ERNST v. CONDITT
6/18/60
LL
Original Lease
Lease
provides:
term, rent,
covenant by T
to remove “all
improvements
above the
ground.”
Leased land 1 yr., 7 days
[until June 30, 1961]
T
Enters, constructs and
T
encloses a race track
(asphalt track, floodlights,
fence)
T to pay $4,200 per annum or
$350/month, or 15% gross receipts
“whichever is the larger amount”
If gross receipts are larger,
compiled quarterly, T is to
pay them quarterly.
No right to assign or sublet without
T
written approval, T to remain liable
on the covenants in any event
T promises to remove all
improvements at end of
lease
T
Enter negotiations for
sale of business.
Tee
Tee wants longer lease.
1
Donald J. Weidner
8/4/60
LL
Amendment to lease with
express consent of LL to
a particular “subletting.”
Condition: original T
“will remain personally
liable” [new term until
7/31/62 (adding 13 mos.)]
+
“Sublease” (no rent
specified for the
“sublease”)
T
All rent including % is to
be paid monthly.
T
T
“[I]n consideration of the
promise [by Tee] to
faithfully perform all
conditions of the written
lease, as amended, I [T]
hereby sublet” [to Tee]
“upon the understanding
that I will individually
remain liable . . . .”
Accepts “the foregoing
subletting”
2
Tee
Tee
Donald J. Weidner
LL
Paid rent directly to LL for 3 mos. (Aug., Sept., Oct. 1960)
Tee
Contacts for Nov. 1960 rent
LL
LL
LL
“I am not liable to you.”
Made a payment the following June 1961. Never
paid more thereafter and it is unclear whether Tee
continued to operate the business after that; yet
“remained in possession of the property until the
expiration of the leasehold” 13 months after that.
Seeks damages
1.
Base rental unpaid on lease [not seeking any %]
Tee
Tee
Tee
+
2. Cost of removing the “improvements” [lessee’s cost
under lease]
3
Donald J. Weidner
Ernst v. Conditt (cont’d)
•
Before the “sublease,” there are two ways to
rationalize the liability of the T to pay rent to
the LL
1. Privity of contract--because lease has a
contractual provision, promise or covenant to pay
rent
2. Privity of estate—because the obligation to pay
rent “inheres in the estate as a covenant real”
•
There are two different approaches to
distinguishing an assignment from a
sublease
1. what the authors call the “formalistic” approach
2. the approach allegedly based upon intent
4
Donald J. Weidner
Second Look:
FO
Term of 5 years @
$x/month
T
T
FO
When T signs lease, T is in
privity of contract and liable on
that basis.
When T moves in, T comes in
to privity of Estate and liable
on that basis.
Assigns (no
assumption agreement)
at the end of Year # 1
Nevertheless pays $x/month for year
Aee
Aee
At the end of Year # 2, Aee says: “I want out of this lease, what do I do?”
What do you say?
“Colorable” transfers to not divest an Aee of privity of estate.
--Colorable is defined in terms of retention of an interest
--Not in terms of intent to end liability
5
Donald J. Weidner
Ernst v. Conditt (cont’d)
•
•
Opinion spends its time discussing whether
the transferee is an assignee or a
sublessee.
The Transferee (Conditt) argues that the
arrangement is a sublease because;
1. that is what the parties called it
2. T (Rogers) agreed to remain primarily liable
•
•
Because T agreed to remain liable, Tee argues, T had
an implied right of entry in the event of default by Tee
This right of entry, Tee’s argument runs, was a
reversionary interest “sufficient to satisfy the distinction
between a sublease and an assignment of a lease.”
3. Tee never covenanted to pay rent
6
Donald J. Weidner
Ernst v. Conditt (cont’d)
• Court said the express agreement to
remain liable did not create either or a
right to re-enter or a reversion.
– What if there had been an express
reservation by OT of a right to re-enter in
the event the Tee defaults?
• What are the arguments in favor of an
assignment?
– Do you distinguish situations on the basis
of whether the primary lease and the
alleged sublease are at the same rent?
7
Donald J. Weidner
Lease Assumption/Mortgage Assumption
Lease Assumption
LL
LL
LL
Lease
Tenant
Approves assumption
by assignee
Tenant
Assigns
Assignee
Assumes original lease
obligation
Deals directly
Assignee
8
Donald J. Weidner
Mortgage Assumption
Lender
Mortgage
Lender
Approves
assumption by buyer
new owner
Lender
Borrower
Owner
Borrower
Owner
Deals directly
9
Sells
Assumes original
mortgage
Buyer
New
Owner
Buyer
New
Owner
Donald J. Weidner
Original Tenant
LL
Q: Without more, is
relieved of liability to
Original Borrower
?
Lender
Q: What, then is the nature of the continuing liability?
Secondary liability as quasi-surety.
Original Tenant
without first suing their transferee.
1. Means that can’t sue
Original Borrower
2. If Original Tenant must pay LL $100 because assignee fails to, Original Tenant is
subrogated to LL’s claim. In effect, by paying LL, OT buys the LL’s right to sue the
assignee for $100.
3. But the Original Tenant/Borrower is discharged if there is a “material change
in the terms of the tenancy”
10
Donald J. Weidner
• Two statements are typically made to explain the
discharge of the quasi-surety in the event of
material change:
1. The obligations of a surety are strictly construed; and
2. The surety is discharge when the parties have
increased the risk that the surety will be called upon to
perform.
• Can a LL directly sue the T’s transferee if the
transferee assumes the obligations of the original
lease?
– On what theory?
– For rent that accrues after a subsequent
reassignment?
11
Donald J. Weidner
HYPO
• Hypo: You, as a law-student, have a 3 year
lease on an apartment. For personal reasons,
you move out of the state. You ask your landlord
if you can assign your lease to another law
student to whose financial integrity you attest.
– What would your expectations be in such a situation,
and why?
– What are the landlord’s expectations in such a
situation?
– What are your expectations if the landlord permits you
to assign your lease?
12
Donald J. Weidner
• Does the landlord get a windfall if he is
allowed a cause of action against both the
original lessee and the lessee’s assignee?
• Should the burden be on the landlord to make
a new contract of liability with the original
lessee, in light of the LL’s acquiescence in an
assignment?
• Do you think a landlord would know of his
right to hold the assigning lessee in the
future? If so, does the superior knowledge
indicate anything about a duty?
• If the landlord did not know he could have
such a right, but was later so advised by
counsel, should he still be able to raise it?
13
Donald J. Weidner
• Do you think a vendor of real estate who has her
vendee “assume and promise to pay” existing
financing is aware that she remains personally
liable on the mortgage?
• Is there a stronger case for an implied release if
the lessor takes a new note from the assignee?
• In an area the courts say is analogous, that of
mortgages, a new note would have been useless
if the second purchaser had “assumed” the
mortgage from the first purchaser, since the
lender could recover on the theory of a third-party
beneficiary contract.
14
Donald J. Weidner
• In short, does the term “privity of estate”
seem to be necessary in the case of an
assuming assignee?
• The idea that there is a “covenant real,” a
covenant “running with the land,” is that the
convenant to pay rent somehow attaches to
the person who holds the estate.
– Why?
– Because of corresponding benefit?
– Is this apparently inconsistent with the idea that a
duty to pay rent is “independent” of the landlord’s
duty to repair, etc.?
15
Donald J. Weidner
Kendall v. Ernest Pestana, Inc.
• Lease involves 1,400 square feet of hangar space at
a municipal airport.
• The lease provided that the lessee may not assign
the lease or sublet the premises without the prior
written consent of the lessor.
• The lease further provided that failure to obtain
written consent rendered the lease voidable at the
option of the lessor.
• The lessee requested consent to an assignment and
the corporate lessor refused
– The corporate lessor said it had an absolute right to refuse to
consent to an assignment
– The corporate lessor demanded increased rent “and other
more onerous terms” as a condition of granting consent to
the assignment
– Even though the proposed assignees
• had a stronger financial statement and greater net worth than
the current lessee and
• were willing to be bound by the provisions of the lease.
16
Donald J. Weidner
Kendall v. Ernest Pestana, Inc. (cont’d)
• The proposed assignees say:
– The refusal is unreasonable and, as such,
– Is an unlawful restraint on the freedom of alienation.
• The law favors free alienability of property.
• However, contractual restrictions on alienability are
justified, said the court, to protect the reasonable
interest of the lessor
– in the identity of the possessor of the property
– whose performance of the lease affects the rental income
and
– whose possession affects the value of the lessor’s reversion.
• Restraints on alienation are strictly construed
– particularly if the restraint is a “forfeiture restraint”
• under which the lessor has the option to terminate the lease if
an assignment is made without consent.
17
Donald J. Weidner
Kendall v. Ernest Pestana, Inc. (cont’d)
• Majority rule: the lessor may arbitrarily refuse to
approve a proposed assignee
– no matter how suitable the assignee appears to be and
– no matter how unreasonable the lessor’s objection.
– However, the lessor in some cases is found to have waived
the right to refuse consent
– And in other cases is held to be estopped from asserting the
right to refuse consent.
• Growing minority rule: when a lease provides for
assignment only with prior consent, the consent may
be withheld only when the lessor has a commercially
reasonable objection to the assignment
– even in the absence of a provision that consent will not be
unreasonably withheld
18
Donald J. Weidner
Kendall v. Ernest Pestana, Inc. (cont’d)
•
•
Change is coming from the property side and from
the contract side.
From the property side, restraints on alienation are
seen as less reasonable because
1. leasing arrangements are seen as less personal, and
2. site scarcity suggests the need for freer alienability.
•
However, under the Second Restatement’s
approach to the minority rule:
1. A clause absolutely prohibiting assignment; and
2. A clause granting absolute discretion over assignment to
the lessor
are both valid is if the clause is “a freely negotiated provision.”
19
Donald J. Weidner
Kendall v. Ernest Pestana, Inc. (cont’d)
• From the contract side, there has been an
increased emphasis on the duty of good faith
and fair dealing “inherent in every contract.”
– See the analogous provisions in the UCC
• Here, the lessor retains the discretionary
power to approve or disapprove an assignee
proposed by the other party to the contract
– this discretionary power should be exercised in
accordance with commercially reasonable
standards.
– What if the language says that the lessor may act
in an arbitrary manner?
20
Donald J. Weidner
Kendall v. Ernest Pestana, Inc. (cont’d)
•
Note how the court sets aside the four
justifications it identifies for the majority rule:
1. A lease is a conveyance and the landlord need
to look to no one but the tenant.
–
Response: A duty to mitigate damages has changed
that.
2. An approval clause is an unambiguous
reservation of absolute discretion in the lessor
over assignment.
–
–
Response: Others have found it implicit that the lessor
be required to state a reason.
Further response: It is recognized today that the
implication of a covenant of good faith and fair dealing
is not judicial re-writing of a contract.
21
Donald J. Weidner
Kendall v. Ernest Pestana, Inc. (cont’d)
•
Setting aside 4 justifications for the majority
rule (cont’d)
3. Respect the doctrine of stare decisis because
people have relied on the rule.
–
–
Response: Everyone knew there was not unanimity on this
rule and could see the change in the law.
Further response: The change as part of the growing
recognition of the contractual nature of leases.
4. Under these circumstances, the lessor has the right
to capture the increased value of the property.
–
Response: We reject this assertion, which gives the lessor
more than the benefit of the lessor’s bargain.
22
Donald J. Weidner
Kendall v. Ernest Pestana, Inc. (cont’d)
• Note the Pillsbury Madison amicus brief
opposing a mandatory rule:
– Amicus “requests that we make clear that,
‘whatever principle governs in the absence of
express lease provisions, nothing bars the parties
to commercial lease transactions from making
their own arrangements respecting the allocation
of appreciated rentals if there is a transfer of the
leasehold.’”
– “This principle we affirm.”
• Did the court’s opinion sound like it was declaring only a
default rule?
23
Donald J. Weidner
Subsequent Developments
• 1989 California statute provides: “A
restriction on transfer of a tenant’s interest in
a lease may absolutely prohibit transfer.”
• In 1992, Carma upheld a “termination and
recapture clause” in a negotiated commercial
lease providing:
– 1. T was to give LL written notice of any intended
assignment or sublease and the proposed terms;
– 2. LL could then terminate the lease with the T
and, if the LL elected, could enter into a new lease
with the intended assignee or sublessee; and
– 3. T was not entitled to any profit realized by the
LL as a result of the termination and reletting.
24
Donald J. Weidner
Preparing for Class/Exam/
Responding to Training
• Begin with the end in mind
–
–
–
–
–
Predominantly or exclusively multi-issue essay questions
Covering a great deal of the course
Under time pressure
Instructor counts points
Generally, weak exams make very few points—raise only a
small number of the issues and arguments that could be
raised
• Steps
– Book brief
– Brief on paper
– Concept outline—with mini outline
• Compare after completion with study group
– Take back exams under time pressure
• Compare after completion with study group
25
Donald J. Weidner
Private Land-Use Controls: The Law
of Servitudes
•
Modern servitudes can be broken into
four types:
1. Easements
2. Covenants
•
•
Covenants enforceable at law (“real covenants”)
Covenants enforceable in equity (“equitable
servitudes”)
3. Profits
4. Licenses
26
Donald J. Weidner
Five Types of Land Use Agreements
1. A is given the right to enter upon B’s land
•
•
Text says is an easement
Could also be a “mere” license
2. A is given the right to enter upon B’s land and
remove something attached to the land
•
Is a profit
3. A is given the right to enforce a restriction on
the use of B’s land (see below)
•
•
A’s right usually originates in a promise by B or B’s
predecessor.
The promise may be enforceable either
•
•
•
at law as a real covenant or
in equity as an equitable servitude.
Could also be an easement.
27
Donald J. Weidner
Five Types of Use Arrangements
(cont’d)
4. A is given the right to require B to perform
some act on B’s land
•
•
A’s right usually originates in a promise by B or B’s
predecessor.
The promise may be enforceable either
•
•
at law as a real covenant or
in equity as an equitable servitude.
5. A is given the right to require B to pay money
for the upkeep of specific facilities
•
•
A’s right usually originates in a promise by B or B’s
predecessor.
The promise may be enforceable either
•
•
at law as a real covenant or
in equity as an equitable servitude.
28
Donald J. Weidner
Affirmative and Negative Easements
• Affirmative Easements—allow the holder of the
easement to do something on the land of
another
– Ex., an easement to use my neighbor’s boat ramp to
launch and pull my boat
• Negative Easements—allow the holder of the
easement to prevent an owner from doing
something on his land
– Ex., I can buy the promise of my neighbor that she will
not open a beauty parlor on her property.
• Some easements are both positive and negative
– Ex: the power company’s easement to string power
lines over the front edge of my lot
• They can do something on my land
• I can not build on my land in a way that interferes with the
lines
29
Donald J. Weidner
Creation of Easements
•
Easements are interests in land within the
meaning of the Statute of Frauds.
– They generally require a writing, absent
•
•
•
•
Easements may be created
1.
2.
3.
4.
5.
•
fraud
part performance
estoppel
By writing (grant)
By implication
By prescription
By estoppel
By custom
We turn first to creation by a writing.
30
Donald J. Weidner
S
Church
Willard v. First Church of Christ
T.
STREET
19 Bldg.
20
Vacant
Genevieve owned 2 lots across the street from the church of
which she was a member. She permitted church to use the
vacant lot (20) for parking during services. (She testified that
she bought lot 20 to provide parking for the church.)
G sold
Lot 19
Peterson, who
used bldg. as
an office.
Peterson
Agreed to sell both lots to Willard (when he only
owned Lot 19). Peterson put into escrow a deed
conveying both lots “in fee simple”
Sold lot 20
Recorded deed
from Genevieve
With deed provision (drafted by
church’s attorney)
Willard
Realtor
At some point, Peterson
told Willard the church
would want to use lot 20
for parking, but not about
the deed restriction.
Closing
Peterson
Paid Purchase Price and recorded the escrowed
deeds executed by Peterson, which did not mention
any easement.
Subsequently learns of clause in Genevieve’s
deed to Peterson and
31sues to quiet title.
Willard
Realtor
Willard
Realtor
Donald
J. Weidner
Willard v. First Church of Christ (cont’d)
• The language at issue:
• The Lot 2 deed Genevieve gave Vendee
contained the provision at p. 786:
– “subject to an easement for automobile parking during
church hours for the benefit of the church on the
property at the southwest corner of the intersection of
Hilton Way and Francisco Boulevard . . . such
easement to run with the land only so long as the
property for whose benefit the easement is given is
used for church purposes.”
• Is the attempted express creation of an
easement in favor of the church good as against
Vendee #2?
• How can you possibly bind Vendee #2, if
Vendee #2 is a BFP without notice?
32
Donald J. Weidner
RECORDING ACTS
•
•
•
Different types of acts. Generally, not mandatory to
record but, the holder of an unrecorded interest can
be cut off by other people.
Who can be cut off by whom depends upon the
jurisdiction.
Jurisdictions vary according to:
–
–
What type of interest you must record or run the risk of
having cut off.
Who can cut you off.
•
The three most common rules are anyone who:
1. records first (in a pure “race” jurisdiction)
2. buys without notice (in a pure “notice” jurisdiction), or
3. both buys without notice and records first (in a “race-notice”
jurisdiction).
33
Donald J. Weidner
• Different information retrieval systems
– Grantor-grantee
– Tract
• Many of the deeds that are used will
contain language drawn from different
types of deeds:
– Deed of grant
– Covenant to stand seised
– Deed of bargain and sale
– Deed of lease and release
• Statutes typically contain a short-form
deed.
34
Donald J. Weidner
Willard v. First Church of Christ (cont’d)
• What is a suit to quiet title?
• Consider again the clause in Genevieve’s deed
to Peterson:
– The conveyance is “subject to an easement for
automobile parking during church hours for the
benefit of the church [across the street] . . . such
easement to run with the land only so long as the
property for whose benefit the easement is given is
used for church purposes.”
• Who drafted this language?
– Was there a possibility of malpractice?
– Had you been the church’s attorney, what
• language would you have drafted?
• in what document?
35
Donald J. Weidner
Willard v. First Church of Christ (cont’d)
• Did the lower court find intent to create an
easement?
• What was the rule the lower court used to frustrate
the intent of the grantors?
– At common law, a grantor can not “reserve” an easement
for the benefit of a stranger to the conveyance
• What is the difference between a reservation and
an exception?
– An exception prevents some part of the grantor’s estate
from passing to the grantee
• An exception excludes from the grant some pre-existing
servitude or interest.
– A reservation allows a grantor’s whole estate to pass to
the grantee, but revests a newly created interest in the
grantor
• That is, a reservation creates a new servitude that did not exist
before as an independent interest.
36
Donald J. Weidner
Willard v. First Church of Christ (cont’d)
• What is the reason behind the common law
[mandatory] rule that prohibits reservations in
favor of third parties?
– According to the court?
– According to the authors?
• What are the arguments against the common
law rule?
–
–
–
–
–
–
argument based on purpose of the rule?
is intent defeated?
does the grantee get a windfall?
is the expectation of the third party defeated?
is the desired outcome against public policy?
is the resulting rule efficient?
• analogy to the requirement of a straw to create/sever a joint
tenancy?
37
Donald J. Weidner
Willard v. First Church of Christ (cont’d)
•
The rule has not been favored
–
–
The highest courts of two states have eliminated the
rule completely
Other courts have been “repealing it piecemeal by
evasion”
1. a reservation was treated as an exception
–
–
this approach may only leave the interest in the grantor
but one court has found that the grantor held the interest in
trust for the benefit of the third party
2. a reservation was enforced when the third party was the
grantor’s spouse
•
Here, analogize to other intimate relationships?
3. subsequent grantees in the chain of title have been
estopped from relying on the common law rule to challenge
the reservation
•
Here, estoppel because of record notice?
38
Donald J. Weidner
Easements Appurtenant
• An easement appurtenant benefits the owner of
the easement in the use of land belonging to the
owner.
– EX. A, the owner of Lot A, has the right to use a road
over Lot B, owned by B, to get to Lot A.
• Lot A is the dominant tenement (the benefited tenement).
• Lot B is the servient tenement (the burdened tenement).
• An easement appurtenant usually attaches to
the dominant tenement and passes with it to
successive owners.
– (unless it is “personal”).
39
Donald J. Weidner
EASEMENTS IN GROSS
• An easement in gross does not benefit the
owner of the easement in the use of land
belonging to the owner;
– rather, it benefits its owner without regard to the
ownership of land.
– Ex. Boat Owner BO has an easement at the coast to
use a boatramp on X’s property. BO’s easement is a
right that BO has independent of BO’s ownership of
land.
• Was the easement in Willard appurtenant or in
gross?
– What would have happened if the congregation had
sold the church structure to another congregation?
– What would have happened if the congregation had
moved to a new facility a half a block away?
40
Donald J. Weidner
Easements in Gross (cont’d)
• English common law: Easements in gross were
non-assignable and non-inheritable: they died
with the individual holder.
• USA: Some easements in gross are
transferable whereas others are not
transferable.
– Courts are split on which are transferable and which
are not.
– Most commercial easements in gross are readily
assignable;
– Non-commercial easements may also be transferred
if the grantor has evidenced the necessary intent,
e.g., has used such words as “heirs and assigns.”
41
Donald J. Weidner
Regrant Theory
• Note text at 788:
– Early “English courts held that an easement could not
be reserved because it was a [new right] that could
not be reserved because it did not issue out of the
land granted. English courts ultimately found a way
around this obstacle by inventing the regrant theory.
They held that an easement “reserved” by the grantor
was not a reservation at all (which would be void), but
a regrant of an easement by the grantee to the
grantor.”
– But then, would not the Statute of Frauds require the
deed to be signed by the grantee?
• Deed poll versus deed of indenture.
42
Donald J. Weidner
A Final Note on Willard
• Can you see any reason why a court might
be slower to find the reservation of an
easement in a deed than a grant of an
easement in a deed?
• Hypo: A conveys to B Blackacre in fee
simple absolute, “except A reserves an
easement in A.”
– Note: the reservation can be repugnant to the
grant.
– What is the duration of A’s easement?
43
Donald J. Weidner
Licenses
•
•
A license is a permission given by a possessor
of land that allows the licensee to do some act
on the land that otherwise would be a
trespass.
The general rule is that a license is revocable
–
•
versus an easement, which is not revocable
There are two exceptions in which a license is
not revocable:
1. A license coupled with an interest (one that is
incidental to the ownership of a chattel on the
licensor’s land); and
2. A license that becomes irrevocable by operation of
estoppel
–
This looks very much like an easement
44
Donald J. Weidner
DEEDS -- EASEMENTS
• Originally, fee estate passed by livery of
seisin.
• Then, writings developed, deeds came to
be used, but it was still the ceremony of
livery of seisin that passed title.
• Incorporeal interests, such as easements,
are non-possessory interests,
– no livery of seisin was necessary,
– they passed by deed of grant.
45
Donald J. Weidner
• In 1535, the Statute of Uses brought about
widespread alienation that did not require
ceremonial delivery of seisin.
– Covenant to Stand Seised for benefit of someone
related to you by blood or marriage
– Contract, or Deed, of Bargain and Sale for pecuniary
consideration.
– Deed of Lease and Release [of Reversion] was used
to avoid the disclosure requirements of the Statute of
Enrollments, which applied to the Covenant to Stand
Seized and to the Bargain and Sale Deed.
• The Statute of Uses “executed” the arrangement
in each case, the promisor being held to be a
trustee for the [grantee], that is, being seized to
the use of the [grantee].
– In other words, the purchaser acquired seisin and
possession just as if there had been livery of seisin.
46
Donald J. Weidner
DEEDS IN USE TODAY
•
In 1677, the Statute of Frauds was enacted, requiring a writing to
convey an interest in land and abolishing livery of seisin.
•
Three types of deeds used in U.S.A. today:
1. General warranty deed, which warrants title against all defects in
title, whether they arose
– before the grantor took title or
– after the grantor took title.
2. Special warranty deed, which warrants only against the grantor’s
acts
– not against the acts of others.
– Ex., the grantor under a special warranty deed is not liable for a
mortgage executed by the grantor’s predecessor in interest.
3. Quit claim deed, which contains no warranties of any kind.
– It simply conveys whatever title the grantor has, if any.
47
Donald J. Weidner
Six “Usual” Covenants
A. Three “Present” Covenants
– phrased in the present tense
– broken or not when the deed is delivered
1. Covenant of Seisin. The grantor warrants the
grantor owns the estate the grantor purports to
convey.
2. Covenant of Right to Convey. The grantor warrants
that the grantor has the right to convey the estate.
3. Covenant Against Encumbrances. The grantor
warrants that there are no encumbrances on the
property, such as
–
–
–
mortgages or other liens
easements
covenants
48
Donald J. Weidner
Six “Usual” Covenants (cont’d)
B. Three “Future” Covenants
-- promise the grantor will act in the future
-- are not breached until some future harm
1. Covenant of General Warranty. The Grantor
warrants that the grantor will defend against lawful
claims and will compensate the grantee for any loss
caused by the assertion of superior title.
2. Covenant of Quiet Enjoyment. The Grantor asserts
that the possession of the grantee will not be
disturbed by the assertion of superior title. As a
practical matter, the same as #1.
3. Covenant of Further Assurances. The Grantor
promises to execute any other documents required
to perfect the title conveyed.
49
Donald J. Weidner
CERCLA
• “The Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”)
imposes strict liability for cleanup costs of a
hazardous waste site upon
– any current owner or operator of a site containing
hazardous waste,
– any prior owner or operator of the site at the time it
was contaminated,
– any generator of hazardous waste, and
– transporters of hazardous substances.”
50
Donald J. Weidner
CERCLA (cont’d)
• In 1986, Congress added an “innocent
landowner” defense.
– available to one who “buys the property after
the site is contaminated and does not know
and has no reason to know that any
hazardous substance has been released on
the property.”
– the buyer has a duty to make “all appropriate
inquiry” into previous ownership and uses
• Sellers and brokers may have a duty to disclose
off-site hazardous waste conditions
51
Donald J. Weidner
Creation of Easements Encore
• Easements may be created by:
1.Grant
2.Implication
• From necessity (on severance)
• From existing use (on severance)
• Implied dedication
3.Prescription
4.Estoppel
5.Custom
52
Donald J. Weidner
HOLBROOK v. TAYLOR
•
Holbrook involves an action to establish
a right to use a road, 12’ X 250’, over the
unenclosed, hilly woodlands of another.
The theories:
– Easement by prescription
– Easement by estoppel
•
The claimant’s apparent starting point:
the road had been used by persons other
than the fee owner for a very long time.
53
Donald J. Weidner
Holbrook v. Taylor (cont’d)
• 1942: RO purchases fee
• 1944: RO gives permission for a haul road to be cut to
move coal from a newly opened mine.
– Royalty was paid for road use.
• 1949: Mine closed.
• 1957: RO constructs tenant house; tenants use the road
with permission.
• 1961: RO’s tenant house burns.
• 1964: Neighbor buys adjoining 3-acre site.
• 1965: Neighbor builds residence costing $25,000 on the
3-acre site.
– Workers were permitted to use the road to get to the building site.
– RO apparently gave oral permission “to use and repair the
roadway.”
– Neighbor spent $100 on road (the strip was worth $500)
• There is no other location over which a roadway could
reasonably be built to provide an outlet for the Neighbors.
54
Donald J. Weidner
Holbrook v. Taylor (cont’d)
•
•
Why does the court say there is no prescriptive
easement here?
Restatement on prescriptive easements:
–
•
“An easement is created by such use of land, for the
period of prescription, as would be privileged if an
easement existed, provided the use is adverse, and
for the period of prescription, continuous and
uninterrupted.”
Give meaning to
1.
2.
3.
4.
adverse use, which is
continuous and
uninterrupted
for the period of prescription.
55
Donald J. Weidner
Holbrook v. Taylor (cont’d)
• Would you find an easement by estoppel here?
– Why?
• Court: “the evidence is conflicting as to whether
the use of the road subsequent to 1965 was by
permission or under claim of right.”
– The RO said permission
– The Neighbor (easement claimant) said no
permission
– What do you make of the absence of a dispute for five
years--until 1970?
– Court said there was “tacit approval” if not “actual
consent”
• From the Latin tacitus, meaning silent
• Also meaning implied or inferred
56
Donald J. Weidner
Holbrook v. Taylor (cont’d)
• For how long does the easement continue?
• Suppose the successful claimant’s house burns
down the next year. May the claimant rebuild?
– “for so long a time as its nature calls for”
– Or, the Restatement of Property approach: “to the
extent necessary [for the licensee] to realize upon his
expenditures.”
– See also Restatement Contracts, 2d, 90(1):
“A promise which the promisor should reasonably
expect to induce action or forbearance . . . and which
does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the
promise. The remedy granted for breach may be
limited as justice requires.”
57
Donald J. Weidner
Holbrook v. Taylor (cont’d)
• If the easement is “found,” should RO get
damages?
– Assume the entitlement was worth $500 to RO (there
was evidence that RO tried to get Neighbor to pay
$500 for the right)
– Assume the entitlement was worth $25,000 to
Neighbor (the amount Neighbor invested in the
house)
• Are there $24,500 possible “gains from trade?”
• Giving FO damages gives all the gains from
trade to Neighbor.
• If FO is given the entitlement (gets the
injunction), the FO might behave strategically
– There is a bilateral monopoly situation
– It is possible that the entitlement might not be
transferred to Neighbor and society would suffer a
loss
58
Donald J. Weidner
Holbrook v. Taylor (cont’d)
• To avoid societal lost or for some other
reason, should you allocate the
entitlement to the party who values it the
most (in this case, Neighbor)?
– Neighbor says it is efficient to
• 1. allocate it to me and
• 2. deny damages.
– Let RO serve the function of the cheapest
cost avoider and tolerate my use.
– Save us the cost of litigation over damages
59
Donald J. Weidner
•
•
VAN SANDT v. ROYSTER
FO (plaintiff) finds 6 inches of sewage in his
basement and tells his neighbors to stop flushing.
The factual background.
•
•
•
•
Common Grantor owned all 3 lots in question, in an
east-west line, and occupied the easternmost lot.
In 1903-04, the City ran a sewer pipe in the street just
west of the westernmost of the 3 lots.
Common Grantor then ran a “private lateral drain” from
her easternmost lot, under the other two lots, out to the
sewer in the street to the west.
At beginning of 1904, CG conveyed the westernmost
lot [lot 19] “by general warranty deed with the usual
covenants against encumbrances, and containing no
exceptions or reservations.”
•
•
The 1904 grantee knew of the Common Grantor’s private
sewer and hooked into it.
There were subsequent mesne conveyances of lot 19
to the FO (plaintiff).
60
Donald J. Weidner
Van Sandt v. Royster
Tenth Street
Highland
Avenue
Lot 19
Lot 20
1904 Bailey
to Jones,
who built
house and
connected to
sewer
1904 Bailey to
Murphy, who
built house and
connected to
sewer
Lot 4
Lateral sewer
constructed in
early 1904 by
Bailey
City Sewer
61
Donald J. Weidner
Van Sandt v. Royster (cont’d)
•
The two large issues:
1. Was an easement created? In this case, the
claimants (Neighbors) argued:
–
–
Easement by implication from an existing use (from a
“quasi easement”)
Easement by prescription (court never reaches this issue)
2. If an easement was created, does Van Sandt, a
subsequent grantee, take free of it because he is a
BFP without notice of its existence?
–
Stated differently, should the easement cut off because it
was not
–
–
recorded?
apparent?
» Court says benefit of a quasi easement passes if it is “of
an apparent, continuous and necessary character.”
62
Donald J. Weidner
Van Sandt v. Royster (cont’d)
• Implied grants versus implied reservations
– some treat the two the same
– some make it harder to establish an implied
reservation
• disliking the grantor being permitted to transfer
less than her written instrument promises
• disliking a clash with the recording acts
• some say there must be “strict necessity” before
there will be an implied reservation of an easement
in favor of the grantor, even when there was an
existing “quasi easement” at the time of the grant
– this has been applied to existing drains and sewers
63
Donald J. Weidner
Van Sandt v. Royster (cont’d)
• Van Sandt says that , both in the case of
a grant and in the case of a reservation,
an easement created by implication arises
as an inference of the intention of the
parties to a conveyance
– inference from the circumstances rather than
from the language of the conveyance
64
Donald J. Weidner
Van Sandt v. Royster (cont’d)
•
Restatement factors to determine whether the
circumstances of a conveyance “imply an
easement” or profit:
1.
2.
3.
4.
5.
Whether the claimant is the grantor or the grantee
The terms of the conveyance
The consideration given for the conveyance
Whether the claim is for a simultaneous grantee
The extent of the necessity of the easement to the
claimant
6. Whether reciprocal benefits result to grantor and
grantee
7. The manner in which the land was used prior to the
conveyance, and
8. The extent to which the manner of prior use was or
might have been known to the parties.
65
Donald J. Weidner
Van Sandt v. Royster (cont’d)
• With respect to the creation of an easement,
must the prior used have been known by the
parties?
– Restatement: must have been known “or, at least,
have been within the possibility of their knowledge.”
• Must the use or the easement have been
apparent?
– what is the difference between “visible” and
“apparent”?
• “appearance and visibility are not synonymous.”
– does that mean it is sufficient that it is visible to “the
mind’s eye”?
• Court says the purchaser was “charged with notice”
66
Donald J. Weidner
Van Sandt v. Royster (cont’d)
• Is it fictional to presume the intent of the parties
to a grant?
– See Restatement, Section 28, Illustration 10:
Easement is created by implication even though
neither the grantor nor the grantee know of it
• “each had reasonable opportunity to learn of such facts.”
• Given that an easement was created 34 years
earlier, is the RO of the alleged servient
tenement bound by it if he purchased with no
knowledge of it?
– Want to permit reliance on the record
– On the other hand, not by people who had other
notice
• Knowledge versus notice
67
Donald J. Weidner
Van Sandt v. Royster (cont’d)
• How would you decide the case and why?
• How would you put liability on the cheapest cost avoider
in this case?
• Suppose Bailey is still alive. Van Sandt loses here when
the court holds that an easement existed and Van Sandt
is still bound by it. Could Van Sandt sue Bailey on her
general warranty deed?
– On the covenant against encumbrances?
• Breached or not on the conveyance years ago, such that the statute
of limitations to sue on the breach has passed?
– On the covenant of general warranty?
• Bailey can argue that if the easement is implied on the basis of the
parties’ intent that it continue, the easement should also be held to
be an implied exception to the warranty.
68
Donald J. Weidner
Othen v. Rosier
• Involves claim of easements by
– necessity and
– prescription
• Othen (claimant—alleged owner of the dominant estate) had
been using a road through RO’s two parcels for 40 years.
• Alleged servient owner (Rosiers) made all the repairs to the
road over the years.
• No one else asserted either a right or an obligation to repair
it.
• RO’s land started flooding. To hold the waters back, RO
built a levee along the south side of the road, which caused
the road to become very muddy and impossible except by
horseback.
• Claimant Othen sues for:
– injunction (take down the levee) and
– damages
69
Donald J. Weidner
Othen v. Rosier
100 acres
Rosier
53 acres
Othen
Rosier’s House
Othen’s House
Belt Line Road
Lane
60 acres
Othen
16.31
acres
Rosier
100 acres conveyed by Hill (the common grantor) in 1896.
60 acres conveyed by Hill in 1897.
53 acres and 16.31 acres conveyed by Hill in 1899.
70
Donald J. Weidner
Othen v. Rosier (cont’d)
• Claimant’s first argument: That there has
been an implied reservation of an easement by
necessity
– What is the theory of this claim?
• Public policy against landlocked parcels?
• Presumed intent?
• Anything else?
– Consider the court’s statement:
• “[T]he mere fact that the claimant’s land is completely
surrounded by the land of another does not, of itself, give the
former a way of necessity over the land of the latter, where
there is not privity of ownership.”
– Why was the claimant, who had used the road for
decades, denied an implied reservation of an
easement by necessity?
• Back 50 years but not 54 years?
71
Donald J. Weidner
Othen v. Rosier (cont’d)
•
Claimant’s second argument: That an
easement has been established by prescription
– What is the theory of the claim of an easement by
prescription?
– Recall the Restatement says that an easement
arises by use that is
1.
2.
3.
4.
•
Adverse
Continuous
Uninterrupted
For the period of prescription
What is the general rule about the requirement
that the use be adverse?
– Analogous to the requirement of adversity to
establish title by adverse possession.
– “If the enjoyment is consistent with the right of the
owner of the tenement, it confers no right in
opposition to such ownership.”
72
Donald J. Weidner
Othen v. Rosier (cont’d)
• Further points about the requirement of
adversity:
– Court: when the owner of the fee is using the land for
the same purposes as the person who claims the
prescriptive easement, the use is presumed to be
permissive. Why?
– Court: several factors also indicate permissive use
• The FO of the 100 acres erected a gate in 1906, which
indicates that the FO and his successors were controlling
passage through the land and permitting others to use it.
• The claimant’s use of the land was not exclusive, it did not
interfere with the use of the FO and thus was not adverse.
• The FO, not the person claiming the prescriptive easement,
kept the road in repair.
73
Donald J. Weidner
Othen v. Rosier (cont’d)
• Consider the following:
“The foundation of prescriptive title is the
presumed grant of the party whose rights
are adversely affected; but where it
appears that the enjoyment has existed by
the consent or license of such party, no
presumption of grant can be made.”
– Must a plaintiff allege her own wrongdoing to
win?
74
Donald J. Weidner
Othen v. Rosier (cont’d)
• The lost grant theory draws a confusing
distinction between
– acquiescence and
– permission.
• To establish a prescriptive easement in a
jurisdiction following the logic of the fiction of a
lost grant, the claimant must show
– that the use was not permissive and
– that the owner acquiesced (did not object).
• I had no permission and the owner never
objected
– Analogy to adverse possession?
75
Donald J. Weidner
Othen v. Rosier (cont’d)
• Is the analogy to adverse possession
appropriate?
– There, must show exclusive possession for the
statutory period
– Why should the exclusivity requirement also bar a
claim that is merely to a nonexclusive easement?
– The majority requires exclusivity for an easement by
prescription, but defines it differently in this context:
•
“Exclusivity does not require a showing that only the
claimant made use of the way, but that the claimant’s right
to use the land does not depend upon a like right in others.”
• What is an alternative analogy to be used in
Othen?
– Common driveway cases in which a driveway is ½
on the land of each
• adversity on the part of each to the other has been
presumed
76
Donald J. Weidner
Othen v. Rosier (cont’d)
• What about the requirement that the use be
uninterrupted for the prescriptive period?
– What if the FO writes a letter: “You have no right to
use this road: stay off my property.”
– What would the analogy to adverse possession say?
– What would the logic of the lost grant say? Recall:
• “To secure a prescriptive easement under a lost grant theory
the claimant must show that the use was not permissive and
also that the owner acquiesced (did not object).”
– In a jurisdiction analogizing fully to the law of adverse
possession, rather than following the logic of the
fiction of a lost grant, the owner must effectively
interrupt or stop the adverse use to prevent a
prescriptive easement from being acquired.
77
Donald J. Weidner
Othen v. Rosier (cont’d)
• An easement implied to continue an existing use
(a quasi easement—the theory of Van Sandt)
was never mentioned.
– Some: the extent of the necessity is simply one factor
to be considered
• Note: If strict necessity is required, then the fact that
defeated the easement by necessity would defeat the
easement implied to continue a quasi-easement.
• If lower standard of necessity is required, then an implied
easement might be found if an apparent road had existed
over the 100 acres in 1896.
– The use can be invisible and still bind third parties
78
Donald J. Weidner
Othen v. Rosier (cont’d)
• An easement by estoppel was not argued
either, even though
– Holbrook v. Taylor ($25,000 house case),
which said reasonable reliance made the
license irrevocable.
• And, the case was proven by acquiescence “if not
affirmative consent”
– But, in some states, need a writing. No
conveyance of an interest in land simply
because a judge thinks it is fair to find one.
79
Donald J. Weidner
Beach Access
•
Two aspects of beach-access-for-the-public
problem:
–
–
•
Acquire an interest in the public in the dry sand area
Acquire rights of way in the public across uplands so
they can get to the dry sand area.
Two general solutions:
–
–
Create Beach Parks
Create Easements
•
•
•
Purchase them
Require them through subdivision exactions
Litigate to establish easements based on public use.
1.
2.
3.
4.
5.
Adverse possession
Implied dedication
Prescriptive easement
Custom
Public trust
80
Donald J. Weidner
Beach Access (cont’d)
Consider:
1. Adverse possession
–
No exclusive possession
•
–
Othen said exclusivity in this context means that the claimant’s
rights to not depend on the rights of others
No tacking of successive users
•
because there is no privity between them
2. Implied Dedication
–
–
Most say implied dedication is a question of intent (although
the finding often appears fictional)
Some use the theory of implied dedication to establish public
easements,
•
•
•
especially if the state seems to accept that there is a public
easement by maintaining the land for the use by the public.
Implied dedication may be used as a substitute for the theory of
prescription
Historically, only public roadways were held dedicated by public
use alone
81
Donald J. Weidner
Beach Access (cont’d)
3. Easement by Prescription
–
Reasons largely unsuccessful:
•
Public cannot be sued in trespass or ejectment
–
•
•
•
Public cannot receive a grant
Easement asserted is in gross, personal, nonassignable
Most courts presume the use is permissive
–
•
•
–
Although some established prescriptive easements in the
public for roads and highways
and the burden of proving adverse use cannot be met
Some say there is no presumption as to the character of
use
Must be so used [parcel by parcel]
However: “In most states, a public prescriptive
easement can be obtained by long continuous use
by the public under a claim of right.” “
•
•
•
The fee owner must be put on notice,
by the kind and extent of use,
that an adverse right is being claimed by the general
public, and not by individuals.”
82
Donald J. Weidner
Beach Access (cont’d)
• Note statutory intervention on the issue of
“permission.”
• For example, in reaction to some case law,
California passed a statute stating that FO
may prevent implied dedication either by
annually posting permission or by
recording permission.
• 4. Custom
83
Donald J. Weidner
State ex rel Thornton v. Hay
• “State Highway Commission” represented the
rights of the public in this classic beach access
case.
• FO fenced in a portion of a parcel owned in fee,
in the dry sand area, thus denying beach access
and use to the public over the FO’s land.
– FO asserts an unencumbered fee, as shown in the
public records in the county court house.
• Majority concludes the “record title” is
encumbered by a superior right in the public “to go
upon and enjoy the land for recreational
purposes.”
84
Donald J. Weidner
Mean low tide
State Owned “Wet Sand” Area
Mean high tide
Dry sand area
“subject to
private
ownership”
Vegetation Line
Upland
85
Donald J. Weidner
State ex rel Thornton v. Hay (cont’d)
•
Court “paraphrases” Blackstone to state the 7
requisites for an enforceable custom:
1.
2.
3.
4.
5.
6.
7.
•
Must be ancient (at least “long and general” use)
Must be exercised without “interruption caused by anyone
possessing a paramount right.”
Must be peaceable and free from dispute (court says this
follows from evidence on #2)
Must be reasonable (court says police have always interrupted
unreasonable use)
Must be certain (court says (a) visible boundaries of dry sand
area and (b) character of the land –limit (a) space and (b) use
to recreational use in connection with foreshore.
Must be obligatory
Must be consistent with other customs and laws
Result: there is a public easement along the entire
coast of Oregon by virtue of the law of custom.
86
Donald J. Weidner
Taking?
• What if the legislature enacted a statute declaring public
easements on the dry sand areas and also easements of
access to those areas?
– Maine case, after Hay, said foul
• Is there a constitutional problem?
• 5th Amendment ratified in 1791: “No person shall be
deprived of . . . property, without due process of law; nor
shall private property be taken for public use, without just
compensation.”
• 14th Amendment was adopted in 1868: “No state shall . .
. deprive any person of . . . property, without due process
of law . . . .”
– The courts have said that a “just compensation” clause is
incorporated interstitially in the 14th Amendment.
• If the legislature is constrained, are the courts also
constrained?
87
Donald J. Weidner
City of Daytona Beach v. Tona-Rama, Inc.
• Δ owned waterfront property in Daytona
Beach, FL for more than 65 years and
operated thereon a pier extending 1,050 feet
into the Atlantic as a recreation center and
tourist attraction.
– Δ provided such attractions as fishing space,
helicopter flights, dances and skylift.
• “The tract of land upon which the pier
begins extends 102 feet north and south along
the ocean front and approximately 150 feet
landward of the mean high water mark. This
area of approximately 15,300 square feet is
an area of dry sand….”
88
Donald J. Weidner
City of Daytona Beach (cont’d)
• Δ secured a permit for and constructed a
$125,000 observation tower with circular
foundation 17 feet in diameter – tower is 4 feet in
diameter.
– “It occupies 225-230 square feet of the 15,300 square
feet of land to which Δ holds record title.”
– The observation tower can only be entered from the
pier.”
•Oceanward and easterly of the dry sand area is
the foreshore, that is, the hard or wet sand area.
•∏ operated an observation tower near the site of
the pier and protested the issuance of the permit.
89
Donald J. Weidner
Daytona Beach v. Tona-Rama (cont’d)
• ∏ sued to enjoin the construction of the new observation
tower alleging, inter alia, “that by continuous use of the
property for more than 20 years, the public had acquired an
exclusive prescriptive right to the use of the land of the Δ.”
•Summary judgment for Π: Defendant ordered to take the
tower down within 90 days.
– Affirmed on appeal.
– Certified to Florida Supreme Court as a question of great public
interest.
•Florida Supreme Court said that there were not sufficient
facts to support a summary judgment to deprive a FO of a
meaningful use of a large portion of the land
– for which he paid,
– which he occupies in part, and
– for which he pays taxes.
90
Donald J. Weidner
Daytona Beach v. Tona-Rama (Cont’d)
• Court cited a 1939 personal injury case by
a beacher who was hit by an automobile on
the wet sand area.
– The 1939 case said that even though Florida
Statute had declared the wet sand area a
public highway, “the right of the public to use
the beach for bathing and recreational
purposes is superior to that of the motorists
driving automobiles thereon.”
– Noting that the state owns the wet sand area
“in trust” for the people.
• More anon on lands held in public trust
91
Donald J. Weidner
Daytona Beach v. Tona-Rama (cont’d)
•
First Possibility: “It is possible for the public to acquire
an easement in the beaches of the State by the finding
of a prescriptive right to the beach land
–
–
–
–
Citing Florida cases that said so, but that failed to find a
prescriptive easement “because of the absence of an adverse
nature in the public’s use of private beach land.”
Problem # 1.
“[I]n either prescription or adverse possession, the use or
possession is presumed to be in subordination to the title of the
true owner, and with his permission, and the burden is on the
claimant to prove that either the use or the possession is
adverse.”
Problem # 2.
Even if public did have a prescriptive easement in the dry sand
area, building the tower was not inconsistent with the public’s
use of the recreational area.
92
Donald J. Weidner
Daytona Beach v. Tona-Rama (cont’d)
• Second Possibility: “If the recreational use
of the sandy area adjacent to mean high
tide has been ancient, reasonable, without
interruption and free from dispute, such
use, as a matter of custom, should not be
interfered with by the owner.”
– However: the owner may make any use of his
property which is consistent with such public
use and not calculated to interfere with the
exercise of the right of the public to enjoy the
dry sand area as a recreational adjunct of the
wet sand or foreshore area.”
93
Donald J. Weidner
Daytona Beach (cont’d)
• Dictum. It is possible to establish a
prescriptive easement in the public.
• Holding. No prescriptive easement is
established here because there is no
showing of adversity.
• Dictum: The use “is presumed to be with
permission” –
– “The burden is on the claimant to prove that the
use or permission is adverse.”
• Dictum: We shall not doom all meaningful
use of the property by the owner-taxpayer.
94
Donald J. Weidner
Daytona Beach (cont’d)
• Concluding: The public has a right by
custom:
– “The general public may continue to use the
dry sand area…because of a right gained
through custom to use these particular areas
of the beach as they have without dispute
and without interruption for many years.”
– Holding or dictum?
5. Public Trust Doctrine.
• Matthews v. Bay Head Improvement Ass’n
95
Donald J. Weidner
Matthews v. Bay Head Improvement Assn.
• Another method of recognizing a public interest
in beaches is through the public trust doctrine.
• Recall the Daytona Beach case said that the
hard sand area is owned by the State and is a
public highway that the State holds in trust for
the benefit of the public. Who constitutes the
“public” was not made clear – presumably, at
least all the citizens of Florida.
• 10 years after Daytona Beach, the Supreme
Court of New Jersey addressed the
consequences (what it says are the
consequences) of the doctrine that the State
owns the wet sand area “in trust for the people.”
96
Donald J. Weidner
Matthews v. Bay Head Improvement Ass’n (cont’d)
•
•
An earlier New Jersey case, Avon, had held
that “the public trust applied to the municipallyowned dry sand beach immediately landward
of the high water mark.”
The major issue in this case is whether,
ancillary to the public’s right to use the tidal
lands, the public has a right
1. to gain access through and
2. to use
the dry sand area not owned by a municipality
but owned by a quasi public body.
97
Donald J. Weidner
Matthews v. Bay Head Improvement Ass’n (cont’d)
• Ass’n property:
– owns the fee at the end of seven streets that come up
to the beach perpendicularly
– owns the fee in six other shore properties
– owns leases to approximately 42 other lots.
• Two aspects:
– Right to cross – “reasonable access is required”
– Right to enjoy – “[W]here use of dry sand is essential
or reasonably necessary for enjoyment of the ocean,
the doctrine warrants the public’s use of the upland
dry sand area subject to an accommodation of the
interests of the owner.”
98
Donald J. Weidner
Matthews v. Bay Head Improvement Ass’n (cont’d)
• “Precisely what privately-owned upland sand
area will be available to satisfy the public’s rights
under the public trust doctrine will depend on”:
– Location of the dry sand area in relation to the
foreshore
– Extent and availability of publicly-owned upland sand
area
– Nature and extent of the public land
– Usage of the upland sand by the owner.
• Court says the question is whether the dry sand
area the Association owns or leases must be
open to all
– yes
99
Donald J. Weidner
Matthews v. Bay Head Improvement Ass’n (cont’d)
•
•
Leave aside for the moment the question
of the property rights of the ROs of the
dry sand area.
What is the problem, if any, with simply
saying that the dry-sand area is in
communal ownership?
– Do you like the court’s solution as a matter
of addressing the concerns of Demsetz?
•
Has there been a taking of private
property without compensation?
100
Donald J. Weidner