PROPERTY D SLIDES3-27-14

Thursday March 27 Music (to Accompany Thursday March 27 Music (to Accompany BellBell):):

The B-52s: Cosmic Thing (1989)The B-52s: Cosmic Thing (1989)featuringfeaturing “Love Shack” “Love Shack”Review Problem 5A

•For Plaintiff (OO): Abeckjerr, Desir, Halmoukos, Pan•For Defendant (APor): Giles, Ireland, Khoury, Schiff•Alternates: Iscowitz, George•Arches Critique due Sat. 3/29 @ 4:00 pm

Review Problem 5A “Actual Use” Element

AP Lives Next to Vacant Lot•Initially: • Stone walls on 3 sides; graffiti; garbage • AP repaints walls; removes garbage; plants

hedge across 4th side of lot. •For 10Y: AP washes off new graffiti, For 10Y: AP washes off new graffiti, removes garbage; trims hedge. removes garbage; trims hedge. •Just looking at Actual Use; assume other elements met.

Review Problem 5A: “Actual Use” Review Problem 5A: “Actual Use” Element (3/27)Element (3/27)

In-Class Arguments: Yellowstone In-Class Arguments: Yellowstone Critique: Critique: ArchesArchesFor Plaintiff (OO): For Plaintiff (OO): Abeckjerr, Desir, Halmoukos, PanAbeckjerr, Desir, Halmoukos, Pan

For Defendant (APor): For Defendant (APor): Giles, Ireland, Khoury, SchiffGiles, Ireland, Khoury, Schiff

Arguments/Missing Facts?Arguments/Missing Facts?1.Cultivation, Improvements, Enclosure

a. Enclosure Separately b. All Three Together

•Activity Like Owner of Similar Property?•Activity Meet Purposes of AP/Actual Use?

Equity Playhouse presents1L in Wonderland

• Tonight @ 7:00 p.m.• Storer Auditorium (in the Business School)• Tickets = $5 (on bricks at lunch or at the door)• Starring (among others)• Ben Muschel• Patrick Rostock• Claire Wheeler

LOGISTICS: Chapter 4 Exam• Test Processing is Complete– Class Generally Did Well (Mean = 19.3/24)–You’ll Get Individual Score Sheets At End of Class•On Course Page: Chapter 4 Test: Questions, Correct Answers, Explanations (E-Mail me if Qs)•Don’t Tell Me How You Did (Good or Don’t Tell Me How You Did (Good or Bad)!!Bad)!!

LOGISTICS: Chapter 4 Exam• Relation to Overall Grade –Half-Point for Each Right Answer (Max = 12)–Added to Final Exam Score (Max = 60 Points)–Scores pretty bunched for Chapter 4 Exam, so

range operates approximately like half a Final Exam Q

• NOT a good predictor of Final Exam Score

LOGISTICS: Next Week• On Course Page By Sunday @ Noon: – Chapter 6 Supplement, Syllabus & Assignments– Intro Lecture on Tuesday–First Panel Assignments Thursday

– Updated Instructions for Submitting Sample Exam Answers including Questions from Chapters 5-6

• Tuesday: Review Problem 5G (Shenandoah)– Lawyering Q (Basketball Metaphor)– Element by Element

LOGISTICS: Next Week• Monday & Tuesday:– Busy + Tired = Temptation to Skip– Please make an effort to attend if on call, especially

for Review Problems; don’t dump responsibility onto a few people

– Take time to do prep as a brief break on Saturday or Sunday

ELEMENTS OF ADVERSE POSSESSION

Our Sequence1.Actual Use2.Open & Notorious3.Exclusive4.Continuous, cont’d5.Adverse/Hostile

Panel ResponsibilitiesPrimary: Shenandoah

Rev. Prob. 5E (4/1):In-Class: Biscayne

Critique: Yellowstone

Adverse Possession Adverse Possession Continuous: OverviewContinuous: Overview

Focus: Time Used Without Interruption

Again Two Issues (We’ll Do Separately)(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 (we’ll look at later)

Continuous Overview: Easy Qs, Hard QsContinuous Overview: Easy Qs, Hard 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

5F• Irregular interruptions: emergencies etc. See Rev

Prob 5E

SHENANDOAH (DQ5.13-5.15)

APPALACHIAN TRAIL

Shenandoah DQ5.14: Continuous Shenandoah DQ5.14: Continuous EvidenceEvidence

Ray: 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?

Shenandoah DQ5.14: Continuous Shenandoah DQ5.14: Continuous EvidenceEvidence

Ray: Ray: Creepy Summers in Empty ResortCreepy Summers in Empty Resort• Test (P105): “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

Shenandoah DQ5.14: Continuous Shenandoah DQ5.14: Continuous EvidenceEvidence

Ray: Ray: Creepy Summers in Empty ResortCreepy Summers in Empty Resort• Test (P105): “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• 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 AP/Continuous Seasonal Use Fit into AP/Continuous Purposes?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

Shenandoah DQ5.14: Continuous Shenandoah DQ5.14: Continuous EvidenceEvidence

Ray: Ray: Creepy Summers in Empty ResortCreepy Summers in Empty Resort• Test (P105): “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)

Shenandoah DQ5.13: Continuous Shenandoah DQ5.13: Continuous Evidence Evidence

Other CasesOther CasesRay Ray Test (P105): “Consistent w Acts of Test (P105): “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?

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”

Shenandoah : ContinuousShenandoah : ContinuousMore Hard CasesMore Hard Cases

Ray Ray Test (P105): “Consistent w Acts of Test (P105): “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 re

i) 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

Review Problem 5E: “Continuous” Review Problem 5E: “Continuous” Element (4/1)Element (4/1)

In-Class Arguments: Biscayne In-Class Arguments: Biscayne Critique: Critique: YellowstoneYellowstone

Arguments/Missing FactsArguments/Missing Facts1.Should a 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?