PROPERTY D SLIDES

1
PROPERTY D SLIDES

• 3-20-14

2
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 (Im saving Arches
  Biscayne for Final Exam)
• Apologies to those of you I had to kill off.
• OFFICE HOURS TODAY 1-4 PM (NOT 945-1045)

3
Adverse Possession JustificationsDQ5.01 AP as
SoL (Yellowstone)

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

4
Adverse Possession JustificationsDQ5.01 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
  (Dont Sleep on Your Rights)
• Apply to Actions for Possession of Land?

5
Adverse Possession JustificationsDQ5.01 AP as
SoL (Yellowstone)

• Purposes Behind SoL Generally (Torts/Contracts)
• Potential Ds Repose
• Legal System Evidentiary Problems
• Potential Ps Encourage Rabbits Punish Turtles
  (Dont Sleep on Your Rights
• Other Purposes for AP?

6
Adverse Possession JustificationsDQ5.01 AP as
SoL (Yellowstone)

• Purposes Behind SoL Adverse Possession
• Potential Ds Repose (Quiet Titles Protect
  Investment)
• Legal System Evidentiary Problems
  (?Prescriptive Rights)
• Potential Ps Dont Sleep on Your Rights
• Discourage Leaving Land Unmonitored (Drugs, Dead
  Bodies, Al-Qaeda)
• Other Purposes for AP?

7
Adverse Possession JustificationsPurposes
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) Dont Sleep on Your Rights
• Discourage Leaving Land Unmonitored (Drugs, Dead
  Bodies, Al-Qaeda)
• Encourage/Reward OOs who send clear timely notice
  of interest

8
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

9
YELLOWSTONE (DQ5.02-5.03)
GIANT GEYSER
10
Adverse Possession Color of TitleYellowstone 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?

11
Adverse Possession Boundary DisputesYellowstone
DQ 5.03

• AP regarding overlapping borders, not whole lots
• Significance Changes Requirements/Elements in
  Some States
• DQ5.03
• Why Treat Boundary Disputes Differently?

12
ELEMENTS OF ADVERSE POSSESSION

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

• Our Coverage for Each
• Focus/Relevant Evidence
• Purpose
• Easy Cases/Hard Cases
• Judicial Opinions

13
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)

14
ELEMENTS OF ADVERSE POSSESSION

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

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

15
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 LMN
• 2. 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 Q
• ii) Issue-Spotter or Short Problem

16
Adverse Possession Actual Use Overview

• 1. Focus What has APor Done on Land
• 2. Many State-specific legal tests/examples in
  materials
• Common Version of Use Like Ordinary Owner of
  Similar Property. E.g.,
• Ray (similar test for both Actual Continuous)
• Lutz Dissent (quoting Ramapo)
• Common Cultivation, Enclosure, Improvements
  (CEI)
• NY Florida Statutes

17
Adverse Possession Actual Use Overview

• 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

18
Adverse Possession Actual Use Overview

• Cultivation, Enclosure, Improvements (CEI)
• 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

19
Adverse Possession Actual Use Overview

• Cultivation, Enclosure, Improvements (CEI)
• 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)

20
Adverse Possession Actual Use Overview

• Fit into AP Purposes

Purposes of AP Role of Particular Element
Repose Triggers SoL
Punish 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?
21
Adverse Possession Actual Use Overview

• 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

22
Adverse Possession Actual Use Overview

• 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

23
ARCHES DQs 5.04-5.06
DELICATE ARCHES
24
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• Why 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 well look mainly at CEI

25
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• If 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

26
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• If Need CEI
• Cultivation
• Evidence Here?
• Why Rejected by Majority?
• Why Did Dissent Disagree?

27
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• ASIDE Why should appellate courts defer to the
  factual findings of a trial court if the
  appellate judges believe the findings are
  incorrect?

28
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• Appellate courts defer to factual findings b/c of
  relative advantages of trial judges ( juries)
• Visual Observation of Witnesses
• Hearing Testimony

29
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• Hearing Testimony
• She asked me to take her to the dance.

30
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

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

31
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• If Need CEI
• Improvements (Substantial Building/Repairs)
• Built Shack Whats Wrong with?

32
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• If Need CEI
• Improvements (Substantial Building/Repairs)
• NO. Knew Shack Was on Someone Elses Land
• Garage Partly Over Boundary Line Whats Wrong
  With?

33
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• If Need CEI
• Improvements (Substantial Building/Repairs)
• NO. Knew Shack Was on Someone Elses Land
• NO. Thought Garage Was on Own Land
• Well Return to this with State of Mind.
• DQ Can you see a way to reconcile majority
  positions on shack garage?

34
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• Looking 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?

35
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• Looking 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

36
Actual Use DQ5.04 (Arches)Lutz Garden of
Great Depression

• Looking 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.

37
Actual Use DQ5.05 (Arches)Ray Creepy Summers
in Empty Resort

• Evidence of Actual Use?
• How Does Court Deal with CEI Requirements?

38
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?

39
Actual Use DQ5.06 (Arches)E. 13th St.
Coalition of Squatters

• Possible Evidence of Actual Use
• Dissent Improvements Attempts to Preserve