WILLIAM L. COLEMAN 501 Rama Road Charlotte, NC 28211 (828) 381-0232 colemanw@students.charlottelaw.

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WRITING SAMPLE

Objective Memo drafted during the course Lawyering Process [Full Instructions: Pages 2-3]

Objective Memorandum of Law

Written in November 2011

LAWYERING PROCESS I WRITING ASSIGNMENT 2 Full Predictive Memo Now that you have practiced writing a prediction based on case law given to you, its time to find your own law to make a prediction. For this assignment, you will perform your own research to find cases that will determine the outcome of the attached set of facts. Carefully read the given fact pattern. Undertake your research to find authority, paying close attention to the relevant body of law, hierarchy of authority, comparable facts, and the courts holdings on those facts. Your product may be no longer than ten (10) pages (double spaced, one-inch margins, and Times New Roman 12-point font). You should cite to given case law using standard Bluebook rules. While this is an open research assignment, you are limited to North Carolina authority.

FACT PATTERN
Howard Stark died in 1985 when his son, Tony Stark, was only 20. Howard le; a will devising all of his possessions to his only son and heir, Stark. Included in Howard Starks many real properEes was a piece of land originally owned by Howards father, Grandpa Stark. The land is a 17-acre plot located in the mountains of Stellar, North Carolina. In Grandpa Starks will, the land was le; to his two sons, Howard Stark and Anton Vanko, to be shared equally as co-tenants. In early 1989, Stark visited the property in Stellar, North Carolina. He discovered a beauEful piece of land that was bordered on two sides by a large lake. A river runs through the land that ows into the lake. The other side of the land backs into a mountainous area, which has been preserved by the town council. There is only one developed road leading onto the property. Stark had his new assistant, Pepper PoQs, conduct some research on the propertys history. A few days later, PoQs presented Stark with Grandpa Starks will and an obituary for Anton Vanko, who had died in a Russian prison in December of 1988. PoQs told Stark there were rumors that Anton Vanko had a son, but invesEgators had been unable to substanEate the informaEon. Stark began paying the property taxes out of his personal accounts in February 1991. He had a luxury camper installed on the property, and lived there while he peEEoned the town council to have the area zoned for business. This process took several months, requiring him to delay the development of the land unEl January 1992. With his mulEple resources, Stark was able to quickly transform the undeveloped land into an exclusive resort, which opened in the summer of 1993. The property is known as The Lodge. Stark built a 15,000 square foot log cabin at the center of the resort where he stays when visiEng the property.

By June 1995, the resort oered boaEng, shing, and whitewater ra;ing for the extremely wealthy. It is open seven months out of the year and closed only for the colder winter months. From April through October, The Lodge is booked to capacity each week. In addiEon to employing many of the towns residents, Stark likes to use local businesses when possible, and in September 1995, Stark met with a supplier of hiking gear. The man said he had known Grandpa Stark, and asked if Vankos kid was involved with the resort. Stark replied that he never did business with family because he didnt like to share. Stark laughed and said he would pay them o before sharing. The supplier then warned Stark that most of the hiking trails near The Lodge were on preserved land. The supplier told Stark the town council would ne Stark if the hikers liQered or damaged the landscape. The Lodge provides an excellent prot for Stark. In the summer of 1998, Stark celebrated the ve-year anniversary of the opening of the property by oering discounts for acEviEes and appearing in adverEsements promoEng The Lodge as a Tony Stark Project. He also cleared more of the land in order to build more luxury cabins for his guests. While the road leading onto the property is public, Stark had a large gate constructed at the entrance of The Lodge that is staed twenty-four hours a day. Only guests and employees of the faciliEes are allowed admiQance past the gate, and there are signs posted throughout the property that state only authorized persons are allowed on the premises. Although the land is unoccupied from November through March, Stark hired a private security company to make weekly patrols. In July 2010, Stark learned that the town of Stellar was in a dire nancial situaEon. The town council was considering opEons to raise revenue, including allowing commercial development in previously preserved and protected land areas. Stark believed if he could expand The Lodge into the mountain area, it could remain openthus providing incomeyear round. Stark assigned PoQs to have plans drawn up for a ski resort and to develop a business plan for the new model. Her gures showed that Stark could almost double his prots from The Lodge by oering winter sports to an exclusive clientele. Stark secured a place on the councils agenda in December 2010. Towards the end of September, Stark saw a news story that featured a man by the name of Ivan Vanko (Vanko). Vanko was the creator of a new type of protecEve vest for the Italian military. During the interview, Vanko stated that he was an only child and that his father had died many years ago in Russia, leaving Vanko as the sole heir. Last week, Stark received a leQer from Vanko, introducing himself to Stark and staEng that Vanko believed he and Stark are related through their paternal grandfather. Vanko also stated that when he visits the United States he would like to meet Stark and discuss their common interests. Stark is now worried about his investment. He wants to know if Ivan Vanko has any claim to the land where he built The Lodge or if the law of adverse possession protects him as sole owner of the property.

Date: November 15, 20101 QUESTION PRESENTED Whether, under North Carolina law, one co-tenant has adversely possessed a second cotenant from land that he has exclusively occupied and developed into a lucrative business for over 19 years.

BRIEF ANSWER No. Adverse possession has not arisen because the first co-tenant has not been in sole, undisturbed possession of the land for the required 20-year statutory period. This conclusion is true even though the second co-tenant has never demanded rent or profit from the business. However, adverse possession could materialize if the first co-tenant does not acknowledge the second co-tenants land interests, and the second co-tenant does not enter the land or make demands for three months.

FACTS In 1985, John Green inherited a 17-acre plot located in the mountains of Stellar, North Carolina. Frank Green, the paternal grandfather of John Green, originally owned the property. In his will, Frank Green devised the land to his two sons, Chip Green (John Greens father) and Anton Vanko, to be shared equally as co-tenants. Upon inheritance, John Green (hereinafter Green) requested his assistant to research the propertys history. A few days later, she presented Green with his grandfathers will as well as an obituary for Anton Vanko, who died in Russia 40 years ago. The assistant also told Green
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This date is relevant for discussion purposes.

of rumors that Anton Vanko had a son, but that investigators had been unable to substantiate the information. In February 1991, Green began to pay the property taxes out of his personal accounts. He installed a luxury camper and initiated proceedings to petition the local town council to rezone the area for business. By 1993, Green had transformed the previously undeveloped land into an exclusive resort known as The Lodge. Within two years, the resort had become booked to capacity for several months of the year. Toward the end of September 2010, Green saw a news story that featured a man by the name Ivan Vanko (hereinafter Vanko). During that interview, Vanko stated that he was the only child of a father who had died many years ago in Russia, leaving Vanko as the sole heir to his estate. Last week, Green received a letter from Vanko. The letter stated that Vanko believed Green and he were related, that he wanted to arrange a meeting in order to discuss their common interests when he visits the United States. No specific travel dates were mentioned.

DISCUSSION Presently, a North Carolina court will not find that John Green has adversely possessed his co-tenant Ivan Vanko from the land. However, if Green does not acknowledge title in Vanko, and Vanko makes no specific claim to the land before February 2011, Green could prove adverse possession by establishing constructive ouster. The law of adverse possession entitles an individual to sole title in a property after he or she has possessed the land adversely for 20 years. N.C. Gen. Stat. 1-40 (1996). To acquire land held in co-tenancy by adverse possession, however, he or she must establish either (1) actual ouster or (2) constructive ouster of the other co-owners. Dobbins v. Dobbins, 141 N.C. 210, 214 5

(1906); Collier v. Welker, 19 N.C. App. 617, 620 (1973). Ouster is the taking of property by one co-tenant and holding it against another by an act or series of acts that indicate an intent to occupy exclusively the premises and deny the right of the other. Dobbins, 141 N.C. at 215. Because the legal status between Green and Vanko is in fact one of co-tenancy, the rule of ouster applies. A co-tenancy relationship exists if the co-tenants ownership of an undivided, equal share of property is traceable to the moment of its creation. Dearman v. Bruns, 11 N.C. App. 564, 566 (1971). In McCann v. Travis, the court was able to trace a co-tenancy relationship between the plaintiff and defendant to a common ancestor. 63 N.C. App. at 451. Absent a recorded deed that would destroy that unity of possession, the court held that the plaintiff and defendant retained the legal status of tenants in common. Id. Similarly, Vanko and Green can trace their interest in the property to a common ancestor. Frank Green created a co-tenancy when he devised the property to his two sons to share equally as co-tenants. Green acquired his interest through his father, who was one of the Frank Greens sons. Vanko obtained his rights through his father, Frank Greens other son. Because there is no recorded deed on the record that destroys the co-tenancy, a court will regard Green and Vanko as co-tenants.

Actual Ouster There is no evidence that Green adversely possessed Vanko by virtue of actual ouster. Actual ouster involves an entry or possession of co-owned property by one co-tenant for a requisite 20-year statutory period that enables him to bring ejectment against the other co-tenant.

McCann, 63 N.C. App. at 452. To establish actual ouster, the tenant in common must manifest a clear, positive, and unequivocal act that amounts to an open denial of the co-tenants rights. Id. (citing Dobbins, 141 N.C. at 214); Beck v. Beck, 125 N.C. App. 402, 404 (1997); Collier, 19 N.C. App. at 620. Silent occupation and exclusive use of property, without a demand for accounting by the other co-tenant, will not give rise to actual ouster. Dobbins, 141 N.C. at 217; Collier, 19 N.C. App. at 617. The court in Beck v. Beck held that the respondent co-tenant actually ousted the petitioner co-tenant at a partition proceeding. 125 N.C. App. at 405. At this proceeding, the respondent answered the petitioners complaint by denying that the petitioner held any rights whatsoever in the land. Id. at 403. Several years later, the Court interpreted that partition proceeding as a clear, open denial to the right of the petitioner. Id. at 405. And because the respondent had exclusively occupied the disputed property for the requisite statutory period after the denial, the court granted the respondent sole ownership of the subject property. Id. Also, in Willis v. Mann, the Court found sufficient evidence of actual ouster. Willis, 96 N.C. App. at 450. Similar to Beck, the open denial of the co-tenants property rights occurred at a court Torrens proceeding. Id. The purpose of the 1969 proceeding was to secure by a decree of court a title to the property impregnable against all other claims or demands. Beck, 125 N.C. App. at 406. Twenty years later, the appellate court held that the proceeding unequivocally gave notice to the plaintiffs that the defendants were exclusively claiming the property. Willis, 96 N.C. App. at 454. Although this action sufficiently demonstrated actual ouster, the Court noted additional evidence to support the finding. Id. The defendant had also placed a mobile home on

the land, prevented the plaintiffs from cutting timber on the property, and paid the property taxes. Id. Accordingly, a North Carolina court will not find that Green actually ousted Vanko from the land. Unlike Beck and Willis, Green has demonstrated no clear, positive, and unequivocal act equivalent to an open denial of Vankos rights. Green could not openly deny Vankos rights because he was never even aware that he existed for over 19 years. Therefore, Green cannot prove actual ouster because he never manifested to Vanko an open denial of Vankos rights. Although Green installed a luxury camper on the property and payed property taxes like the defendants in Willis, Green never denied Vanko his rights to the land. Nor did Green ever defend sole ownership in court. Instead, Greens facts are more congruous with other North Carolina cases in which courts have found no actual ouster. See Casstevens v. Casstevens, 63 N.C. App. 169 (1983) (finding no facts to show actual ouster where respondent discovered co-tenancy from a letter by petitioner after 19 years of possessing the land). Therefore, Greens last chance of protection of sole ownership of The Lodge is contingent upon constructive ouster. Constructive Ouster At this time, Green does not meet the requirements of constructive ouster. To establish constructive ouster, a co-tenant must satisfy a two-prong test. Dobbins, 141 N.C. at 214; Willis, 96 N.C. App. at 454; Casstevens, 63 N.C. App. at 171; Collier, 19 N.C. App. at 621. First, the co-tenant must prove sole and undisturbed possession and use of the land for 20 years, during which time the other co-tenant never demands rent, profits or possession. Id. Second, the ouster must be without any acknowledgment of title in the other co-tenant. Ellis v. Poe, 73 N.C. App.

448, 450 (1985); Herbert v. Babson, 74 N.C. App. 519, 522 (1985); Brewer v. Brewer, 238 N.C. 607, 611 (1953). Where a co-tenant satisfies both prongs, such possession raises a presumption of ouster and supplies all of the elements necessary for adverse possession. Collier, 19 N.C. App. at 621. Currently, Green cannot meet the first prong of constructive ouster. Although he is three months short, Green has not solely possessed the land for a complete 20 years without demands for rents, profits or possession. The court in Casstevens held that the respondent co-tenant could not establish constructive ouster even though he established sole and undisturbed possession of a farm for 19 years. In that case, the petitioner co-tenant sent a letter during the 19th year to notify the estates attorney that she would seek remuneration for her share. Id. at 172. This letter, the court held, was sufficient to toll the statutory period because it amounted to a demand for rents, profits or possession. Id. Although the respondent co-tenant was just four months away from the 20-year requirement, the court entered judgment against the respondent nonetheless. Id. In contrast, the court in Collier entered judgement for the plaintiff co-tenants who had sole occupation and possession of a farm for over 20 years. Collier, 19 N.C. App. at 621-22. In that case, the plaintiff co-tenants met the entire requisite statutory period. Id. Furthermore, the defendant co-tenant admitted he made no demands for rent, profits or possession. Id. at 618. The court protected the plaintiff co-tenants from the stale demand by the defendant co-tenant who had slept on his rights. Collier, 19 N.C. App. at 621-22. As of today, Green has not exclusively possessed the land for an entire 20 years without demands for rents, profits, or possession. The facts show that Green triggered the beginning of

the statutory period in February 1991, when he entered the land and installed a luxury camper to live. Although he is only a few months from a complete 20 years, the Collier and Casstevens decisions indicate that a North Carolina court will still rule against him on this first prong. However, unlike the letter in Casstevens, Vankos letter makes no express claim or demand for remuneration that would toll the statutory period. It merely introduces himself and states that he would like to discuss their common interests. Therefore, if Vanko neither visits the property, nor makes any demands for at least three more months, Green will then be in a position to establish the first requirement of constructive ouster. For the same reason, Green is also currently unable to prove the second prong of constructive ouster. Under the second prong, the co-tenant must do nothing to recognize title in the other co-tenant for the complete 20-year period. Herbert, 74 N.C. App. 519, 522. In Ellis v. Poe, the Court presumed an ouster by respondents because the respondents had remained on the land for more than 20 years without any acknowledgment of a co-tenancy. Ellis, 73 N.C. App. at 450. In that case, an unrecorded deed to a 75-acre plot of land was allegedly conveyed to the respondent. Id. at 449. Since 1940, the respondent resided on said property, farmed the property, paid all property taxes, and kept all the rents and profits from the land. Id. In 1971, the petitioner discovered the deed was never recorded. Id. In response, he obtained signatures from all co-tenants who might claim an interest in the land to quitclaim any interest they had. Id. at 449-50. Because the signatures excluded the respondent, the evidence was sufficient to show that he had no acknowledgment of the co-tenancy. Id. at 451. In contrast, in Herbert v. Babson, the court did not find constructive ouster because the plaintiff had acknowledged title in a co-tenant. Herbert, 74 N.C. App. at 522. In that case, the

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plaintiff listed the subject property for county taxes in the name of Heirs of Henry Herbert. Id. This act was adequate evidence to show that the plaintiff had recognized title in a co-tenant. Id. As a result, the act prevented the presumption of ouster from arising. Id. If Green continues not to display acts of acknowledgment until February 2011, the second requirement will also be met. Similar to the facts in Ellis, there is no documentation of acknowledgment on Greens behalf that he knew that Vanko had title as a co-tenant. The facts, as presented by Vankos letter, exclude Greens signature. The significance of the letter merely indicates a possibility that Vanko might indeed be Anton Vankos son. Green may have mentally acknowledged that possibility, but there is no evidence to support a definitive acknowledgment. The same analysis applies to the rumors of Vanko and the suppliers conversation with Green. In 1989, Green might have internally recognized the rumors that Vanko was alive were possibly true. In 1995, Green might again have reconsidered that possibility when the supplier asked Green if Anton Vankos son was involved with the resort. However, both examples do not provide definitive evidence of acknowledgment by Green that Vanko had title in co-tenancy. Because the 1989 rumors could not be substantiated by investigators, it is both highly unlikely and unfounded that Green acknowledged differently. Lastly, Greens response to the supplier that he would pay a family member off before he shared is antithetical to acknowledgment of title in a co-tenant. Thus, Green does not satisfy the second prong of constructive ouster because he can only prove non-acknowledgment for 19 years. But if he continues not to acknowledge title in Vanko until February 2011, assuming Vanko never enters the land or makes any demands, Green will be able to prove constructive ouster.

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CONCLUSION At this moment, Green cannot prove adverse possession against Vanko. First, Green has not actually ousted Vanko because he has not made an open, unequivocal denial of Vankos rights. Second, Green has not constructively ousted Vanko because he has not exclusively occupied the land for 20 years without any demands or acknowledging title. However, if Vanko does not enter the land or make any demands, and Green does not acknowledge title in Vanko, for three more months, Green could establish adverse possession via constructive ouster.

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