PROPERTY D SLIDES 3-20-14. Thursday March 20 Music: Billie Holiday Sings (1952) TEST IS ESSENTIALLY...

PROPERTY D SLIDES3-20-14

Thursday March 20 Music: Billie Holiday Sings (1952)

TEST IS ESSENTIALLY DONE•Some completely new problems•Mostly questions/answers from posted Bank or Tests, some altered a bit, all with new names•Contains names of all students from Redwood, Shenandoah & Yellowstone (I’m saving Arches & Biscayne for Final Exam)•Apologies to those of you I had to kill off.

OFFICE HOURS TODAY: 1-4 PM (NOT 9:45-10:45)

Adverse Possession: Justifications

DQ5.01: AP as SoL (Yellowstone)

Purposes Behind SoL Generally?(E.g., Torts/Contracts)


DQ5.01: AP as SoL (Yellowstone)Purposes Behind SoL Generally (E.g., Torts/Contracts)•Potential Ds: Repose•Legal System: Evidentiary Problems•Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights)

Apply to Actions for Possession of Land?


DQ5.01: AP as SoL (Yellowstone)Purposes Behind SoL Generally (Torts/Contracts)•Potential Ds: Repose•Legal System: Evidentiary Problems•Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights

Other Purposes for AP?


DQ5.01: AP as SoL (Yellowstone)Purposes Behind SoL: Adverse Possession•Potential Ds: Repose (Quiet Titles; Protect Investment)•Legal System: Evidentiary Problems (”Prescriptive Rights”)•Potential Ps: Don’t “Sleep” on Your Rights • Discourage Leaving Land Unmonitored (Drugs, Dead Bodies,

Al-Qaeda)

Other Purposes for AP?


Purposes Behind Adverse Possession More Broadly• Potential Ds: Adverse Possessors (APors)

• Repose (Quiet Titles)• Protect Investment in Land • Reward/Encourage Beneficial Uses• Protect Psychic Connection (Holmes)

• Legal System: Evidentiary Problems • Potential Ps (OOs): Don’t “Sleep” on Your Rights • Discourage Leaving Land Unmonitored (Drugs, Dead Bodies,

Al-Qaeda)• Encourage/Reward OOs who send clear timely notice

of interest

Adverse Possession: Color of Title

• Writing (Incorrectly) Purporting to Give Title• Often Defective Will or Deed• Need to Have Good Faith Belief in Document

• Significance: • Makes it Easier for APors to Prove Case• Examples in Readings

YELLOWSTONE (DQ5.02-5.03)

GIANT GEYSER

Adverse Possession: Color of Title

Yellowstone DQ 5.02• Writing (Incorrectly) Purporting to Give Title• Significance: Makes it Easier for APors to Prove Case

DQ5.02: Why do states have stricter requirements for AP w/o Color of Title?

Adverse Possession: Boundary Disputes

Yellowstone DQ 5.03• AP regarding overlapping borders, not whole lots• Significance: Changes Requirements/Elements in

Some States

DQ5.03: Why Treat Boundary Disputes Differently?

ELEMENTS OF ADVERSE POSSESSION

Our Sequence1.Actual Use2.Open & Notorious3.Exclusive4.Continuous5.Adverse/Hostile

Our Coverage for Each

•Focus/Relevant Evidence•Purpose•Easy Cases/Hard Cases•Judicial Opinions

Adverse Possession Memory Aids for Cases

Lutz: Garden of Great Depression (Billie Holiday 1952)Ray: Creepy Summers in Empty Resort (Barry Manilow 1996)E. 13th St.: Coalition of Squatters (Rent 1996)Bell: Floating House & Shifting Outhouse (B-52s 1989)

ELEMENTS OF ADVERSE POSSESSION

Our Sequence1.Actual Use2.Open & Notorious3.Exclusive4.Continuous5.Adverse/Hostile

Panel ResponsibilitiesPrimary: Arches

Rev. Prob. 5A (3/27):

In-Class: YellowstoneCritique: Arches

Adverse Possession Actual Use: Overview

1. Focus: What has APor Done on Land

a. Has to be phys possession/entry to trigger SoL

b. in practice need much more to satisfy LMN2. Many State-specific legal tests/examples in materials

a. In real case, check specifics in your state

b. On exam: Note & Deal w Possibilities

i) Lawyering Qii) Issue-Spotter or Short Problem


1. Focus: What has APor Done on Land 2. Many State-specific legal tests/examples in materials

a. Common: Version of “Use Like Ordinary Owner of Similar Property.” E.g., • Ray (similar test for both Actual &

Continuous)• Lutz Dissent (quoting Ramapo)

b. Common: Cultivation, Enclosure, Improvements (CEI)• NY & Florida Statutes


Cultivation, Enclosure, Improvements (CEI)

•Cultivation = Growing things; some sense of crops for food or sale•Enclosure = Surrounding land in Q w fences/walls•Improvements (Technical Legal Term)• = Substantial Building or Repairs• Not Just “Making Property Better”



Part of DQ5.05: When statute says CEI, can you have AP if residing or

operating biz from pre-existing bldg.?•Probably; no FL case holds otherwise; w/o CEI cases fall back on “ordinary use”•In practice, CEI = steps sufficient to show “possessing” land when not actually in residence or running biz



•CEI = steps sufficient to show “possessing” land when not actually in residence or running biz •Likely Source: Where land undeveloped, what are beneficial uses that give notice to OO?• Build• Grow crops• Graze animals + Enclosure (Grazing

alone may not be sufficient claim of ownership)


Fit into AP Purposes

Purposes of AP Role of Particular ElementRepose Triggers SoLPunish Sleeping OO Enough Activity to Give

Notice to Reasonable OO?Reward Beneficial Use/Labor

Type We Want to Reward?

Protect Connection/ Investment

Sufficient to Merit Protection?


Easy Qs/Hard Qs•Easy YES• Use same as surrounding lots• CEI covering entire claimed area

•Easy NO: • Use significantly less than surrounding

lots• Marginal CEI


Easy Qs/Hard Qs•Hard Qs• Not a lot of use but more than

surrounding lots (Ray, Bell)• Some non-trivial CEI but

incomplete/imperfect (Lutz)• Rev Prob 5A (next Mon) addresses

some hard Qs

ARCHES: DQs 5.04-5.06

DELICATE ARCHES

Actual Use: DQ5.04 (Arches)Lutz: Garden of Great

DepressionWhy no focus on Charley

Residing?• Maybe b/c area very small• Maybe b/c anticipated problem

with claim of title.• Even dissent seems to focus more

on cultvation• So we’ll look mainly at CEI


DepressionIf Need CEI:

•Enclosure: Some boundary line around garden; long row of logs & brush• Not Discussed by Majority• Maybe too low; maybe not

complete enough• Maybe not claimed by Attys



•Cultivation:• Evidence Here?• Why Rejected by Majority?• Why Did Dissent Disagree?


DepressionASIDE: Why should appellate courts defer to

the factual findings of a trial court if the appellate judges believe the findings are

incorrect?


DepressionAppellate courts defer to factual findings b/c of

relative advantages of trial judges (& juries):

Visual Observation of WitnessesHearing Testimony


DepressionHearing Testimony

She asked me to take herher

to the dance.



•Improvements (Substantial Building/Repairs)• Some Small Stuff Insufficient • Portable chicken coop• Cutting of brush and trees• Placing various rubbish on premises.



•Improvements (Substantial Building/Repairs)• Built Shack: What’s Wrong with?



•Improvements (Substantial Building/Repairs)• NO. Knew Shack Was on Someone

Else’s Land• Garage Partly Over Boundary Line:

What’s Wrong With?



•Improvements (Substantial Building/Repairs)• NO. Knew Shack Was on Someone

Else’s Land• NO. Thought Garage Was on Own

Land

•We’ll Return to this with State of Mind. •DQ: Can you see a way to reconcile majority positions on shack & garage?


DepressionLooking at Case as a Whole•Meet Purposes of Actual Use Element?• Doing enough to give notice to

reasonable OO?• Doing enough to create

connection to land?• Type of Use we want to reward?


DepressionLooking at Case as a Whole•Meet Purposes of Actual Use Element?•Has some cultivation, some improvements, some partial enclosure• Court chooses not to look at

together• Another court might do differently


DepressionLooking at Case as a Whole•Meet Purposes of Actual Use Element?•Might look at CEI cumulatively•Lutz in casebooks b/c generally thought to be wrong.

Actual Use: DQ5.05 (Arches)Ray: Creepy Summers in

Empty Resort• Evidence of Actual Use?• How Does Court Deal with

CEI Requirements?

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

Squatters• Possible Evidence of Actual

Use• Imagination Exercise• Like Fact Research for

Lawyering Q• How Prove “Living” in Apts in

Q?

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

Squatters• Possible Evidence of Actual

Use• Dissent: Improvements &

Attempts to Preserve

PROPERTY D SLIDES 3-20-14. Thursday March 20 Music: Billie Holiday Sings (1952) TEST IS ESSENTIALLY...

Documents

Transcript of PROPERTY D SLIDES 3-20-14. Thursday March 20 Music: Billie Holiday Sings (1952) TEST IS ESSENTIALLY...