1. NCAA SWEET SIXTEEN CONTEST RESULTS If Louisville wins tournament: Joe Picone wins Otherwise: Amelia Gerson wins

2. LOGISTICS (revised after missed class on Tuesday) Chapter 6 Materials Not Posted Yet (Sorry!) – I’ll post by first thing Thursday morning – Thursday I’ll do short intro lecture – A little background reading to look at – We’ll get into in detail w panel assignments on Monday Next Monday (4/8) I’ll run a little long and talk about course selection

3. ELEMENTS OF ADVERSE POSSESSION 1.Actual Use 2.Open & Notorious 3.Exclusive 4.Continuous 5.Adverse/Hostile (& State of Mind): Olympic

4. Adverse Possession Adverse/Hostile & State of Mind: Overview In Every State: Means (At Least) Lack of Consent/Permission from OO Usually NOT about APor's state of mind If permission, SoL not running Consensual Possessor can start AP SoL by rejecting permission Difficult to do Rejection must be explicit & clear

5. 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 part of “adverse/hostile”

6. 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 irrelevant 2.Some States Require Good Faith: Fatal to know that you are not true O 3.Some States Require Bad Faith: Must know it’s not yours

7. Adverse/Hostile & State of Mind Olympic: Lutz & DQ89 Lutz Majority makes apparently contradictory statements re necessary state of mind: Charlie’s Shack No Good: Knew it wasn’t their land Garage No Good: Thought it was their land. Ways to Reconcile?

8. Adverse/Hostile & State of Mind Olympic: Lutz & DQ89 At Least 2 Ways to Reconcile: 1.Rule: APors Must Knew It’s Not Theirs But Intend to AP Anyway (not met for either) 2.Different Rules for Ordinary AP and for Boundary Disputes Ordinary AP (C’s Shack): Need Good Faith Boundary Disputes (Garage): Need Bad Intent

9. Adverse/Hostile & State of Mind Lutz: 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”

10. Adverse/Hostile & State of Mind Lutz: Significance of Waiver In earlier litigation, Attorneys for Lutzes stated that land belonged to VanValkenberghs Dissent Interpretation: Still enough evidence to support lower court Behaved like true owner = claim of title Irrelevant what he thought as long as intent to acquire and use land as his own. Waiver after fact irrelevant; title already passed

11. Adverse/Hostile & State of Mind Timing of Waiver & AP Period Waiver before AP period may make it non- adverse; equivalent to permission Waiver afterward different (important concept): Once statute has run, if you’ve met elements, title passes Magic moment when legal ownership transferred (like “vested” v. contingent right) The moment people using parcel became owners under existing law: They no longer have to meet elements Statements re lack of ownership not legally binding State presumably can’t take away w/o paying. Questions on Waiver?

12. Lutz v. Ray: Why Might NY Ct.App. Be More Generous to Rays? 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

13. Adverse/Hostile & State of Mind Olympic: Bell & DQ90 DQ 90. What arguments does the Washington Supreme Court in Bell provide in support of its position that state of mind is irrelevant?

14. Adverse/Hostile & State of Mind Olympic: Bell & DQ90 Bell Arguments that state of mind should be irrelevant: AP depends on “character of [APor’s] possession,” not of APor’s “secret thoughts.” Can’t get AP by thoughts alone, so can’t think yourself out of it. Doctrine protects both knowing & unknowing Law Clearer w/o Intent = Presumably difficult to prove, especially on old claims

15. Adverse/Hostile & State of Mind Olympic: Bell & DQ90 Other arguments that state of mind should be irrelevant: Trespass doesn’t require particular state of mind: SoL is running regardless Encourages lying by APor Repose & Sleeping OO Concerns Not Connected to State of Mind COUNTER-ARGUMENTS?

16. Adverse/Hostile & State of Mind Olympic: Bell & DQ90 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 tomorrow ) Qs on State of Mind

17. YOSEMITE: Adverse Possession Boundary Disputes & DQ91-93 HALF DOME

18. Adverse Possession Boundary Disputes Generally Some states have different requirements; either or both of: APor must have “bad” state of mind Knows it isn’t hers and intends to take Sometimes called “Maine Doctrine” Open & Notorious = Actual Knowledge by OO that on OO’s land (cf. Marengo Caves) Either = No AP by Mutual Mistake in Boundary Disputes

19. Nightmare on 68 th Street: YOSEMITE DQ91 BASIC ELEMENTS? ACTUAL: O&N: CONTINUOUS: EXCLUSIVE: ADVERSE:

20. Nightmare on 68 th Street: YOSEMITE DQ91 BASIC ELEMENTS 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

21. Nightmare on 68 th Street: YOSEMITE DQ92 Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could claim no payment of taxes.” Legal significance?

22. Nightmare on 68 th Street: YOSEMITE DQ92 Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could claim no payment of taxes.” Florida requires payment of taxes if no color of title. Note that payment of taxes by the original owner is almost always true in AP cases and is not a defense. Legal issue here is whether Pullens/ Davises paid, not whether Smiths did.

23. Nightmare on 68 th Street: YOSEMITE DQ92 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)

24. Nightmare on 68 th Street: YOSEMITE DQ91 State of Mind Some Florida caselaw appears to require bad faith in boundary disputes Evidence of State of Mind Here?

25. Nightmare on 68 th Street: YOSEMITE DQ91 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)

26. Nightmare on 68 th Street Implicit 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 AP Similar policy considerations to O&N and state of mind for boundary disputes.

27. YOSEMITE: DQ93 Boundary Disputes: Policy Considerations Why might states treat boundary disputes differently than other forms of AP?

28. YOSEMITE: DQ93 Boundary Disputes: Policy Considerations Why might states treat boundary disputes differently than other forms of AP? Tension: Diligent OOs v. Neighborly Relations (Measuring Tapes) 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

29. Adverse Possession Boundary Disputes: Review Problem 5G The Comstock Supreme Court granted certiorari to determine the appropriate rules in border disputes for (1)the open and notorious requirement and (2)the state of mind requirement. Write drafts of the analysis sections of both a majority opinion and of a shorter dissent for the court determining the appropriate rules for both these requirements in the context of this case.

30. ZION: Review Problem 5A “ Actual Use” Element TEMPLES & TOWERS OF THE VIRGIN

31. ZION: 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 4 th side of lot. For 10Y: AP washes off new graffiti, removes garbage; trims hedge.

32. ZION: Review Problem 5A “ Actual Use” Element Arguments/Missing Facts? 1.Cultivation, Improvements, Enclosure 2.Uses Like Owner of Similar Property 3.Purposes of AP/Actual Use