Property I Professor Donald J. Kochan

1. Property IProfessor Donald J. Kochan Classes 6-7

2. Next Two Class Readings • Adverse Possession • Pages 116-162

3. Legally Authorized Thievery?Or Wise Balance? • Tests the autonomy/utilitarian spectrum balance • Read Powell, Ballantine, Holmes, and Epstein in your text • Think about the way it is structured to balance, giving true owners a reasonable opportunity to protect their ownership rights • Know the phrase “sleep on their rights”

4. Adverse Possession Elements • Actual Entry with Exclusive Possession • Open and Notorious • Adverse and Under a Claim of Right • Continuous Across the Statutory Period

5. Some Pervasive Issues • These cases are highly fact specific and the difficulties of “proof” in all of the elements • Consider issues of permissive use • Consider the expectations of the parties and related dependence issues • Consider knowledge issues on both sides • Understand the irrelevance of “hostility” • Once again see how the rules work a balance between dominion and utility

6. Van Valkenburgh v. Lutz • Read as demonstrating the fact-specific nature of AP cases • Read for the facts necessary to establish the elements of AP • Read regarding improvements and reliance and the equitable factors involved therein and how they color the AP claim • The Notes and Questions, and the corresponding footnotes therein, following this case are very important to understanding the elements and the “balance” the law tries to create to create AP rules that maximize efficiency

7. Claim of Title/Color of Title • Importance re proof • Importance re reliance • Importance re priority

8. Manillo v. Gorski • Mistakes Issues – Materiality • Minor or Major Encroachment and why should it matter? • Presumption of Knowledge? • Common Boundaries • Open & Notorious Issues; “clear and unequivocal” issues re knowledge • Maine Doctrine v. Connecticut Doctrine • Remedies

9. Connecticut v. Maine Doctrines • When does mistake matter? • When does intent matter? • Does the size of the encroachment matter?

10. Howard v. Kunto • Mechanics of Advserse Possession • Purposes of Use/Seasonal Use Issues • Continuity Issues • Privity Issues

11. Tacking • Privity between initial adverse possessor and subsequent adverse possessor is necessary for the subsequent to “inherit” the benefit of the original adverse possessor; otherwise, the clock restarts • How does one prove such privity? • Do the problems associated with the tacking note

12. AP Against Governmentnulles tempus occurti regis • No time runs against the King • Generally, under common law, adverse possession does not run against the government • This is because of sovereignty issues, but also consider logistics – high monitoring costs re vast government lands • Read the Note re some very limited legislative exceptions from the common law rule

13. Disabilities • The main point is that the law should not allow the exploitation of those disabled and unable to protect their property and oust potential adverse possessors • This issue will not be tested beyond knowing of the existence of the defense

14. AP of Personal Property • O’Keeffe v. Snyder – stolen painting case • BFPs – notice; knew or should have known issues • Theft – to reward or not reward • Need for Certainty in Ownership • AP of PERSONAL PROPERTY may be tested (NEW as of 2010), but AP of REAL PROPERTY will almost certainly be tested

15. Concluding Considerations • Monitoring Issues • Incentive Issues • Under an Absolute Autonomy Model shouldn’t one be able to maintain dominion even if not occupying or using their property? • Conservation issues • Does it make sense to create AP rules so property doesn’t sit unused? • Avoidance of Waste