PROBLEM A
Santa-acre and Elfacre are neighboring parcels of land.
S is adjacent to a garbage dump. E is a big lot
containing a small cottage. The owners agree that:
E’s owners shall have the right to cross S
to dump garbage in the adjacent garbage dump.
Later, E’s owners tear down the cottage and put up a
toy factory, which produces seven times the garbage
that the cottage did. Discuss whether they can use
the right of way to dump the factory’s garbage.
Reasonable considering terms of
grant ?
Santa-acre and Elfacre are neighboring parcels of land.
S is adjacent to a garbage dump. E is a big lot
containing a small cottage. The owners agree that:
E’s owners shall have the right to cross S
to dump garbage in the adjacent garbage dump.
Later, E’s owners tear down the cottage and put up a
toy factory, which produces seven times the garbage
that the cottage did. Discuss whether they can use
the right of way to dump the factory’s garbage.
Evolutionary not revolutionary
change allowed?
Santa-acre and Elfacre are neighboring parcels of land.
S is adjacent to a garbage dump. E is a big lot
containing a small cottage. The owners agree that:
E’s owners shall have the right to cross S
to dump garbage in the adjacent garbage dump.
Later, E’s owners tear down the cottage and put up a
toy factory, which produces seven times the garbage
that the cottage did. Discuss whether they can use
the right of way to dump the factory’s garbage.
Greater burden than contemplated
by parties?
Santa-acre and Elfacre are neighboring parcels of land.
S is adjacent to a garbage dump. E is a big lot
containing a small cottage. The owners agree that:
E’s owners shall have the right to cross S
to dump garbage in the adjacent garbage dump.
Later, E’s owners tear down the cottage and put up a
toy factory, which produces seven times the garbage
that the cottage did. Discuss whether they can use
the right of way to dump the factory’s garbage.
Problem A: Possible Concerns
1. Want precision in language:
punish Santa for not specifying limits
2. Want people to bargain fairly
3. Check unequal bargaining power
4. Check who drafted
Problem A: Possible Concerns
1. Want precision in language
2. Want people to bargain fairly:
punish elves if hid intent to expand
factory
3. Check unequal bargaining power
4. Check who drafted
Problem A: Possible Concerns
1. Want precision in language
2. Want people to bargain fairly
3. Check unequal bargaining power
A. Santa, Inc. v. little elves
B. Old man v. Keebler Cookies & Toys Int’l
4. Check who drafted
Problem A: Possible Concerns
1. Want precision in language
2. Want people to bargain fairly
3. Check unequal bargaining power
4. Check who drafted: construe
against the drafter
Problem B
• 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.”
• 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?
• 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.”
• 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 Chevy Chase?
• 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.”
• Antenna installed; reception still not good; cable
unavailable
• 2007: M wants to put a satellite dish where
antenna is now, but D objects.
Thoughts on Dupont
• Bad facts for servient owners: their own
story is revoking license after 14 years
• If Whiteside’s version of facts is true, good
case for easement by estoppel:
– Purchasing land & building expensive house =
detrimental reliance
– Duponts building road prior to closing
probably makes reliance reasonable
• No easement by implicaton (no prior use)
• No easement by prescription (permission)
Thoughts on Dupont
Easement by Necessity Tricky
• Road to Southern part of lot when purchased,
so lot as a whole is not landlocked
• House on Northern part not built when
purchased, so no necessity for enjoyment
• Would have to view as two separate parcels
divided by water with no access between
them to get E-mt by Nec. to Northern part
• What if road crossing wetlands easy in 1981?
EASEMENTS BY PRESCRIPTION
continued
still featuring
TEMPTATIONS
EASEMENTS BY PRESCRIPTION
ELEMENTS: ADVERSITY
Note 2: What is the significance of the
following presumptions?
1. Continuous use for AP Period presumed
Adverse (MacDonald)
2. Public recreational use presumed Permissive
(Lyons)
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.
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
ELEMENTS: OPEN & NOTORIOUS
DQ111. Evidence of “open and notorious”:
• MacDonald Properties requires actual
notice; other states do not. Is it a good
idea to do so?
• Can a claim of prescriptive easement with
regard to underground utilities like sewer
pipes ever be open and notorious?
EASEMENTS BY PRESCRIPTION:
POLICY QUESTIONS
DQ112. “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?)
Note 8: Pros & Cons of different legal
approaches to public beach access? (for
you)
Introduction to
Promissory
Servitudes
Contracts Regarding Land
that Bind Subsequent Owners
• Origins in Landlord-Tenant Law: Bind
Assignees to Terms of Lease
• Modern Neighbors: Many Agreements
Not Worth Much Unless Binding
• Refer to Ageements that Bind as
“Running with the Land”
Common Law Disfavored,
So Strict Technical Elements
• Over time, easier and easier to do
• Short essays on historic development
in readings
Major Categories are Causes of
Action, Not Things
• Is agreement “enforceable as a real
covenant”? (= can you get damages)
• Is agreement “enforceable as an equitable
servitude”? (= can you get injunction)
• Agreement can be enforceable as both
• Very difficult to ensure at time of
agreement that it will be enforceable later
as either.
BASIC ELEMENTS
•
•
•
•
REAL COVENANT
Intent to Bind
Successors
Touch & Concern
[Notice]
Privity
EQUITABLE SERVITUDE
• Intent to Bind
Successors
• Touch & Concern
• Notice
Touch & Concern
• Begins as literal requirement re physical
connection to land
• Evolves into less and less literal test
• Today often replaced by reasonableness
tests
• We’ll look at Friday in detail
PRIVITY: See Chart P894
Privity = sufficient legal conection between
party trying to enforce original promise &
party who would have to conform to it
• Horizontal privity = connection between
original parties to the agreement
• Vertical privity = connection between
original party and current party to dispute
Need to memorize relationships that qualify
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)
NOTICE & THE
RECORDING
SYSTEM
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
• 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”
• 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
What is value? (jurisdiction specific)
• donees, heirs, devisees usually not prot’d
• split re amount of consideration needed
3 Kinds of Recording Acts
1. Race
2. Notice
3. Race-Notice
3 Kinds of Recording Acts
1. Race
– 1st to Record Wins
– N.C. + La. + Del. for all interests
– Some others for some specific interests
2. Notice
3. Race-Notice
3 Kinds of Recording Acts
1. Race
2. Notice
– Protects BFP for Value ag. Prior
unrecorded interests regardless of when
or if BFP records
– About half the states (e.g. TX + FL)
3. Race-Notice
3 Kinds of Recording Acts
1. Race
2. Notice
3. Race-Notice
– Protects BFP for Value ag. prior unrecorded
interests only if BFP records 1st
– About half the states (e.g. NY + CA)
DQ113: Situation 1
OA
OB (BFP)
B records [O B deed]
A records [O A deed]
WHO WINS IN …?
• RACE:
• NOTICE:
• RACE-NOTICE:
DQ113: Situation 1
OA
OB (BFP)
B records [O B deed]
A records [O A deed]
WHO WINS IN …?
• RACE: B
• NOTICE: B
• RACE-NOTICE: B
DQ113: Situation 2
OA
A records
OB
B records
WHO WINS IN …?
• RACE:
• NOTICE:
• RACE-NOTICE:
DQ113: Situation 2
OA
A records
OB
B records
WHO WINS IN …?
• RACE: A
• NOTICE: A
• RACE-NOTICE: A
Moral of
Situations 1 & 2:
If you record immediately, you are always in
the best position possible.
DQ113: Situation 3
OA
OB (NOT BFP)
B records
A records
WHO WINS IN …?
• RACE:
• NOTICE:
• RACE-NOTICE:
DQ113: Situation 3
OA
OB (NOT BFP)
B records
A records
WHO WINS IN …?
• RACE: B
• NOTICE: A
• RACE-NOTICE: A
RACE STATUTE:
PROTECTS BAD FAITH
PURCHASER WHO
RECORDS FIRST
DQ113: Situation 4
OA
OB (BFP)
A records
B records
WHO WINS IN …?
• RACE:
• NOTICE:
• RACE-NOTICE:
DQ113: Situation 4
OA
OB (BFP)
A records
B records
WHO WINS IN …?
• RACE: A
• NOTICE: B
• RACE-NOTICE: A
NOTICE STATUTE:
PROTECTS BFP
EVEN IF DOESN’T
RECORD FIRST