PROPERTY D SLIDES

PROPERTY D SLIDES4-1-14

Tuesday April 1 Music (to Accompany Nightmare on 68th St):

Bessie Smith Sings the Blues (Vol.2) (featuring Backwater Blues)

Review Problem 5E: Biscayne (In-Class)•For Plaintiff (OO): Brown, Homan, Venkatesh, Warren • Alts: Mckain, Lipshultz

•For Defendant (APor): Cespedes, Grossman, Kirkland, Meads • Alts: McKenzie, Jarzabek

CRITIQUES

Shenandoah Critique of Yesterday’s Discussion of Review Problem 5D: Due

Tomorrow @ 10am

Yellowstone Critique of Today’s Discussion of Review Problem 5E: Due Thursday @ 10 am

Plus Shenandoahs Absent Yesterday

Status Update on1st Yellowstone Critiques

Review Problem 5E: Review Problem 5E: “Continuous”“Continuous”

•M Resided in House with Color of Title for Most of 10Y Statutory Period•Absent 5 Mos. Undergoing Rehab for Physical Injury•While M Away:• Utilities & Mail Service Stopped• M’s Friend David watered plants every 2-3 weeks

•M asked David to Feed Cat at M’s House; Instead David Took Cat to Own Home

Review Problem 5E: Review Problem 5E: “Continuous” “Continuous”

In-Class Arguments: Biscayne In-Class Arguments: Biscayne Critique: Critique: YellowstoneYellowstone

For Plaintiff (OO): Brown, Homan, Venkatesh, Warren (Alts: McKain, Lipshultz)For Dfdt (APor): Cespedes, Grossman, Kirkland, Meads (Alts: McKenzie, Jarzabek)

Arguments/Missing FactsArguments/Missing Facts•Should a 5-Month Interruption for this Reason Break Continuity?

•Assuming 5 Months with nono Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the 5 Mos. M Was Away to Retain Continuity?

•What is the Legal Significance of David not doing what M asked?

Divided Rights in the Same Piece of Land

Chapter 6: Chapter 6: EasementsEasements

Yellow Brick Yellow Brick RoadsRoads

Chapter 7: Chapter 7: Landlord-Landlord-Tenant LawTenant Law

Formica & CourierFormica & Courier

Divided Rights in the Same Piece of Land:Two Sets of Property Rights to ConsiderTwo Sets of Property Rights to Consider

EasementsEasements1.1. Holder of EasementHolder of Easement

2.2. Owner of Underlying Owner of Underlying Land (Servient Land (Servient Tenement)Tenement)

Landlord-TenantLandlord-Tenant1.1. Leaseholder Leaseholder

(Term of Years)(Term of Years)

2.2. Landlord Landlord (Holds Reversion) (Holds Reversion)

Divided Rights in the Same Piece of Land:Paradigm is Contractual: Terms/Intent Paradigm is Contractual: Terms/Intent ImportantImportant -- Objective Manifestations of Intent -- Objective Manifestations of Intent -- Reasonable Understanding under All the Circumstances -- Reasonable Understanding under All the Circumstances

EasementsEasementsWritten Document Written Document Creating Express Creating Express

EasementEasement

Landlord-TenantLandlord-TenantWritten LeaseWritten Lease

Divided Rights in the Same Piece of Land:Paradigm is Contractual, Paradigm is Contractual, BUTBUT -- Overlay of Rules that Augment & Sometimes Replace -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights -- Some Default Rules; Some Non-Waivable Rights

EasementsEasementsWritten Document Written Document Creating Express Creating Express

Easement Easement

Implied EasementsImplied Easements

Landlord-TenantLandlord-TenantWritten Lease Written Lease

Implied & Statutory Implied & Statutory TermsTerms

Divided Rights in the Same Piece of LandSkills Focus Different for EachSkills Focus Different for Each

EasementsEasementsWorking with Stated & Working with Stated &

Unstated FactsUnstated Facts

Landlord-TenantLandlord-TenantWorking with Working with

Statutory ProvisionsStatutory Provisions

Introduction to EasementsIntroduction to EasementsReview Problem 6A:

Elf-Acre & Santa-Acre

“E-Acre’s owners shall have the right to cross S-Acre to

dump garbage in the adjacent garbage dump”

•Santa-acre = next to garbage dump. •Elf-Acre = –Time of Grant: Big lot w small cottage. –Later: Cottage Toy factory (7x garbage).

Scope of Express Easements GenerallyScope of Express Easements Generally

Sample Blackletter Tests (S142)1.“Use must be reasonable considering the terms of the

grant.”2.“Evolutionary not revolutionary” changes allowed.3.“Burden must not be significantly greater than that

contemplated by parties.”

Review Problem 6A:Elf-Acre & Santa-Acre

“E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage

dump”•Santa-acre = next to garbage dump. •Elf-Acre = – Time of Grant: Big lot w small cottage. – Later: Cottage Toy factory (7x garbage).

Apply Blackletter TestsConsider Missing or Ambiguous Facts


Sample Blackletter Tests (S142)

(1) “Use Must Be Reasonable Considering (1) “Use Must Be Reasonable Considering the Terms of the Grant”the Terms of the Grant”a. Initial focus on literal language

b. Then check if proposed use is reasonable in light of language

c. Can use ordinary contract interpretation principles • e.g., Interpret against Drafter



dump”•Santa-acre = next to garbage dump. •Elf-Acre = – Time of Grant: Big lot w small cottage. – Later: Cottage Toy factory (7x garbage).

(1) “Use Must Be Reasonable Considering the (1) “Use Must Be Reasonable Considering the Terms of the Grant”Terms of the Grant”


Sample Blackletter Tests (S142)(2) “Evolutionary not Revolutionary” Changes Allowed.

a. Focus on nature & speed of changeb. Q of Characterization: Fair to View as “Evolution”?


Sample Blackletter Tests (S142)(3) “Burden Must Not Be Significantly Greater than that Contemplated

by Parties”a. Look for change in relative burdens.b. Compare to what parties appear to have reasonably intended.



dump”•Santa-acre = next to garbage dump. •Elf-Acre = –Time of Grant: Big lot w small cottage. –Later: Cottage Toy factory (7x garbage).

(2) “Evolutionary not Revolutionary” Changes Allowed.

(3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties”

ARCHES: Boundary Disputes & DQs 5.18-5.20

DELICATE ARCHES

Nightmare on 68th Street: ARCHES DQ5.18

BASIC ELEMENTS? • ACTUAL:• O&N:• CONTINUOUS: • EXCLUSIVE:• ADVERSE:


BASIC 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


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

S128)

Legal significance?


Mr. Smith: “We paid the taxes all those Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could years on that lot.” … “[T]hey could

claim no payment of taxes.” claim no payment of taxes.”

• Fl.Stat. 95.18 (S107) requires payment of taxes if no color of title.

• Note: Payment of taxes by the OO is almost always true in AP cases and is not a defense. Legal issue here is payment by Pullens/Davises, not by Smiths.


Mr. 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)


State of Mind• Some Florida caselaw appears to require bad

faith in boundary disputes• Evidence of State of Mind Here?


State 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 APSimilar policy considerations to O&N and state of mind for

boundary disputes. (See Rev Prob 5H)

ARCHES: DQ5.20Boundary Disputes: Policy Considerations

Why might states treat boundary disputes differently

than other forms of AP?


Why might states treat boundary disputes differently?

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


(Recap) • Some States Have Stricter O&N or State of Some States Have Stricter O&N or State of

Mind Reqmts for Boundary Disputes. Mind Reqmts for Boundary Disputes. Policy Concerns: Policy Concerns: • Neighborly Relations Neighborly Relations • Expectations re Diligent Behavior by OO Expectations re Diligent Behavior by OO

• NOTE: Making Either Reqmt More Strict Makes NOTE: Making Either Reqmt More Strict Makes Litigating Old Cases Very HardLitigating Old Cases Very Hard

Questions?Questions?

DQ5.21: Adverse Possession Policy:Legislative Debate

• Florida Legislature considering eliminating or modifying adverse possession doctrine.

• Proposals include– Complete elimination– Color of Title Only– Adverse Possessor must pay market value (Forced Sale)

• Identifying Arguments re Strength & Weaknesses of Various Rules Central Part of Opinion/Dissent Q

DQ5.21: Adverse Possession Policy:Legislative Debate

• Florida Legislature considering eliminating or modifying adverse possession doctrine.

• Proposals include– Complete elimination– Color of Title Only– Adverse Possessor must pay market value (Forced Sale)

• Positions likely taken by Positions likely taken by – Environmental Advocacy Group?Environmental Advocacy Group?– Advocacy Group for Homeless FolksAdvocacy Group for Homeless Folks

APRIL IS HERE!BRIEF IS IN!! WHAT NOW??

TUE WED THU FRI SAT SUN MON

4/1 PropertyNo Office Hours

PropertyOH 9:45-10:45

4/4 Property 4/7OH 9:45-

10:45

4/8: Property + Course Selection Info

OH 2:30-4:30Property

OH 9:45-10:45

4/11 Property 4/14OH 9:45-

10:45

4/15: Passover: No

Property or OH or DFProperty

OH 9:45-10:45

4/18 Optional Sample

AnswersDue @ Noon

4/21PropertyOH 9:45-

10:45

4/22

PropertyOH 2:30-4:30

PropertyLast Class

OH 1-54/25

OH 1-5

OH 12-5 +Review SessionRoom TBA 6:30

OH 10-2, 3-77pm E-Mail

Deadline

4/28

PropertyExam

4/29 Crim Pro Exam

5/2 5/5

5/6

ConLaw Exam5/9

Elective Exam

And Down the Stretch They Come …

BRIEF IS IN! WHAT NOW??

Generally• Keep Preparing & Going to Class – End of semester material often tested

disproportionately.

– Profs often summarize, tie together themes, and give exam hints in last classes.


Generally• Keep Preparing & Going to Class

• Old exam Qs under exam conditions

– Practice the skills

– Learn what your Profs look for




• Think about exam technique– Exam skills workshops

– Info from current Profs

– Review last semester’s exams




• Think about exam technique

• It’s a Marathon, Not a Sprint– Plan Your Studying

– Conserve Energy


Property

• Integrate Work with Overall Study Plan Submit Sample Q: Deadline = Sat 4/19 @ 9pm

1st Exam, 5 Days After Last Class


Property

• Integrate Work with Overall Study Plan

• Old Qs Under Exam Conditions– 15 min read/60 min write

– Closed book except for syllabus


Property• Integrate Work with Overall Study Plan

• Old Qs Under Exam Conditions

• Read end-of-semester IMs & Old Comments/Models


Property• Integrate Work with Overall Study Plan

• Old Qs Under Exam Conditions

• Read IMs & Old Comments/Models

• Utilize Review Session & Pre-Exam Office Hours

YOU CAN DO THIS !

PROPERTY D SLIDES

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