NCAA SWEET SIXTEEN CONTEST RESULTS

• If Louisville wins tournament: Joe Picone wins

• Otherwise: Amelia Gerson wins

LOGISTICS (revised after missed class on Tuesday)

• Chapter 6 Materials Not Posted Yet (Sorry!)– I’ll post by first thing Thursday morning–Thursday I’ll do short intro lecture–A little background reading to look at– We’ll get into in detail w panel assignments

on Monday

• Next Monday (4/8) I’ll run a little long and talk about course selection

ELEMENTS OF ADVERSE POSSESSION

1.Actual Use2.Open & Notorious3.Exclusive4.Continuous

5.Adverse/Hostile (& State of Mind): Olympic

Adverse Possession Adverse/Hostile & State of

Mind: OverviewIn Every State: Means (At Least) Lack of Consent/Permission from OO•Usually NOT about APor's state of mind•If permission, SoL not running•Consensual Possessor can start AP SoL by rejecting permission• Difficult to do • Rejection must be explicit & clear

Adverse Possession Adverse/Hostile & State of

Mind: OverviewALL States Require Lack of Consent/ Permission from OOALL States Require, If Color of Title, Good Faith Belief in Deed or Will Providing CoTSOME 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 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 Mind

Olympic: Lutz & DQ89Lutz 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 Mind

Olympic: Lutz & DQ89At Least 2 Ways to

Reconcile:1.Rule: APors Must Knew It’s Not Theirs But Intend to AP Anyway (not met for either)2.Different Rules for Ordinary AP and for Boundary Disputes• Ordinary AP (C’s Shack): Need Good

Faith• Boundary Disputes (Garage): Need

Bad Intent

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• “Disseisin by 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 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 transferred (like

“vested” v. contingent right) • The moment people using parcel became owners under

existing law: • They 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?

Lutz v. Ray: Why Might NY Ct.App. Be More Generous to

Rays?• 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

Adverse/Hostile & State of Mind

Olympic: Bell & DQ90

DQ 90. What arguments does the Washington Supreme Court in Bell provide in support of its

position that state of mind is irrelevant?

Adverse/Hostile & State of Mind

Olympic: Bell & DQ90Bell 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•Law Clearer w/o Intent = Presumably difficult to prove, especially on old claims

Adverse/Hostile & State of Mind

Olympic: Bell & DQ90

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?

Adverse/Hostile & State of Mind

Olympic: Bell & DQ90Reasons 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 tomorrow)

Qs on State of Mind

YOSEMITE: Adverse Possession

Boundary Disputes & DQ91-93

HALF DOME

Adverse PossessionBoundary Disputes Generally

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

Nightmare on 68th Street:

YOSEMITE DQ91BASIC ELEMENTS?

• ACTUAL:• O&N:• CONTINUOUS: • EXCLUSIVE:• ADVERSE:

Nightmare on 68th Street:

YOSEMITE DQ91BASIC ELEMENTS MET EASILY

• ACTUAL: Improvement plus use• O&N: Same (if actual knowledge not required)• CONTINUOUS: 1938 7+ Years• EXCLUSIVE: No evidence of others using• ADVERSE: No evidence of permission

Nightmare on 68th Street:

YOSEMITE DQ92Mr. Smith: “We paid the taxes all those years on

that lot.” … “[T]hey could claim no payment of taxes.”

Legal significance?

Nightmare on 68th Street:

YOSEMITE DQ92Mr. Smith: “We paid the taxes all those years on that lot.” …

“[T]hey could claim no payment of taxes.”

• Florida requires payment of taxes if no color of title.

• Note that payment of taxes by the original owner is almost always true in AP cases and is not a defense. Legal issue here is whether Pullens/ Davises paid, not whether Smiths did.

Nightmare on 68th Street:

YOSEMITE DQ92Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could claim no payment of taxes.”

• Fla requires payment of taxes if no color of title.

• Color of Title here?– Valid deed to lot plus– Incorrect survey indicating ownership of disputed strip

• Sufficient? (policy Q)

Nightmare on 68th Street:

YOSEMITE DQ91State of Mind

• Some Florida caselaw appears to require bad faith in boundary disputes

• Evidence of State of Mind Here?

Nightmare on 68th Street:

YOSEMITE DQ91State of Mind

• Some Florida caselaw appears to require bad faith in boundary disputes

• Should good faith reliance on faulty survey be OK? (policy Q; no cases on point)

Nightmare on 68th StreetImplicit Boundary Dispute Policy Qs

• IF Deed plus incorrect survey = color of title: APor wins –OR—

• IF Good faith payment of taxes assessed meets statutory reqmt: APor wins

• IF NOT There will almost never be successful boundary dispute AP

Similar policy considerations to O&N and state of mind for boundary disputes.

YOSEMITE: DQ93Boundary Disputes: Policy

ConsiderationsWhy might states treat

boundary disputes differently than other forms of AP?

YOSEMITE: DQ93Boundary Disputes: Policy

ConsiderationsWhy might states treat boundary

disputes differently than other forms of AP?

•Tension: Diligent OOs v. Neighborly Relations (Measuring Tapes)•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

Adverse PossessionBoundary Disputes: Review

Problem 5GThe Comstock Supreme Court granted certiorari to determine the appropriate rules in border disputes for

(1) the open and notorious requirement and

(2) the state of mind requirement.

Write drafts of the analysis sections of both a majority opinion and of a shorter dissent for the court determining the appropriate rules for both these requirements in the context of this case.

ZION: Review Problem 5A “Actual Use” Element

TEMPLES & TOWERS OF THE VIRGIN

ZION: Review Problem 5A “Actual Use” Element

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.

ZION: Review Problem 5A “Actual Use” Element

Arguments/Missing Facts?1.Cultivation, Improvements, Enclosure2.Uses Like Owner of Similar Property3.Purposes of AP/Actual Use