Easement-by Estoppel

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PROPERTY E SLIDES
O4-22-13
LOGISTICS & SCHEDULE
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Info Memo on Chapter 6 Posted on Course Page
Today: Class until 12:12, then Course Evaluations
Tomorrow: Normal Class Time
Thursday: Final Class (May Run Long)
Friday: No Class
– Info Memo on Chapter 7 Posted
– Office Hours 2-6
• Saturday
– Office Hours 2-6
– Optional Sample Exam Answers Due @ 9pm
Chapter 7: Easements
1. Overview & Terminology
2. Interpreting Language
a.
b.
Easement v. Fee
Scope of Express Easements
3. Implied Easements
a.
b.
c.
By Estoppel
By Implication and/or Necessity
By Prescription
Implied Easements: Overview
• Easements are both contracts &
conveyances (land transfers)
• How do you achieve contracts and
conveyances without express
agreement? Four Theories…
Implied Easements: Overview
Contract/Conveyance w/o Express
Agreement: Four Theories
1.
2.
3.
4.
Promissory Estoppel (Detrimental Reliance)
Implied-in-Fact Contract (Parties’ Intent)
Implied-in-Law Contract (Public Policy)
Adverse Possession
Implied Easements: Overview
4 Theories  4 Types of Implied Easement
1. Promissory Estoppel (Detrimental Reliance) ≈
Easement-by Estoppel
2. Implied-in-Fact Contract (Parties’ Intent) ≈
Easement-by-Implication
3. Implied-in-Law Contract (Public Policy) ≈
Easement-by-Necessity
4. Adverse Possession ≈
Easement-by-Prescription
Implied Easements:
Sewage Pipe Hypothetical
1. Developer builds line of houses
2. Same set of pipes connect all houses in line to city
sewer system. Sewage from houses further from
the city sewer passes under all houses in line that
are closer to the sewer.
SEWAGE PIPE HYPOTHETICAL:
6
5
4
3
2
1
Implied Easements:
Sewage Pipe Hypothetical
1. Developer builds line of houses
2. Same pipes connect houses in line to city sewers; sewage
from houses further from sewer passes under the rest.
3. Developer sells all houses in line, but creates no
easements to allow flow of sewage along the line.
Connected nature of sewage pipes not referenced
in deeds and no notice provided orally.
SEWAGE PIPE HYPOTHETICAL:
6
5
4
3
2
Lot #3 Being “Used” by Lots #4-6
to Dispose of Their Sewage
1
Implied Easements:
Sewage Pipe Hypothetical
1. Developer builds line of houses
2. Same pipes connect houses in line to city sewers; sewage
from houses further from sewer passes under the rest.
3. Developer sells all houses in line; creates no easements
and provides no written or oral notice of connected
nature of sewage pipes.
4. When can owners of houses further from sewer
claim one or more types of implied easement?
(NOTE: Particular variations on the facts will give
rise to each type.)
Chapter 7: Easements
1. Overview & Terminology
2. Interpreting Language
a.
b.
Easement v. Fee
Scope of Express Easements
3. Implied Easements
a. By Estoppel
b.
c.
By Implication and/or Necessity
By Prescription
Easement-by-Estoppel
Background: Licenses (Note 1 P850)
• LICENSE = Permission by owner for third
party to use owner’s property. E.g., …
– Right to enter theater or ballpark with ticket.
– Come over & swim in my pool.
– Store your things in my house while your house
is tented.
Easement-by-Estoppel
Background: Licenses (Note 1 P850)
• LICENSE = Permission by owner for third
party to use owner’s property.
• License generally revokable by owner unless:
– Combined with Another Interest (E.g., Right to
Pick Fruit)
-OR– Easement-by-Estoppel (Some States)
Easement-by-Estoppel
General Rule
An owner may be estopped from barring a 2d
party access to the owner’s property where
1.
The owner apparently allows 2d party to use the
property (Apparent License)
2. 2d party reasonably and detrimentally relies on
this acquiescence
Effect in States that Allow Easements-by-Estoppel is
that License Becomes Unrevokable
Easement-by-Estoppel
General Rule
An owner may be estopped from barring a 2d
party access to the owner’s property where
1.
The owner apparently allows 2d party to use the
property (Apparent License)
2. 2d party reasonably and detrimentally relies on
this acquiescence
Usually little debate about Apparent License, so
existence of E-by-E usually turns on reliance.
Easement-by-Estoppel
Reasonable & Detrimental Reliance
Stoner: Reliance on Oral Permission to
Build Ditch (DQ112)
• Reasonable?
– P Presumably Aware of D’s Expenditures
– BUT Should You Get it in Writing Before Spending?
– Might explore more facts (nature of promise; extent of
awareness of reliance; parties’ relationship, etc.)
Easement-by-Estoppel
Reasonable & Detrimental Reliance
Stoner: Reliance on Oral Permission to
Build Ditch (DQ112)
• Detrimental? (Easier)
– $7000 in 19th Century to construct ditch
– Maybe other missed opportunities (e.g.,
alternate forms of irrigation now more expensive
to install)
Easement-by-Estoppel
Reasonable & Detrimental Reliance
Nelson v. AT&T (Note 3 P851)
• Easement contained in deed invalid b/c lack of
legal formalities. D placed 32 poles & maintained
for 30 years. Compare to Stoner re Reliance.
– AT&T: Clearer that easement rather than license
intended b/c explicit, in writing, & problems w deed
arose after O signed
– BUT AT&T sophisticated party; should’ve known that
deed was invalid & fixed
Easement-by-Estoppel
Reasonable & Detrimental Reliance
Nelson v. AT&T (Note 3 P851)
• Easement contained in deed invalid b/c lack of
legal formalities. D placed 32 poles & maintained
for 30 years.
• Mass SCt: No easement; AT&T should have known
easement not properly created meaning they had
a “mere license.” Essentially holds reliance was not
reasonable by a sophisticated player.
Easement-by-Estoppel
Duration/Termination
N.4 (P851-52): How Long Does an E-by-E Last?
Stoner: “For so long a time as the
nature of it calls for.” Means?
Easement-by-Estoppel
Duration/Termination
N.4 (P851-52): How Long Does an E-by-E Last?
Stoner: For so long a time as the nature of it calls for.
• Easy Case:
– House Built in Reliance on Access Through Neighbor’s
Driveway  E-by-E
– New Public Road Built Adjoining Dominant Tenement
Creates Alternate Access
– Use of House No Longer Relies on Driveway; E-by-E
Ends
Easement-by-Estoppel
Duration/Termination
N.4 (P851-52): How Long Does an E-by-E Last?
Stoner: For so long a time as the nature of it calls for.
• What does this mean for an irrigation ditch?
– So long as irrigation remains useful to Dominant
Tenement?
– So long as no cheap alternatives?
Easement-by-Estoppel
Duration/Termination
N.4 (P851-52): How Long Does an E-by-E Last?
Stoner: For so long a time as the nature of it calls for.
What does this mean for hypo in Note 4:
• House built in reliance on E-by-E burns down.
• Can owner rebuild?
Easement-by-Estoppel
Duration/Termination
N.4 (P851-52): How Long Does an E-by-E Last?
• House built in reliance on E-by-E burns down. Can
owner rebuild?
• See quote from Rerick in Stoner (middle P849):
“The right to rebuild [a mill] in the case of destruction or
dilapidation and to continue the business on its original
footing may have been in fact as necessary to his safety,
and may have been an inducement of the particular
investment in the first instance.”
Easement-by-Estoppel
Duration/Termination
N.4 (P851-52): How Long Does an E-by-E Last?
• House built in reliance on E-by-E burns down. Can
owner rebuild?
• See quote from Rerick in Stoner (middle P849):
– Could read to allow absolute right to rebuild
– BUT may turn on evidence of nature of reliance
• Connection between safety and dilapidation
• Return on investment w/o rebuilding? (insurance $)
SEWAGE PIPE HYPOTHETICAL:
6
5
4
3
2
1
Dominic buys Lot #2 from Owner of Lot #1
(No House on #2 but Sewage Pipe in Place)
Easement-by-Estoppel
Sewage Pipe Hypothetical
• Dominic buys Lot #2 from Owner of Lot #1
– No House on #2 but Sewage Pipe in Place
– D makes clear he intends to build house on Lot #2
• Owner of Lot #1 doesn’t object to use of sewer line
until after house on #2 is complete & connected.
Assume no other easy way to connect to sewer.
• Is D’s Reliance on O’s Silence While House is
Constructed Reasonable?
Easement-by-Estoppel
Policy Considerations (DQ119)
Should We Allow E-by-E?: Relevant Concerns
• Doctrine undermines Statute of Frauds
• People making significant investments should make
sure of legal rights before relying on mere license.
• BUT: Neighbors don’t typically create signed
writings for all agreements
– People can take offense (My word isn’t good enough?)
– Cf. Border disputes in adverse possession).
Easement-by-Estoppel
Policy Considerations (DQ119)
Should We Allow E-by-E?: Possible Results
(1) Whenever there’s reasonable and detrimental
reliance. (Many States)
–OR–
(2) Only after compensation paid (A Few Cases)
–OR–
(3) Never (Many States)
Chapter 7: Easements
1. Overview & Terminology
2. Interpreting Language
a.
b.
Easement v. Fee
Scope of Express Easements
3. Implied Easements
a. By Estoppel
b. By Implication and/or Necessity
c. By Prescription
Easement-by-Implication &
Easement-by-Necessity: Overview
• Both Arise from Split of Larger Parcel
•
•
E-by-I: Parties Intend that Prior Existing Use Should
Continue [Look for Objective Evidence of Intent; Not
Secret Subjective Belief]
E-by-N: Split Creates Landlocked Parcel Needing
Access [Theoretical Dispute as to Whether Based in
Public Policy or (Very Generous Notion of) Intent]
• Different Requirements But Sometimes Same Facts
Can Give Rise to Both
Easement-by-Implication
Elements: States Vary on Formulation
1.
2.
3.
4.
5.
One parcel is split in two
Prior Use (“Quasi-Easement”)
Intent to continue prior use
*Apparent, visible or reasonably discoverable
*Some degree of necessity
* Some jurisdictions treat 4 & 5 as separate
elements; some treat as evidence of intent
Easement-by-Necessity
Elements
1. One parcel is split in two
2. Landlock: One resulting parcel is cut off from key
access (e.g. to roads) by other parcel (alone or in
combination with parcels owned by 3d parties).
3. At time parcels split, access necessary to
enjoyment of landlocked parcel
Easement-by-Implication &
Easement-by-Necessity:
Recurring Concerns/Comparisons
• Implied-by-Grant v. Implied-by-Reservation
• Degree of Necessity
• Notice
• Termination
Easement-by-Implication &
Easement-by-Necessity:
Implied-by-Grant v. Implied-by-Reservation
Parcel split into Eastacre and Westacre. Prior Use =
Driveway from House on Eastacre across Westacre
to main road.
• Original owner sells East, retains West = by Grant (Claim
in Dupont)
• Original owner sells West, retains East = by Reservation
(Claim in Williams Island)
• Original Owner Simultaneously Sells Both to Different
People = by Grant
Easement-by-Implication &
Easement-by-Necessity:
Implied-by-Grant v. Implied-by-Reservation
• Some states treat some elements of Eby-I or E-by-N more favorably if “by
grant” than “by reservation”
• Implied-by-Reservation seen as shady:
“When I sold you the lot next door, I
forgot to mention that I was going to
keep using the path to the lake. Oops!”
Easement-by-Implication & Easementby-Necessity: Degree of Necessity
EASEMENTS BY IMPLICATION:
•
•
•
Some states: Evidence of intent, but not required
Most states: Reasonable necessity required
Some states (not FL): Strict necessity required if implied
by reservation
EASEMENTS BY NECESSITY:
•
Most states: Strict necessity
Some Legal Tests/Examples for Reasonable & Strict
Necessity in Cases and Note 3 (P860-61)
Easement-by-Implication: Notice
Need notice to bind subsequent purchasers of
servient tenement
• Actual Notice (Fact Q): Did buyer know about easement?
• Inquiry Notice (Legal Q): Sufficient info to create duty in
reasonable buyer to ask?
– Often Sufficient: Path/road going to property line
– Courts sometimes stretch to find inquiry notice: should have been
aware that pipes underground might connect, etc.
• Usually won’t be notice from public land records b/c
documents unlikely to refer to implied easement.
Easement-by-Implication: Notice
Notice at Time of Split
• Legal Test Often Version of “Apparent, visible or
reasonably discoverable”
– Some states treat as requirement
– Some states treat as evidence of intent
• Same kinds of evidence relevant as with notice to
subsequent purchasers
Easement-by-Necessity: Notice
•
Subsequent Purchasers of Servient Estate
–
–
•
In theory, also need notice to bind.
Court finding the easement necessary probably
hesitant to find lack of notice.
At Time of Split: Doesn’t Arise b/c Parties Should
Be Aware that Newly Created Parcel is
Landlocked
Easement-by-Implication & Easementby-Necessity: Termination
• Both: Can Terminate like other Easements
(Agreement; Abandonment; Adv. Poss., etc.)
• E-by-N: Ends if the necessity ends b/c created as a
matter of policy to address necessity
• E-by-I: Does not end if the necessity ends.
– Created Based on Intent of Parties
– Necessity Often Just Evidence of Intent
– So Comparable to Express Easement; Change in
Necessity Doesn’t Undo Express Agreement
Easement-by-Implication
Williams Island
Use of Path Across Servient Tenement to
Connect Two Holes of Golf Course
1. One parcel Split in Two (Undisputed)
2. Prior Use (Undisputed)
Easement-by-Implication
Williams Island: Path from 13th  14th Holes
1.
2.
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
3. Intent to continue prior use: Evidence?
– Testimony: Intent of original parties & that when
Williams purchased golf course, it was told that
original owner of servient estate had agreed to
easement
– References to “Easements” in Deed (but Not
Specified)
– Overall Circumstances (incl. continual use)
Easement-by-Implication
Williams Island: Path from 13th  14th Holes
1.
2.
3.
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: (Unusually Good Evidence)
4. *Apparent, visible or reas. discoverable:
•
Paved; 9 feet wide; “in constant use” + references in
deed
Easement-by-Implication
Williams Island: Necessity
• Legal Standard
– Case requires Reasonable Necessity
– Some states would require Strict b/c by-Reservation
• Ct. (P852): “No practical or safe alternative route.”
Alternatives considered (P853 fn 1):
– Cross highway, travel 200 feet on sidewalk, cross
highway again
– Backtrack along a substantial portion of the golf course
to get around defendant’s tract
• Note: No discussion of possible renumbering or
reconfiguration of course
Easement-by-Implication
Williams Island: Path from 13th  14th Holes
1.
2.
3.
4.
5.
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: (Unusually Good Evidence)
Apparent, visible or reas. discoverable: (Good Evidence)
Reasonable necessity: (Court finds)
6. Notice to Subsequent Purchasers
– Actual: Buyer’s Rep Told 4 mos. Before Closing
– Inquiry: Established Regular Use
Easement-by-Implication
Williams Island: Path from 13th  14th Holes
1.
2.
3.
4.
5.
One parcel is split in two (Undisputed)
Prior Use (Undisputed)
Intent to continue prior use: (Unusually Good Evidence)
Apparent, visible or reas. discoverable: (Good Evidence)
Reasonable necessity: (Court finds)
6. Notice to Subseq. Purchasers: (Unusually Good Evidence)
• Pretty Easy Case if You Accept Court’s Necessity Analysis
– Dependent on Use as Golf Course in Present Configuration
– Might be Different if Strict Necessity Required
Easement-by-Necessity: DuPont
1. DuPonts sell Three-Part Lot to Whitesides
– “Riverfront” where W’s want to build house
– “Lower Portion”: accessible from public road
– “Wetlands” in between
2. Undisputed that, prior to sale, DuPonts built road
across their own land providing access to Riverfront
so Whiteheads could build
3. Dispute as to whether DuPonts said this access was
permanent or temporary
Easement-by-Necessity: DuPont
Possible Implied Easements?
1. Easement-by Estoppel: (“Irrevokable License”)
– Good Case for Reliance under Ws’ Version of Facts
• Detrimental: Bought lot & spent $240K in 1981 to build house
• Reasonable: Probably, since road built before purchase
– Under Ds’ version of facts?
• Reasonable: If D’s Say “Temporary” & Ws Spend $$?
• Note that Ds Not Very Sympathetic: License Revoked After
14 Years for No apparent Reason
– Court Remands for Determination
Easement-by-Necessity: DuPont
Possible Implied Easements?
1.
2.
3.
4.
Easement-by Estoppel: Court Remands
Easement-by-Implication: No Prior Use
Easement-by-Prescription: Clear Permission
Easement-by-Necessity: Turns on Necessity
Easement-by-Necessity:
Necessity in DuPont Opinions
• Majority: Not Strict Necessity:
– Access available to Lower Portion
– Possibility of road across Wetlands (though expert said
$40,000-50,000)
• Dissent: Meets Strict Necessity:
– Getting road built across wetlands costs time, $$, and
conservation easement (giving up use of some of land)
– “Might be easier to traverse a river by walking across
the surface”
Easement-by-Necessity:
Necessity in DuPont = Tricky in 1981
• Lot as a whole was not landlocked at split (road to
Lower Portion of lot existed)
• Access to house on Riverfront not necessary for
enjoyment of lot at split (house built later)
• Wetlands Regs greatly raise cost of road, but no
evidence if Regs existed at split (probably not).
• To get E-by-N for Riverfront, need to treat large
parcel as two separate lots divided by water with
no access between them (cf. Dissent re “no bridge”)
Easement-by-Necessity:
DuPont: Necessity Confusing in FL
• Fl. Stats. on Easement-by-Necessity
– §704.01(1): “reasonably necessary”; “reasonable & practicable”
– §704.03: “practicable” means w/o use of “bridge, ferry, turnpike
road, embankment or substantial fill.”
• Tortoise Island (Fla Supr Ct): “absolute necessity”
• Hunter (1st DCA interpreting Tortoise Island): “no other
reasonable mode of accessing the property”
SEWAGE PIPE HYPOTHETICAL:
6
5
4
3
2
1
E-by-I Raised: Pipes in Use Before O Sells Separate Units.
E-by-N Raised: Split Creates “Landlocked” Lot b/c
Sewage Disposal Must Cross Anther Lot
Easement-by-Implication & Easementby-Necessity: Sewage Pipe Hypothetical
Necessity Issues
• Is utilities access “Necessary”?: Cases split
– Lot not worthless or landlocked (re physical access);
usually possible to get utility service at some expense
– BUT can’t use for many purposes without new
expensive utility connection
• Assuming some access to utilities is necessary, how
expensive must alternatives be to meet tests?
– Drill through mountain ridge?
– Very inefficient to reroute utility service if existing pipes or wires
(cf. Marcus Cable)
Easement-by-Implication & Easementby-Necessity: Sewage Pipe Hypothetical
Notice Issues
• What constitutes notice of underground pipes?
– Actual Notice
– Courts tend to be generous re inquiry notice
• From any visible element (pipe ends; manhole covers) (See
Kirma cited in Williams Island @ P854)
• From need for utility service + no visible access
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