tuesday march 31 music (to accompany bell): b-52s, cosmic thing (1989) featuring “love shack”...

Tuesday March 31 Music (to Accompany Bell):

B-52s, Cosmic Thing (1989)featuring “Love Shack”

NCAA CONTEST POSSIBLE WINNERS• If Michigan State beats Duke in Semi-Finals : Baquedano• If Duke Wins Tourney: Agramonte/Plowden• If Kentucky Beats Duke in Final: Fellig/Silverberg• If Wisconsin Beats Duke in Final:

• Fajer Has High Score

• Fellig/Silverberg Win Contest

LOGISTICS• Chapter 4 Test• Info on Relative Weight on Course Page• Please Retrieve Your Score Sheet by Mid-Day Tomorrow

• Chapter 5 Corrections (I’ll Fix Course Page)• 1st Assigned Note in Textbook on State of Mind is Note 7 (P104)• DQs on Boundary Disputes (S137) should be numbered 5.22-5.24

• Chapter 6 Intro Thursday• I’ll Start Class with Intro Lecture & Review Problem 6A (S145)• Try to Apply “Blackletter Tests” from (S144) to Rev. Prob• I’ll Work Through with Volunteers

Previously in Property APreviously in Property A

Adverse Possession: “Debriefing”Adverse Possession: “Debriefing”

1.Justifications: Statute of Limitations & Beyond2.Color of Title & Its Significance3.Individual Elements: Rules, Focus, Evidence, Purpose

a. Actual Useb. Open & Notoriousc. Continuous



Individual Elements: Actual UseIndividual Elements: Actual Use

•Legal Tests• Cultivation, Enclosure, Improvements (NY & FL Statutes)

• Use Like Ordinary Owner of Similar Property

•Examples• Lutz & Vezey Discuss in Detail

• Other Specific Examples in Notes in Text & Supplement



Individual Elements: Open & NotoriousIndividual Elements: Open & Notorious•Normally Q of Notice (Legal Q)• Test: Notice to Person Standing on Surface of Lot• Normally Easy if “Actual” Met• Some States Can Do w Public Record or Notoriety• Actual Knowledge by OO Sufficient in Vezey

•Sometimes Actual Knowledge Required (Fact Q)• Marengo Caves for Underground (Not Binding Outside

Indiana)• Some States Require for Border Disputes



Individual Elements: ContinuousIndividual Elements: Continuous•1st Type of Issue: Tacking • Sufficient Legal Connection to Add Together APors or OOs• Insufficient in East 13th Street

•2d Type of Issue: Interruptions by APor• Check Ordinary Use of Type of Property at Issue (e.g.,

Seasonal)• If Gaps, Can Be Interwoven with O&N (e.g., Ray)

BISCAYNE: Exclusive & DQ5.12-5.15

SUNRISE AT ADAMS KEY

ELEMENTS OF ADVERSE POSSESSION

Our SequenceOur Sequence

1.Actual Use 2.Open & Notorious3.Continuous

4.4.ExclusiveExclusive5.Adverse/Hostile

Panel Responsibilities

Primary: Biscayne

Rev. Prob. 5C: Biscayne (Thurs 4/2)

Rev. Prob. 5D (Fri 4/3)Yellowstone (Plaintiff)

Shenandoah (Defendant)Arches (Critique)

Adverse Possession Adverse Possession Exclusive: OverviewExclusive: Overview

Focus: Use by Others Beside APor. Two Issues (We’ll Do Separately)

1.Less Common Issue: Also use by other third parties (non-owners)2.More Common Issue: Also use by OO

Exclusive (Use by Other 3d Parties)Exclusive (Use by Other 3d Parties)OverviewOverview

• Need to behave like O vis-à-vis public• If you look no diff from public, no good• FL: use of land by public in way that suggests public

right defeats exclusivity of individual APor• BUT Penn. case (S121): some limited trespasses by

public OK if APor behaving like O

• Small group working together can jointly AP land• BUT if large enough group, looks liked public again, so

no good. Sanchez (cited at P116).

Exclusive (Use by Other 3d Parties):Exclusive (Use by Other 3d Parties):Biscayne: DQ5.12: Biscayne: DQ5.12: BellBell

Bell: Floating House & Shifting Outhouse

•Evidence in Case: • 2 families use similarly to Bell• No attempt to by Bell to exclude or behave as O • E.g., didn’t ask for $ or permission• Compare land to houseboat, which he did lease out to

someone else

•Wash SCt say Bell loses b/c not acting like true O • Suggests Bell not very different than others• So why give him title?

Exclusive (Use by Other 3d Parties):Exclusive (Use by Other 3d Parties):Biscayne: DQ5.12: Biscayne: DQ5.12: BellBell

Bell quoting Wood (S116)“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 establish dominion vis-à-vis Fence not only way to establish dominion vis-à-vis strangers!!! strangers!!! • Can physically chase away• Can grant permission/accept money for use

Exclusive (Use by Other 3d Parties):Exclusive (Use by Other 3d Parties):Biscayne: DQ5.12: Biscayne: DQ5.12: Bell & VezeyBell & Vezey

Is Is Bell Bell consistent with the discussion of consistent with the discussion of exclusivity in the exclusivity in the Nome 2000 Nome 2000 case (cited in case (cited in

Vezey Vezey at P109)?at P109)?

Exclusive (Use by Other 3d Parties)Exclusive (Use by Other 3d Parties)OverviewOverview

Fit 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?

Exclusive (Use by OO)Exclusive (Use by OO)OverviewOverview

• More Common Issue: Use by OO• Focus/Relevant Evidence: What did

OO do on claimed land during AP period

Exclusive (Use by OO)Exclusive (Use by OO)OverviewOverview

Fit into AP Purposes

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

claimed land.Reward Beneficial Use/LaborProtect Connection/ Investment

Exclusive (Use by OO)Exclusive (Use by OO)Overview: Easy QsOverview: Easy Qs

• Easy Cases YES: No use at all by OO during relevant period (Lutz; Ray; Bell)

• Easy Cases NO: • If court treats as literal, any knowing use by

OO defeats AP• NY Case (S121): 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

Adverse Possession Biscayne: Exclusive (Use by OO): Hard Qs

1. Use by OO, but Not as Owner

2. Short/Partial/Ineffective Assertions of OO Rts

a. Note 10 (P118): OO Physically Excluding APor or Suing to Recover Generally Break Exclusivity BUT

b. Physical exclusion usually insufficient if doesn’t exclude APor for significant period of time (arguably true in “Rent” and E.13th Street)

c. DQ5.13: Was the possible “interruption” in Vezey described in footnote 12 by the owner or by the general public? How did the majority deal with it?

Adverse Possession Exclusive (Use by OO): Hard Qs

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

of OO Rtsa. Ineffective attempts to bar entry.b. [When] should limited acts by OO be

enough? 1. Policy Q I like!! 2. E.g., Use of road on edge of 100 acre lot

(Rev Prob 5C)c. See Miller in Note on S121:

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

Biscayne: DQ5.15Exclusive & 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 ExclusivityQs on Exclusivity

Rev. Prob. 5C: Biscayne (Thursday)

Rev. Prob. 5D (Friday)Yellowstone (In-Class for Plaintiff) Shenandoah (In-Class

for Defendant)Arches (Critique)

Arguments/Missing Info? (Same List for Both Arguments/Missing Info? (Same List for Both 5C & 5D)5C & 5D)

If jurisdiction accepts literal argument, OO wins. Assume it If jurisdiction accepts literal argument, OO wins. Assume it doesn’tdoesn’t

1.Which facts in the problem (other than the passing of time) are helpful for each side? Be prepared to respond to other side’s claims.2.Discuss whether a court should consider what OO has done enough in light of the policies implicated by this element.3.Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome.

YELLOWSTONE: Adverse/Hostile/State of Mind &

DQ5.19-5.21

GIANT GEYSER

ELEMENTS OF ADVERSE POSSESSION

Our Sequence1.Actual Use2.Open & Notorious3.Continuous4.Exclusive

5.Adverse/Hostile

Panel Responsibilities

Primary: Yellowstone

Adverse Possession Adverse/Hostile (& State of Mind):

Overview

• States Vary on Terminology: Element called “Adverse” or “Hostile” (or both)

• In Every State Means (At Least) Lack of Consent/ Permission from OO

• Usually NOT about APor's state of mind

Adverse Possession Adverse/Hostile (& State of Mind):

OverviewAdverse/Hostile ≥ Lack of Consent/Permission from OO•If permission, SoL not running•Consensual Possessor can start AP SoL by rejecting permission• Difficult to do • Rejection must be explicit & clear

Yellowstone: Vezey & DQ5.19Adverse/Hostile (& State of Mind):

OverviewAdverse/Hostile ≥ Lack of Consent/Permission from OO•If permission, SoL not running•Consensual Possessor can start AP SoL by rejecting permission

•The Vezey majority said that the claimant in that case “rebutted the presumption of permissive use.” • What does that mean? • What evidence in the case might support that

assertion?

Adverse Possession Adverse/Hostile & State of Mind:

Overview

• ALL States Require Lack of Consent/ Permission from OO

• ALL States Require, If Color of Title, Good Faith Belief in Deed or Will Providing CoT

• SOME States Also Require, if no CoT, that APor Have a Specific State of Mind • May call this as “claim of right” or “claim of

title”• Occasionally states discuss it as part of

“adverse/hostile”

Adverse Possession: State of Mind Requirements if No Color of

Title

• Variations state to state• Variations: Boundary Disputes v. Other

AP• Alternatives

1. Most States: State of mind irrelevant2. Some States Require Good Faith: Fatal to

know that you are not true O3. Some States Require Bad Faith: Must know

it’s not yours

Adverse/Hostile & State of MindAdverse/Hostile & State of MindYellowstone: Yellowstone: Lutz & Lutz & DQ5.20DQ5.20

From Last Week:From Last Week: Lutz Lutz Majority makes Majority makes apparently contradictory statements re apparently contradictory statements re

necessary state of mind: necessary state of mind: •Charlie’s Shack No Good: Knew it wasn’t Charlie’s Shack No Good: Knew it wasn’t their landtheir land

•Garage No Good: Thought it was their land.Garage No Good: Thought it was their land.

Ways to Reconcile?

Adverse/Hostile & State of MindAdverse/Hostile & State of MindYellowstone: Yellowstone: Lutz & Lutz & DQ5.20DQ5.20

At Least 2 Ways to Reconcile:1.1.Rule: APors Must Knew It’s Not Theirs But Rule: APors Must Knew It’s Not Theirs But Intend to AP Anyway (not met for either building)Intend to AP Anyway (not met for either building)

2.2.Different Rules for Ordinary AP and for Different Rules for Ordinary AP and for Boundary DisputesBoundary Disputes

1.1. Ordinary AP (C’s Shack): Need Good FaithOrdinary AP (C’s Shack): Need Good Faith2.2. Boundary Disputes (Garage): Need Bad Intent Boundary Disputes (Garage): Need Bad Intent

(“Maine Doctrine”)(“Maine Doctrine”)

Adverse/Hostile & State of MindAdverse/Hostile & State of MindLutz: Lutz: Significance of Waiver Significance of Waiver

In earlier litigation, Attorneys for Lutzes stated that land belonged to

VanValkenberghs•Majority Interpretation:• Concession = Lutzes waived ownership

rights• “Disseisin by Oral Disclaimer”

Adverse/Hostile & State of MindAdverse/Hostile & State of MindLutz: Lutz: Significance of Waiver Significance of Waiver

In earlier litigation, Attorneys for In earlier litigation, Attorneys for Lutzes stated that land belonged to Lutzes stated that land belonged to

VanValkenberghsVanValkenberghs•Dissent Interpretation:Dissent Interpretation:• Still enough evidence to support lower Still enough evidence to support lower

courtcourt• Behaved like true owner = claim of title Behaved like true owner = claim of title • Irrelevant what he thought as long as Irrelevant what he thought as long as

intent to acquire and use land as his own.intent to acquire and use land as his own.• Waiver after fact irrelevant; title Waiver after fact irrelevant; title

already passedalready passed

Adverse/Hostile & State of MindAdverse/Hostile & State of MindTiming of Waiver & AP PeriodTiming of Waiver & AP Period

• Waiver Waiver beforebefore AP period ends may AP period ends may make it non-adverse; equivalent to make it non-adverse; equivalent to permissionpermission

• Waiver Waiver afterward afterward different (important different (important concept):concept):• Once statute has run, if you’ve met Once statute has run, if you’ve met

elements, title passes elements, title passes • Magic moment when legal ownership Magic moment when legal ownership

transfers (like possibility of reverter transfers (like possibility of reverter becoming fee immediately when condition becoming fee immediately when condition violated) violated)

Adverse/Hostile & State of MindAdverse/Hostile & State of MindTiming of Waiver & AP PeriodTiming of Waiver & AP Period

• Waiver Waiver beforebefore AP period ends may AP period ends may make it non-adversemake it non-adverse

• Waiver Waiver afterward afterward different:different:• Title passes the moment APors meet all Title passes the moment APors meet all

elementselements• From that momentFrom that moment• APors no longer have to meet elementsAPors no longer have to meet elements• Statements re lack of ownership not legally bindingStatements re lack of ownership not legally binding• State presumably can’t take away w/o paying. State presumably can’t take away w/o paying.

Questions on Waiver or Lutz?

Lutz Opinion v. Ray Opinion: Why Might NY Ct. App. Be More

Generous to Rays?

IDEAS?

Lutz v. Ray: Why Might NY Ct.App. Be More Generous to Rays? Possibilities:• My Original List• Although Rays not claiming under color of title, D’s

predecessors never paid Ray’s mother for cottage, so maybe some rights retained.

• Better proof of specific area claimed.• Lutz Majority might not have liked changing

litigation strategy.• Other Ideas from the 2014 Class• Socio-Economic Differences (Summer Home Owners

v. Unemployed)• Ray’s Military Service• Maybe Upkeep in Abandoned Resort seen as More

Socially Useful

Adverse/Hostile & State of MindYellowstone: Bell & DQ5.21

Bell Arguments that state of mind should be irrelevant: •AP depends on “character of [APor’s] possession,” not of AP depends on “character of [APor’s] possession,” not of APor’s “secret thoughts.” Can’t get AP by thoughts alone, APor’s “secret thoughts.” Can’t get AP by thoughts alone, so can’t think yourself out of it.so can’t think yourself out of it.•Doctrine protects both knowing & unknowing APorsDoctrine protects both knowing & unknowing APors•Law Clearer w/o Intent = Presumably difficult to prove, Law Clearer w/o Intent = Presumably difficult to prove, especially on old claims especially on old claims

Other arguments that state of mind should be irrelevant: •Trespass doesn’t require particular state of mind: SoL is Trespass doesn’t require particular state of mind: SoL is running regardlessrunning regardless•Encourages lying by APorEncourages lying by APor•Repose & Sleeping OO Concerns Not Connected to State of Repose & Sleeping OO Concerns Not Connected to State of MindMind


COUNTER-ARGUMENTS?


Reasons to Have State of Mind Requirement•Maybe inappropriate to reward knowing “theft” of land•Maybe inappropriate to reward mistake w no intent to claim•BUT any SoL means that people can get away w tort or breach of contract w no liability •What state of mind requirement best serves the purposes of AP (if no color of title)? Save for policy discussion in DQ 5.25.

State of MindFamous Scholarly Debate Noted in Textbook

• Regardless of Doctrine/Language About State of Mind, Cases Tend to Favor Parties Acting in Good Faith

• Arguably consistent with Our Primary Cases

• No Technical Color of Title in Ray or Vezey, BUT • Both claimants arguably acting in good faith under

circumstances.

• Both claimants treated generously by courts

QS ON STATE OF MIND?QS ON STATE OF MIND?

REDWOOD: Rev. Prob. 5A (“Actual Use”)

REDWOODS & FERNS

REDWOODREDWOODReview Problem 5A: “Actual Use” ElementReview Problem 5A: “Actual Use” Element

Facts: AP Lives Next to Vacant LotFacts: AP Lives Next to Vacant Lot•Initially: Stone walls on 3 sides; graffiti; garbage Initially: Stone walls on 3 sides; graffiti; garbage

•AP repaints walls; removes garbage; plants AP repaints walls; removes garbage; plants hedge across 4th side of lot. hedge across 4th side of lot.

•For 10Y: AP washes off new graffiti, removes For 10Y: AP washes off new graffiti, removes garbage; trims hedge. garbage; trims hedge.

•Just looking at Actual Use; assume other Just looking at Actual Use; assume other elements met.elements met.

REDWOODREDWOODReview Problem 5A: “Actual Use” ElementReview Problem 5A: “Actual Use” Element

Arguments/Missing Facts?Arguments/Missing Facts?

1.Cultivation, Improvements, Enclosurea. Enclosure Separately b. All Three Together

2.Activity Like Owner of Similar Property?3.Activity Meet Purposes of AP/Actual Use?

tuesday march 31 music (to accompany bell): b-52s, cosmic thing (1989) featuring “love shack”...

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