property a slides 3-27-15. friday march 27 music to accompany e. 13 th street (& squatters...

PROPERTY A SLIDES3-27-15

Friday March 27 Music to Accompany E. 13th Street

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

NCAA Sweet Sixteen Contest (Day 1 Leaders)NCAA Sweet Sixteen Contest (Day 1 Leaders)

Perfect Scores (7/7 points): Fellig; Gillum; Silverberg; Perfect Scores (7/7 points): Fellig; Gillum; Silverberg;

YanizYaniz

Tied for 5Tied for 5thth (6/7): Castillo; Dahle; Ghomeshi; McGee; (6/7): Castillo; Dahle; Ghomeshi; McGee;

Plowden; Whitley; Plowden; Whitley; [Jarzabek][Jarzabek]

Tied for 11Tied for 11thth (5/7): Ayoub; Kaleel (5/7): Ayoub; Kaleel

PROPERTY A: 3/27

BaCK UP YOUR WORK: KROW RUOY PU BaCK UP YOUR WORK: KROW RUOY PU

KCABKCAB

INSIGHTS GAINED FROM PUTTING THINGS INSIGHTS GAINED FROM PUTTING THINGS

INTO INTO ESREVER: REVERSEESREVER: REVERSE

PROPERTY A: 3/27

WHY ARE SOME CARS NOT VERY TRENDY WHY ARE SOME CARS NOT VERY TRENDY

NO MATTER HOW [OFTEN] THEY’RE NO MATTER HOW [OFTEN] THEY’RE

REDESIGNED?REDESIGNED?

PROPERTY A: 3/27

WHY ARE SOME CARS NOT VERY TRENDY WHY ARE SOME CARS NOT VERY TRENDY

NO MATTER HOW [OFTEN] THEY’RE NO MATTER HOW [OFTEN] THEY’RE

REDESIGNED?REDESIGNED?

SUBARU = U R A BUSSUBARU = U R A BUS

PROPERTY A: 3/27

WHAT DO YOU BECOME IF YOU WHAT DO YOU BECOME IF YOU

CONSTANTLY WEAR EARBUDS?CONSTANTLY WEAR EARBUDS?

PROPERTY A: 3/27

WHAT DO YOU BECOME IF YOU WHAT DO YOU BECOME IF YOU

CONSTANTLY WEAR EARBUDS?CONSTANTLY WEAR EARBUDS?

I-POD = DOPI I-POD = DOPI

PROPERTY A: 3/27

WHAT KIND OF PEOPLE PAY WHAT KIND OF PEOPLE PAY

MONEY FOR BOTTLED WATER?MONEY FOR BOTTLED WATER?

PROPERTY A: 3/27

WHAT KIND OF PEOPLE PAY MONEY FOR WHAT KIND OF PEOPLE PAY MONEY FOR

BOTTLED WATER?BOTTLED WATER?

EVIAN = NAIVE EVIAN = NAIVE

REDWOOD: Actual Use & DQ5.06-5.07

REDWOODS & FERNS

ELEMENTS OF ADVERSE POSSESSION

Our SequenceOur Sequence

1.1.Actual Use Actual Use (cont’d)(cont’d)2.Open & Notorious3.Continuous4.Exclusive5.Adverse/Hostile

Panel Responsibilities

Primary: Redwood

Rev. Prob. 5A: Redwood

(In Class Tues 3/31)

Actual Use: DQ5.06 (Redwood)E. 13th St.: Coalition of Squatters

• Possible Evidence of Actual Use (Yesterday)

• Dissent: Improvements & Attempts to Preserve the Buildings

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

Actual Use: Vezey & DQ5.07

• What evidence of “actual use” is noted in the two opinions in Vezey? • Why did the dissent find this evidence

insufficient?

• Why did the majority remand instead of reversing?

• Is the majority’s analysis on this issue consistent with the majority opinion in Lutz?

• How might the Alaska court distinguish Lutz?

Actual Use: DQ5.07

Qs on “Actual Use” Element?

LOGISTICS: Review Problems

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

• Treat Authority from Specific States as Persuasive (Not Binding)

LOGISTICS: Review Problems

Old Short Exam Problems; One AP Element Old Short Exam Problems; One AP Element EachEach•Students on Responsible Panels:Students on Responsible Panels:• Prepare Strongest Arguments re Guiding Qs• If Just One Panel, Arguments for Both Sides• If Two Panels, Arguments for Your Side ( & Try to Anticipate Theirs)

• Stick to the Element in Q

•If There’s a Critiquing Panel: If There’s a 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” ElementElement

In-Class Arguments Tuesday 3/31: In-Class Arguments Tuesday 3/31: Redwood Redwood

Arguments/Missing Facts?Arguments/Missing Facts?

1.Cultivation, Improvements, Enclosurea. Enclosure Separately b. All Three Together

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

SHENANDOAH: OPEN & NOTORIOUS (O&N) &

DQ5.08-5.11

APPALACHIAN TRAIL



1.Actual Use

2.2.Open & Open & NotoriousNotorious3.Continuous4.Exclusive5.Adverse/Hostile


Primary: Shenandoah

Rev. Prob. 5B: ALL(In DF Today & Tues 3/31)

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

• Actual Knowledge (Fact Q): Person in Q is Actually Aware of Relevant Fact (Return to with Vezey)

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

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)• Cf. Casebook @ P114: 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

DQ5.08 (Shenandoah)DQ5.08 (Shenandoah)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: Very Hard to Lose on O&N if Meet “Actual Use”

•Hard Qs: 1. Marengo Caves (P114-15)

2. Boundary Disputes & Small Overlap (e.g., 2 feet) (Rev. Probs. 5B & 5H)

Open & Notorious: Hard QsOpen & Notorious: Hard QsShenandoah DQ5.10: Shenandoah DQ5.10: Marengo Caves Marengo Caves

(P114-15)(P114-15)

• Describe Facts.

• Why Was Use of Caves not Open & Notorious?


(P114-15)(P114-15)

• 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?


(P114-15)(P114-15)• 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 in Class

on Thurs 4/9)

Shenandoah DQ5.08: Shenandoah DQ5.08: 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

Shenandoah DQ5.08: Open & Notorious Shenandoah DQ5.08: 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: 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” & “O&N” & “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)

Shenandoah DQ5.09: Shenandoah DQ5.09: Open & Notorious Evidence inOpen & Notorious Evidence inVezeyVezey

•Vezey says that the claimant met this requirement because the record title holders had actual knowledge that she was possessing the parcel in question (P110).

• Would she have met the requirement if they had not?

• Note that court assumes actual knowledge is sufficient to meet O&N requirement.

Open & NotoriousOpen & Notorious

Qs on “Open & Notorious” Element?

Review Problem 5B: Open & Notorious Review Problem 5B: Open & Notorious ElementElement

Arguments in DF Today & Tuesday 3/31Arguments in DF Today & Tuesday 3/31

Incorporates Hard Policy QsIncorporates Hard Policy Qs

•Should OO of Large Wooded Lot Be Should OO of Large Wooded Lot Be Responsible for Knowing Where Boundary Responsible for Knowing Where Boundary Lines Are?Lines Are?•If Encroachment Over Boundary Line is Slow If Encroachment Over Boundary Line is Slow Growth Over Extended Time, When (if Ever) Growth Over Extended Time, When (if Ever) Does It Become O&N?Does It Become O&N?

ARCHES: Continuous & DQ5.16-5.18

DELICATE ARCHES



1.Actual Use 2.Open & Notorious

3.3.ContinuousContinuous4.Exclusive5.Adverse/Hostile


Primary: Arches

Rev. Prob. 5G: ALL(In DF Today & Tues 3/31)

Rev. Prob. 5F (Tue 4/7)Biscayne (Plaintiff)Arches (Defendant)

Shenandoah (Critique)

Adverse Possession Adverse Possession Continuous: OverviewContinuous: Overview

Focus: Time Used Without Interruption

Again Two Issues (We’ll Do Separately)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

Continuous: OverviewContinuous: Overview

Fit into AP Purposes

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, Continuous Overview: Easy Qs, Hard QsHard 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 5G• Irregular interruptions: emergencies etc. See

Rev Prob 5F

Arches DQ5.17: Continuous EvidenceArches DQ5.17: Continuous EvidenceRay: Ray: Creepy Summers in Empty ResortCreepy Summers in Empty Resort

• Court: Same Evidence as for O&N Sufficient to Put OO on Notice

• Court Says Time Spent was “Most of Colonel Ray’s Leave Time.” Why Relevant?


• Test (P198): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake”• Need to check character of disputed lot

• “Continuous” differs for, e.g., • wild & undeveloped land

• residential

• agricultural


• Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake”

• Under Tests Like This, Lots of Cases Say Seasonal Use of Seasonal Property is Sufficiently Continuous • E.g., Summer Houses and Ski Cabins (Howard

v. Kunto)• Generally No Requirement of Evidence of Use

in Off-Season

Pros & Cons of Approving Seasonal Use for Pros & Cons of Approving Seasonal Use for AP?AP?

Continuous: Seasonal UseContinuous: Seasonal Use

Seasonal Use Fit into Seasonal Use Fit into AP/Continuous Purposes?AP/Continuous Purposes?

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 SporadicProtect Connection/ Investment Connections More Likely Strong if Activity

Continuous, Not Sporadic


• Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake”

• Seasonal Use of Seasonal Property is Sufficiently Continuous• Generally No Requirement of Evidence of Use in Off-Season

• Note: Residence in Ray Shorter than Typical Seasonal Use• One month v. 3-4 month season• Court seems to allow b/c year-round evidence of

presence • Suggests argument that unusual interruptions OK

under test if sufficient evidence of use remains (blurs O&N/Continuous)

Arches DQ5.16: Continuous Evidence Arches DQ5.16: Continuous Evidence Other CasesOther Cases

Ray Ray Test (P98): “Consistent w Acts of Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Possession that Ordinary Owners of Like

Properties would Undertake”Properties would Undertake”

•Lutz: Garden of Great Depression?

•Bell: Floating House & Shifting Outhouse?

•Vezey: Past as Key to the Present

Washington List of Elements v. Washington List of Elements v. OursOurs

• Bell List of Elements (S116)• #2: “actual & uninterrupted” =

• What we would call both “actual” and “continuous”

Continuous: More Hard CasesContinuous: More Hard Cases

Ray Ray Test (P98): “Consistent w Acts of Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Possession that Ordinary Owners of Like

Properties would Undertake”Properties would Undertake”

•This test also creates issues rei) Emergency interruptionsii) Unusually long vacations (if residence or

business)

•Presumably can follow Ray and ask re evidence of use that remains when APor is absent

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

Arches DQ5.18: Arches DQ5.18: 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 Questions on “Continuous”?“Continuous”?

Review Problem 5G: Continuous ElementReview Problem 5G: Continuous ElementArguments in DF Today & Tuesday 3/31Arguments in DF Today & Tuesday 3/31

Incorporates Hard Policy QsIncorporates Hard Policy Qs

•Is Use of Area Next to Amphitheater Every Is Use of Area Next to Amphitheater Every Time Amphitheater is Used be Equivalent to Time Amphitheater is Used be Equivalent to Seasonal Use?Seasonal Use?•Does it Matter to Problem What Sort of Does it Matter to Problem What Sort of Traces D’s Use Leaves Behind? What Sorts Traces D’s Use Leaves Behind? What Sorts of Evidence Might There Be? of Evidence Might There Be? •Ask David about his cool experiences Ask David about his cool experiences hanging out with rock stars.hanging out with rock stars.

Review Problem 5F: “Continuous” Review Problem 5F: “Continuous” Element Element (Tue 4/7)

Biscayne (In-Class for Plaintiff) Arches (In-Class for Defendant)

Shenandoah (Critique)Arguments/Missing FactsArguments/Missing Facts

1.Should the Five-Month Interruption for Medical Emergency in Problem Break Continuity?2.Assuming Five Months with no Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the Five Months M Was Away to Retain Continuity? (Ray Analysis)3.What is the Legal Significance of D not doing what M asked? (Yet another problem with David in it)

property a slides 3-27-15. friday march 27 music to accompany e. 13 th street (& squatters...

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