PROBLEM A

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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
• Es owners shall have the right to cross S
• to dump garbage in the adjacent garbage dump.
• Later, Es 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
  factorys garbage.

2
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
• Es owners shall have the right to cross S
• to dump garbage in the adjacent garbage dump.
• Later, Es 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
  factorys garbage.

3
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
• Es owners shall have the right to cross S
• to dump garbage in the adjacent garbage dump.
• Later, Es 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
  factorys garbage.

4
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
• Es owners shall have the right to cross S
• to dump garbage in the adjacent garbage dump.
• Later, Es 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
  factorys garbage.

5
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

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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

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Problem A Possible Concerns

• Want precision in language
• Want people to bargain fairly
• Check unequal bargaining power
• Santa, Inc. v. little elves
• Old man v. Keebler Cookies Toys Intl
• Check who drafted

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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

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Problem B

• Mike gets poor TV reception b/c of valley
  location
• Debbie owns neighboring ranch above Ms land
• 1962 Agreement Owner of Ms land may place
  and maintain an antenna onto Debbies barn and
  run wires from the antenna to Ms 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.

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Arguments from Marcus Cable?

• Mike gets poor TV reception b/c of valley
  location
• Debbie owns neighboring ranch above Ms land
• 1962 Agreement Owner of Ms land may place
  and maintain an antenna onto Debbies barn and
  run wires from the antenna to Ms 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.

11
Arguments from Chevy Chase?

• Mike gets poor TV reception b/c of valley
  location
• Debbie owns neighboring ranch above Ms land
• 1962 Agreement Owner of Ms land may place
  and maintain an antenna onto Debbies barn and
  run wires from the antenna to Ms 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.

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Thoughts on Dupont

• Bad facts for servient owners their own story is
  revoking license after 14 years
• If Whitesides 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)

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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?

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EASEMENTS BY PRESCRIPTIONcontinued

• still featuring
• TEMPTATIONS

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• Continuous use for AP Period presumed Adverse
  (MacDonald)
• Public recreational use presumed Permissive
  (Lyons)
• Shared use with the owner (e.g., of a driveway)
  presumed Permissive (Texas)

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EASEMENTS BY PRESCRIPTIONELEMENTS 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, cant change your
  mind.

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EASEMENTS BY PRESCRIPTIONELEMENTS 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?

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EASEMENTS BY PRESCRIPTIONPOLICY 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?

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EASEMENTS BY PRESCRIPTIONPOLICY 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)

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Introduction to Promissory Servitudes
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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

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Common Law Disfavored, So Strict Technical
Elements

• Over time, easier and easier to do
• Short essays on historic development in readings

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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.

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BASIC ELEMENTS

• REAL COVENANT
• Intent to Bind Successors
• Touch Concern
• Notice
• Privity

• EQUITABLE SERVITUDE
• Intent to Bind Successors
• Touch Concern
• Notice

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Touch Concern

• Begins as literal requirement re physical
  connection to land
• Evolves into less and less literal test
• Today often replaced by reasonableness tests
• Well look at Friday in detail

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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

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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)

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NOTICE THE RECORDING SYSTEM
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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

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Purposes of Recording System

• Provides public record of land titles govt
  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
•  

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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

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Recording Acts Operation

• Recording has no effect on rights of parties to
  original transaction as betw. themselves
• Unrecorded O?A deed still valid
• O cant 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

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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 protd
• split re amount of consideration needed

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3 Kinds of Recording Acts

1. Race
2. Notice
3. Race-Notice

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3 Kinds of Recording Acts

• Race
• 1st to Record Wins
• N.C. La. Del. for all interests
• Some others for some specific interests
• Notice
• Race-Notice

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3 Kinds of Recording Acts

• Race
• Notice
• Protects BFP for Value ag. Prior unrecorded
  interests regardless of when or if BFP records
• About half the states (e.g. TX FL)
• Race-Notice

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3 Kinds of Recording Acts

• Race
• Notice
• Race-Notice
• Protects BFP for Value ag. prior unrecorded
  interests only if BFP records 1st
• About half the states (e.g. NY CA)

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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

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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

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DQ113 Situation 2

• O?A
• A records
• O?B
• B records

• WHO WINS IN ?
• RACE
• NOTICE
• RACE-NOTICE

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DQ113 Situation 2

• O?A
• A records
• O?B
• B records

• WHO WINS IN ?
• RACE A
• NOTICE A
• RACE-NOTICE A

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Moral of Situations 1 2 If you record
immediately, you are always in the best position
possible.
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DQ113 Situation 3

• O?A
• O?B (NOT BFP)
• B records
• A records

• WHO WINS IN ?
• RACE
• NOTICE
• RACE-NOTICE

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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

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DQ113 Situation 4

• O?A
• O?B (BFP)
• A records
• B records

• WHO WINS IN ?
• RACE
• NOTICE
• RACE-NOTICE

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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 DOESNT
  RECORD FIRST