PROPERTY D SLIDES

1. PROPERTY D SLIDES 2-23-15 NATIONAL BANANA BREAD DAY

2. Tuesday Feb 23 Music to Accompany Ray: Barry Manilow: Summer of ‘78 (1996) Last Lunch Today: Meet on Brix @ 12:25 Castillo * Clifton * Florio Kuehl * Monje J.Roberts * Sanz * Smith Dean’s Fellow This Week: • Rev. Prob. 2D (Arguments from Poletown & Hatchcock) • Rev. Prob. 2G (General Approach & Sample Arguments)

3. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Different than ConLaw I & CrimPro Issues: • Not trying to reconcile cases into coherent whole • Federal Rules + Separate/Different State Rules • Need good working understanding of each • To use on a short problem/issue-spotter • To identify relevant facts on a lawyering Q • To argue strengths & weaknesses on an issue-spotter • Need similar familiarity with elements of AP, etc.

4. Some General Concerns(can use to assess other rules in course) • Subject Matter Relevant & Important v. Irrelevant or Unimportant • Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough • Test is Workable v. Too Complex or Too Vague

5. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Public Use Standards • Background: Rational Basis • Possible Limits from Majority/KND in Kelo • State Public Use Standards • Poletown • Hatchcock

6. Rev. Prob. 2G & Rational Basis • Means: Rationally Related to Legitimate State Purpose • Essentially Complete Deference to Political Branches • Considerations: • Obviously a Workable Test • Deference here is good because… • Too much deference here is problematic because…

7. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Public Use Standards • Background: Rational Basis • Possible Limits from Majority/KND in Kelo • Mostly looking for evidence of corruption • Very specific list of facts; no guidance on how to use • State Public Use Standards • Poletown • Hatchcock

8. Some General Concerns(can use to assess other rules in course) Cases Where Land Ends Up in Private Hands • Subject Matter Relevant & Important v. Irrelevant or Unimportant • Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough • Test is Workable v. Too Complex or Too Vague

9. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Public Use Standards • Background: Rational Basis • Possible Limits from Majority/KND in Kelo • State Public Use Standards • Poletown: Looking at Extent/Weight of Public Benefit • Hatchcock

10. Some General Concerns(can use to assess other rules in course) Cases Where Land Ends Up in Private Hands • Subject Matter Relevant & Important v. Irrelevant or Unimportant • Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough • Test is Workable v. Too Complex or Too Vague

11. Chapter 2: The Eminent Domain Power & the Public Use Requirement • Federal Public Use Standards • Background: Rational Basis • Possible Limits from Majority/KND in Kelo • State Public Use Standards • Poletown • Hatchcock: • Three Narrow Doors Through • Meant to Stop Cases Like Poletown& Probably Kelo

12. Rev. Prob. 2G & Hatchcock Situation #2 Cases Where Land Ends Up in Private Hands Accountability: Pros & Cons of Test • Means: Private entity remains responsible to public for its use • Considerations: • Subject Matter Relevant & Important v. Irrelevant or Unimportant • Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough • Test is Workable v. Too Complex or Too Vague

13. Some General Concerns(can use to assess other rules in course) Cases Where Land Ends Up in Private Hands • Subject Matter Relevant & Important v. Irrelevant or Unimportant • Restriction Necessary/Appropriate v. Too Restrictive v. Not Restrictive Enough • Test is Workable v. Too Complex or Too Vague

14. CHAPTER 3: ADVERSE POSSESSIONOVERVIEW (Continued)

15. Adverse Possession: JustificationsDQ3.01: AP as SoL Purposes Behind SoL Generally (E.g., Torts/Contracts) Potential Ds: Repose Legal System: Evidentiary Problems Potential Ps: Encourage Rabbits; Punish Turtles (Don’t “Sleep” on Your Rights) Apply to Actions for Possession of Land?

16. Adverse Possession: JustificationsDQ3.01: AP as SoL Purposes Behind SoL: Adverse Possession Potential Ds: Repose (Quiet Titles; Protect Investment) Legal System: Evidentiary Problems (”Prescriptive Rights”) Potential Ps: Don’t “Sleep” on Your Rights Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda) Other Purposes for AP?

17. Adverse Possession: JustificationsPurposes Behind Adverse Possession More Broadly Potential Ds: Adverse Possessors (APors) Repose (Quiet Titles) Reward/Protect Investment in Land Reward/Encourage Beneficial Uses Protect Psychic Connection (Holmes) Legal System: Evidentiary Problems Potential Ps (OOs): Don’t “Sleep” on Your Rights Discourage Leaving Land Unmonitored (Drugs, Dead Bodies, Al-Qaeda) Encourage/Reward OOs who send clear timely notice of interest

18. Adverse Possession: Overview Justifications/Purposes: Recap

19. Adverse Possession: Color of Title Writing (Incorrectly) Purporting to Give Title Often Defective Will or Deed Need to Have Good Faith Belief in Document Significance: Makes it Easier for APors to Prove Case Examples in Readings of Rules Doing This

20. Adverse Possession: Color of TitleOlympic DQ 3.02 Writing (Incorrectly) Purporting to Give Title Significance: Makes it Easier for APors to Prove Case DQ3.02: Why do states have stricter requirements for AP w/o Color of Title? Reward good faith; reward better title

21. Adverse Possession: Boundary Disputes v. AP of Complete Parcel AP regarding overlapping borders, not whole lots. Most Common Type of AP Case Shows Up in Some of My Old Problems Significance: Changes Requirements/Elements in Some States We’ll Go Through Some Specifics as We Cover Indiv. Elements Won’t be Main Focus of Any Problem on Your Test

22. Adverse Possession: Boundary DisputesOlympic DQ 3.03 AP regarding overlapping borders, not whole lots Significance: Changes Requirements/Elements in Some States DQ3.03: Why Treat Boundary Disputes Differently? 1. Tension re diligent owners v. friendly relationsw neighbors. (Cross-Reference Easements by Estoppel in Chapter 5) 2. Maybe different expectations re OO’s diligence (Al-Qaeda & 5-foot strip) 3. Less concern about underutilization of land

23. ELEMENTS OF ADVERSE POSSESSION Our Sequence • Actual Use • Open & Notorious • Exclusive • Continuous • Adverse/Hostile Panel Responsibilities Primary: Acadia Rev. Prob. 3A: Everglades (In Class Thursday)

24. Adverse Possession Actual Use: Overview 1. Focus: What has APor Done on Land a. Has to be some physical possession/entry to trigger SoL b. In practice need much more to satisfy element (LMN) 2. 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 Q ii) Issue-Spotter or Short Problem

25. Adverse Possession Actual Use: Overview 1. Focus: What has APor Done on Land 2. Many State-specific legal tests/examples in materials Common: Version of “Use Like Ordinary Owner of Similar Property.” E.g., Ray (similar test for both Actual & Continuous) Lutz Dissent (quoting Ramapo) Common: Cultivation, Enclosure, Improvements (CEI) NY & Florida Statutes

26. Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) Rough Definitions (can check local law) 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”

27. Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) Part of DQ3.05: When statute says CEI, can you have AP if residing or operating biz from pre-existing bldg.? Probably. No FL case holds otherwise; cases fall back on “ordinary use” if no CEI In practice, CEI = steps sufficient to show “possessing” land when not actually in residence or running business

28. Adverse Possession Actual Use: Overview Cultivation, Enclosure, Improvements (CEI) CEI = steps sufficient to show “possessing” land when not actually in residence or running business 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)

29. Adverse Possession Actual Use: Overview Fit into AP Purposes

30. Adverse Possession Actual Use: Overview Easy Qs/Hard Qs Relatively Easy YES Use same as surrounding lots CEI covering entire claimed area Residing or Operating Business using Most of Parcel Relatively Easy NO: Use significantly less than surrounding lots Marginal CEI

31. Adverse Possession Actual Use: Overview Easy Qs/Hard Qs Hard Qs Not a lot of use but more than surrounding lots (Ray, Bell, Vezey) Some non-trivial CEI but incomplete/imperfect (Lutz) Rev Prob3A (Thurs) addresses some hard Qs Qs on Overview of “Actual Use”?

32. Review Problem 3A: “Actual Use” Element Everglades: Thursday Arguments/Missing Facts? Cultivation, Improvements, Enclosure Enclosure Separately All Three Together Activity Like Owner of Similar Property? Activity Meet Purposes of AP/Actual Use? Only Doing This One Element; Assume Others Met!!

33. Acadia: “Actual Use” in the Cases: DQ3.04-3.07 Acadia Sunrise

34. Actual Use Element in the CasesDQ3.04: Lutz (NY 1952) Squatters’ Garden Thrives During the Great Depression Billie Holiday Sings

35. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression Why no focus on Charley Residing? Maybe b/c area very small Maybe b/c anticipated problem with [no] claim of title (we’ll come back to with both improvements in a couple of slides & with state of mind on Friday/Monday) Even dissent seems to focus more on cultivation So we’ll look mainly at CEI

36. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression If 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

37. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression If Need CEI: Cultivation: “usually cultivated” Evidence Here? Why Rejected by Majority? Why Did Dissent Disagree?

38. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression ASIDE: Why should appellate courts defer to the factual findings of a trial court if the appellate judges believe the findings are incorrect?

39. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression Appellate courts defer to factual findings b/c of relative advantages of trial judges (& juries): Visual Observation of Witnesses Hearing Testimony

40. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression Ability to Hear Testimony Shewantsmetotakehertothedance.

41. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) Some Small Stuff Insufficient Portable chicken coop Cutting of brush and trees Placing various rubbish on premises.

42. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression If Need CEI: Improvements (Substantial Building/Repairs) Some Small Stuff Insufficient Built Shack: What’s Wrong with? Garage Partly Over Boundary Line: What’s Wrong With?

43. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression Looking 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?

44. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression Looking 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

45. Actual Use: DQ3.04 (Acadia)Lutz: Garden of Great Depression Looking at Case as a Whole Meet Purposes of Actual Use Element? Might look at CEI cumulatively Lutz in many casebooks b/c generally thought to be wrong.

46. Actual Use: DQ3.05 (Acadia)Ray: Creepy Summers in Empty Resort Evidence of Actual Use? i) Summer residence, but not emphasized by itself ii) Lower Ct: Notice of claim given by constant & conspicuous use & bounded on all sides by path, rock garden, etc. (MAF: flimsy kind of enclosure) iii) CtApp adds: Installation of utilities + Preservation of cottage (substantial structure) How Does Court Deal with CEI Requirements? Seems unconcerned w technical reqmts (cf. Lutz) Focuses instead on: Adequate to give notice (purpose) Usual acts of ownership

47. Actual Use: DQ3.06 (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?