Memorandum of Law

TO: Maria de Makontento

FROM: Atty. Ewan Ko

DATE: September 23, 2010

RE: Legal basis for Maria’s claim

1. Questions Presented

1.1 Whether or not Maria’s marriage to Oscar is void, voidable or valid?

1.2 Whether or not Maria has a right to the restaurant business they put up?
1.3 What are the rights of Anna?
1.4 What are the rights and status of Oscar’s children with Lucy?

2. Answers

The Answers section should consist of brief answers to the Questions Presented. They
should be answered in the same order they appear in the Questions Presented.

2.1 Maria’s marriage to Oscar is void for being bigamous because all its requisites
are present. That there exist two valid marriages

3. Statement of Facts

Sometime in 1976, Maria and Juan got married and they begot Anna. However,
they separated due to their differences. Thereafter, Maria moved to United States where
she met Oscar and married him after obtaining a divorce decree in Las Vegas.

Then, the couple returned to Manila and opened a restaurant business. Later on,
Maria filed a declaration of nullity of her marriage with Juan and it was granted.
However, Maria discovered that Oscar is having an affair with Lucy with whom he has
two minor children.

Statement of Facts

The Statement of Facts should tell the story that gave rise to the legal question. The Facts
should have a tone and structure that is easy to read and that makes the issues
understandable.

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 1. Avoid unnecessary facts

Include only those facts that are necessary for the legal analysis. The job of the
writer is to sift through all of the information and pull out what is needed.

2. Do not state legal conclusions

Do not incorporate legal terms or legal conclusions in the facts.

o Incorrect: Mr. Rice negligently failed to stop at the red light.

o Correct: Mr. Rice failed to stop at the red light.
3. Note disputed facts

If there are facts that are in dispute, they should be clearly identified with
modifying terms such as “alleged,” “stated,” “testified.”

4. Only one key fact per sentence

Avoid sentences that include more than one essential fact. If you follow this rule,
you will make it easier to apply the law to the facts in the Discussion section.

5. Avoid bias or distortion

Mention facts that are both favorable and unfavorable.

The Discussion

The Discussion section, which is considered the heart of the memorandum, must provide
objective yet convincing support for the conclusion.

1. Balance

Unlike an appellate brief (see below), a legal memorandum usually is not an

advocacy paper. Although the purpose is to reach a legal conclusion, the
arguments presented must be objective. The writer should explain why favorable
law applies and why unfavorable law most likely does not apply; however, the
writer must not attempt to convince the reader of the absolute correctness of the
conclusion. Instead, the writer should acknowledge the weaknesses of the
argument.

2. Synthesize law with facts

The writer must give an explanation as to how each fact relates to the law.

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 3. AIRAC

Every section of the Discussion must contain five elements: Answer, Issue, Rule,
Analysis, and Conclusion (“AIRAC”).

Sample Discussion:

Mr. Rogers’s action of ejectment most likely will fall. Whether Mr. Rogers’s action of
ejectment will succeed depends upon whether Mr. Adams obtained title to Parcel A
through adverse possession.

When a party is seeking to obtain title through adverse possession on a claim not based
upon a written instrument, they must prove both the statutory and common law
requirements. Halley v. Winnicki, 255 A.D.2d 489,491 (2d Dep’t 1998). Furthermore,
because courts look dlsfavorably upon claims of adverse possession, the proof must be
“clear and convincing” Anderson v. Mazza, 258 A.D.2d 726 (3d Dep’t 1999). Here, a
court reviewing the facts of Mr. Adams’s case would most likely agree that he has clearly
and convincingly satisfied both the common law and statutory requirements.

1. Mr. Adams cultivated and improved the land sufficiently to give him title by
widening the driveway, planting trees, maintaining the garden, mowing the lawn,
and raking the leaves.

Mr. Adams met the statutory requirements to obtain title to the property. When
claiming title to property not based upon a written instrument, the claimant must
show that the land has been “usually cultivated or improved.” N.Y. Real Prop.
Acts. §522. The possession must be for a minimum of ten years. N.Y. Real Prop.
Acts. § 501 (McKlnney 1998). Here, Mr. Adams usually cultivated or improved
the property, and thus a court would most likely find that the statutory elements
have been met.

In Birnbaum v. Brody, the Appellate Court for the Second Department held that
mowing grass, maintaining shrubbery, planting flowers, and installing playground
equipment in the backyard of a house was sufficient to establish usual cultivation.
548 N.Y.S.2d 691 (2d Dep’t 1989). Similar to Birnbaum, the Adams family
mowed the grass and maintained flowers. They did plant four trees, although they
did not maintain the shrubbery. Moreover, while they did not have a playground
set, they did widen the driveway. Although each determination is very fact-
specific, which makes it impossible to determine with certainty the outcome, the
facts are analogous enough to predict that a court would probably reach the
conclusion that the cultivations and improvements were sufficient so as to satisfy
the statutory requirements.

2. Mr. Adams met the common law requirements because his possession was open
and notorious, actual, hostile, and exclusive and continuous.

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Mr. Adams probably has fulfilled the common law requirements for obtaining
title to Parcel A through adverse possession. To obtain title through adverse
possession, the possession be (1) open and notorious, (2) actual, (3) hostile, and
(4) exclusive and continuous Brand v. Price, 324 N.E.2d 314, 316 (1974).

1. Mr. Adams’s possession was open and notorious.

The question of whether the Adams family’s occupancy was open and
notorious is somewhat mixed, but the evidence probably is sufficient to
meet this requirement, in order to establish that the possession of the
property was open and notorious, it must be shown that the possession was
“sufficiently visible such that a casual inspection by the owner of the
property would reveal the adverse possessor’s occupation and use
thereof.” Weinstein v. Pesso, 237 A.D.2d 516 (2d Dep’t 1996).

A court probably would find that a casual inspection of Parcel A would

reveal the occupancy of the Adams family. In West v. Tilley, 33 A.D.2d
228, 230 (4th Dep’t 1970), the owner of the property contended that the
occupation was not open and notorious because the land was “wild,
overgrown and lettle [sic] used.” Id. However, the court disagreed, holding
that if the owner had made a “casual inspection” he would have noticed
the changes, improvements, and other signs of occupancy. Similar to the
West case, a casual inspection of the land here probably would have
revealed open and notorious signs of occupancy. The name on the
mailbox, the widening of a driveway, the erection of a chain-link fence,
and the planting of trees all appear to be discoverable upon inspection.

The fact that Mr. Rogers did not see the signs of occupancy probably is
irrelevant. The timing of Mr. Rogers’s visits coincided with times when
signs of occupancy were less apparent, thus making the element of open
and notorious more difficult to prove. Since Mr. Rogers’s two visits
occurred when the Adams family was on vacation, thus the maintenance
of the garden, mowing of the grass, and raking of the leaves were not
apparent to the owner of the parcel. How a court would deal with this
issue is difficult to predict; however, the holding in Beacon v. Garner, 88
N.Y.2d 154 (1930) does provide some insight. That court applied a
standard of reasonableness when determining whether the common law
requirements have been met, by asking if owners of properties of similar
character, condition, and location would have done the same as the
claimant. Id. at 159. Since it is common for homeowners to take summer
vacations, a court might find that the condition of the property during the
vacation was reasonable and still open and notorious signs of occupancy.
The fact that there were more permanent indications of occupancy, such as
the widening of the driveway and chain-link fence, will provide additional
support for this argument.

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 2. Mr. Adams had actual possession.

The fact that the Adams family lived on the property is sufficient to
establish actual possession. Courts consistently have held that “acts of
dominion and control over the premises are indicative of actual
possession.” Miller v. Rau, 793 A.D.2d 868, 869 (3d Dep’t 1979). A court
unquestionably would find that the acts of Mr. Adams, such as mowing
the lawn and widening the driveway, are ones of dominion and control.
Furthermore, Parcel A was the place of residency for Adams family; thus
it can be said that they actually possessed the property on which they
lived.

3. Mr. Adams’s possession was hostile title.

The facts conclusively establish hostility toward the title of Mr. Rogers, it
is well established that a plaintiff is required to show only that the
possession constitutes an invasion of the owner’s rights to establish
hostility. Katona v. Low, 226 A.D.2d 433, 434 (2d Dep’t 1996). Payment
of taxes “coupled with other acts” can also evidence hostility toward title.
New York v. Wilson, 15 N.E.2d 408, 412 (1938). Because the Adams
family entered the property in violation of Mr. Rogers’s rights, paid taxes,
and evidenced “other acts” of hostility it is doubtful, if not impossible, that
a court would view the Adams family’s possession of Parcel A as anything
but hostile toward the title of Mr. Rogers.

4. Mr. Adams exclusively and constinuously occcupied.

There is sufficient evidence that the Adams family occupied the property
exclusively and continuously in determining whether the element of
continuity has been met, courts consider not only the adverse possessor’s
physical presence on the land, but also the other acts by the possessor that
would appropriately be reasonable of an owner in the same position. Id. It
is common that homeowners take vacations, and thus an annual trip
unquestionably would not constitute a break in the continuity of the
possession. Because there were no other residents on the property and thus
the occupancy was exclusive, a court could not disagree that this element
is satisfied.

Conclusion

The Conclusion section should provide a brief summary of the facts and law reviewed in
the Discussion section. It should be no more than 5–10 sentences long.

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Sample Conclusion:

In light of all of the facts, a court most likely would rule that Mr. Adams has gained title
to Parcel A through adverse possession; thus Mr. Rogers’s action of ejectment would be
barred. Mr. Adams most likely has satisfied both the statutory and common law elements
of adverse possession as required to gain title. While he has not substantially enclosed his
property, he did improve or cultivate the land for ten years, and thus he has satisfied N.Y.
Real Prop. Acts. § 501. Furthermore, Mr. Adams has satisfied the common law elements
that the possession be (1) actual; (2) open and notorious; (3) hostile; and (4) exclusive
and continuous. While the greatest challenge lies in clearly and convincingly proving
open and notorious possession, Mr. Adams will probably prevail in this action.