May 29, 2020 Articles

Thinking Historically during Litigation: A Case Study

Two Maine Supreme Court cases illustrate that history matters, and real estate litigators should take heed.

By Andrew M. Toft

At trial, attorneys introduce evidence of past events, telling a story to persuade fact finders about how the law should be applied to those past events. While practitioners may not think about it, evidence in a case in which title to real property is contested is often a history lesson, consisting of documents recorded in the local real property records, and the historical uses of the property at issue. In adverse possession and prescriptive easement cases, practitioners immediately know that they must delve into not only real property records, but also facts that will show how and by whom the property was used across many years, the precise number of which will depend on the jurisdiction’s prescriptive period.

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