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PROPERTY D SLIDES

PROPERTY D SLIDES. 4-1-14. Tuesday April 1 Music ( to Accompany Nightmare on 68 th 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

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PROPERTY D SLIDES

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  1. PROPERTY D SLIDES 4-1-14

  2. 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

  3. 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

  4. Review Problem 5E: “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

  5. Review Problem 5E: “Continuous” In-Class Arguments: Biscayne Critique: Yellowstone For Plaintiff (OO): Brown, Homan, Venkatesh, Warren (Alts: McKain, Lipshultz) For Dfdt(APor): Cespedes, Grossman, Kirkland, Meads (Alts: McKenzie, Jarzabek) Arguments/Missing Facts Should a 5-Month Interruption for this Reason Break Continuity? Assuming 5 Months with no 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?

  6. Divided Rights in the Same Piece of Land Chapter 6: Easements Yellow Brick Roads Chapter 7: Landlord-Tenant Law Formica & Courier

  7. 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)

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

  9. 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

  10. Divided Rights in the Same Piece of LandSkills Focus Different for Each Easements Working with Stated & Unstated Facts Landlord-Tenant Working with Statutory Provisions

  11. Introduction 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).

  12. Scope of Express Easements Generally Sample Blackletter Tests (S142) • “Use must be reasonable considering the terms of the grant.” • “Evolutionary not revolutionary” changes allowed. • “Burden must not be significantly greater than that contemplated by parties.”

  13. 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 Tests Consider Missing or Ambiguous Facts

  14. Scope of Express Easements Generally Sample BlackletterTests (S142) (1) “Use Must Be Reasonable Considering the Terms of the Grant” • Initial focus on literal language • Then check if proposed use is reasonable in light of language c. Can use ordinary contract interpretation principles • e.g., Interpret against Drafter

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

  16. Scope of Express Easements Generally Sample BlackletterTests (S142) (2) “Evolutionary not Revolutionary” Changes Allowed. • Focus on nature & speed of change • Q of Characterization: Fair to View as “Evolution”?

  17. Scope of Express Easements Generally Sample BlackletterTests (S142) (3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties” • Look for change in relative burdens. • Compare to what parties appear to have reasonably intended.

  18. 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). (2) “Evolutionary not Revolutionary” Changes Allowed. (3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties”

  19. ARCHES: Boundary Disputes & DQs 5.18-5.20 DELICATE ARCHES

  20. Nightmare on 68th Street: ARCHES DQ5.18 BASIC ELEMENTS? • ACTUAL: • O&N: • CONTINUOUS: • EXCLUSIVE: • ADVERSE:

  21. Nightmare on 68th Street: ARCHES DQ5.18 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

  22. Nightmare on 68th Street: ARCHES DQ5.19 Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could claim no payment of taxes.” (Top S128) Legal significance?

  23. Nightmare on 68th Street: ARCHES DQ5.19 Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could 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.

  24. Nightmare on 68th Street: ARCHES DQ5.19 Mr. Smith: “We paid the taxes all those years on that lot.” … “[T]hey could claim no payment of taxes.” • Flarequires 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)

  25. Nightmare on 68th Street: ARCHES DQ5.18 State of Mind • Some Florida caselaw appears to require bad faith in boundary disputes • Evidence of State of Mind Here?

  26. Nightmare on 68th Street: ARCHES DQ5.18 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)

  27. Nightmare on 68th Street Implicit 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. (See Rev Prob 5H)

  28. ARCHES: DQ5.20Boundary Disputes: Policy Considerations Why might states treat boundary disputes differently than other forms of AP?

  29. ARCHES: DQ5.20Boundary Disputes: Policy Considerations 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’thave to be aware of w precision

  30. ARCHES: DQ5.20Boundary Disputes: Policy Considerations (Recap) Some States Have Stricter O&N or State of Mind Reqmts for Boundary Disputes. Policy Concerns: Neighborly Relations Expectations re Diligent Behavior by OO NOTE: Making Either Reqmt More Strict Makes Litigating Old Cases Very Hard Questions?

  31. 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

  32. 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 • Environmental Advocacy Group? • Advocacy Group for Homeless Folks

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

  34. And Down the Stretch They Come …

  35. 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.

  36. BRIEF IS IN! WHAT NOW?? Generally • Keep Preparing & Going to Class • Old exam Qs under exam conditions • Practice the skills • Learn what your Profs look for

  37. BRIEF IS IN! WHAT NOW?? Generally • Keep Preparing & Going to Class • Old exam Qs under exam conditions • Think about exam technique • Exam skills workshops • Info from current Profs • Review last semester’s exams

  38. BRIEF IS IN! WHAT NOW?? Generally • Keep Preparing & Going to Class • Old exam Qs under exam conditions • Think about exam technique • It’s a Marathon, Not a Sprint • Plan Your Studying • Conserve Energy

  39. BRIEF IS IN! WHAT NOW?? Property • Integrate Work with Overall Study Plan • Submit Sample Q: Deadline = Sat 4/19 @ 9pm • 1st Exam, 5 Days After Last Class

  40. BRIEF IS IN! WHAT NOW?? Property • Integrate Work with Overall Study Plan • Old Qs Under Exam Conditions • 15 min read/60 min write • Closed book except for syllabus

  41. BRIEF IS IN! WHAT NOW?? Property • Integrate Work with Overall Study Plan • Old Qs Under Exam Conditions • Read end-of-semester IMs & Old Comments/Models

  42. BRIEF IS IN! WHAT NOW?? Property • Integrate Work with Overall Study Plan • Old Qs Under Exam Conditions • Read IMs & Old Comments/Models • Utilize Review Session & Pre-Exam Office Hours

  43. YOU CAN DO THIS !

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