property e slides 3-28-13. elements of adverse possession 1.actual use 2.open & notorious:...

PROPERTY E SLIDES

3-28-13

ELEMENTS OF ADVERSE POSSESSION

1.Actual Use

2.Open & Notorious: Conclusion

3.Exclusive4.Continuous5.Adverse/Hostile

Denali DQ80: Open & Notorious Evidence

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

Use”• Evidence Relied On?• 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: 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 + O&N because of

range of visible and other evidence present all year round.


Ray: Creepy Summers in Empty ResortEl Bahri Q from Monday re

Text at P105:“[Their] seasonal presence, coupled with plaintiffs’ preservation of the premises for the statutory period of 10 years—which was made more obvious by the fact that all neighboring structures had collapsed … —was sufficient to place the record owner on notice of their hostile and exclusive claim of ownership.”


Ray: Creepy Summers in Empty ResortEl Bahri Q from Monday re Text at

P105:“[Their] seasonal presence, coupled with plaintiffs’ preservation of the premises for the statutory period of 10 years—which was made more obvious by the fact that all neighboring structures had collapsed … —was sufficient to place the record owner on notice of their hostile and exclusive claim of ownership.”

This is not a separate listing of evidence, but court’s overall

conclusion that the evidence in the case is sufficient to show

Adverse Possession


E. 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


E. 13th St.: Coalition 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?

LOGISTICS• Posted on Course Page

Tomorrow:– Materials for Chapter 6 with

updates to syllabus and assignment sheet

– Detailed preparation instructions for Review Problems assigned for Monday• 5A = Zion• 5B = Acadia

LOGISTICS• NCAA Sweet 16 Contest– Electronic Forms on Course Page

(E-Mail entry to me by 4:30 today)– Hard Copy Forms Here• Can hand-in to me at break or after

class.• Can deliver to my or to my assistant

Michelle by 4:30 today.

Equity Playhouse presentsMiami Law: Sold Out

• Tonight @ 7:00 p.m.• Storer Auditorium (in the Business

School)• Tickets = $5 (on bricks at lunch or at

the door)• Starring (among others)– Carrie Cabrera– Freddie Mack– Sara Solano


1.Actual Use2.Open & Notorious

3.Exclusive: Everglades4.Continuous5.Adverse/Hostile

Adverse Possession Exclusive: Overview

Focus: Use by Others Beside APor.

Two Issues (We’ll Do Separately)

•Less Common Issue: Also use by other third parties (non-owners)•More Common Issue: Also use by OO (Next Class)

Adverse Possession Exclusive (Use by Other 3d

Parties): Overview• OK to share w another AP'or;

will yield some form of joint ownership

• BUT: FL: Use of land by public in way that suggests public right defeats exclusivity of individual claimant

• BUT: Sanchez (Note P121): Rejects AP Claim by Large Group of Os Exercising Grazing Rights

Exclusive (Use by Other 3d Parties):

Everglades: DQ84: BellBell: Floating House &

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


Everglades: DQ84: BellBell quoting Wood (S102)

“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


Parties): OverviewFit into AP Purposes

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


Parties): OverviewFit into AP Purposes

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?


Everglades: DQ84: Bell

Harder Q Not Answered by Bell•Result Different if Three Houseboat Families Claim Together?• Note Not Large Group Like Sanchez• Even if jointly meet “Exclusive,”

would still raise issues re “Actual” and “Continuous”

Adverse Possession Exclusive (Use by OO):

Overview• More Common Issue: Use by

OO• Focus/Relevant Evidence: What

did OO do on claimed land during AP period

Adverse Possession Exclusive (Use by OO):

OverviewFit into AP Purposes

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

claimed landReward Beneficial Use/LaborProtect Connection/ Investment

Adverse Possession Exclusive (Use by OO): 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• NY Case (S106): 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. Should limited acts by OO be

enough?• Use of road on edge of 100 acre lot

(Rev Prob 5E)• Planting single bed of flowers (Rev

Prob 5I: I’ll add)• See Miller case in Note on S106:

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


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

Assertions of OO Rtsa. Should limited acts by OO be

enough?b.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. (Case

doesn’t say not “exclusive.” My error in DQ84)

Everglades: DQ85Exclusive & 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


1.Actual Use2.Open & Notorious3.Exclusive

4.Continuous: Glacier5.Adverse/Hostile

Adverse Possession Continuous: Overview

No Slides for Continuous Element

property e slides 3-28-13. elements of adverse possession 1.actual use 2.open & notorious:...

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