Adverse Possession: Elements and Examples

Tuesday March 31 Music (to Accompany Bell):B-52s, Cosmic Thing (1989)featuring “Love Shack” NCAA CONTEST POSSIBLE WINNERS • If Michigan State beats Duke in Semi-Finals : Baquedano • If Duke Wins Tourney: Agramonte/Plowden • If Kentucky Beats Duke in Final: Fellig/Silverberg • If Wisconsin Beats Duke in Final: • Fajer Has High Score • Fellig/Silverberg Win Contest

LOGISTICS • Chapter 4 Test • Info on Relative Weight on Course Page • Please Retrieve Your Score Sheet by Mid-Day Tomorrow • Chapter 5 Corrections (I’ll Fix Course Page) • 1st Assigned Note in Textbook on State of Mind is Note 7 (P104) • DQs on Boundary Disputes (S137) should be numbered 5.22-5.24 • Chapter 6 Intro Thursday • I’ll Start Class with Intro Lecture & Review Problem 6A (S145) • Try to Apply “Blackletter Tests” from (S144) to Rev. Prob • I’ll Work Through with Volunteers

Previously in Property A Adverse Possession: “Debriefing” Justifications: Statute of Limitations & Beyond Color of Title & Its Significance Individual Elements: Rules, Focus, Evidence, Purpose Actual Use Open & Notorious Continuous

Previously in Property A Adverse Possession: “Debriefing” Individual Elements: Actual Use Legal Tests Cultivation, Enclosure, Improvements (NY & FL Statutes) Use Like Ordinary Owner of Similar Property Examples Lutz & VezeyDiscuss in Detail Other Specific Examples in Notes in Text & Supplement

Previously in Property A Adverse Possession: “Debriefing” Individual Elements: Open & Notorious Normally Q of Notice (Legal Q) Test: Notice to Person Standing on Surface of Lot Normally Easy if “Actual” Met Some States Can Do w Public Record or Notoriety Actual Knowledge by OO Sufficient in Vezey Sometimes Actual Knowledge Required (Fact Q) Marengo Caves for Underground (Not Binding Outside Indiana) Some States Require for Border Disputes

Previously in Property A Adverse Possession: “Debriefing” Individual Elements: Continuous 1st Type of Issue: Tacking Sufficient Legal Connection to Add Together APors or OOs Insufficient in East 13th Street 2d Type of Issue: Interruptions by APor Check Ordinary Use of Type of Property at Issue (e.g., Seasonal) If Gaps, Can Be Interwoven with O&N (e.g., Ray)

BISCAYNE: Exclusive & DQ5.12-5.15 SUNRISE AT ADAMS KEY

ELEMENTS OF ADVERSE POSSESSION Our Sequence • Actual Use • Open & Notorious • Continuous • Exclusive • Adverse/Hostile Panel Responsibilities Primary: Biscayne Rev. Prob. 5C: Biscayne (Thurs 4/2) Rev. Prob. 5D (Fri 4/3) Yellowstone (Plaintiff) Shenandoah (Defendant) Arches (Critique)

Adverse Possession Exclusive: Overview Focus: Use by Others Beside APor. Two Issues (We’ll Do Separately) Less Common Issue: Also use by other third parties (non-owners) More Common Issue: Also use by OO

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 P116).

Exclusive (Use by Other 3d Parties):Biscayne: DQ5.12: Bell Bell: Floating House & Shifting Outhouse Evidence in Case: 2 families use similarly to Bell No attempt to by Bell to exclude or behave as O E.g., didn’t ask for $ or permission Compare land to houseboat, which he did lease out to someone else Wash SCtsay Bell loses b/c not acting like true O Suggests Bell not very different than others So why give him title?

Exclusive (Use by Other 3d Parties):Biscayne: DQ5.12: 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 establish dominion vis-à-vis strangers!!! Can physically chase away Can grant permission/accept money for use

Exclusive (Use by Other 3d Parties):Biscayne: DQ5.12: Bell & Vezey Is Bell consistent with the discussion of exclusivity in the Nome 2000 case (cited in Vezeyat P109)?

Exclusive (Use by Other 3d Parties)Overview Fit into AP Purposes

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

Exclusive (Use by OO)Overview Fit into AP Purposes

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

Adverse Possession Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner OO unaware of own interest OO acting with permission of APor. Short/Partial/Ineffective Assertions of OO Rts

Adverse Possession Biscayne: Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner Short/Partial/Ineffective Assertions of OO Rts Note 10 (P118): OO Physically Excluding APor or Suing to Recover Generally Break Exclusivity BUT Physical exclusion usually insufficient if doesn’t exclude APor for significant period of time (arguably true in “Rent” and E.13th Street) DQ5.13: Was the possible “interruption” in Vezeydescribed in footnote 12 by the owner or by the general public? How did the majority deal with it?

Adverse Possession Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner Short/Partial/Ineffective Assertions of OO Rts Ineffective attempts to bar entry. [When] should limited acts by OO be enough? Policy Q I like!! E.g., Use of road on edge of 100 acre lot (Rev Prob5C) c. SeeMiller 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.

Biscayne: DQ5.15Exclusive & 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

Rev. Prob. 5C: Biscayne (Thursday)Rev. Prob. 5D (Friday)Yellowstone (In-Class for Plaintiff) Shenandoah (In-Class for Defendant)Arches (Critique) Arguments/Missing Info? (Same List for Both 5C & 5D) If jurisdiction accepts literal argument, OO wins. Assume it doesn’t 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. Discuss whether a court should consider what OO has done enough in light of the policies implicated by this element. Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome.

YELLOWSTONE: Adverse/Hostile/State of Mind & DQ5.19-5.21 GIANT GEYSER

ELEMENTS OF ADVERSE POSSESSION Our Sequence • Actual Use • Open & Notorious • Continuous • Exclusive • Adverse/Hostile Panel Responsibilities Primary: Yellowstone

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

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

Yellowstone: Vezey & DQ5.19Adverse/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 The Vezey majority said that the claimant in that case “rebutted the presumption of permissive use.” What does that mean? What evidence in the case might support that assertion?

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”

Adverse Possession: State of Mind Requirements if No Color of Title Variations state to state Variations: Boundary Disputes v. Other AP Alternatives Most States: State of mind irrelevant Some States Require Good Faith: Fatal to know that you are not true O Some States Require Bad Faith: Must know it’s not yours

Adverse/Hostile & State of MindYellowstone: Lutz & DQ5.20 From Last Week:Lutz Majority makes apparently contradictory statements re necessary state of mind: Charlie’s Shack No Good: Knew it wasn’t their land Garage No Good: Thought it was their land. Ways to Reconcile?

Adverse/Hostile & State of MindYellowstone: Lutz & DQ5.20 At Least 2 Ways to Reconcile: Rule: APors Must Knew It’s Not Theirs But Intend to AP Anyway (not met for either building) Different Rules for Ordinary AP and for Boundary Disputes Ordinary AP (C’s Shack): Need Good Faith Boundary Disputes (Garage): Need Bad Intent (“Maine Doctrine”)

Adverse/Hostile & State of MindLutz: Significance of Waiver In earlier litigation, Attorneys for Lutzes stated that land belonged to VanValkenberghs Majority Interpretation: Concession = Lutzes waived ownership rights “Disseisinby Oral Disclaimer”

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

Adverse/Hostile & State of MindTiming of Waiver & AP Period Waiver before AP period ends may make it non-adverse; equivalent to permission Waiver afterward different (important concept): Once 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)

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

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

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 2014 Class Socio-Economic Differences (Summer Home Owners v. Unemployed) Ray’s Military Service Maybe Upkeep in Abandoned Resort seen as More Socially Useful

Adverse/Hostile & State of MindYellowstone: Bell & DQ5.21 BellArguments 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: 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

Adverse/Hostile & State of MindYellowstone: Bell & DQ5.21 COUNTER-ARGUMENTS?

Adverse/Hostile & State of MindYellowstone: Bell & DQ5.21 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 5.25.

State of MindFamous Scholarly Debate Noted in Textbook Regardless of Doctrine/Language About State of Mind, Cases Tend to Favor Parties Acting in Good Faith Arguably consistent with Our Primary Cases No Technical Color of Title in Ray or Vezey, BUT Both claimants arguably acting in good faith under circumstances. Both claimants treated generously by courts QS ON STATE OF MIND?

REDWOOD: Rev. Prob. 5A (“Actual Use”) REDWOODS & FERNS

REDWOODReview Problem 5A: “Actual Use” Element Facts: AP Lives Next to Vacant Lot Initially: Stone walls on 3 sides; graffiti; garbage AP repaints walls; removes garbage; plants hedge across 4th side of lot. For 10Y: AP washes off new graffiti, removes garbage; trims hedge. Just looking at Actual Use; assume other elements met.

REDWOODReview Problem 5A: “Actual Use” Element Arguments/Missing Facts? Cultivation, Improvements, Enclosure Enclosure Separately All Three Together Activity Like Owner of Similar Property? Activity Meet Purposes of AP/Actual Use?

Adverse Possession: Elements and Examples