PROBLEM 7B: MANGOS
For Mike: Sonderling; Blankstein; J.Mason
For Debbie: Hutzler; Milson; Tanner
Judges: Gottlieb; Leibowitz; Sarinsky
Reserves: Dryer; Laufer; Salsburg; Tano
MUSIC: Billy Joel, The Stranger (1977)
Problem 7B
• Mike gets poor TV reception b/c of valley location
• Debbie owns neighboring ranch above M’s land
• 1962 Agreement: “[Owner of M’s land] may place
and maintain an antenna onto [Debbie’s] barn
and run wires from the antenna to [M’s land] to
allow television reception for that property.”
Problem 7B
• 1962 Agreement: “[Owner of M’s land] may place and
maintain an antenna onto [Debbie’s] barn and run wires
from the antenna to [M’s land] to allow television
reception for that property.”
• Antenna installed; reception still not good; cable
unavailable
• 2007: M wants to put a satellite dish where
antenna is now, but D objects.
Arguments from Marcus Cable?
• 1962 Agreement: “[Owner of M’s land] may
place and maintain an antenna onto
[Debbie’s] barn and run wires from the
antenna to [M’s land] to allow television
reception for that property.”
Arguments from Chevy Chase?
• 1962 Agreement: “[Owner of M’s land] may
place and maintain an antenna onto
[Debbie’s] barn and run wires from the
antenna to [M’s land] to allow television
reception for that property.”
PROBLEM 7B: POLICY Q
• What to do if increase in burden is
negligible but not withing literal
language of grant?
EASEMENTS BY PRESCRIPTION
featuring
FICUS
continued
EASEMENTS BY PRESCRIPTION
115. To what extent do the following rationales for
adverse possession also support the doctrine of
Prescriptive Easements?
(a) reward beneficial use of land
EASEMENTS BY PRESCRIPTION
115. To what extent do the following rationales for
adverse possession also support the doctrine of
Prescriptive Easements?
(b) punish sleeping owners
EASEMENTS BY PRESCRIPTION
115. To what extent do the following rationales for
adverse possession also support the doctrine of
Prescriptive Easements?
(c) recognize psychic connection to land
EASEMENTS BY PRESCRIPTION
115. To what extent do the following rationales for
adverse possession also support the doctrine of
Prescriptive Easements?
(d) protect people and legal system from
being burdened with “stale” claims
EASEMENTS BY PRESCRIPTION
Continuous Use
Open & Notorious
[Exclusive]
Adverse/Hostile
EASEMENTS BY PRESCRIPTION
ELEMENTS: CONTINUOUS
1. Evidence in Macdonald?
2. Evidence in Lyons?
EASEMENTS BY PRESCRIPTION
ELEMENTS: CONTINUOUS
Note that can be seasonal use like Adverse
Possession (Ray)
EASEMENTS BY PRESCRIPTION
Continuous Use
Open & Notorious
[Exclusive]
Adverse/Hostile
EASEMENTS BY PRESCRIPTION
ELEMENTS: OPEN & NOTORIOUS
DQ117. Evidence of “open and notorious”:
• MacDonald actual notice; other states do
not. Is it a good idea to do so?
EASEMENTS BY PRESCRIPTION
ELEMENTS: OPEN & NOTORIOUS
DQ117. Evidence of “open and notorious”:
• Can a claim of prescriptive easement with
regard to underground utilities like sewer
pipes ever be open and notorious?
EASEMENTS BY PRESCRIPTION
Continuous Use
Open & Notorious
[Exclusive]
Adverse/Hostile
EASEMENTS BY PRESCRIPTION
ELEMENTS: EXCLUSIVE
•
•
•
Many Jurisdictions Don’t Require (Nature of
Easement is Non-Exclusive Use)
Some: Means Exclusive of Everyone but Owner
Some (TX): Shared w Owner  Presumption of
Permissive
EASEMENTS BY PRESCRIPTION
Continuous Use
Open & Notorious
[Exclusive]
Adverse/Hostile
EASEMENTS BY PRESCRIPTION
ELEMENTS: ADVERSITY
Note 2: What is the significance of the following
presumptions?
1. Continuous use for AP Period presumed
adverse (MacDonald)
EASEMENTS BY PRESCRIPTION
ELEMENTS: ADVERSITY
Note 2: What is the significance of the following
presumptions?
1. Continuous use for AP Period presumed adverse
(MacDonald). How do you disprove?
EASEMENTS BY PRESCRIPTION
ELEMENTS: ADVERSITY
Note 2: What is the significance of the following
presumptions?
2. Public recreational use presumed
permissive (Lyons)
EASEMENTS BY PRESCRIPTION
ELEMENTS: ADVERSITY
Note 2: What is the significance of the following
presumptions?
2. Public recreational use presumed
permissive (Lyons) v. Undeveloped land
presumed permissive (Lyons Dissent)
EASEMENTS BY PRESCRIPTION
ELEMENTS: ADVERSITY
Note 2: What is the significance of the following
presumptions?
3. Shared use with the owner (e.g., of a
driveway) presumed permissive (Texas)
EASEMENTS BY PRESCRIPTION
ELEMENTS: ADVERSITY
Presumptions frequently decide cases
because hard to disprove.
EASEMENTS BY PRESCRIPTION
ELEMENTS: ADVERSITY
Policy Q: What do you do with case like MacDonald or
Dupont where use continues for a long time and
then servient owner says no? (plausible to say
permissive)
Could create hybrid of prescription & estoppel: if use
goes on long enough, can’t change your mind.
EASEMENTS BY PRESCRIPTION:
POLICY QUESTIONS
DQ118. “The best justifications for granting an
implied easement are reliance and need. Thus, if
claimants cannot meet the elements of an
Easement by Estoppel or of an Easement by
Necessity, they should not be able to get a
Prescriptive Easement unless they pay market
value for it.” Do you agree?
EASEMENTS BY PRESCRIPTION:
POLICY QUESTIONS
Note 6: Should there be prescriptive rights
to commit nuisance? (Any reason not to
let statute of limitations operate as it
does for trespass?)
NOTICE & THE
RECORDING
SYSTEM
NOTICE (of Conflicting
Property Rights)
• Actual Notice: Fact Question
• Constructive Notice: Generally Legal Q
– Record Notice (from public records)
– Inquiry Notice (facts suggesting
conflicting interest)
Operation of the Recording System
• Every jurisd. in US has recording office
• If a real property interest is transferred, normally
record document
– Deeds, Mortgages, Easements
– Court judgments; lis pendens etc.
• Clerks of court: blind recipients w date stamps
• County keeps documents & notes in indexes
Purposes of Recording System
• Provides public record of land titles: gov’t knows
who is responsible
• Secures copies of important documents
• Provides notice to subsequent buyers
– Can see chain of title of seller
– Can see non-ownership interests (e.g., easements,
other servitudes)
– Gives grantees incentive to record
Recording Acts: Problem Addressed
• Transfer of Interest in Same Property to Two
Different Grantees(OA, OB)
– Can be resale of whole parcel
– More frequently, transfer of partial interest (e.g.,
easement or mineral rights) that conflicts with later
transfer of complete interest
Recording Acts: Problem Addressed
• Transfer of Interest in Same Property to Two
Different Grantees(OA, OB)
• O liable for fraud or breach of warranty
– A v. B: who gets lawsuit & who gets ppty rt?
– Common law answer: 1st in time = 1st in Right
Recording Acts: Operation
• Recording has no effect on rights of parties
to original transaction as betw. themselves:
– Unrecorded OA deed still valid
– O can’t defend suit by A by saying “unrecorded”
Recording Acts: Operation
• Recording has no effect on rights of parties to
original transaction as betw. themselves:
• Protects buyers who record against other
transferees
– Often yields different results than 1st in time
– Most jurisdictions protect later BFP for value against
unrecorded interests
BFP for VALUE: Definitions
Bona Fide Purchaser = good faith
• No notice of prior transaction
• Status is specific to one prior transaction
• Can only be true of later player
BFP for VALUE: Definitions
Bona Fide Purchaser = good faith
What is value? (jurisdiction specific)
• donees, heirs, devisees usually not prot’d
• split re amount of consideration needed