notorious Hard QsBiscayne DQ5.08
Marengo Caves (P119-20)

• Case Means Normal Responsibility to Monitor
  Surface Doesnt 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

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Adverse Possession Open Notorious Overview

• Easy Qs/Hard Qs
• Easy YES Hard to Lose on ON if Actual Use
• Hard Qs
• Marengo Caves
• Boundary Disputes Small Overlap (e.g., 2 feet)
  (Well 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)

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Biscayne DQ5.07 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
• Existence of Small Buildings Unrelated to OO
• Moving Outhouse Might Help for Periods Hes in
  Residence in Houseboat

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Biscayne DQ5.07 Open Notorious EvidenceRay
Creepy Summers in Empty Resort

• Court Constant Conspicuous Use
• Evidence Relied On?

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Biscayne DQ5.07 Open Notorious EvidenceRay
Creepy Summers in Empty Resort

• Court Constant Conspicuous Use
• Evidence Relied On?

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Biscayne DQ5.07 Open Notorious EvidenceRay
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

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Biscayne DQ5.07 Open Notorious EvidenceRay
Creepy 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 ON because of range of
  visible and other evidence present all year
  round.

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Biscayne DQ5.09 Open Notorious EvidenceE.
13th St. Coalition 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

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Biscayne DQ5.09 Open Notorious EvidenceE.
13th St. Coalition of Squatters

• Sometimes Use is Apparent, Sometimes Not
• Could Address as ON or as Continuous
• cf. Ray on Gaps in Time Maybe View as
• Summer Use Normal Use (Continuity Q)
• Evidence of Use Even When Gone (ON Q)
• Qs on Open Notorious Element?

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ELEMENTS OF ADVERSE POSSESSION

• Our Sequence
• Actual Use
• Open Notorious
• Exclusive
• Continuous
• Adverse/Hostile

• Panel Responsibilities
• Primary Redwood
• Rev. Prob. 5D (3/31)
• In-Class Redwood
• Critique Shenandoah

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Adverse Possession Exclusive Overview

• Focus Use by Others Beside APor.
• Two Issues (Well Do Separately)
• Less Common Issue Also use by other third
  parties (non-owners)
• More Common Issue Also use by OO

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Exclusive (Use by Other 3d Parties)Overview

• 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).

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REDWOOD DQ 5.11-5.12
REDWOODS FERNS
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Exclusive (Use by Other 3d Parties)Redwood
DQ5.11 Bell

• Bell Floating House Shifting Outhouse
• What Was Evidence of Others Use?
• Why Did Court Say Bell Loses?

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

• 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

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Exclusive (Use by Other 3d Parties)Overview

• Fit into AP Purposes

Purposes of AP Role of Particular Element
Repose
Punish Sleeping OO
Reward 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?
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Exclusive (Use by OO)Overview

• More Common Issue Use by OO
• Focus/Relevant Evidence What did OO do on
  claimed land during AP period

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Exclusive (Use by OO)Overview

• Fit into AP Purposes?

Purposes of AP Role of Particular Element
Repose
Punish Sleeping OO
Reward Beneficial Use/Labor
Protect Connection/ Investment
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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
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Exclusive (Use by OO)Overview 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

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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

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Adverse Possession Exclusive (Use by OO) Hard Qs

• Use by OO, but Not as Owner
• Short/Partial/Ineffective Assertions of OO Rts
• Significance of ineffective attempts to bar
  entry?
• Usually insufficient if dont exclude APor for
  significant period of time
• Arguably true in E 13th St.

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Adverse Possession Exclusive (Use by OO) Hard Qs

• Use by OO, but Not as Owner
• Short/Partial/Ineffective Assertions of OO Rts
• Significance of ineffective attempts to bar
  entry?
• Should limited acts by OO be enough?
• Use of road on edge of 100 acre lot (Rev Prob 5C)
• 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.

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Review Problem 5D Exclusive Element
(3/31)In-Class Arguments Redwood Critique
Shenandoah

• Arguments/Missing Info?
• If jurisdiction accepts literal argument, D wins.
  Assume it doesnt
• Which facts in the problem (other than the
  passing of time) are helpful for each side? Be
  prepared to respond to other sides claims.
• Discuss whether a court should consider what D
  has done enough in light of the policies
  implicated by this element.
• Identify possible additional facts or legal rules
  (that are not inconsistent with what Ive told
  you) that might affect the outcome?

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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

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ELEMENTS OF ADVERSE POSSESSION

• Our Sequence
• Actual Use
• Open Notorious
• Exclusive
• Continuous
• Adverse/Hostile

• Panel Responsibilities
• Primary Shenandoah
• Rev. Prob. 5E (4/1)
• In-Class Biscayne
• Critique Yellowstone

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Adverse Possession Continuous Overview

• Focus Time Used Without Interruption
• Again Two Issues (Well 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 (well look
  at later)

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Continuous Overview

• Fit into AP Purposes?

Purposes of AP Role of Particular Element
Repose
Punish Sleeping OO
Reward Beneficial Use/Labor
Protect Connection/ Investment
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Continuous Overview

• Fit into AP Purposes

Purposes of AP Role of Particular Element
Repose Enough Time to Merit Repose
Punish 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
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Continuous 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