Music: Meat Loaf Bat Out of Hell (1977)

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Music Meat Loaf Bat Out of Hell (1977)

• NCAA CONTEST IJ TOP TEN SCORES
• ROSADO BARRERAS 54
• GOTTFRIED 50
• FLOOD 39
• AINSWORTH 37
• EBLE 37
• GONZALEZ 35
• THOMPSON 33
• FICAROLA 32
• SIMEONIDIS 32
• HOROWITZ, E 31

• BOTTOM FIVE
• HOROWITZ, M 9
• LIEPOLD 8
• HOFFMAN 7
• CARLO 6
• HYMAN 5
• OTHER NOTABLES
• HILL 36
• FAJER 20
• LOWENTHAL 10

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Easements by Implication Necessity CONTINUED

• Featuring FALCONS
• (and a guinea pig)

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EASEMENTS BY NECESSITY NOTICE

• In theory, also need notice to bind
• Court finding the easement necessary unlikely to
  find lack of notice.

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Williams Island Elements

• One parcel is split Prior use (Undisputed)
• Intent to continue prior use Evidence?

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Williams Island Elements

• One parcel is split Prior use (Undisputed)
• Intent to continue prior use Evidence?
• Testimony
• References to Easements in Deed
• Overall Circumstances
• Apparent, visible or reasonably discoverable?

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Williams Island Elements

• One parcel is split/ Prior use (Undisputed)
• Intent to continue prior use
• Apparent, visible or reasonably discoverable
• Necessity Court says yes well do later
• Notice to Subsequent Purchasers?

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Williams Island Elements

• Notice to Subsequent Purchasers?
• Court says both Actual Inquiry
• Unusually good evidence of both intent notice

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Necessity Requirement

• EASEMENTS BY IMPLICATION
• Usually reasonable necessity
• Some states strict necessity if implied by
  reservation (Florida not)
• EASEMENTS BY NECESSITY
• Most states strict necessity

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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
• Original owner sells West, retains East by
  Reservation
• Original Owner Simultaneously Sells Both to
  Different People by Grant

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Questions on Necessity

• Note 3 Was there reasonable necessity in
  Williams Island?
• Alternatives (from note 1 on P853)
• Cross highway, travel 200 feet on sidewalk, cross
  highway again
• Backtrack along a substantial portion of the golf
  course to get around defendants tract

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Questions on Necessity

• Reasonable necessity in Williams Island
• Lawyering Task Other Possible Alternatives?

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Questions on Necessity

• Note 3 Should lack of access to utilities meet
  the strict necessity test?

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Questions on Necessity

• Is the majoritys analysis of necessity in Dupont
  more convincing than that of the dissent?
• Access available to Southern part possibility
  of road across wetlands (v.)
• Getting road built across wetlands costs time,
  , and conservation easement (giving up use of
  some of land)

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Thoughts on Dupont Confusing on Necessity
Standards in Florida

• Fl. Stat. 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

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Thoughts on Dupont Confusing on Necessity
Standards in Florida

• Fl. Stat. 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. S.Ct.) absolute
  necessity
• Hunter (1st DCA interpreting Tortoise Island)
  no other reasonable mode of accessing the
  property
• What would you have to show to meet tests in
  Sewage Pipe Hypo?

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Thoughts on Dupont

• No easement by implicaton (no prior use)
• No easement by prescription (permission)
• BUT bad facts for servient owners their own
  story is revoking license after 14 years

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Thoughts on Dupont

• If Whitesides version of facts is true, good
  case for easement by estoppel
• Purchasing land building expensive house
  (240,000 in 1981) detrimental reliance
• Duponts building road prior to closing probably
  makes reliance reasonable

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Easements by Estoppel

• Terminology in DuPont
• Court says cant have easement w/o writing
• Allows possibility of irrevocable license
• Really means same thing as Easement by Estoppel

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Thoughts on Dupont Easement by Necessity Tricky

• Road to Southern part of lot existed 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 essentially as two separate
  parcels divided by water with no access between
  them to get E-by-N to Northern part
• What if road crossing wetlands easy in 1981?

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A Little More Doctrine

• Easements by Necessity end when the necessity
  ends Easements by Implication do not (because
  based entirely in intent)
• Courts almost always hold that negative easements
  cant be implied by implication or by necessity.
  Penn. case cited in Note 4 is very rare in even
  considering.
• Some states have private condemnation statutes
  like those described in Note 8.

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Note 8

• Suppose a state uses its eminent domain power to
  condemn easements to provide access to landlocked
  parcels and has the owner of the landlocked
  parcel pay for the easement. Does this use of
  Eminent Domain meet the public use requirement?
• This Q became Review Problem 2C (Opinion/Dissent
  Fall 2007)

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EASEMENTS BY PRESCRIPTION

• featuring
• EAGLES

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EASEMENTS BY PRESCRIPTION

• DQ115. To what extent do the following
  rationales for adv. possession also support the
  doctrine of Prescriptive Easements?
• (a) reward beneficial use of land
• (b) punish sleeping owners
• (c) recognize psychic connection to land
• (d) protect people and legal system from being
  burdened with stale claims

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EASEMENTS BY PRESCRIPTION

• Continuous Use
• Open Notorious
• Exclusive
• Adverse/Hostile

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EASEMENTS BY PRESCRIPTIONELEMENTS CONTINUOUS

1. Evidence in Macdonald?
2. Evidence in Lyons?

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EASEMENTS BY PRESCRIPTIONELEMENTS CONTINUOUS

• Note that can be seasonal use like Adverse
  Possession (Ray)

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EASEMENTS BY PRESCRIPTION

• Continuous Use
• Open Notorious
• Exclusive
• Adverse/Hostile

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EASEMENTS BY PRESCRIPTIONELEMENTS OPEN
NOTORIOUS

• DQ117. Evidence of open and notorious
• MacDonald requires actual notice
• Other states do not.
• Is it a good idea to do so?

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EASEMENTS BY PRESCRIPTIONELEMENTS OPEN
NOTORIOUS

• DQ117. Evidence of open and notorious
• Can a claim of prescriptive easement with regard
  to underground utilities like Sewer Pipe Hypo
  ever be open and notorious?

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EASEMENTS BY PRESCRIPTION

• Continuous Use
• Open Notorious
• Exclusive
• Adverse/Hostile

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EASEMENTS BY PRESCRIPTIONELEMENTS EXCLUSIVE

• Many Jurisdictions Dont Require (Nature of
  Easement is Non-Exclusive Use)
• Some Means Exclusive of Everyone but Owner
• Some (TX) Shared w Owner ? Presumption of
  Permissive

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EASEMENTS BY PRESCRIPTION

• Continuous Use
• Open Notorious
• Exclusive
• Adverse/Hostile

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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)

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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). How do you disprove?

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• 2. Public recreational use presumed permissive
  (Lyons)

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• 2. Public recreational use presumed permissive
  (Lyons) v. Undeveloped land presumed permissive
  (Lyons Dissent)

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Note 2 What is the significance of the
  following presumptions?
• 3. Shared use with the owner (e.g., of a
  driveway) presumed permissive (Texas)

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Presumptions frequently decide cases because hard
  to disprove.

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EASEMENTS BY PRESCRIPTIONELEMENTS ADVERSITY

• Policy Q What do you do with case like MacDonald
  or Dupont where use continues for a long time and
  then servient owner says no? (plausible to say
  permissive)?
• Could create hybrid of prescription estoppel
  if use goes on long enough, cant change your
  mind.

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EASEMENTS BY PRESCRIPTIONPOLICY QUESTIONS

• DQ118. The best justifications for granting an
  implied easement are reliance and need. Thus, if
  claimants cannot meet the elements of an Easement
  by Estoppel or of an Easement by Necessity, they
  should not be able to get a Prescriptive Easement
  unless they pay market value for it.
• Do you agree?

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NOTICE THE RECORDING SYSTEM
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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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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

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Recording Acts Problem Addressed

• Transfer of Interest in Same Property to Two
  Different Grantees(O?A, O?B)
• O liable for fraud or breach of warranty
• A v. B who gets lawsuit who gets ppty rt?
• Common law answer 1st in time 1st in Right

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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

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Recording Acts Operation

• Recording has no effect on rights of parties to
  original transaction as betw. themselves
• Protects buyers who record against other
  transferees
• Often yields different results than 1st in time
• Most jurisdictions protect later BFP for value
  against unrecorded interests

49
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

50
BFP for VALUE Definitions

• Bona Fide Purchaser good faith
• 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 against 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 against prior unrecorded
  interests only if BFP records 1st
• About half the states (e.g. NY CA)

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DQ119

• featuring
• ALL

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DQ119 featuring ALL

• (but mostly Eagles)

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DQ119 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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DQ119 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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DQ119 Situation 2

• O?A
• A records
• O?B
• B records

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

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DQ119 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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DQ119 Situation 3

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

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

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DQ119 Situation 3RACE STATUTE PROTECTS BAD
FAITH PURCHASER WHO RECORDS FIRST

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

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

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DQ119 Situation 4

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

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

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DQ119 Situation 4NOTICE STATUTE PROTECTS BFP
EVEN IF DOESNT RECORD FIRST

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

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