PROPERTY E SLIDES

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

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

Denali DQ80: 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.

Denali DQ80: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort El Bahri Q from Monday re Text at P105: “[Their] seasonal presence, coupled with plaintiffs’ preservation of the premises for the statutory period of 10 years—which was made more obvious by the fact that all neighboring structures had collapsed … — was sufficient to place the record owner on notice of their hostile and exclusive claim of ownership.”

Denali DQ80: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort El Bahri Q from Monday re Text at P105: “[Their] seasonal presence, coupled with plaintiffs’ preservation of the premises for the statutory period of 10 years—which was made more obvious by the fact that all neighboring structures had collapsed … — was sufficient to place the record owner on notice of their hostile and exclusive claim of ownership.” This is not a separate listing of evidence, but court’s overall conclusion that the evidence in the case is sufficient to show Adverse Possession

Denali DQ82: 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

Denali DQ82: 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?

LOGISTICS Posted on Course Page Tomorrow: – Materials for Chapter 6 with updates to syllabus and assignment sheet – Detailed preparation instructions for Review Problems assigned for Monday 5A = Zion 5B = Acadia

LOGISTICS NCAA Sweet 16 Contest – Electronic Forms on Course Page ( entry to me by 4:30 today) – Hard Copy Forms Here Can hand-in to me at break or after class. Can deliver to my or to my assistant Michelle by 4:30 today.

Equity Playhouse presents Miami Law: Sold Out 7:00 p.m. Storer Auditorium (in the Business School) Tickets = $5 (on bricks at lunch or at the door) Starring (among others) – Carrie Cabrera – Freddie Mack – Sara Solano

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

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 (Next Class)

Adverse Possession Exclusive (Use by Other 3d Parties): Overview OK to share w another AP'or; will yield some form of joint ownership BUT: FL: Use of land by public in way that suggests public right defeats exclusivity of individual claimant BUT: Sanchez (Note P121): Rejects AP Claim by Large Group of Os Exercising Grazing Rights

Exclusive (Use by Other 3d Parties): Everglades: DQ84: Bell Bell: Floating House & Shifting Outhouse What Was Evidence of Others’ Use? Why Did Court Say Bell Loses?

Exclusive (Use by Other 3d Parties): Everglades: DQ84: Bell Bell quoting Wood (S102) “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

Adverse Possession 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 Protect Connection/ Investment

Adverse Possession 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?

Exclusive (Use by Other 3d Parties): Everglades: DQ84: Bell Harder Q Not Answered by Bell Result Different if Three Houseboat Families Claim Together? Note Not Large Group Like Sanchez Even if jointly meet “Exclusive,” would still raise issues re “Actual” and “Continuous”

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

Adverse Possession 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

Adverse Possession Exclusive (Use by OO): 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 NY Case (S106): 3 Weeks Storage of Construction Materials Defeats Exclusivity Note re Lawyering Note re Strong Anti-AP Approach

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

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.Should limited acts by OO be enough? Use of road on edge of 100 acre lot (Rev Prob 5E) Planting single bed of flowers (Rev Prob 5I: I’ll add) See Miller case in Note on S106: overhanging eaves allowed owner to keep just area under eaves, not whole lot. Could suggest as solution for other cases with small OO use.

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.Should limited acts by OO be enough? b.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. (Case doesn’t say not “exclusive.” My error in DQ84)

Everglades: DQ85 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

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

Adverse Possession Continuous: Overview No Slides for Continuous Element