PROPERTY B SLIDES 3-22-19

1. PROPERTY B SLIDES3-22-19 NATIONAL PUPPY DAY BUTCH SPOT

2. MoreMusic to Accompany Shapira: Albéniz, Iberia (Alicia Delarrocha, Pianist )2009 Re-recording of Grammy Winner for 1974 for Best Classical Performance without Orchestra Lunch Today (3/22) Meet on Bricks @ 12:25 Ferreiro * Hays * Hoover Levy * Perlaza Next Few DF Sessions: • Today @ 12:30 F309 = 2017 Chapter 3 Test (Brendan) • Mon 3/25: No DF (Test Day) • Wed/Fri Next Week (Lauren) Lawyering Problem 1H from Bank of Lawyering Qs at Bottom of Course Page

3. LOGISTICS Pre-Test Office Hours • Today: 2-6 (My Office) • Tomorrow: 2-6 (Library Classroom G363) • Sun 3/26: 11-3 & 4-8 (Library Classroom G363) I’ll Respond to Reasonable E-Mail Qs Sent by 8p.m. Sunday • NCAA CONTEST • Spring Reading Period  • 4 Weeks/5 Weeks • LComm v. All Else

4. CHAPTER 4: ADVERSE POSSESSIONTHE PREMIERE EVENT

5. Adverse Possession: OverviewConnections to Rest of Course Type of Involuntary Transfer of Property Rights Like Shack & JMB & Eminent Domain Loss of Property Rights for Policy Reasons About Relationship of Property & Time Like Chapters 2 and 3 Here: Losing Property Rights Via Passage of Time

6. Adverse Possession: OverviewNature/Essence of Adverse Possession (AP) Arises from Statutes of Limitations (SoL) Length of State Statutes Varies (5-30 years) If don’t act to stop trespasser quickly enough, can forfeit right to do so Operates differently than other SoL Running of SoL Doesn’t Completely Bar Recovery for Original Owner (OO) Must meet detailed requirements to invoke SoL Generally Disfavored (e.g., NY & Fla need Clear & Convincing Evid.) BUT Result if OO loses is legal transfer of title

7. Adverse Possession: OverviewNature/Essence of Adverse Possession (AP) Can Get Title by “Possessing” Otherwise Unused Land for Length of Statute of Limitations “Possession” v. Ownership: AP Doctrine largely about how much & what kind of possession is necessary to transfer ownership .) Several Elements: Requirements beyond passage of time basically to ensure that Adverse Possessor (APor) sufficiently possessing Original Owner (OO) really not possessing/caring for

8. Adverse Possession: OverviewLawyering Focus Working with Individual Elements of a Cause of Action Need to Understand Role and Operation of Each Element “Elements” v. “Factors” Because each Element is required, assume not redundant AP Elements: Mostly Similar from State to State Often Mix of Statutory Language & Common Law Development

9. Adverse Possession: OverviewLawyering Focus Working with Individual Elements of a Cause of Action Need to Understand Role and Operation of Each Element Attys Use Cases Initially to Determine Meaning of Elements Read Multiple Relevant Cases to Flesh Out Each Individual Element Generally Don’t Examine Whole Cases Until Late in Process We’ll Approach Materials in This Unit This Way You’ll read through all cases initially to get sense of (by next Monday) In class, we’ll work on one element at a time, referencing all cases as relevant (one panel per element).

10. Adverse Possession: OverviewLawyering Focus: Working with Indiv. Elements Need to Understand Role and Operation of Each Element Because each Element is required, assume not redundant Each Element looking for different kind of info i.e., separate purpose/focus and different kinds of facts for each Useful to think about how each fits into purposes of AP LMNs of AP: similar from state to state exc state of mind If addressing a case in a particjurisd, for each element: Check statute and caselaw for definitions/rules Use policy/purpose arguments to help resolve close cases

11. Adverse Possession: OverviewLawyering Focus: Individual Elements Our Sequence • Actual Use (Acadia) • Open & Notorious (Badlands) • Exclusive (Everglades) • Continuous (Olympic) • Adverse/Hostile (Sequoia) Our Coverage for Each • Focus/Relevant Evidence • Purpose • Easy Cases/Hard Cases • Judicial Opinions • Review Problems for 1-4

12. SEQUOIA: DQ4.01-4.03 SEQUOIAS

13. Adverse Possession: JustificationsDQ4.01: AP as SoL (Sequoia) Purposes Behind SoL Generally? (E.g., Torts/Contracts)

14. Adverse Possession: JustificationsDQ4.01: AP as SoL (Sequoia) 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?

15. Adverse Possession: JustificationsDQ4.01: AP as SoL (Sequoia) 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?

16. Adverse Possession: JustificationsDQ4.01: 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?

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. Closing Up Chapter 3 • Shapira Cont’d • Timing Issues • DQs 3.12/3.15 • Review Problems 3P-3S

20. ACADIA: DQ3.13-3.15 cont’d Acadia Sunrise

21. Acadia: DQ3.13SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  • Coercing Belief  v. Conduct  • Administrability

22. Acadia: DQ3.13SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  • Coercing Belief  v. Conduct  • Note View of Marriage in 1974 • Can Use Case to Support Conditions Requiring Conduct Affecting Religious Concerns but not Coercing Belief • Administrability

23. Acadia: DQ3.13SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  • Administrability: Compare: • To Pigpen, so long as the kitchens and bathrooms are always kept very clean. • To Schroeder, so long as he never plays any workby Beethoven on the piano.

24. Acadia: DQ3.13SHAPIRA: DISTINCTION #1  Gift conditioned upon religious faith of beneficiary  v. Gift conditioned upon marriage to person of particular faith  • Administrability: Compare: •  To Lucy so long as she remains a member of the Society of Friends. •  To Linus, so long as he remains a good Catholic. QUESTIONS?

25. Acadia: DQ3.13SHAPIRA: DISTINCTION #2  Gift conditioned upon divorce  v. Gift conditioned upon marriage to person of particular faith (maybe ) • Court: Latter not sufficient to encourage fake marriage & divorce. • Grantee can’t avoid condition by saying “I will act in bad faith” (this concern arises regarding many legal issues).

26. Acadia: DQ3.13 SHAPIRA: DISTINCTION #3  Conditional gift with “gift over” to third party v. Conditional gift without “gift over” Comprehensive Estate Plan (likely ) (Note Good 2017 Idea: Gift Over Unrelated to Challenged Condition Won’t Support Allowing Condition) v. “In Terrorem” Condition (maybe )

27. Acadia: DQ3.13 SHAPIRA: DISTINCTION #4  Forcing a marriage as a condition of a completed gift  v. Withholding gift until marriage made  Why Relevant?

28. Acadia: DQ3.13 SHAPIRA: DISTINCTION #4  Forcing a marriage as a condition of a completed gift  v. Withholding gift until marriage made  • Remedy: Injunction v. Forfeiting Gift • Like case involving divorce settlement requirement that child be raised in particular faith • Won’t impose contempt/criminal sanctions for not following religion

29. Acadia: DQ3.13 SHAPIRA: DISTINCTION #4  Forcing a marriage as a condition of a completed gift  v. Withholding gift until marriage made  • Remedy: Injunction v. Forfeiting Gift • Like case involving divorce settlement requirement that child be raised in particular faith • Won’t impose contempt/criminal sanctions for not following religion

30. Acadia: DQ3.13SHAPIRA: DISTINCTION #5  Quaker Men (Maddox)  v.  Jewish Women (Shapira) Why Relevant?

31. Acadia: DQ3.13SHAPIRA: DISTINCTION #5  Quaker Men (Maddox)  v. Jewish Women (Shapira) • Quakers = Too Few Available Partners  • E.g., you must marry one of the Bronte Sisters 

32. Shapira v. Union National Bank Acadia: DQ3.14 • Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “small number of eligible” partners. • How few partners must there be to fail the test?

33. Shapira v. Union National Bank Acadia: DQ3.14 • Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “small number of eligible” partners. • If you were living in a state with that test, how could you prove whether it was met? (Cf. Lawyering Q on Final Exam)

34. Shapira v. Union National Bank Acadia: DQ3.14 • Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “small number of eligible” partners. • Assuming that some partial restraints on marriage are allowed, is the Maddox rule a good result?

35. Shapira v. Union National Bank Acadia: DQ3.14 • Maddox held that these kinds of conditions (partially restricting marriage) are unacceptable where there is a sufficiently “small number of eligible” partners. Good Result? • Too much restriction on grantee v. • Grantor’s Rights (can always argue that grantors should be able to dispose of their own property as they wish).

36. Closing Up Chapter 3 • Shapira Cont’d • Timing Issues • DQs 3.12/3.15 • Review Problems 3P-3S

37. Questions on Shapira?

38. Conditions: Timing Ambiguity To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. If Caitlin graduates from law school during Andrew’s life estate, does she divest Andrew’s interest or just Brian’s?

39. Conditions: Timing AmbiguityPossible Arguments To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. Common Law Presumption: If ambiguous, interest won’t divest life estate. Today: Generally treated as question of Grantor’s Intent, so look at context. I won’t test this as a difference between Common Law & Today

40. Conditions: Timing AmbiguityPossible Arguments To Andrew for life, then to Brian, but if Caitlin graduates from law school, to Caitlin. To Andrew for life, then to Brian, but if Caitlin has graduated from law school, then to Caitlin. Differences in wording, especially verb tenses, suggest C takes immediately for (1); at end of Life Estate for (2).

41. Conditions: Timing AmbiguityPossible Arguments To Andrew for life, then to Brian, but if Caitlin graduates from law school, then to Caitlin. Andrew is 16; Caitlin is 46. Seems unlikely Caitlin will survive Andrew Suggests grantor intended Caitlin’s interest to cut off Andrew’s (or little point to the grant).

42. Conditions: Timing AmbiguityChange Grant: Possible Arguments To Andrew for life, then to Brian, but if Caitlin Andrew graduates from law school, then to Caitlin. Seems purpose of grant is either: To discourage A from going to law school To provide support for A unless he becomes a lawyer and can support himself Either way, suggests C’s interest should cut off A’s Life Estate, because it’s not aimed at either B or C.

43. Conditions: Timing AmbiguityChange Grant: Possible Arguments To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin. To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin. In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder

44. Conditions: Timing AmbiguityChange Grant: Possible Arguments To Andrew for life, then to Brian, but if Andrew graduates from law school, then to Caitlin. To Andrew for life, then to Brian, but if Brian graduates from law school, then to Caitlin. In (2), seems odd to punish Andrew for Brian’s life choices, so absent clear reason, likely treat C’s interest as just cutting off B’s remainder Questions on Timing Ambiguities?

45. Closing Up Chapter 3 • Shapira Cont’d • Timing Issues • DQs 3.12/3.15 • Review Problems 3P-3S

46. ALL: DQ3.12/3.15: How Much Control Should e Grantors Have? Why should we allow grantors to have any control at all of what happens to land after they have died? • Might say can choose who gets, but only can give fee simple absolute. • Maybe allow life estates & vested remainders but no conditions on use. • Might limit conditions even more than now. E.g., • Can’t have conditions that limit or mandate religious behavior of an individual grantee. • Can’t have conditions on marrying or not marrying.

47. DQ3.12-3.15: Concern re Alienability(3L):Daffy "to Tweety for life, then to Tweety's children that survive him, but if none of Tweety's children survives him, then to Peggy and her heirs." • Tweety: Life Estate • Tweety’s Children: Alternative Contingent Remainder (in f.s.) • Peggy: Alternative Contingent Remainder (in f.s.) • Daffy: Reversion (even when alternate contingent remainders)

48. Closing Up Chapter 3 • Shapira Cont’d • Timing Issues • DQs 3.12/3.15 • Review Problems 3P-3S

49. (3P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS?

50. (3P) Renee conveys “to Stacy for life, then to my heirs, but should Stacy marry before she turns 35, to Marni.” AMBIGUITIES/QUESTIONS • Today or “At Common Law”? • R alive or dead? • Condition void? • M’s interest intended to cut off life estate? Details in Review Problem Write-Up on Course Page