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If a person openly and notoriously walks across a piece of property daily for a certain period of time, and his claim of right is hostile to that of the owner of the property, he will gain a “prescriptive easement” to cross under the doctrine of adverse possession. That easement cannot be revoked. In fact, the squatter effectively takes a stick out of the bundle. This actually becomes a problem when you have privately owned sidewalks, where people are normally allowed to cross.

There are two ways to guard against these prescriptive easements.

One way is to acknowledge that the crossing is permissive. This vitiates the “hostility” or “claim of right” requirement for adverse possession. In other words, if I let you cross across my property, it is not hostile, and you cannot establish a prescriptive easement.

In Houston, the Shell Building on Louisiana has what appear to be privately-owned sidewalks. However, on each corner, bolted to the floor is this plaque:

 

This sign does exactly as I suggested–make clear that crossing the property is permissive, but it can be revoked at any time.

Private Property: Crossing and use subject to revocable permission of the owner and at the risk of the user.

This can also be interpreted as a license, which can be revoked at any time.

The other option is to simply shut the property down once a year, to defeat any possible claims to adverse possession. The Times profiles a property in New York that does just that.

In a practice dating to 1953 and a custom that can be traced to Anglo-Saxon England, RFR Realty, the building’s owner, will close the garden courtyard, arcade and interior sidewalks at Lever House, on Park Avenue between 53rd and 54th Streets, from 8 a.m. to 4 p.m. on Sunday.

New Yorkers have quickly acquainted themselves with the concept of privately owned public space at Zuccotti Park. But there is another significant hybrid: purely private space to which the public is customarily welcome, at the owners’ implicit discretion. These spaces include Lever House, Rockefeller Plaza and College Walk at Columbia University, which close for part of one day every year.

Property markers, like a plaque set into the pavement at Lever House, are a frequent giveaway that one is about to set foot on someone else’s land. It reads, “Crossing and use subject to permission of the owner and at the risk of the user.”

Owners close these properties annually to protect themselves against any possible claim of “adverse possession,” a concept with ancient roots. It holds — to put it simply — that if someone openly and notoriously uses another’s property for a long period without ever being challenged by the rightful owner, the property becomes that of the possessor. Think of a farmer using an out-of-the-way corner of a neighbor’s acreage to pasture sheep for a generation or two, without the neighbor ever objecting.

Annual closings are how modern owners assert their dominion (as opposed, say, to killing someone’s sheep, or hauling him up before the folkmoot assembly).

Lever House has been closing itself once a year since 1953, when it was the brand-new headquarters of Lever Brothers. On Sunday, temporary barricades are to be erected, bearing signs saying: “This area is closed to public use on behalf of and in the name of the owner.” Some time later, an employee who was present will sign an affidavit attesting to the closing.

 

There is so much awesome in this picture.

 

I can’t quite make out what is on Scalia’s shirt. The second line says “Opening Day 20-something.”

Lest we forget, that the D.C. Circuit scheduled en banc oral arguments for Halbig for today. The Supreme Court had other plans.

In an early draft of my book proposal, I spent some time discussing the importance of that en banc hearing. Oh well. Onto One First Street we go.

The second question from my Property I final exam was based on the Disney movie, Frozen. Much like my Back to the Future question, I worked in a number of songs from the movie (“Do you want to build a snowman”) a turned them into property disputes (acquisition by creation). Also, I transformed Elsa’s snow palace into an impenetrable ice fortress, alluding to the Case of the Speluncean Explorers (Hint: Elsa melts and drinks Olaf). Sometimes, you just have to let it go.

Instructions

You are a law clerk for the Chief Justice of the Arendelle Supreme Court. You are asked to write a bench memo of no more than 500 words that analyzes a frozen property dispute between Anna, Elsa, and Hans over the estate of Whiteacre. The Kingdom of Arendelle adheres to all common law property rules, as articulated in the Restatement (First) of Property. Arendelle applies a common law system with respect to marital property.

—

In the Kingdom of Arendelle live two sisters, Princesses Elsa and Anna. Elsa has magical powers, and can create ice, frost, and snow with her fingers. But she struggles mightily to keep her powers under control.

On January 1, “for the first time in forever,” the castle gates opened, and a huge banquet was held in honor of Queen Elsa’s coronation.

Following Elsa’s coronation, Anna meets the charming and handsome Hans. After getting to know each other for all of five minutes, Hans blurts out “Can I say something crazy? Will you marry me?” Anna replies, ebulliently, “Can I say something even crazier? Yes!”

Hans gives Anna a sparkling diamond ring. Just as Anna is about to put it on her finger, Hans tells her to “This is for you to hold onto for now.” Ignoring him, she giddily puts the ring on. Hans explains—not that Anna is listening—that the ring belongs to his grandmother, and she told Hans that he could have it once she dies.

Anna and Hans’s wedding is held on January 2. In truth, Elsa is a bit jealous, and tells herself, “conceal, don’t feel.”

On January 3, the day after the wedding, Elsa executes the following deed:

“Whiteacre, from Elsa to Hans and Anna as tenants by the entirety.”

The couple quickly signed the paperwork, and ran onto Whiteacre to enjoy their new home. Whiteacre was the only property the couple would acquire. Later that day, Hans’s grandmother dies in a horrific ice fishing accident. The grandmother’s will left all of her property to her husband, Hans’s grandfather.

On February 1, Anna invites Elsa to Whiteacre. Anna has an idea to create something—or more precisely, someone. Anna asks “Elsa, do you want to build a snowman?” Elsa, not interested, replies “Go away, Anna.” Begrudgingly, Anna says, “Okay, bye.” Yet, later that day, Elsa agrees to Anna’s idea. With her magical powers, Elsa conjures up a pile of snow. Then Anna rolls the giant snowballs and she builds the snowman. Elsa puts sticks inside the snowballs to create arms, and adds a carrot for a nose. With a spark of Queen Elsa’s magic, the snowman comes to life! They call the snowman Olaf. Olaf chimes in, not ironically, “Just imagine how much cooler I’ll be in summer.” Soon the sisters start bickering over the snowman. Anna insists it was her idea to create him. Elsa counters that it was her magic that brought Olaf to life.

Anna grabs Olaf, and Elsa screams “Let it go! Let it go!” Soon Elsa’s powers get the better of her, and she creates a massive ice cave around them. Soon, the two sisters are trapped in the frozen fortress of solitude. Though they are on Whiteacre, within the limits of the Kingdom of Arendelle, they may as well be thousands of miles away. The ice is so thick that experts determine it will be impossible to drill through the walls to rescue the sisters. They will have to wait for warmer temperatures so the ice can thaw. Hans bangs on the ice walls, furious that he cannot enter.

To avoid dying of dehydration, Elsa uses her powers to melt Olaf, and she drinks him. “Desperate times call for desperate measures. The cold never bothered me anyway,” she says.

Realizing that she had the power to melt the frozen fortress, Else proposes a deal to Anna. Elsa demands that Anna give her a lease to Whiteacre, in exchange for releasing her from the ice cave. Anna, fearing for her life, writes the following lease on March 1:

“From Anna to Elsa, starting on March 1, a lease for Whiteacre for so long as Anna lets Elsa live there, for 100 pieces of silver per month.”

Elsa, thrilled with the transaction, inadvertently shoots Anna with a blast of cold air, freezing her heart. Anna cries out that “Only the act of true love will thaw a frozen heart.” Anna knows that unless her heart is thawed by her true love, she will die.

On April 1, Elsa finally melts the fortress. Hans, learning of Anna’s condition, leans in to kiss her. He says, “I am your true love.” But at the last minute, Hans pulls back, and says, “if you die, I get Whiteacre all to myself. Good luck with that frozen heart. I’m out of here.” Anna is furious at him.

That day, Anna executes and records the following deed:

“Whiteacre, from Anna to Anna.”

Then Anna updates her will, with all the proper witnesses and attestations:

“I leave all of my property, real and personal, to my sister Elsa, and nothing to Hans.”

The next day on April 2, Anna dies. Anna’s estate is probated on April 10. Hans learns that Anna disinherited him, and he is furious!

On May 1, Elsa returns to Whiteacre and cries out, “I figured out what true love is. The truest love is the bonds between sisters.” With that affection, Anna’s lifeless corpse magically returned to life.

Then, Elsa tells Hans and Anna, “I’m not going to pay any rent for my lease on Whiteacre, and I’m moving out today.” To that date, Elsa had not paid any rent for her lease on Whiteacre.

 

Following this chain of frozen events, neither party would “let it go,” and a series of suits are filed in the original jurisdiction of the Arendelle Supreme Court.

—

Questions

 

1. Hans filed an action in replevin against Anna for the return of the diamond ring. Anna counterclaimed that she does not have to return the ring. Hans’s grandfather, the sole heir of Hans’s grandmother, counterclaimed, and asserted that he is the lawful owner of the ring. Please address the strongest argument in favor of each party: (a) Hans, (b) Anna, and (c) Hans’s grandfather, the sole heir of Hans’s grandmother.

2. Anna files suit against Elsa for destruction of her property—Olaf. Elsa counterclaimed, asserting that Olaf was her property. Please discuss who acquired property of Olaf through creation? Address the strengths and weaknesses of each of their claims. (A criminal prosecution for the murder of Olaf will be held in a separate court proceeding).

3. The Chief Justice asks you to address the validity of the lease signed while Anna and Elsa were in the frozen fortress on March 1. Specifically, the Chief Justice asks you to address the state of Arendelle’s property laws within the frozen cave. Please draw on all sources of law—both positive and natural—in addressing this question.

4. Please describe the estate of Whiteacre for Anna and Hans on the following dates:

(a) on January 3 following the wedding of Anna and Hans, and Elsa’s deed;

(b) on February 1 following the creation of the ice fortress;

(c) on March 1 following the execution of the lease by Anna (assuming it was valid);

(d) on April 1 following the execution of Anna’s deed;

(e) on April 2 following Anna’s death. Specifically, discuss how Anna’s will affects Hans’s interest in Whiteacre.

5. Hans sues Elsa for a breach of the lease, and unpaid rent. Elsa counterclaims that she does not owe Hans anything. Anna does not participate in this suit. Assuming the lease is valid, address the strongest arguments of Hans and Elsa. If Elsa owes rent, how much is owed?

I previously praised an amendment to the Cromnibus in Congress that would prohibit DOJ from prosecuting marijuana crimes in states where it is legal. Now it looks like this provision is poised to become law.

Under the provision, states where medical pot is legal would no longer need to worry about federal drug agents raiding retail operations. Agents would be prohibited from doing so.

I think the amendment is broader, and would ban prosecutions in any state where distribution and possession is legal, whether medicinal or otherwise.

Although, as a reflection that not even newspapers know the difference between statutes and executive actions, the L.A. Times writes:

The Obama administration has largely followed that rule since last year as a matter of policy. But the measure approved as part of the spending bill, which President Obama plans to sign this week, will codify it as a matter of law.

I don’t think that means what they think it means.

Doug Berman reports that a defense attorney has moved to postpone a sentencing for a marijuana crime in California, until after the law is signed. At that point, DOJ would have to drop the prosecution.