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PROPERTY D SLIDES 4-1-14 Slide 2 Tuesday April 1 Music (to Accompany Nightmare on 68 th St): Bessie Smith Sings the Blues (Vol.2) (featuring Backwater Blues) Review Problem 5E: Biscayne (In-Class) For Plaintiff (OO): Brown, Homan, Venkatesh, Warren Alts: Mckain, Lipshultz For Defendant (APor): Cespedes, Grossman, Kirkland, Meads Alts: McKenzie, Jarzabek Slide 3 CRITIQUES Shenandoah Critique of Yesterdays Discussion of Review Problem 5D: Due Tomorrow @ 10am Yellowstone Critique of Todays Discussion of Review Problem 5E: Due Thursday @ 10 am Plus Shenandoahs Absent Yesterday Status Update on1 st Yellowstone Critiques Slide 4 Review Problem 5E: Continuous M Resided in House with Color of Title for Most of 10Y Statutory Period Absent 5 Mos. Undergoing Rehab for Physical Injury While M Away: Utilities & Mail Service Stopped Ms Friend David watered plants every 2-3 weeks M asked David to Feed Cat at Ms House; Instead David Took Cat to Own Home Slide 5 Review Problem 5E: Continuous In-Class Arguments: Biscayne Critique: Yellowstone For Plaintiff (OO): Brown, Homan, Venkatesh, Warren (Alts: McKain, Lipshultz) For Dfdt (APor): Cespedes, Grossman, Kirkland, Meads (Alts: McKenzie, Jarzabek) Arguments/Missing Facts 1.Should a 5-Month Interruption for this Reason Break Continuity? no 2.Assuming 5 Months with no Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the 5 Mos. M Was Away to Retain Continuity? 3.What is the Legal Significance of David not doing what M asked? Slide 6 Divided Rights in the Same Piece of Land Chapter 6: Easements Yellow Brick Roads Chapter 7: Landlord- Tenant Law Formica & Courier Slide 7 Two Sets of Property Rights to Consider Divided Rights in the Same Piece of Land: Two Sets of Property Rights to ConsiderEasements 1.Holder of Easement 2.Owner of Underlying Land (Servient Tenement) Landlord-Tenant 1.Leaseholder (Term of Years) 2.Landlord (Holds Reversion) Slide 8 Paradigm is Contractual: Terms/Intent Important -- Objective Manifestations of Intent -- Reasonable Understanding under All the Circumstances Divided Rights in the Same Piece of Land: Paradigm is Contractual: Terms/Intent Important -- Objective Manifestations of Intent -- Reasonable Understanding under All the CircumstancesEasements Written Document Creating Express Easement Landlord-Tenant Written Lease Slide 9 Paradigm is Contractual, BUT -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights Divided Rights in the Same Piece of Land: Paradigm is Contractual, BUT -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable RightsEasements Written Document Creating Express Easement Implied Easements Landlord-Tenant Written Lease Implied & Statutory Terms Slide 10 Skills Focus Different for Each Divided Rights in the Same Piece of Land Skills Focus Different for EachEasements Working with Stated & Unstated Facts Landlord-Tenant Working with Statutory Provisions Slide 11 Introduction to Easements Introduction to Easements Review Problem 6A: Elf-Acre & Santa-Acre E-Acres owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump Santa-acre = next to garbage dump. Elf-Acre = Time of Grant: Big lot w small cottage. Later: Cottage Toy factory (7x garbage). Slide 12 Scope of Express Easements Generally Sample Blackletter Tests (S142) 1.Use must be reasonable considering the terms of the grant. 2.Evolutionary not revolutionary changes allowed. 3.Burden must not be significantly greater than that contemplated by parties. Slide 13 Review Problem 6A: Elf-Acre & Santa-Acre E-Acres owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump Santa-acre = next to garbage dump. Elf-Acre = Time of Grant: Big lot w small cottage. Later: Cottage Toy factory (7x garbage). Apply Blackletter Tests Consider Missing or Ambiguous Facts Slide 14 Scope of Express Easements Generally Sample Blackletter Tests (S142) (1) Use Must Be Reasonable Considering the Terms of the Grant a.Initial focus on literal language b.Then check if proposed use is reasonable in light of language c. Can use ordinary contract interpretation principles e.g., Interpret against Drafter Slide 15 Review Problem 6A: Elf-Acre & Santa-Acre E-Acres owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump Santa-acre = next to garbage dump. Elf-Acre = Time of Grant: Big lot w small cottage. Later: Cottage Toy factory (7x garbage). (1) Use Must Be Reasonable Considering the Terms of the Grant Slide 16 Scope of Express Easements Generally Sample Blackletter Tests (S142) (2) Evolutionary not Revolutionary Changes Allowed. a.Focus on nature & speed of change b.Q of Characterization: Fair to View as Evolution? Slide 17 Scope of Express Easements Generally Sample Blackletter Tests (S142) (3) Burden Must Not Be Significantly Greater than that Contemplated by Parties a.Look for change in relative burdens. b.Compare to what parties appear to have reasonably intended. Slide 18 Review Problem 6A: Elf-Acre & Santa-Acre E-Acres owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump Santa-acre = next to garbage dump. Elf-Acre = Time of Grant: Big lot w small cottage. Later: Cottage Toy factory (7x garbage). (2) Evolutionary not Revolutionary Changes Allowed. (3) Burden Must Not Be Significantly Greater than that Contemplated by Parties Slide 19 ARCHES: Boundary Disputes & DQs 5.18-5.20 DELICATE ARCHES Slide 20 Nightmare on 68 th Street: ARCHES DQ5.18 BASIC ELEMENTS? ACTUAL: O&N: CONTINUOUS: EXCLUSIVE: ADVERSE: Slide 21 Nightmare on 68 th Street: ARCHES DQ5.18 BASIC ELEMENTS MET EASILY ACTUAL: Improvement plus use O&N: Same (if actual knowledge not required) CONTINUOUS: 1938 7+ Years EXCLUSIVE: No evidence of others using ADVERSE: No evidence of permission Slide 22 Nightmare on 68 th Street: ARCHES DQ5.19 Mr. Smith: We paid the taxes all those years on that lot. [T]hey could claim no payment of taxes. (Top S128) Legal significance? Slide 23 Nightmare on 68 th Street: ARCHES DQ5.19 Mr. Smith: We paid the taxes all those years on that lot. [T]hey could claim no payment of taxes. Fl.Stat. 95.18 (S107) requires payment of taxes if no color of title. Note: Payment of taxes by the OO is almost always true in AP cases and is not a defense. Legal issue here is payment by Pullens/Davises, not by Smiths. Slide 24 Nightmare on 68 th Street: ARCHES DQ5.19 Mr. Smith: We paid the taxes all those years on that lot. [T]hey could claim no payment of taxes. Fla requires payment of taxes if no color of title. Color of Title here? Valid deed to lot plus Incorrect survey indicating ownership of disputed strip Sufficient? (policy Q) Slide 25 Nightmare on 68 th Street: ARCHES DQ5.18 State of Mind Some Florida caselaw appears to require bad faith in boundary disputes Evidence of State of Mind Here? Slide 26 Nightmare on 68 th Street: ARCHES DQ5.18 State of Mind Some Florida caselaw appears to require bad faith in boundary disputes Should good faith reliance on faulty survey be OK? (policy Q; no cases on point) Slide 27 Nightmare on 68 th Street Implicit Boundary Dispute Policy Qs IF Deed plus incorrect survey = color of title: APor wins OR IF Good faith payment of taxes assessed meets statutory reqmt: APor wins IF NOT There will almost never be successful boundary dispute AP Similar policy considerations to O&N and state of mind for boundary disputes. (See Rev Prob 5H) Slide 28 ARCHES: DQ5.20 Boundary Disputes: Policy Considerations Why might states treat boundary disputes differently than other forms of AP? Slide 29 ARCHES: DQ5.20 Boundary Disputes: Policy Considerations Why might states treat boundary disputes differently? Tension: Diligent OOs v. Neighborly Relations (Measuring Tapes) Maybe discourage lawsuits by neighboring APors by making difficult to win; requiring testimony re own bad faith Maybe Different Expectations re Diligent Behavior by OO Often hard to be exact about property line Maybe shdnt have to be aware of w precision Slide 30 ARCHES: DQ5.20 Boundary Disputes: Policy Considerations (Recap) Some States Have Stricter O&N or State of Mind Reqmts for Boundary Disputes. Policy Concerns: Some States Have Stricter O&N or State of Mind Reqmts for Boundary Disputes. Policy Concerns: Neighborly Relations Neighborly Relations Expectations re Diligent Behavior by OO Expectations re Diligent Behavior by OO NOTE: Making Either Reqmt More Strict Makes Litigating Old Cases Very Hard NOTE: Making Either Reqmt More Strict Makes Litigating Old Cases Very HardQuestions? Slide 31 DQ5.21: Adverse Possession Policy: Legislative Debate Florida Legislature considering eliminating or modifying adverse possession doctrine. Proposals include Complete elimination Color of Title Only Adverse Possessor must pay market value (Forced Sale) Identifying Arguments re Strength & Weaknesses of Various Rules Central Part of Opinion/Dissent Q Slide 32 DQ5.21: Adverse Possession Policy: Legislative Debate Florida Legislature considering eliminating or modifying adverse possession doctrine. Proposals include Complete elimination Color of Title Only Adverse Possessor must pay market value (Forced Sale) Positions likely taken by Positions likely taken by Environmental Advocacy Group? Advocacy Group for Homeless Folks Slide 33 APRIL IS HERE! BRIEF IS IN!! WHAT NOW?? Slide 34 TUEWEDTHUFRISATSUNMON 4/1 Property No Office Hours Property OH 9:45-10:45 4/4 Property 4/7 OH 9:45- 10:45 4/8: Property + Course Selection Info OH 2:30-4:30 Property OH 9:45-10:45 4/11Property 4/14 OH 9:45- 10:45 4/15: Passover: No Property or OH or DF Property OH 9:45-10:45 4/18 Optional Sample Answers Due @ Noon 4/21 Property OH 9:45- 10:45 4/22 Property OH 2:30-4:30 Property Last Class OH 1-5 4/25 OH 1-5 OH 12-5 + Review Session Room TBA 6:30 OH 10-2, 3-7 7pm E-Mail Deadline 4/28 Property Exam 4/29 Crim Pro Exam 5/25/5 5/6 ConLaw Exam 5/9 Elective Exam Slide 35 And Down the Stretch They Come Slide 36 BRIEF IS IN! WHAT NOW?? Generally Keep Preparing & Going to Class End of semester material often tested disproportionately. Profs often summarize, tie together themes, and give exam hints in last classes. Slide 37 BRIEF IS IN! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions Practice the skills Learn what your Profs look for Slide 38 BRIEF IS IN! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions Think about exam technique Exam skills workshops Info from current Profs Review last semesters exams Slide 39 BRIEF IS IN! WHAT NOW?? Generally Keep Preparing & Going to Class Old exam Qs under exam conditions Think about exam technique Its a Marathon, Not a Sprint Plan Your Studying Conserve Energy Slide 40 BRIEF IS IN! WHAT NOW?? Property Integrate Work with Overall Study Plan Submit Sample Q: Deadline = Sat 4/19 @ 9pm 1 st Exam, 5 Days After Last Class Slide 41 BRIEF IS IN! WHAT NOW?? Property Integrate Work with Overall Study Plan Old Qs Under Exam Conditions 15 min read/60 min write Closed book except for syllabus Slide 42 BRIEF IS IN! WHAT NOW?? Property Integrate Work with Overall Study Plan Old Qs Under Exam Conditions Read end-of-semester IMs & Old Comments/Models Slide 43 BRIEF IS IN! WHAT NOW?? Property Integrate Work with Overall Study Plan Old Qs Under Exam Conditions Read IMs & Old Comments/Models Utilize Review Session & Pre-Exam Office Hours Slide 44 YOU CAN DO THIS !