LOGISTICS: Chapter 4 Exam Test Processing is Complete – Class Generally Did Well – You’ll Get Individual Score Sheets At End of Class – Don’t Tell Me How You Did

LOGISTICS: Chapter 4 Exam Relation to Overall Grade – Half-Point for Each Right Answer (Max = 12) – Added to Final Exam Score (Max = 60 Points) – Scores pretty bunched for Chapter 4 Exam, so range operates approximately like half a Final Exam Q

LOGISTICS No Class Tomorrow Posted on Course Page After Class: – Chapter 4 Test: Questions, Correct Answers, Explanations ( me if Qs) – My Annual NCAA Sweet 16 Contest Free Dinner for Best Entry from Property E Entry by Thursday afternoon OR Bring hard copy to class Thursday

Adverse Possession Memory Aids for Cases Lutz: Garden of Great Depression Ray: Creepy Summers in Empty Resort Bell: Floating House & Shifting Outhouse E. 13 th St.: Coalition of Squatters

ELEMENTS OF ADVERSE POSSESSION 1.Actual Use: Acadia 2.Open & Notorious 3.Exclusive 4.Continuous 5.Adverse/Hostile

Adverse Possession Actual Use: Overview 1. Focus: What has APor Done on Land a. Has to be phys possession/entry to trigger SoL b. in practice need much more to satisfy LMN 2. Many State-specific legal tests/examples in materials a. In real case, check specifics in your state b. On exam: Note & Deal w Possibilities i) Lawyering Q ii) Issue-Spotter or Short Problem

Adverse Possession Actual Use: Overview 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 (top P105 )(similar test for both Actual & Continuous) Lutz Dissent (bottom S99 quoting Ramapo) b.Common: Cultivation, Enclosure, Improvements (CEI) NY & Florida Statutes

Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) 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”

Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) Part of DQ78: When statute says CEI, can you have AP if residing or operating biz from pre-existing bldg.? Probably; no FL case holds otherwise; w/o CEI cases fall back on “ordinary use” In practice, CEI = steps sufficient to show “possessing” land when not actually in residence or running biz

Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) CEI = steps sufficient to show “possessing” land when not actually in residence or running biz 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)

Adverse Possession Actual Use: Overview Fit into AP Purposes Purposes of APRole of Particular Element Repose Punish Sleeping OO Reward Beneficial Use/Labor Protect Connection/ Investment

Adverse Possession Actual Use: Overview Fit into AP Purposes Purposes of APRole of Particular Element ReposeTriggers SoL Punish Sleeping OOEnough Activity to Give Notice to Reasonable OO? Reward Beneficial Use/Labor Type We Want to Reward? Protect Connection/ Investment Sufficient to Merit Protection?

Adverse Possession Actual Use: Overview Easy Qs/Hard Qs Easy YES Use same as surrounding lots CEI covering entire claimed area Easy NO: Use significantly less than surrounding lots Marginal CEI

Adverse Possession Actual Use: Overview Easy Qs/Hard Qs Hard Qs Not a lot of use but more than surrounding lots (Ray, Bell) Some non-trivial CEI but incomplete/imperfect (Lutz) Rev Prob 5A (next Mon) addresses some hard Qs

Actual Use: DQ77 (Acadia) 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 cultvation So we’ll look mainly at CEI

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression 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

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression If Need CEI: Cultivation: Evidence Here? Why Rejected by Majority? Why Did Dissent Disagree?

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression ASIDE: Why should appellate courts defer to the factual findings of a trial court if the appellate judges believe the findings are incorrect?

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression Appellate courts defer to factual findings b/c of relative advantages of trial judges (& juries): Visual Observation of Witnesses Hearing Testimony

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression Hearing Testimony her She asked me to take her to the dance.

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) Some Small Stuff Insufficient Portable chicken coop Cutting of brush and trees Placing various rubbish on premises.

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) Built Shack: What’s Wrong with?

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) NO. Knew Shack Was on Someone Else’s Land Garage Partly Over Boundary Line: What’s Wrong With?

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) NO. Knew Shack Was on Someone Else’s Land NO. Thought Garage Was on Own Land We’ll Return to this with State of Mind. Olympic DQ 89 (Thursday): Can you see a way to reconcile majority positions on shack & garage?

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression 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?

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression 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

Actual Use: DQ77 (Acadia) Lutz: Garden of Great Depression Looking at Case as a Whole Meet Purposes of Actual Use Element? Might look at CEI cumulatively In casebooks b/c generally thought to be wrong.

Actual Use: DQ78 (Acadia) Ray: Creepy Summers in Empty Resort Evidence of Actual Use? How Does Court Deal with CEI Requirements?

Actual Use: DQ79 (Acadia) E. 13 th St.: Coalition of Squatters Possible Evidence of Actual Use Imagination Exercise Like Fact Research for Lawyering Q How Prove “Living” in Apts in Q?

Actual Use: DQ79 (Acadia) E. 13 th St.: Coalition of Squatters Possible Evidence of Actual Use Dissent: Improvements & Attempts to Preserve

Actual Use: DQ79 (Acadia) Bell: Floating House & Shifting Outhouse Evidence of Actual Use?

Actual Use: DQ79 (Acadia) Bell: Floating House & Shifting Outhouse Court Decides Case on “Exclusive” Doesn’t Rule on “Actual Use” BUT Could Easily Have Held Insufficient Evidence Qs on “Actual Use” Element?

ELEMENTS OF ADVERSE POSSESSION 1.Actual Use 2.Open & Notorious: Denali 3.Exclusive 4.Continuous 5.Adverse/Hostile

Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety of Use a. Visibility to OO Checking on Property b. Not Concerned with Visibility by Neighbors c. Common Error: Concern re Sneaking or Hidden from Street (v. on Surface)

Adverse Possession Open & Notorious: Overview 1.Focus: Visibility/Notoriety of Use 2.Commmon Test: “Use Visible to one on Surface of Property” Florida Version: “Sufficient to put a person of Ordinary Prudence on Notice”

Adverse Possession Open & Notorious: Overview The Reasonable ManOrdinary Prudence

Adverse Possession Open & Notorious: Overview 1.Focus: Visibility/Notoriety of Use 2.Commmon Test: “Use Visible to one on Surface of Property” 3.Many States also allow Reputation Evidence or Availability in Public Records

Adverse Possession Open & Notorious: Overview Fit into AP Purposes Purposes of APRole of Particular Element Repose Punish Sleeping OO Reward Beneficial Use/Labor Protect Connection/ Investment

Adverse Possession Open & Notorious: Overview 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

Adverse Possession Open & Notorious: Overview Easy Qs/Hard Qs Easy YES: Hard to Lose on O&N if “Actual Use” Hard Qs: Boundary Disputes & small overlap (e.g., 2 feet) We’ll come back to See review problem 5D (DF not class) Marengo Caves

Open & Notorious: Hard Qs Denali DQ81: Marengo Caves (P119-20) Describe Facts Why Was Use of Caves not Open & Notorious? Pros & Cons of Result?

Open & Notorious: Hard Qs Denali DQ81: 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 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

Denali DQ80: 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 Moving Outhouse Probably Works for Periods He’s in Residence in Houseboat

Denali DQ80: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On?