Week 4: Adverse Possession & Nuisance Terms

Question 1

Elements

Answer 1

1. Actual = be on property
2. Exclusive = no one else using
3. Open + notorious = others aware/provides notice
4. Hostile/adverse = without TO’s permission/against their interests
5. Continuous = based on ordinary land use
6. Under Claim of Title = need to claim via good faith or bad faith requirements

Question 2

Good faith v. Bad faith requirement

Answer 2

Good: only innocent person to mistakenly occupy land of someone else thinking it’s their it’s gonna acquire ownership

Bad: intentional dispossession, where adverse possessors intend to dispossess the true owner; she must know she’s occupying property owned by someone else yet still seeks to become its owner

Both incentivize present ownership and not lax ownership

Question 3

Incentives

Answer 3

1. Efficiency/utility = settled land quickly
2. Labor/investment = use land productively
3. Personhood/psychological interest = part of their land
4. Hedge expectations vs. formal legal rules = norms prevail when they conflict with technical norms of the law (ex: not hard to enforce your ownership rights over a decade)

Question 4

Effect on real owners

Answer 4

1. Punishes lax owners
2. Encourages labor—TO not doing enough
3. Guards boundaries of your land

Question 5

Nuisance law

Answer 5

Provided remedies for conduct that causes unreasonable harm to use and enjoyment of land
- courts are engaging in GOVERNANCE (balancing and regulating uses) whereas in exclusion, just draw a line

Question 6

Trespass v. Nuisance

Answer 6

Trespass
- no injury required
- not necessarily intentional
- doesn’t haven’t to be “substantial” or “unreasonable”

Nuisance
- injured required
- intentional
- substantial
- unreasonable

Question 7

Analyzing unreaonsableness

Answer 7

1. Utility analysis (SKEPTICAL)
   - coase theorem of reciprocal harms = maximize joint wealth
2. Sustainability of area = unsuitable = nuisance
3. Priority of Use = if you’re here first could make you leave but would have to pay you
4. Cost avoidance = what cost is avoiding harm/ affecting parties
   - damnun absque injuria = harm without remedy (can’t prevent people from doing neighborly things)

Question 8

Deciding liability

Answer 8

1. Invasion
2. Community norms (rural vs. urban)
3. First in time
4. Objective norms of neighborly behavior

Land use & regs will almost always supersede common law of nuisance
- zoning does what nuisance can’t (segregate)
- public/private nuisance wont be the answer to public at large so this is why we bring in reg state to supersede nuisance

Question 9

Critics of Coase theorem

Answer 9

1. Initial entitlement matters
2. Endowment effects = overvaluing what you have
3. Community norms
4. High transaction-cost situations
   - bilateral monopoly
   - assembly/holdout problems = need lots of peeps