logistics: chapter 4 exam test processing is complete – class generally did well – you’ll get...

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 (E-Mail me if Qs)

– My Annual NCAA Sweet 16 Contest• Free Dinner for Best Entry from

Property E• E-Mail Entry by Thursday afternoon• OR Bring hard copy to class Thursday

Adverse Possession Memory Aids for Cases

Lutz: Garden of Great DepressionRay: Creepy Summers in Empty ResortBell: Floating House & Shifting OuthouseE. 13th St.: Coalition of Squatters

ELEMENTS OF ADVERSE POSSESSION

1.Actual Use: Acadia2.Open & Notorious3.Exclusive4.Continuous5.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 LMN2. 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 Qii) Issue-Spotter or Short Problem


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


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”



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



•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)


Fit into AP Purposes

Purposes of AP Role of Particular ElementReposePunish Sleeping OOReward Beneficial Use/LaborProtect Connection/ Investment



Purposes of AP Role of Particular ElementRepose Triggers SoLPunish Sleeping OO Enough Activity to Give

Notice to Reasonable OO?Reward Beneficial Use/Labor

Type We Want to Reward?

Protect Connection/ Investment

Sufficient to Merit Protection?


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


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

DepressionWhy 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


DepressionIf 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



•Cultivation:• Evidence Here?• Why Rejected by Majority?• Why Did Dissent Disagree?


DepressionASIDE: Why should appellate courts defer to

the factual findings of a trial court if the appellate judges believe the findings are

incorrect?


DepressionAppellate courts defer to factual findings b/c

of relative advantages of trial judges (& juries):

Visual Observation of WitnessesHearing Testimony


DepressionHearing Testimony

She asked me to take herher

to the dance.



•Improvements (Substantial Building/Repairs)• Some Small Stuff Insufficient • Portable chicken coop• Cutting of brush and trees• Placing various rubbish on premises.



•Improvements (Substantial Building/Repairs)• Built Shack: What’s Wrong with?



•Improvements (Substantial Building/Repairs)• NO. Knew Shack Was on Someone

Else’s Land• Garage Partly Over Boundary Line:

What’s Wrong With?



•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?


DepressionLooking 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?


DepressionLooking 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


DepressionLooking 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. 13th 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. 13th 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.Exclusive4.Continuous5.Adverse/Hostile

Adverse Possession Open & Notorious: Overview

1. Focus: Visibility/Notoriety of Use

a. Visibility to OO Checking on Propertyb. Not Concerned with Visibility by

Neighborsc. Common Error: Concern re

Sneaking or Hidden from Street (v. on Surface)



2. Commmon Test: “Use Visible to one on Surface of Property”• Florida Version: “Sufficient to

put a person of Ordinary Prudence on Notice”


The Reasonable Man Ordinary Prudence



2. Commmon Test: “Use Visible to one on Surface of Property”

3. Many States also allow Reputation Evidence or Availability in Public Records



Purposes of AP Role of Particular ElementReposePunish Sleeping OOReward Beneficial Use/LaborProtect Connection/ Investment



Purposes of AP Role of Particular ElementReposePunish Sleeping OO Enough Notice to Show that

OO Who Misses is Truly AsleepReward Beneficial Use/LaborProtect Connection/ Investment


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 QsDenali DQ81: Marengo Caves

(P119-20)• Describe Facts• Why Was Use of Caves not Open

& Notorious?• Pros & Cons of Result?

Open & Notorious: Hard QsDenali 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?

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