PROPERTY B SLIDES

PROPERTY B SLIDES 4-12-19 NATIONAL GRILLED CHEESE SANDWICH DAY

Music to Accompany Technical Difficulties Fajer, “$$#(*& %@@#)*& !~!>>*” PLEASE PICK UP CHAPTER 3 TEST SCORE (IF YOU HAVEN”T DONE SO) Last Few DF Sessions: • Review Problem 4M (Lauren: AP Lawyering): Today & Next Wed 4/17 • Review Problem 5G (Brendan: Short Easement Prob) Next Mon 4/15 & Next Fri 4/19 CORRECTION: Chevy Chase @ P771 6th Line from Bottom: “dominant” should be “servient” CORRECTION: Stoner @ P789 Last Paragraph Line 5: “licensor” should be “licensee”

COMPLETING ADVERSE POSSESSION 4/8 Closing Up Prior Material Review Problem 4I: Continuous (Emergency Absence) Adverse/Hostile Element & State of Mind & Misc. Boundary Disputes (SEQUOIA/ME) DQ 1.22 (Policy Implications) SEQUOIA: (a) Lessons from Cases OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins) ME: (c) Color of Title & Alaska & Washington Statutes BADLANDS: (d) Environmental Concerns EVERGLADES: (e) Homelessness

Closing Up Review Problem 4I Continuous: Five-Month Absence for Medical Reasons Arguments/Missing Facts Role of David: Significance of Cat (Litter Box/Food) Significance of D not doing what M asked? Policy Q Focus on APor: Reward for Doing Best She Could? Focus on OO: Should only count whast inspection would reveal Ray Analysis: This class didn’t have Ray, so not in comments/models; If state applies Ray analysis, probably easy if clothes & furniture remain in house

Closing Up Adverse/Hostile State of Mind Review Prior Slides on Adv/Host/SoM.Some Key Ideas : Adverse/Hostile always includes lack of permission Most States Do Not Require Any Particular SoM If Required, Sometimes Under Adv/Host; Sometimes Called Claim of Right or Claim of Title Big Trend Since 2008 Real Estate Crash: Eliminate or Limit AP w/o Color of Title (Alaska/Wash/FL) Limit to Good Faith (Alaska re Boundasry Disputes)

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 her 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 Prior Classes Socio-Economic Differences (Summer Home Os v. Unemployed) Ray’s Military Service Maybe Upkeep in Abandoned Resort seen as More Socially Useful

Adverse/Hostile & State of MindBell & DQ4.18 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

Adverse/Hostile & State of MindBell & DQ4.18 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 MindBell & DQ4.18 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 SoLmeans 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)? (For You)

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 E.g., No Technical Color of Title in Ray or Vezey; Unclearin Howard, BUT Claimants arguably acting in good faith under circumstances. Claimants treated generously by courts HOLD QS ON STATE OF MIND FOR AFTER CLASS OR E-MAILS.

Adverse PossessionBoundary Disputes: Overview Some States : Different requirements for Boundary Disputes. 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)

Adverse PossessionBoundary Disputes: Overview Some States : Different requirements for Boundary Disputes. Either or both of: APor must have “bad” state of mind Open & Notorious = Actual Knowledge by OO Either Rule Means No AP by Mutual Mistake in Boundary Disputes Policy Arguments Basis for Rev. Prob. 4K (Opinion/Dissent; Can Do for 2d Window Submission)

Adverse PossessionBoundary Disputes: Overview Alaska Statute 09.45.052(a) (S97): Explicitly allows AP of Border Strips where mutual mistake, although increases SoL to 10Y (from 7) Direct contrast to states that use O&N or State of Mind to prevent AP of border strips by mutual mistake.

DQ4.19: Boundary Disputes: Policy Considerations Recap from Beginning of Chapter Why might states treat boundary disputes differently? Concern re Neighborly Relations Maybe discourage lawsuits by neighboring APors by making difficult to win; requiring testimony re own “bad faith” Maybe Different Expectations re Diligent Behavior by OO Often hard to be exact about property line; maybe shdn’t have to be aware of w precision Much less likely to be missing dangerous use of claimed land Much less need for productive use of bortder strip

Nightmare on 68th Street & DQ4.20 • Miami Herald Article on Boundary Dispute • Raises Policy Qs I Gave You in DQ4.20 • ShouldDeed plus [Good Faith Belief in] Incorrect Survey = Color of Title for Disputed Strip? • If so, APor Likely Wins • If No Color of Title …

Nightmare on 68th Street & DQ4.20 • Article Raises Policy Qs I Gave You in DQ4.20 • ShouldDeed plus [Good Faith Belief in] Incorrect Survey = Color of Title for Disputed Strip? • If so, APor Likely Wins • If No Color of Title, APor Must Pay Taxes in FL & Some Other States • Shouldgood faith payment of all taxes assessed meet statutory reqmt?

Nightmare on 68th Street & DQ4.20 • Article Raises Policy Qs I Gave You in DQ4.20 • If Deed plus [Good Faith Belief in] Incorrect Survey is NOT Color of Title AND • Good faith payment of all taxes assessed does NOTmeet statutory reqmt for taxes where no color of title… • There will almost never be successful boundary dispute AP (Similar policy considerations to O&N and state of mind for boundary disputes).

SEQUOIA (A-K): DQ4.21 SEQUOIAS

Nightmare on 68th Street & DQ4.21 SEQUOIA (A-K) What lessons might you draw from the “Nightmare” article about the best ways to handle the legal issues raised in DQ4.19 & and 4.20? • LESSONS FROM CASES IDEA: • IN Q3, can use or distinguish facts of cases in materials or of problem to further policy points in support of rule. • IN Q2/Q4, can use or distinguish facts of cases in materials to help support arguments for either party,

Nightmare on 68th Street & DQ4.21 SEQUOIA (A-K) What lessons might you draw from the “Nightmare” article about the best ways to handle the legal issues raised in DQ4.19 & and 4.20? • How do we want to treat BD, especially in Good Faith Like Nightmare • Re State of Mind of Apor & O&N (= SoM of OO) • Re What constitutes color of title/payment of taxes

DQ4.22: Adverse Possession Policy: Legislative Debate • State Legislature considering overhaul of Adv. Possession doctrine. • You are legislative aides addressing specific Qs. • So make arguments as to legislature • We’ll Go Through a few points for each

SEQUOIA (A-K): DQ4.22(a) SEQUOIAS

DQ4.22(a) : AP Policy: Legislative Debate SEQUOIA (A-K) • What arguments about the appropriate scope of adverse possession are suggested by the facts of the cases we covered in this chapter (other than Devins)? Pick a case & formulate a position

OLYMPIC: DQs 2.22(b) EEL GLACIER

Some Exceptions/Limits to AP Based in Difficulty of Enforcement • AP normally doesn’t run against future interest holder (e.g., successful AP while legal owner has life estate just gets the life estate, not any remainder) • States have different provisions that toll the statute of limitations if listed “disability” exists at time AP begins. • Helpful to have a general sense of the possible categories from readings (e.g., for Lawyering Q) • Don’t need to know specifics of operation • AP historically doesn’t run against the gov’t • “Time Doesn’t Run Against the King” • Trend is changing this (Devins)

Devins (NJ 1991): Key Points • Limits Traditional Rule; Can AP against GovtIFNot Used for (or Dedicated to) Public Purpose) • Notes Legal Trend to Limit Traditional Rule (# of State Laws Listed) • Reasons for Limiting Traditional Rule Here • Rule is Not Statutory, but Based in Caselaw • Prior Decisions Have All Involved Land Dedicated/Used for Public Purpose • Usual AP Concerns: Repose; Certainty; Stale Evidence • Incentives for Municipalities to Care for Land (Not Too Burdensome) & Make It Productive (Tax Rolls) • OLYMPIC (2.22(b)): Strengths & Weaknesses? • TESTED 2017 IN LAWYERING PROBLEM

COMPLETING ADVERSE POSSESSION 4/8 Closing Up Prior Material Review Problem 4I: Continuous (Emergency Absence) Adverse/Hostile Element & State of Mind & Misc. Boundary Disputes (SEQUOIA/ME) DQ 1.22 (Policy Implications) SEQUOIA: (a) Lessons from Cases OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins) ME: (c) Color of Title & Wash. & Alaaska Statutes BADLANDS: (d) Environmental Concerns EVERGLADES: (e) Homelessness

DQ4.22: Adverse Possession Policy: Legislative Debate (c) Shift Away from AP w/o Color of Title. • At time casebook went to print, New Mexico was only state that disallowed AP w/o Color of Title • Since housing crash in 2008 & resulting foreclosures, # of states have changed rules to eliminate or limit AP w/o coilor of title • Examples: • Florida 2011 statute makes it almost impossible • Alaska statute (S97) eliminates except for good faith border disputes • Washington statutes (S100-01) eliminate & add other limits (see njext slide)

DQ4.22: Adverse Possession Policy: Legislative Debate (c) Washington Statutes on S100-01. • 7.28.070 requires color of title and payment of taxes (7 years). • Result in Howard should be unchanged. • Bell & Lutz would fail for lack of color of title. • 7.28.080: Allows AP of vacant land with color of title simply by paying taxes for seven years. • 7.28.085: For Forestland (Seems aimed at Bell) : Increases SoLto 10 years • & Requires substantial improvements for whole period unless • good faith reliance on boundary markers set by registered surveyor OR • OO owns less than 20 acres of forestland in Washington

COMPLETING ADVERSE POSSESSION 4/8 Closing Up Prior Material Review Problem 4I: Continuous (Emergency Absence) Adverse/Hostile Element & State of Mind & Misc. Boundary Disputes (SEQUOIA/ME) DQ 1.22 (Policy Implications) SEQUOIA: (a) Lessons from Cases OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins) ME: (c) Color of Title & Wash. & Alaaska Statutes BADLANDS: (d) Environmental Concerns EVERGLADES: (e) Homelessness

BADLANDS: DQ2.22(d) NORBECK PASS

DQ4.22: Adverse Possession Policy: Legislative Debate • State Legislature considering overhaul of Adv. Possession doctrine. • You are legislative aides with each panel addressing specific Qs: (d) (BADLANDS) What positions might environmental advocacy groups take on adverse possession generally? • On Devins? • See slide above re Washington Forestland Provision

COMPLETING ADVERSE POSSESSION 4/8 Closing Up Prior Material Review Problem 4I: Continuous (Emergency Absence) Adverse/Hostile Element & State of Mind & Misc. Boundary Disputes (SEQUOIA/ME) DQ 1.22 (Policy Implications) SEQUOIA: (a) Lessons from Cases OLYMPIC (b) Adv. Poss. of Gov’t Property (Devins) ME: (c) Color of Title BADLANDS: (d) Environmental Concerns EVERGLADES: (e) Homelessness

EVERGLADES: DQ2.22(e) EGRET IN MANGROVE SWAMP

DQ4.21: Adverse Possession Policy: Legislative Debate • State Legislature considering overhaul of Adv. Possession doctrine. • You are legislative aides with each panel addressing specific Qs: (e) (EVERGLADES) What positions might groups representing the interests of homeless people take on adverse possession generally? • On Devins?

Chapter 5: Easements • Introduction • Terminology • Overview of Chapter 5 (+ Comparison to Others) • Interpreting Language: Scope of Express Easements • Positive Easements • Negative Easements • Implied Easements • By Estoppel • By Implication and/or Necessity

Chapter 5: Easements Chapter in Perspective • Paradigm Conflicts: • Chapter 3 (& Some of 2): Present Rights v. Future and/or Conditional Rights • Chapters 1 & 4: Legal Owners v. Others Who Wish to Use (Implied Easements Similar) • Chapter 2: Express Division in Property Rights Created by Contract (Express Easements Similar Let’s Compare)

Divided Rights in the Same Piece of Land:Two Sets of Property Rights to Consider Easements • Holder of Easement • Owner of Underlying Land (Servient Tenement) Landlord-Tenant • Leaseholder (Term of Years) • Landlord (Holds Reversion)

Divided Rights in the Same Piece of Land:Paradigm is Contractual: Terms/Intent Important-- Objective Manifestations of Parties’ Intent -- Reasonable Understanding under All the Circumstances Easements Written Document Creating Express Easement Landlord-Tenant Written Lease

Divided Rights in the Same Piece of Land:Paradigm is Contractual, BUT-- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights Easements Written Document Creating Express Easement  Implied Easements Landlord-Tenant Written Lease  Implied & Statutory Terms

Divided Rights in the Same Piece of LandDifferent Primary Skills Focus for Each Easements Using Stated & Unstated Facts to Work with Legal Rules/Standards Landlord-Tenant Working with Statutory Provisions (though also some work with stated/ unbstated facts)

PROPERTY B SLIDES