1. PROPERTY D SLIDES 3-25-14

2. Tuesday March 25 Music (to Accompany Ray): Barry Manilow: Summer of ‘78 (1996) Annual NCAA Sweet 16 Contest (“Marc Madness”) High Score from Section D Gets Free Dinner Electronic Forms on Course Page E-Mail entry to me by 4:30 Thursday (OR) Hard Copy Forms Here Today & Thursday Can hand-in to me at break or after class. Can deliver to me or to my assistant Michelle by 4:30 Thursday.

3. ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use (cont’d) 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities Rev. Prob. 5A (3/27): In-Class: Yellowstone Critique: Arches

4. Actual Use: DQ5.06 Bell: Floating House & Shifting Outhouse Evidence of Actual Use? 1.Cultivation, Improvements, Enclosure (& Residence)? 2.Activity Like Owners of Similar Property? 3.Fit Purposes of AP/Actual?

5. Actual Use: DQ5.06 Bell: Floating House & Shifting Outhouse Evidence of Actual Use? Cultivation, Improvements, Enclosure (& Residence) No Cultivation or Enclosure Improvements: Sauna, Woodsheds, Moving Outhouse Residence: Not Really; Lives on Houseboat Activity Like Os of Similar Property? Tricky. Fit Purposes of AP/Actual? Notice v. Labor/Connection

6. Actual Use: DQ5.06 Bell: Floating House & Shifting Outhouse Washington S.Ct. Decides Case on “Exclusive” Doesn’t Rule on “Actual Use” BUT Could Easily Have Held Insufficient Evidence Qs on “Actual Use” Element?

7. LOGISTICS: Review Problems 5A, 5D, 5E Old Short Exam Problems; One AP Element Each –I’ll Give You a Slide w Some Guiding Qs at End of the Classwork on the Relevant Element – Treat Individual State’s Law as Persuasive Authority – Students on Responsible Panel: Prepare Strongest Arguments on Both Sides of Guiding Qs Stick to the Element in Q

8. LOGISTICS: Review Problems 5A, 5D, 5E Old Short Exam Problems; One AP Element Each –We’ll Do at the Start of the Class for which the Problem is Assigned Four Students Will be Assigned to Represent Each Party I’ll Put Up Slide With Assignments By 7:35 so You Can Do Extra Prep –I will primarily work with the assigned lawyers, so keep hands down until I ask for more general input –Critiquing Panel: Critique the “Lawyers’” Arguments; Not the Underlying Law Stick to the Element in Q

9. Review Problem 5A: “Actual Use” Element (3/27) In-Class Arguments: Yellowstone Critique: Arches Arguments/Missing Facts? 1.Cultivation, Improvements, Enclosure a.Enclosure Separately b.All Three Together 2.Activity Like Owner of Similar Property? 3.Activity Meet Purposes of AP/Actual Use?

10. ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities Primary: Biscayne Review Problem 5B (for Dean’s Fellow)

11. Open & Notorious: Background Important Distinction Actual Knowledge (Fact Q): Person in Q is Aware of Relevant Fact v. Notice (Legal Q): Under the Circumstances, Person in Q Should Be Aware of Relevant Fact “Ignorance of Law is No Excuse”: People Have Sufficient Notice of What Law Is (Even if no Actual Knowledge) You Are Supposed to Be Monitoring Your Own Property, so if Activity is Deemed “Open & Notorious”, You Will Be Treated as Having Notice of the AP Claim

12. Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Florida Version: “Sufficient to put a person of Ordinary Prudence on Notice”

13. Adverse Possession Open & Notorious: Overview The Reasonable ManOrdinary Prudence

14. Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Not Concerned with Visibility by Neighbors Common Error: Concern re Sneaking or Hidden from Street (v. on Surface) Common Error: Concern re Sneaking or Hidden from Street (v. on Surface) See Casebook @ P119: Use should not be “surreptitious.” BUT even if APor acts “surreptitiously” (e.g., at night), still meet test if s/he leaves visible evidence (improvement; cultivation, etc.)

15. Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Many States also allow Many States also allow Reputation Evidence –OR-- Reputation Evidence –OR-- Availability of Info in Public Records Availability of Info in Public Records

16. BISCAYNE: DQs 5.07-5.09 SUNRISE AT ADAMS KEY

17. DQ5.07 (Biscayne) Open & Notorious & AP Purposes Fit into AP Purposes? Purposes of APRole of Particular Element Repose Punish Sleeping OO Reward Beneficial Use/Labor Protect Connection/ Investment

18. DQ5.07 (Biscayne) Open & Notorious & AP Purposes Fit into AP Purposes Purposes of APRole of Particular Element Repose Punish Sleeping OOEnough Notice to Show that OO Who Misses is Truly Asleep Reward Beneficial Use/Labor Protect Connection/ Investment

19. Adverse Possession Open & Notorious: Overview Easy Qs/Hard Qs Easy YES: Hard to Lose on O&N if “Actual Use” Hard Qs: 1. Marengo Caves 2. Boundary Disputes & Small Overlap (e.g., 2 feet)

20. Open & Notorious: Hard Qs Biscayne DQ5.08: Marengo Caves (P119-20) Describe Facts Why Was Use of Caves not Open & Notorious?

21. Open & Notorious: Hard Qs Biscayne DQ5.08: Marengo Caves (P119-20) Upshot of Result Normal O&N: Q of notice not actual knowledge Comes from responsibility to monitor land Marengo Seems to require actual knowledge for underground AP. Means normal responsibility to monitor surface doesn’t apply underground Pros & Cons of Result?

22. Open & Notorious: Hard Qs Biscayne DQ5.08: Marengo Caves (P119-20) Case Means Normal Responsibility to Monitor Surface Doesn’t Apply Underground Facts Missing from Note in Textbook APor had Given Tours of Caves for 46 Years (Well-Known; Big Signs) OO had Taken Tour of Caves Himself Modern Commentators Suggest Result is Wrong Hard to See What More APor Could Do On Test, Can Treat as Non-Binding Authority

23. Adverse Possession Open & Notorious: Overview Easy Qs/Hard Qs Easy YES: Hard to Lose on O&N if “Actual Use” Hard Qs: 1.Marengo Caves 2.Boundary Disputes & Small Overlap (e.g., 2 feet) (We’ll Come Back to) Issues re Notice v. Knowledge Similar to Underground See Review Problem 5B (Short Problem for DF) See Review Problem 5H (Opinion/Dissent for Your Review)

24. Biscayne DQ5.07: Open & Notorious Evidence Lutz: Garden of Great Depression Pretty Easy Case: Lots Visible Crops w Boundary Logs, Shack, Garage Plus Reputation Evidence Bell: Floating House & Shifting Outhouse Existence of Small Buildings Unrelated to OO Moving Outhouse Might Help for Periods He’s in Residence in Houseboat

25. Biscayne DQ5.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On?

26. Biscayne DQ5.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On?

27. Biscayne DQ5.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On: Lots!! Visible on Surface: Residence; No Trespass Signs; Bars, Shutters, Padlocks on Cottage; General Maintenance; Comparison to Rest of Community Less Obvious (all forms of Public Record): Payment of Taxes & Insurance; Enforcement ag. Trespassers; Voting Address

28. Biscayne DQ5.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Lower court found element of “continuity” not met; thrust was that one month/year insufficient Court of Appeals discussion of evidence really encompasses “actual” & “open & notorious” & “continuous.” Implicitly saying: Incorrect to focus on one month a year for “continuous.” Ps’ use met Actual + O&N because of range of visible and other evidence present all year round.

29. Biscayne DQ5.09: Open & Notorious Evidence E. 13 th St.: Coalition of Squatters No Real Discussion of Element in Case Problem: Sometimes Use Apparent, Sometimes Not Could Characterize Problem 2 Ways Not Open & Notorious Not Continuous

30. Biscayne DQ5.09: Open & Notorious Evidence E. 13 th St.: Coalition of Squatters Sometimes Use is Apparent, Sometimes Not Could Address as O&N or as Continuous cf. Ray on Gaps in Time: Maybe View as: Summer Use = Normal Use (~Continuity Q) Evidence of Use Even When Gone (~O&N Q) Qs on “Open & Notorious” Element?

31. ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities Primary: Redwood Rev. Prob. 5D (3/31): In-Class: Redwood Critique: Shenandoah

32. Adverse Possession Exclusive: 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

33. Exclusive (Use by Other 3d Parties) Overview 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 P121).

34. REDWOOD: DQ 5.11-5.12 REDWOODS & FERNS

35. Exclusive (Use by Other 3d Parties): Redwood: DQ5.11: Bell Bell: Floating House & Shifting Outhouse What Was Evidence of Others’ Use? Why Did Court Say Bell Loses?

36. Exclusive (Use by Other 3d Parties): Redwood: DQ5.11: Bell 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 achieve Can physically chase away Can grant permission/accept money for use

37. Exclusive (Use by Other 3d Parties) Overview Fit into AP Purposes Purposes of APRole of Particular Element Repose Punish Sleeping OO Reward 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?

38. Exclusive (Use by OO) Overview More Common Issue: Use by OO Focus/Relevant Evidence: What did OO do on claimed land during AP period

39. Exclusive (Use by OO) Overview Fit into AP Purposes? Purposes of APRole of Particular Element Repose Punish Sleeping OO Reward Beneficial Use/Labor Protect Connection/ Investment

40. Exclusive (Use by OO) Overview Fit into AP Purposes Purposes of APRole of Particular Element Repose Punish Sleeping OOOO not sleeping if using claimed land Reward Beneficial Use/Labor Protect Connection/ Investment

41. Exclusive (Use by OO) Overview: Easy Qs Easy Cases YES: No use at all by OO duiring 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

42. 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

43. Adverse Possession Exclusive (Use by OO): Hard Qs 1.Use by OO, but Not as Owner 2.Short/Partial/Ineffective Assertions of OO Rts a.Significance of ineffective attempts to bar entry? Usually insufficient if don’t exclude AP’or for significant period of time Arguably true in E 13 th St.

44. Adverse Possession Exclusive (Use by OO): Hard Qs 1.Use by OO, but Not as Owner 2.Short/Partial/Ineffective Assertions of OO Rts a.Significance of ineffective attempts to bar entry? b.Should limited acts by OO be enough? Use of road on edge of 100 acre lot (Rev Prob 5C) 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.

45. Review Problem 5D: “Exclusive” Element (3/31) In-Class Arguments: Redwood Critique: Shenandoah Arguments/Missing Info? If jurisdiction accepts literal argument, D wins. Assume it doesn’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 D 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?

46. Redwood: DQ5.12 Exclusive & 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 Exclusivity

47. ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities Primary: Shenandoah Rev. Prob. 5E (4/1): In-Class: Biscayne Critique: Yellowstone

48. Adverse Possession Continuous: Overview Focus: Time Used Without Interruption Again Two Issues (We’ll Do Separately) (1) What constitutes sufficient interruption to stop clock? (a) Interruptions by OO (we cover under Exclusive) (b) Interruptions by APor: Legal test often as in Ray: Use like an ordinary owner of similar property (2) Tacking: When can you add the time of successive Os or APors to get to SoL (we’ll look at later)

49. Continuous: Overview Fit into AP Purposes? Purposes of APRole of Particular Element Repose Punish Sleeping OO Reward Beneficial Use/Labor Protect Connection/ Investment

50. Continuous: Overview Fit into AP Purposes Purposes of APRole of Particular Element ReposeEnough Time to Merit Repose Punish Sleeping OOConstant 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

51. Continuous 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