1. PROPERTY D SLIDES 3-31-14

2. Monday March 31 Music to Accompany E. 13 th Street (& Squatters Everywhere) Rent (Original Broadway Cast) (1996) Review Problem 5D: Redwood (In-Class Arguments) For Plaintiff (OO): Caruso, Hubbard, Rosendorf, Tarafa (Alts: Munroe, Martinez) For Defendant (APor): L-Gallagher, Hunter, Morey, Melendez (Alts: Romero, Sigurani) Shenandoah Critique due Wed. 4/2 @ 10:00 am

3. Review Problem 5D: “Exclusive” In-Class Arguments: Redwood Critique: Shenandoah OO (Dolly) inherits lot w summer home & visits in 1990. APor (Nicole) Purchases w Good Faith Color of Title in 1992 Spends Every Summer on Lot 1992-2007 OO visits in October 1999; plants flower bulbs in 15’ x 2’ strip. Never goes in house; doesn’t return again until 2007 Flowers come up every spring. I messed up procedure from problem. Let’s assume OO is plaintiff in lawsuit.

4. Review Problem 5D: “Exclusive” In-Class Arguments: Redwood Critique: Shenandoah For Ptff (OO): Caruso, Hubbard, Rosendorf, Tarafa (Alts: Munroe, Martinez) For Dfdt (APor): L-Gallagher, Hunter, Melendez, Morey (Alts: Romero, Sigurani) 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 OO’s acts 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?

5. PROPERTY D: 3/31 Another Opening Day: A Brief Tribute to Jackie Robinson & Branch Rickey

6. PROPERTY D: 3/31 Another Opening Day … … in Brooklyn!!!

7. Previously in Property D Adverse Possession 1.Justifications: Statute of Limitations & Beyond 2.Color of Title & Its Significance 3.Elements: Rules, Focus, Evidence, Purpose a.Actual Use (& Rev. Prob. 5A) Cultivation, Enclosure, Improvements Ordinary Owner of Similar Property b.Open & Notorious c.Exclusive d.Continuous

8. Previously in Property D Adverse Possession 1.Justifications: Statute of Limitations & Beyond 2.Color of Title & Its Significance 3.Elements: Rules, Focus, Evidence, Purpose a.Actual Use b.Open & Notorious c.Exclusive Acts of Other Third Parties (Bell) Acts of OO (& Rev. Prob. 5D Today) d.Continuous Interruptions by APor (& Rev. Prob. 5E Tomorrow) Tacking (Today)

9. LOGISTICS: GOING FORWARD Chapter 6 Materials Online (Switched to Easements) Tomorrow I’ll Do Intro Lecture Read Through Review Problem 6A; I’ll Use to Set Up Issues in First Part of Chapter 6 NCAA SWEET SIXTEEN CONTEST Shari Munroe wins If Kentucky wins tournament: Shari Munroe wins Andrew Kratzer wins If Connecticut plays Wisconsin: Andrew Kratzer wins Nicole Halmoukos wins Otherwise: Nicole Halmoukos wins

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

11. Adverse Possession Continuous: Overview of Tacking Focus: Time Used Without Interruption (1) What constitutes sufficient interruption to stop clock? (2) Tacking: When can you add the time of successive Os or APors to get to SoL? Add time of both if privity But don’t if consecutive unrelated trespassers

12. SHENANDOAH (DQ5.15) APPALACHIAN TRAIL

13. Shenandoah DQ5.15: Continuous Evidence in E. 13 th Street Why did the claimants not satisfy the “continuous” element? Is the case distinguishable from Ray? What other evidence would have been helpful to claimants on this issue? Should it matter/count if all belong to same organization?

14. Shenandoah DQ5.15: Continuous Evidence in E. 13 th Street: Context Intermediate Appellate Court (Supreme Court Appellate Division v. NY Court of Appeals) Like Lutz: Overturning lower court decision despite supposed requirement of deference. Dissent: Enough evidence facts are like Ray to affirm. Equivalent of preserving space in Ghost town APors part of “cohesive group” (not quite privity)

15. Questions on “Continuous”

16. ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostil e Panel Responsibilities Primary: Biscayne

17. Adverse Possession Adverse/Hostile (& State of Mind): Overview States Vary on Terminology: Element called “Adverse” or “Hostile” (or both) In Every State Means (At Least) Lack of Consent/ Permission from OO Usually NOT about APor's state of mind

18. Adverse Possession Adverse/Hostile (& State of Mind): Overview Adverse/Hostile ≥ Lack of Consent/Permission from OO If permission, SoL not running Consensual Possessor can start AP SoL by rejecting permission Difficult to do Rejection must be explicit & clear

19. 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 states discuss it as part of “adverse/hostile”

20. 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

21. BISCAYNE: DQ5.16-5.17 SUNRISE AT ADAMS KEY

22. Adverse/Hostile & State of Mind Biscayne: Lutz & DQ5.16 Lutz Majority makes apparently contradictory statements re necessary state of mind: Charlie’s Shack No Good: Knew it wasn’t their landCharlie’s Shack No Good: Knew it wasn’t their land Garage No Good: Thought it was their land.Garage No Good: Thought it was their land. Ways to Reconcile?

23. Adverse/Hostile & State of Mind Biscayne: Lutz & DQ5.16 At Least 2 Ways to Reconcile: 1.Rule: APors Must Knew It’s Not Theirs But Intend to AP Anyway (not met for either building) 2.Different Rules for Ordinary AP and for Boundary Disputes Ordinary AP (C’s Shack): Need Good Faith Ordinary AP (C’s Shack): Need Good Faith Boundary Disputes (Garage): Need Bad Intent (“Maine Doctrine”) Boundary Disputes (Garage): Need Bad Intent (“Maine Doctrine”)

24. 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” Dissent Response?Dissent Response?

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

26. Adverse/Hostile & State of Mind Timing of Waiver & AP Period Waiver before AP period ends may make it non- adverse; equivalent to permissionWaiver before AP period ends may make it non- adverse; equivalent to permission Waiver afterward different (important concept):Waiver afterward different (important concept): Once statute has run, if you’ve met elements, title passesOnce statute has run, if you’ve met elements, title passes Magic moment when legal ownership transfers (like possibility of reverter becoming fee immediately when condition violated)Magic moment when legal ownership transfers (like possibility of reverter becoming fee immediately when condition violated)

27. Adverse/Hostile & State of Mind Timing of Waiver & AP Period Waiver before AP period ends may make it non-adverseWaiver before AP period ends may make it non-adverse Waiver afterward different:Waiver afterward different: Title passes the moment APors meet all elementsTitle passes the moment APors meet all elements From that momentFrom that moment APors no longer have to meet elementsAPors no longer have to meet elements Statements re lack of ownership not legally bindingStatements re lack of ownership not legally binding State presumably can’t take away w/o paying.State presumably can’t take away w/o paying. Questions on Waiver or Lutz ?

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

29. Lutz v. Ray: Why Might NY Ct.App. Be More Generous to Rays? Possibilities: My Original List 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. Other Ideas from the Class Socio-Economic Differences (Summer Home Owners v. Unemployed) Ray’s Military Service Maybe Upkeep in Abandoned Resort seen as More Socially Useful

30. Adverse/Hostile & State of Mind Biscayne: Bell & DQ5.17 DQ 5.17 What arguments does the Washington Supreme Court in Bell provide in support of its position that state of mind is irrelevant?

31. Adverse/Hostile & State of Mind Biscayne: Bell & DQ5.17 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 APors Law Clearer w/o Intent = Presumably difficult to prove, especially on old claims Other arguments that state of mind should be irrelevant?

32. Adverse/Hostile & State of Mind Biscayne: Bell & DQ5.17 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?

33. Adverse/Hostile & State of Mind Biscayne: Bell & DQ5.17 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 in DQ 5.21. Qs on State of Mind?

34. Adverse Possession “Compounds”: Issues Beyond Individual Elements 1. Exceptions/Limits 2. Boundary Disputes (& Nightmare on 68 th Street) 3. How Should AP Law Operate?

35. Note 7C: Exceptions/Limits to Adverse Possession (S125) Details not important. Need to know: 1.AP normally doesn’t run against the gov’t 2.States have different disability provisions that toll the statute of limitations – Helpful to have a general sense of the possible categories (e.g., for Lawyering Q) – Don’t need to know specifics of operation

36. Adverse Possession Boundary Disputes: Overview 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