PROPERTY A SLIDES 3-26-15. Thursday March 26 Music (to Accompany Ray): Barry Manilow: Summer of ‘78 (1996) Annual NCAA Sweet 16 Contest (“Marc Madness”)

PROPERTY A SLIDES3-26-15

Thursday March 26 Music (to Accompany Thursday March 26 Music (to Accompany Ray):Ray):

Barry Manilow: Summer of ‘78 Barry Manilow: Summer of ‘78 (1996)(1996)

Annual NCAA Sweet 16 Contest (“Marc Madness”)

•High Score from Section A Gets Free Dinner • Electronic Forms on Course Page • E-Mail entry to me by 4:30 Today

• (OR) Hard Copy Forms Here Today• Can hand-in to me at break or after class.

• Can deliver to me or to my assistant Tina by 4:30 Today.

LOGISTICSLOGISTICS Chapter 4 Test Chapter 4 Test

• Can Get Individual Results from Tina Sutton After Class• Blind Grading = Do NOT Tell Me/Let Me Know/Hint How You Did• Answers & Explanations on Course Page; E-Mail if Qs

On Course PageOn Course Page•Chapter 6 (Easements): Supplement & Updated Syllabus• Updated Assignment Sheet with Info on All 2d Critiques• Final Version of Sample Exam Review Instructions with Available Problems from Chapters 5 & 6 (due Saturday April 18)

CHAPTER 5: ADVERSE POSSESSION

OVERVIEW (Continued)

Adverse Possession: Overview Justifications/Purposes: Recap

Purposes of AP

ReposeLike SoL Generally: Act Before Evidence Lost

plus Quiet Titles; Promote Alienability/Investment

Punish Sleeping OO Like SoL Generally: Discourage Sitting on Rights

plus Address Social Costs of Not Monitoring Land

Reward Beneficial Use/Labor by APor

Protect Connection/Investment of APor

YELLOWSTONE DQ5.02-5.03

GIANT GEYSER

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

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 v. AP of Complete

Parcel• AP regarding overlapping borders, not

whole lots.• Most Common Type of AP Case• We’ll Do Miami Herald Article Next Week About

Particularly Egregious Local Case

• Significance: • Changes Requirements/Elements in Some States• We’ll Go Through Specifics as We Cover Indiv.

Elements• Talk More About Generally Next Week & Rev. Prob.

5H

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?

(Preliminary Ideas)(Cross-Reference Easements by Estoppel in Chapter 6)

ELEMENTS OF ADVERSE POSSESSION

Our SequenceOur Sequence

1.1.Actual UseActual Use2.Open & Notorious3.Exclusive4.Continuous5.Adverse/Hostile

Panel Responsibilities

Primary: Redwood

Rev. Prob. 5A: Redwood

(In Class Tues 3/31)

Adverse Possession Actual Use: Overview

1. Focus: What has APor Done on Land a. Has to be some physical possession/entry to

trigger SoLb. In practice need much more to satisfy element

(LMN)2. Many State-specific legal tests/examples in materials

a. In real case, check specifics in your stateb. On exam: Note & Deal w Possibilities

i) Lawyering Q

ii) 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)Rough Definitions

•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”


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; cases fall back on “ordinary use” if no CEI•In practice, CEI = steps sufficient to show “possessing” land when not actually in residence or running business


Cultivation, Enclosure, Improvements (CEI)•CEI = steps sufficient to show “possessing” land when not actually in residence or running business•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 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

•Relatively Easy YESRelatively Easy YES• Use same as surrounding lotsUse same as surrounding lots• CEI covering entire claimed areaCEI covering entire claimed area• Residing or Operating Business using Residing or Operating Business using

Most of ParcelMost of Parcel

•Relatively 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, Vezey)• Some non-trivial CEI but

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

hard Qs

REDWOOD: DQ5.04-5.07

REDWOODS & FERNS

Actual Use Element in the CasesDQ5.04: Lutz (NY 1952)

Squatters’ Garden Thrives

During the Great Depression

Billie Holiday Sings

Actual Use: DQ5.04 (Redwood)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 cultivation

• So we’ll look mainly at CEI


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


If Need CEI:•Cultivation:• Evidence Here?Evidence Here?

• Why Rejected by Majority?Why Rejected by Majority?

• Why Did Dissent Disagree?Why Did Dissent Disagree?


ASIDE: Why should appellate courts defer ASIDE: Why should appellate courts defer to the factual findings of a trial court if to the factual findings of a trial court if

the appellate judges believe the findings the appellate judges believe the findings are incorrect? are incorrect?


Appellate courts defer to factual findings b/c of relative advantages of trial judges (& juries):

Visual Observation of WitnessesHearing Testimony


Ability to Hear Testimony

She wants me to take herher to the dance.


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


If Need CEI:•Improvements (Substantial Building/Repairs)• Some Small Stuff Insufficient • Built Shack: What’s Wrong with?• Garage Partly Over Boundary Line:

What’s Wrong With?


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?


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


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.

Actual Use: DQ5.05 (Redwood)Ray: Creepy Summers in Empty Resort• Evidence of Actual Use?• i) Summer residence, but not emphasized by itself• ii) Lower Ct: Notice of claim given by constant &

conspicuous use & bounded on all sides by path, rock garden, etc. (MAF: flimsy kind of enclosure)

• iii) CtApp adds: Installation of utilities + Preservation of cottage (substantial structure)

• How Does Court Deal with CEI Requirements?• Seems unconcerned w technical reqmts (cf. Lutz)• Focuses instead on: • Adequate to give notice (purpose)• Usual acts of ownership

Actual Use: DQ5.06 (Redwood)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?How Prove “Living” in Apts in Q?

Documents

PROPERTY A SLIDES 3-26-15. Thursday March 26 Music (to Accompany Ray): Barry Manilow: Summer of ‘78 (1996) Annual NCAA Sweet 16 Contest (“Marc Madness”)