3-23-17 National Chia Day National Puppy Day PROPERTY A SLIDES 3-23-17 National Chia Day National Puppy Day

TEST IS WRITTEN & INCLUDES … Thursday March 23 Music to Accompany Shapira: Albéniz, Iberia (Alicia Delarrocha, Pianist ) 2009 Re-recording of Grammy Winner for 1974 for Best Classical Performance without Orchestra TEST IS WRITTEN & INCLUDES … A few completely new problems, but mostly questions & answers from posted Bank or Tests, some altered a bit, all with new names. Names of all students from Acadia, Everglades & Sequoia (I’m saving rest for Final Exam). Apologies to those of you I had to kill off. Office Hours Today 12:30-2:00 NCAA Contest Entries Due by 4:30 Today; Expertise Unneeded (& Often Unhelpful) Can E-Mail or Hand In Hard Copy to Me or to Tina Sutton E-Version on Course Page Hard Copy Forms on Front Table Watch Course Page for Daily Standings

CHAPTER 4: ADVERSE POSSESSION THE PREMIERE EVENT

Adverse Possession: Overview Connections to Rest of Course Type of Involuntary Transfer of Property Rights Like Shack & JMB & Eminent Domain Loss of Property Rights for Policy Reasons About Relationship of Property & Time Like Chapters 2 and 3 Here: Losing Property Rights Via Passage of Time

Adverse Possession: Overview Nature/Essence of Adverse Possession (AP) Arises from Statutes of Limitations (SoL) Length of State Statutes Varies (5-30 years) If don’t act to stop trespasser quickly enough, can forfeit right to do so Operates differently than other SoL Running of SoL Doesn’t Completely Bar Recovery for Original Owner (OO) Must meet detailed requirements to invoke SoL Generally Disfavored (e.g., NY & Fla need Clear & Convincing Evid.) BUT Result if OO loses is legal transfer of title

Adverse Possession: Overview Nature/Essence of Adverse Possession (AP) Can Get Title by “Possessing” Otherwise Unused Land for Length of Statute of Limitations “Possession” v. Ownership: AP Doctrine largely about how much & what kind of possession is necessary to transfer ownership .) Several Elements: Requirements beyond passage of time basically to ensure that Adverse Possessor (APor) sufficiently possessing Original Owner (OO) not really possessing

Adverse Possession: Overview Lawyering Focus Working with Individual Elements of a Cause of Action Need to Understand Role and Operation of Each Element “Elements” v. “Factors” Because each Element is required, assume not redundant AP Elements: Mostly Similar from State to State Often Mix of Statutory Language & Common Law Development

Adverse Possession: Overview Lawyering Focus Working with Individual Elements of a Cause of Action Need to Understand Role and Operation of Each Element Attys Use Cases Initially to Determine Meaning of Elements Read Multiple Relevant Cases to Flesh Out Each Individual Element Generally Don’t Examine Whole Cases Until Late in Process We’ll Approach Materials in This Unit This Way You’ll read through all cases initially to get sense of (by next Monday) In class, we’ll work on one element at a time, referencing all 5 cases as relevant (one panel per element).

Adverse Possession: Overview Lawyering Focus: Working with Indiv Adverse Possession: Overview Lawyering Focus: Working with Indiv. Elements Need to Understand Role and Operation of Each Element Because each Element is required, assume not redundant Each Element looking for different kind of info i.e., separate purpose/focus and different kinds of facts for each Useful to think about how each fits into purposes of AP LMNs of AP: similar from state to state exc state of mind If addressing a case in a partic jurisd, for each element: Check statute and caselaw for definitions/rules Use policy/purpose arguments to help resolve close cases

Adverse Possession: Overview Lawyering Focus: Individual Elements Our Sequence Actual Use (Acadia) Open & Notorious (Badlands) Exclusive (Olympic) Continuous (Sequoia) Adverse/Hostile (Everglades) Our Coverage for Each Focus/Relevant Evidence Purpose Easy Cases/Hard Cases Judicial Opinions Review Problems for 1-4

Cases: Brief Introduction with Memory Aids Lutz (NY 1952) Squatters’ Garden Thrives During the Great Depression Billie Holiday Sings

Cases: Brief Introduction with Memory Aids Ray (NY 1996) Creepy Summers in Empty Resort barry manilow, summer of ‘78

Squatters’ Ensemble Tries to Act Together Cases: Brief Introduction with Memory Aids E. 13th Street (NY. Supr. 1996) Squatters’ Ensemble Tries to Act Together RENT (Original Cast Album)

Cases: Brief Introduction with Memory Aids Bell (Wash. 1989) Houseboat Tied to Land with Woodshed, Sauna & Moving Outhouse The B-52s, COSMiC ThiNG featuring “Love Shack”

Secondary Cases: Not Required Reading I’ll Use Facts or Specific Doctrinal Points as Examples All Key Points in Slides Can Look at Further if You Find It Helpful Vezey (Alaska 2001) (P107-13) Marengo Cave (Ind 1937) (in Note at P114-15) Howard (Wash App 1970 (cited at P105, 107)

Everyone is One Lot Over from Their Deed Cases: Brief Introduction with Memory Aids Howard v. Kunto (Wash. App. 1971) Everyone is One Lot Over from Their Deed

Adverse Possession: Overview Cases: Three Common Fact Patterns Mistaken Owner w Good Faith Belief in Title ~Ray; Vezey; Howard Boundary Dispute between Neighbors Review Problems 3B & 3H Outsider “Squatting” Lutz; E. 13th St.; Bell

SEQUOIA: DQ4.01-4.03 SEQUOIAS

Adverse Possession: Justifications DQ4.01: AP as SoL (Sequoia) Purposes Behind SoL Generally? (E.g., Torts/Contracts)

Adverse Possession: Justifications DQ4.01: AP as SoL (Sequoia) Purposes Behind SoL Generally (E.g., Torts/Contracts) Potential Ds: Repose Legal System: Evidentiary Problems Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights) Apply to Actions for Possession of Land?

Adverse Possession: Justifications DQ4.01: AP as SoL (Sequoia) Purposes Behind SoL: Adverse Possession Potential Ds: Repose (Quiet Titles; Protect Investment) Legal System: Evidentiary Problems (”Prescriptive Rights”) Potential Ps: Don’t “Sleep” on Your Rights Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda) Other Purposes for AP?

Adverse Possession: Justifications DQ4.01: AP as SoL Purposes Behind SoL Generally (E.g., Torts/Contracts) Potential Ds: Repose Legal System: Evidentiary Problems Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights) Apply to Actions for Possession of Land?

Adverse Possession: Justifications Purposes Behind Adverse Possession More Broadly Potential Ds: Adverse Possessors (APors) Repose (Quiet Titles) Reward/Protect Investment in Land Reward/Encourage Beneficial Uses Protect Psychic Connection (Holmes) Legal System: Evidentiary Problems Potential Ps (OOs): Don’t “Sleep” on Your Rights Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda) Encourage/Reward OOs who send clear timely notice of interest

Adverse Possession: Overview Justifications/Purposes: Recap Purposes of AP Repose Like 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

Closing Up Chapter 3 Shapira Cont’d Timing Issues Some Info on Intestacy & Wills Review Problems 3P-3S Rule Against Perpetuities DQs 3.12/3.15

ACADIA: DQ3.13-3.14 Cont’d Acadia Sunrise

Acadia: DQ3.13  SHAPIRA: DISTINCTIONS  We’ll Explore Shapira Reasoning by Looking at Five Key Distinctions Drawn by the Opinion (Listed on Course Page)

Acadia: DQ3.13  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Why Relevant?

Acadia: DQ3.13  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Coercing Belief  v. Conduct  Administrability

Acadia: DQ3.13  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Coercing Belief  v. Conduct  Note View of Marriage in 1974 Can Use Case to Support Conditions Requiring Conduct Affecting Religious Concerns but not Coercing Belief Administrability

Acadia: DQ3.13  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Administrability: Compare: To Pigpen, so long as the kitchens and bathrooms are always kept very clean. To Schroeder, so long as he never plays any work by Beethoven on the piano.

Acadia: DQ3.13  SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  Administrability: Compare:  To Lucy so long as she remains a member of the Society of Friends.  To Linus, so long as he remains a good Catholic. QUESTIONS?

Acadia: DQ3.13  SHAPIRA: DISTINCTION #2  Gift conditioned upon divorce  v. Gift conditioned upon marriage to person of particular faith (maybe ) Why Relevant?

Acadia: DQ3.13  SHAPIRA: DISTINCTION #2  Gift conditioned upon divorce  v. Gift conditioned upon marriage to person of particular faith (maybe ) Court: Latter not sufficient to encourage fake marriage & divorce. Grantee can’t avoid condition by saying “I will act in bad faith” (this concern arises regarding many legal issues).

Acadia: DQ3.13  SHAPIRA: DISTINCTION #3  Conditional gift with “gift over” to third party v. Conditional gift without “gift over” Comprehensive Estate Plan (likely ) v. “In Terrorem” Condition (maybe )

Acadia: DQ3.13  SHAPIRA: DISTINCTION #4  Forcing a marriage as a condition of a completed gift  v. Withholding gift until marriage made  Why Relevant?

Acadia: DQ3.13  SHAPIRA: DISTINCTION #4  Forcing a marriage as a condition of a completed gift  v. Withholding gift until marriage made  Remedy: Injunction v. Forfeiting Gift Like case involving divorce settlement requirement that child be raised in particular faith Won’t impose contempt/criminal sanctions for not following religion

Acadia: DQ3.13  SHAPIRA: DISTINCTION #5  Quaker Men (Maddox)  v.  Jewish Women (Shapira) Why Relevant?

Acadia: DQ3.13  SHAPIRA: DISTINCTION #5  Quaker Men (Maddox)  v. Jewish Women (Shapira) Quakers = Too Few Available Partners  E.g., you must marry one of the Bronte Sisters 

Shapira v. Union National Bank Acadia: DQ3.14 Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “small number of eligible” partners. How few partners must there be to fail the test?

Shapira v. Union National Bank Acadia: DQ3.14 Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “small number of eligible” partners. If you were living in a state with that test, how could you prove whether it was met? (Cf. Lawyering Q on Final Exam)

Shapira v. Union National Bank Acadia: DQ3.14 Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “small number of eligible” partners. Assuming that some partial restraints on marriage are allowed, is the Maddox rule a good result?

Shapira v. Union National Bank Acadia: DQ3.14 Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “small number of eligible” partners. Good Result? Too much restriction on grantee v. Grantor’s Rights (can always argue that grantors should be able to dispose of their own property as they wish).

Questions on Shapira?

Closing Up Chapter 3 Shapira Cont’d Timing Issues Some Info on Intestacy & Wills Review Problems 3P-3S Rule Against Perpetuities DQs 3.12/3.15

Conditions: Timing Ambiguity To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. If Caitlin graduates from law school during Andrew’s life estate, does she divest Andrew’s interest or just Brian’s?

Conditions: Timing Ambiguity Possible Arguments To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. Common Law Presumption: If ambiguous, interest won’t divest life estate. Today: Generally treated as question of Grantor’s Intent, so look at context. I won’t test this as a difference between Common Law & Today

Conditions: Timing Ambiguity Possible Arguments To Andrew for life, then to Brian, but if Caitlin graduates from law school, to Caitlin. To Andrew for life, then to Brian, but if Caitlin has graduated from law school, then to Caitlin. Differences in wording, especially verb tenses, suggest C takes immediately for (1); at end of Life Estate for (2).

Conditions: Timing Ambiguity Possible Arguments To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. Andrew is 16; Caitlin is 46. Seems unlikely Caitlin will survive Andrew Suggests grantor intended Caitlin’s interest to cut off Andrew’s (or little point to the grant).

Conditions: Timing Ambiguity Change Grant: Possible Arguments To Andrew for life, then to Brian, but if Caitlin Andrew graduates from law school, then to Caitlin. Seems purpose of grant is either: To discourage A from going to law school To provide support for A unless he becomes a lawyer and can support himself Either way, suggests C’s interest should cut off A’s Life Estate, because it’s not aimed at either B or C.

Conditions: Timing Ambiguity Change Grant: Possible Arguments To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin. To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin. In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder

Conditions: Timing Ambiguity Change Grant: Possible Arguments To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin. To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin. In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder Questions on Timing Ambiguities?

Closing Up Chapter 3 Shapira Cont’d Review Problems 3P-3S Timing Issues Some Info on Intestacy & Wills Review Problems 3P-3S Rule Against Perpetuities DQs 3.12/3.15

Closing Up Chapter 3 Shapira Cont’d Review Problems 3P-3S Timing Issues Some Info on Intestacy & Wills Review Problems 3P-3S Rule Against Perpetuities DQs 3.12/3.15

AMBIGUITIES/QUESTIONS? (3P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS?

AMBIGUITIES/QUESTIONS (3P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS Today or “At Common Law”? R alive or dead? Condition void? M’s interest intended to cut off life estate? Details in Review Problem Write-Up on Course Page

ONE (EASY) BRANCH OF DECISION TREE (3P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” ONE (EASY) BRANCH OF DECISION TREE Condition Void  Pencil out M’s interest R Alive  As written, contingent remainder in R’s heirs (unascertainable) Plus Reversion in R RESULT: Stacy has Life Estate Contingent Remainder in R’s Heirs Renee has Reversion

SECOND BRANCH OF DECISION TREE (3P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” SECOND BRANCH OF DECISION TREE R Dead  Remainder is vested in R’s heirs as defined by intestacy statute. Today  Interest in Marni is in fee simple (not life estate). Condition valid; M’s interest intended to cut off life estate  Both of the other interests could be cut off by M. RESULT: Stacy has Life Estate Subject to Executory Limitation Renee’s [Ascertained] Heirs have Vested Remainder in FS Subj to Divestmt Marni has a Shifting Executory Interest in Fee Simple

Problem 3Q NOT AMBIGUITIES AMBIGUITIES/Qs Xaviera grants Brothelacre “to Betsy if it continues to be used as a house of prostitution, but if not, my heirs can take it.” Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will giving all her property to her friend Phil. Betsy replaced the existing brothel with an ad agency. NOT AMBIGUITIES Common Law v. Today (Ad Agency) Who is X’s “heir”? Y not P AMBIGUITIES/Qs

Problem 3Q AMBIGUITIES/Qs Condition Valid? (Nevada v. Other States) Xaviera grants Brothelacre “to Betsy if it continues to be used as a house of prostitution, but if not, my heirs can take it.” Xaviera died survived by no issue or spouse, but by her mother, Yvonne. She left a will giving all her property to her friend Phil. Betsy replaced the existing brothel with an ad agency. AMBIGUITIES/Qs Condition Valid? (Nevada v. Other States) Heirs take automatically v. must act? (Some language suggestive of both forms) Ad Agency Violate Condition  FURTHER ANALYSIS & BRANCHES OF DECISION TREE IN WRITE-UP OF REVIEW PROBLEMS

(Problem 3R): R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” - C on land writes novels & does deals on phone. - C dies; J is not 35. NOT AMBIGUITY - Common Law v. Today (Deals on the Phone) - Cf. Medical or Law School, which date to medieval Europe AMBIGUITIES/Qs in GRANT ITSELF?

AMBIGUITIES/QUESTIONS IN GRANT? AMBIGUITIES/QUESTIONS AFTERWARD? (3R) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 AMBIGUITIES/QUESTIONS IN GRANT? Life Estate or Fee? When Does J’s Interest Take Effect? AMBIGUITIES/QUESTIONS AFTERWARD?

AMBIGUITIES ARISING AFTER (3R) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 AMBIGUITIES ARISING AFTER Condition Violated by Writing/Deal-Making? Destructibility Apply? Details in Review Problem Write-Up on Course Page

BRANCHES OF DECISION TREE Lots of Variations in Sample Qs (3R) R: “to C for his support and benefit so long as the property is not used for commercial purposes, then to my nephew J and his heirs if J reaches 35.” C on land writes novels & does deals on phone. C dies; J is not 35 BRANCHES OF DECISION TREE Lots of Variations in Sample Qs