PROPERTY A SLIDES4-3-15

Friday April 3: Music (to Accompany Chevy Chase) Carlos Santana, Supernatural (1999)

Arches Critique of Today’s Rev. Prob. 5D Arches Critique of Today’s Rev. Prob. 5D

Arguments Arguments

Due Monday (4/6) at 11:30 a.m.Due Monday (4/6) at 11:30 a.m.Extra Day Due to Multiple-Holiday WeekendExtra Day Due to Multiple-Holiday Weekend

Please Help Bolster My Faith in the Goodwill of Law Please Help Bolster My Faith in the Goodwill of Law

Students by Refraining from Sending Me E-Mails During Students by Refraining from Sending Me E-Mails During

Your Elective Today or During Crim Pro on Monday!!Your Elective Today or During Crim Pro on Monday!!

Review Problem 5D: “Exclusive” Review Problem 5D: “Exclusive” Yellowstone (for P Nicole ) Shenandoah (for D

Dolly)Arches (Critique)

• OO (Dolly) inherits lot w summer home & visits in 1990.

• APor (Nicole) Purchases w Good Faith Color of Title in 1992• Spends Every Summer on Lot 1992-2007

• OO visits in October 1999; plants flower bulbs in 15’ x 2’ strip.

• Never goes in house; doesn’t return again until 2007

• Flowers come up every spring.

Review Problem 5D: “Exclusive” Review Problem 5D: “Exclusive” Yellowstone (for P Nicole ) Shenandoah (for D

Dolly)Arches (Critique)

Arguments/Missing Info? Arguments/Missing Info? If jurisdiction accepts literal argument, OO wins. Assume it If jurisdiction accepts literal argument, OO wins. Assume it

doesn’tdoesn’t

1.1.Which facts in the problem (other than the passing of Which facts in the problem (other than the passing of time) are helpful for each side? Be prepared to respond to time) are helpful for each side? Be prepared to respond to other side’s claims.other side’s claims.2.2.Discuss whether a court should consider what OO has Discuss whether a court should consider what OO has done enough in light of the policies implicated by this done enough in light of the policies implicated by this element.element.3.3.Identify possible additional facts or legal rules (that are Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect not inconsistent with what I’ve told you) that might affect the outcome.the outcome.

PROPERTY A: 4/3

Another Opening Day: Another Opening Day: A Brief Tribute to Jackie A Brief Tribute to Jackie

Robinson Robinson & Branch Rickey & Branch Rickey

PROPERTY A: 4/3

Another Another OpeningOpening Day … Day …

… … in Brooklyn!!! in Brooklyn!!!

Adverse Possession Adverse Possession “Molecules”“Molecules”

Issues Beyond Individual Elements 1. Multi-Element Review Problems

2.Exceptions/Limits

3.3.Boundary DisputesBoundary Disputes• Generally (Last Time)Generally (Last Time)

• Nightmare on 68Nightmare on 68thth Street Street• Intro to Rev. Problem 4HIntro to Rev. Problem 4H

4. Policy Discussion: How Should AP Law Operate?

SHENANDOAH: Boundary Disputes, Nightmare & DQs

5.22-5.24

APPALACHIAN TRAIL

Nightmare on 68th Street: SHENANDOAH: DQ5.22

BASIC ELEMENTS? Focus on Initial Border Dispute betw Smiths & Davises re Carport Focus on Initial Border Dispute betw Smiths & Davises re Carport

• ACTUAL:• O&N:• CONTINUOUS: • EXCLUSIVE:• ADVERSE:

Nightmare on 68th Street: SHENANDOAH: DQ5.22

BASIC ELEMENTS PROBABLY MET EASILY• ACTUAL: Improvement plus use• O&N: Same (if actual knowledge not required)• CONTINUOUS: 1938 7+ Years• EXCLUSIVE: No evidence of others using• ADVERSE: No evidence of permission

Nightmare on 68th Street: SHENANDOAH DQ5.23

Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could claim no payment of taxes.”

(Middle S128) Legal significance?

Nightmare on 68th Street: SHENANDOAH DQ5.23

Mr. Smith: “We paid the taxes all those Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could years on that lot.” … “[T]hey could

claim no payment of taxes.” claim no payment of taxes.” • Fl.Stat. 95.18 (S107) requires payment of taxes if no color

of title.

• Note: Payment of taxes by the OO is almost always true in AP cases and is not a defense. Legal issue here is payment by Pullens/Davises, not by Smiths.

Nightmare on 68th Street: SHENANDOAH DQ5.23

Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could claim

no payment of taxes.”

• Fla requires payment of taxes if no color of title. • Color of Title here?–Valid deed to lot *PLUS*– Incorrect survey indicating ownership of disputed strip

• Sufficient? (policy Q)

Nightmare on 68th Street: SHENANDOAH DQ5.22

State of Mind• Some Florida caselaw appears to require bad

faith in boundary disputes• Evidence of State of Mind Here?

Nightmare on 68th Street: SHENANDOAH DQ5.22

State of Mind• Some Florida caselaw appears to require bad

faith in boundary disputes• Should good faith reliance on faulty survey be

OK? (policy Q; no cases on point)

Nightmare on 68th StreetImplicit Boundary Dispute Policy Qs

• IF Deed plus incorrect survey = color of title: APor wins –OR—• IF Good faith payment of taxes assessed meets statutory

reqmt: APor wins• IF NOT There will almost never be successful boundary

dispute APSimilar policy considerations to O&N and state of mind for

boundary disputes. (See Rev Prob 5H)

DQ5.24Boundary Disputes: Policy Considerations

Why might states treat boundary disputes differently?

•Tension: Diligent OOs v. Neighborly Relations (Measuring Tapes)• Maybe discourage lawsuits by neighboring APors by

making difficult to win; requiring testimony re own “bad faith”

•Maybe Different Expectations re Diligent Behavior by OO • Often hard to be exact about property line• Maybe shdn’t have to be aware of w precision

DQ5.24Boundary Disputes: Policy Considerations

(Recap)

• Some States Have Stricter O&N or State of Some States Have Stricter O&N or State of Mind Reqmts for Boundary Disputes. Mind Reqmts for Boundary Disputes. Policy Concerns: Policy Concerns: • Neighborly Relations Neighborly Relations • Expectations re Diligent Behavior by OO Expectations re Diligent Behavior by OO

• NOTE: Making Either Reqmt More Strict Makes NOTE: Making Either Reqmt More Strict Makes Litigating Old Cases Very HardLitigating Old Cases Very Hard

Questions?Questions?

Rev. Prob. 5H (Opinion/Dissent Next Thursday)

Shenandoah (In-Class for Plaintiffs) & Arches (In-Class for Defendants

Redwood (Critique)

1.1. Should rules for boundary disputes (BDs)be Should rules for boundary disputes (BDs)be different than for ordinary Adverse Possession? different than for ordinary Adverse Possession?

2.2. Assuming Court is willing to consider different Assuming Court is willing to consider different rules for BDs:rules for BDs:a.a. Should state adopt “actual knowledge” as standard for Open Should state adopt “actual knowledge” as standard for Open

& Notorious in BDs?& Notorious in BDs?b.b. Should state adopt “bad faith” State of Mind requirement in Should state adopt “bad faith” State of Mind requirement in

BDs?BDs?

Rev. Prob. 5H (Opinion/Dissent Next Thursday)

Shenandoah (In-Class for Plaintiffs) & Arches (In-Class for Defendant)

Redwood (Critique)Arguments Targeting State Supreme Court Setting Rules for the State Going Forward.

•Attys Can Use General Policy Arguments

•Attys Can Use Arguments Treating Facts of Case as Example.

•No Need to Apply Rules to Facts Here (Results Should be Clear)

Adverse Possession Adverse Possession “Molecules”“Molecules”

Issues Beyond Individual Elements

1.Multi-Element Review Problems

2.Exceptions/Limits

3.Boundary Disputes (& Nightmare on 68th Street)

4.4.DQ5.25: Policy Discussion: DQ5.25: Policy Discussion: How Should AP Law Operate?How Should AP Law Operate?

DQ5.25: Adverse Possession Policy:Legislative Debate

• Florida Legislature considering eliminating or modifying adverse possession doctrine. •Proposals include• Complete elimination• Color of Title Only• Adverse Possessor must pay market value (Forced Sale)

• Identifying Arguments re Strength & Weaknesses of Various Rules Central Part of Your Work on Opinion/Dissent Q

DQ5.21: Adverse Possession Policy:Legislative Debate

• Florida Legislature considering eliminating or modifying adverse possession doctrine. • Proposals include• Complete elimination• Color of Title Only• Adverse Possessor must pay market value (Forced Sale)

•Positions likely taken by Positions likely taken by • Environmental Advocacy Group?Environmental Advocacy Group?• Advocacy Group for Homeless Folks?Advocacy Group for Homeless Folks?

DQ5.21: Adverse Possession Policy:DQ5.21: Adverse Possession Policy:Legislative DebateLegislative Debate

• Florida Legislature considering eliminating or modifying adverse possession doctrine. • Proposals include• Complete elimination• Color of Title Only• Adverse Possessor must pay market value (Forced Sale)

• Arguments suggested by facts of cases we read?Arguments suggested by facts of cases we read?• Note useful technique for Opinion/Dissent QsNote useful technique for Opinion/Dissent Qs• Example: NightmareExample: Nightmare• Others?Others?

DQ5.21: Adverse Possession Policy:DQ5.21: Adverse Possession Policy:Legislative DebateLegislative Debate

• Florida Legislature considering eliminating or modifying adverse possession doctrine. • Proposals include• Complete elimination• Color of Title Only• Adverse Possessor must pay market value (Forced Sale)

•Other Proposals/Arguments?Other Proposals/Arguments?

Scope of Easement: RR Easement Recreational Trail

Common Transition with Decline of RRs•Federal statute encourages and gives RRs authority to transfer rights-of-way•BUT doesn’t purport to resolve state law issues re allowable scope after transfer•We’ll compare Chevy Chase (MD) to Preseault (Fed. Cir. 1996) (P774-75 Note 2)

Scope of Express Easements (Tuesday)

RR Easement Recreational TrailIMAGINATION EXERCISE IMAGINATION EXERCISE

(~6.02)(~6.02)Possible Increases in Burden?

Everyone (but Redwoods First)Everyone (but Redwoods First)