PROPERTY E SLIDES

1
PROPERTY E SLIDES

• O4-22-13

2
LOGISTICS SCHEDULE

• Info Memo on Chapter 6 Posted on Course Page
• Today Class until 1212, then Course Evaluations
• Tomorrow Normal Class Time
• Thursday Final Class (May Run Long)
• Friday No Class
• Info Memo on Chapter 7 Posted
• Office Hours 2-6
• Saturday
• Office Hours 2-6
• Optional Sample Exam Answers Due _at_ 9pm

3
Chapter 7 Easements

• Overview Terminology
• Interpreting Language
• Easement v. Fee
• Scope of Express Easements
• Implied Easements
• By Estoppel
• By Implication and/or Necessity
• By Prescription

4
Implied Easements Overview

• Easements are both contracts conveyances (land
  transfers)
• How do you achieve contracts and conveyances
  without express agreement? Four Theories

5
Implied Easements Overview

• Contract/Conveyance w/o Express Agreement Four
  Theories
• Promissory Estoppel (Detrimental Reliance)
• Implied-in-Fact Contract (Parties Intent)
• Implied-in-Law Contract (Public Policy)
• Adverse Possession

6
Implied Easements Overview

• 4 Theories ? 4 Types of Implied Easement
• Promissory Estoppel (Detrimental Reliance)
  Easement-by Estoppel
• Implied-in-Fact Contract (Parties Intent)
  Easement-by-Implication
• Implied-in-Law Contract (Public Policy)
  Easement-by-Necessity
• Adverse Possession
  Easement-by-Prescription

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Implied Easements Sewage Pipe Hypothetical

1. Developer builds line of houses
2. Same set of pipes connect all houses in line to
   city sewer system. Sewage from houses further
   from the city sewer passes under all houses in
   line that are closer to the sewer.

8
SEWAGE PIPE HYPOTHETICAL 6 5 4
3 2 1
To City Sewer ?
9
Implied Easements Sewage Pipe Hypothetical

• Developer builds line of houses
• Same pipes connect houses in line to city sewers
  sewage from houses further from sewer passes
  under the rest.
• Developer sells all houses in line, but creates
  no easements to allow flow of sewage along the
  line. Connected nature of sewage pipes not
  referenced in deeds and no notice provided
  orally.

10
SEWAGE PIPE HYPOTHETICAL 6 5 4
3 2 1
To City Sewer ?
Lot 3 Being Used by Lots 4-6 to Dispose of
Their Sewage
11
Implied Easements Sewage Pipe Hypothetical

• Developer builds line of houses
• Same pipes connect houses in line to city sewers
  sewage from houses further from sewer passes
  under the rest.
• Developer sells all houses in line creates no
  easements and provides no written or oral notice
  of connected nature of sewage pipes.
• When can owners of houses further from sewer
  claim one or more types of implied easement?
  (NOTE Particular variations on the facts will
  give rise to each type.)

12
Chapter 7 Easements

• Overview Terminology
• Interpreting Language
• Easement v. Fee
• Scope of Express Easements
• Implied Easements
• By Estoppel
• By Implication and/or Necessity
• By Prescription

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Easement-by-EstoppelBackground Licenses (Note
1 P850)

• LICENSE Permission by owner for third party to
  use owners property. E.g.,
• Right to enter theater or ballpark with ticket.
• Come over swim in my pool.
• Store your things in my house while your house is
  tented.

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Easement-by-EstoppelBackground Licenses (Note
1 P850)

• LICENSE Permission by owner for third party to
  use owners property.
• License generally revokable by owner unless
• Combined with Another Interest (E.g., Right to
  Pick Fruit)
• -OR-
• Easement-by-Estoppel (Some States)

15
Easement-by-EstoppelGeneral Rule

• An owner may be estopped from barring a 2d party
  access to the owners property where
• The owner apparently allows 2d party to use the
  property (Apparent License)
• 2d party reasonably and detrimentally relies on
  this acquiescence
• Effect in States that Allow Easements-by-Estoppel
  is that License Becomes Unrevokable

16
Easement-by-EstoppelGeneral Rule

• An owner may be estopped from barring a 2d party
  access to the owners property where
• The owner apparently allows 2d party to use the
  property (Apparent License)
• 2d party reasonably and detrimentally relies on
  this acquiescence
• Usually little debate about Apparent License, so
  existence of E-by-E usually turns on reliance.

17
Easement-by-EstoppelReasonable Detrimental
Reliance

• Stoner Reliance on Oral Permission to Build
  Ditch (DQ112)
• Reasonable?
• P Presumably Aware of Ds Expenditures
• BUT Should You Get it in Writing Before Spending?
• Might explore more facts (nature of promise
  extent of awareness of reliance parties
  relationship, etc.)

18
Easement-by-EstoppelReasonable Detrimental
Reliance

• Stoner Reliance on Oral Permission to Build
  Ditch (DQ112)
• Detrimental? (Easier)
• 7000 in 19th Century to construct ditch
• Maybe other missed opportunities (e.g., alternate
  forms of irrigation now more expensive to
  install)

19
Easement-by-EstoppelReasonable Detrimental
Reliance

• Nelson v. ATT (Note 3 P851)
• Easement contained in deed invalid b/c lack of
  legal formalities. D placed 32 poles
  maintained for 30 years. Compare to Stoner re
  Reliance.
• ATT Clearer that easement rather than license
  intended b/c explicit, in writing, problems w
  deed arose after O signed
• BUT ATT sophisticated party shouldve known
  that deed was invalid fixed

20
Easement-by-EstoppelReasonable Detrimental
Reliance

• Nelson v. ATT (Note 3 P851)
• Easement contained in deed invalid b/c lack of
  legal formalities. D placed 32 poles
  maintained for 30 years.
• Mass SCt No easement ATT should have known
  easement not properly created meaning they had a
  mere license. Essentially holds reliance was
  not reasonable by a sophisticated player.

21
Easement-by-EstoppelDuration/Termination

• N.4 (P851-52) How Long Does an E-by-E Last?
• Stoner For so long a time as the nature of it
  calls for. Means?

22
Easement-by-EstoppelDuration/Termination

• N.4 (P851-52) How Long Does an E-by-E Last?
• Stoner For so long a time as the nature of it
  calls for.
• Easy Case
• House Built in Reliance on Access Through
  Neighbors Driveway ? E-by-E
• New Public Road Built Adjoining Dominant Tenement
  Creates Alternate Access
• Use of House No Longer Relies on Driveway E-by-E
  Ends

23
Easement-by-EstoppelDuration/Termination

• N.4 (P851-52) How Long Does an E-by-E Last?
• Stoner For so long a time as the nature of it
  calls for.
• What does this mean for an irrigation ditch?
• So long as irrigation remains useful to Dominant
  Tenement?
• So long as no cheap alternatives?

24
Easement-by-EstoppelDuration/Termination

• N.4 (P851-52) How Long Does an E-by-E Last?
• Stoner For so long a time as the nature of it
  calls for.
• What does this mean for hypo in Note 4
• House built in reliance on E-by-E burns down.
• Can owner rebuild?

25
Easement-by-EstoppelDuration/Termination

• N.4 (P851-52) How Long Does an E-by-E Last?
• House built in reliance on E-by-E burns down.
  Can owner rebuild?
• See quote from Rerick in Stoner (middle P849)
• The right to rebuild a mill in the case of
  destruction or dilapidation and to continue the
  business on its original footing may have been in
  fact as necessary to his safety, and may have
  been an inducement of the particular investment
  in the first instance.

26
Easement-by-EstoppelDuration/Termination

• N.4 (P851-52) How Long Does an E-by-E Last?
• House built in reliance on E-by-E burns down.
  Can owner rebuild?
• See quote from Rerick in Stoner (middle P849)
• Could read to allow absolute right to rebuild
• BUT may turn on evidence of nature of reliance
• Connection between safety and dilapidation
• Return on investment w/o rebuilding? (insurance
  )

27
SEWAGE PIPE HYPOTHETICAL 6 5 4
3 2 1
To City Sewer ?
Dominic buys Lot 2 from Owner of Lot 1 (No
House on 2 but Sewage Pipe in Place)
28
Easement-by-EstoppelSewage Pipe Hypothetical

• Dominic buys Lot 2 from Owner of Lot 1
• No House on 2 but Sewage Pipe in Place
• D makes clear he intends to build house on Lot 2
• Owner of Lot 1 doesnt object to use of sewer
  line until after house on 2 is complete
  connected. Assume no other easy way to connect
  to sewer.
• Is Ds Reliance on Os Silence While House is
  Constructed Reasonable?

29
Easement-by-EstoppelPolicy Considerations (DQ119)

• Should We Allow E-by-E? Relevant Concerns
• Doctrine undermines Statute of Frauds
• People making significant investments should
  make sure of legal rights before relying on mere
  license.
• BUT Neighbors dont typically create signed
  writings for all agreements
• People can take offense (My word isnt good
  enough?)
• Cf. Border disputes in adverse possession).

30
Easement-by-EstoppelPolicy Considerations (DQ119)

• Should We Allow E-by-E? Possible Results
• (1) Whenever theres reasonable and detrimental
  reliance. (Many States)
• OR
• (2) Only after compensation paid (A Few Cases)
• OR
• (3) Never (Many States)

31
Chapter 7 Easements

• Overview Terminology
• Interpreting Language
• Easement v. Fee
• Scope of Express Easements
• Implied Easements
• By Estoppel
• By Implication and/or Necessity
• By Prescription

32
Easement-by-Implication Easement-by-Necessity
Overview

• Both Arise from Split of Larger Parcel
• E-by-I Parties Intend that Prior Existing Use
  Should Continue Look for Objective Evidence of
  Intent Not Secret Subjective Belief
• E-by-N Split Creates Landlocked Parcel Needing
  Access Theoretical Dispute as to Whether Based
  in Public Policy or (Very Generous Notion of)
  Intent
• Different Requirements But Sometimes Same Facts
  Can Give Rise to Both

33
Easement-by-Implication Elements States Vary
on Formulation

• One parcel is split in two
• Prior Use (Quasi-Easement)
• Intent to continue prior use
• Apparent, visible or reasonably discoverable
• Some degree of necessity
• Some jurisdictions treat 4 5 as separate
  elements some treat as evidence of intent

34
Easement-by-Necessity Elements

• One parcel is split in two
• Landlock One resulting parcel is cut off from
  key access (e.g. to roads) by other parcel (alone
  or in combination with parcels owned by 3d
  parties).
• At time parcels split, access necessary to
  enjoyment of landlocked parcel

35
Easement-by-Implication Easement-by-Necessity
Recurring Concerns/Comparisons

• Implied-by-Grant v. Implied-by-Reservation
• Degree of Necessity
• Notice
• Termination

36
Easement-by-Implication Easement-by-Necessity
Implied-by-Grant v. Implied-by-Reservation

• Parcel split into Eastacre and Westacre. Prior
  Use Driveway from House on Eastacre across
  Westacre to main road.
• Original owner sells East, retains West by
  Grant (Claim in Dupont)
• Original owner sells West, retains East by
  Reservation (Claim in Williams Island)
• Original Owner Simultaneously Sells Both to
  Different People by Grant

37
Easement-by-Implication Easement-by-Necessity
Implied-by-Grant v. Implied-by-Reservation

• Some states treat some elements of E-by-I or
  E-by-N more favorably if by grant than by
  reservation
• Implied-by-Reservation seen as shady When I
  sold you the lot next door, I forgot to mention
  that I was going to keep using the path to the
  lake. Oops!

38
Easement-by-Implication Easement-by-Necessity
Degree of Necessity

• EASEMENTS BY IMPLICATION
• Some states Evidence of intent, but not
  required
• Most states Reasonable necessity required
• Some states (not FL) Strict necessity required
  if implied by reservation
• EASEMENTS BY NECESSITY
• Most states Strict necessity
• Some Legal Tests/Examples for Reasonable Strict
  Necessity in Cases and Note 3 (P860-61)

39
Easement-by-Implication Notice

• Need notice to bind subsequent purchasers of
  servient tenement
• Actual Notice (Fact Q) Did buyer know about
  easement?
• Inquiry Notice (Legal Q) Sufficient info to
  create duty in reasonable buyer to ask?
• Often Sufficient Path/road going to property
  line
• Courts sometimes stretch to find inquiry notice
  should have been aware that pipes underground
  might connect, etc.
• Usually wont be notice from public land records
  b/c documents unlikely to refer to implied
  easement.

40
Easement-by-Implication Notice

• Notice at Time of Split
• Legal Test Often Version of Apparent, visible or
  reasonably discoverable
• Some states treat as requirement
• Some states treat as evidence of intent
• Same kinds of evidence relevant as with notice to
  subsequent purchasers

41
Easement-by-Necessity Notice

• Subsequent Purchasers of Servient Estate
• In theory, also need notice to bind.
• Court finding the easement necessary probably
  hesitant to find lack of notice.
• At Time of Split Doesnt Arise b/c Parties
  Should Be Aware that Newly Created Parcel is
  Landlocked

42
Easement-by-Implication Easement-by-Necessity
Termination

• Both Can Terminate like other Easements
  (Agreement Abandonment Adv. Poss., etc.)
• E-by-N Ends if the necessity ends b/c created as
  a matter of policy to address necessity
• E-by-I Does not end if the necessity ends.
• Created Based on Intent of Parties
• Necessity Often Just Evidence of Intent
• So Comparable to Express Easement Change in
  Necessity Doesnt Undo Express Agreement

43
Easement-by-Implication Williams Island

• Use of Path Across Servient Tenement to Connect
  Two Holes of Golf Course
• One parcel Split in Two (Undisputed)
• Prior Use (Undisputed)

44
Easement-by-Implication Williams Island Path
from 13th ? 14th Holes

• One parcel is split in two (Undisputed)
• Prior Use (Undisputed)
• Intent to continue prior use Evidence?
• Testimony Intent of original parties that when
  Williams purchased golf course, it was told that
  original owner of servient estate had agreed to
  easement
• References to Easements in Deed (but Not
  Specified)
• Overall Circumstances (incl. continual use)

45
Easement-by-Implication Williams Island Path
from 13th ? 14th Holes

• One parcel is split in two (Undisputed)
• Prior Use (Undisputed)
• Intent to continue prior use (Unusually Good
  Evidence)
• Apparent, visible or reas. discoverable
• Paved 9 feet wide in constant use
  references in deed

46
Easement-by-Implication Williams Island
Necessity

• Legal Standard
• Case requires Reasonable Necessity
• Some states would require Strict b/c
  by-Reservation
• Ct. (P852) No practical or safe alternative
  route. Alternatives considered (P853 fn 1)
• Cross highway, travel 200 feet on sidewalk, cross
  highway again
• Backtrack along a substantial portion of the golf
  course to get around defendants tract
• Note No discussion of possible renumbering or
  reconfiguration of course

47
Easement-by-Implication Williams Island Path
from 13th ? 14th Holes

• One parcel is split in two (Undisputed)
• Prior Use (Undisputed)
• Intent to continue prior use (Unusually Good
  Evidence)
• Apparent, visible or reas. discoverable (Good
  Evidence)
• Reasonable necessity (Court finds)
• Notice to Subsequent Purchasers
• Actual Buyers Rep Told 4 mos. Before Closing
• Inquiry Established Regular Use

48
Easement-by-Implication Williams Island Path
from 13th ? 14th Holes

• One parcel is split in two (Undisputed)
• Prior Use (Undisputed)
• Intent to continue prior use (Unusually Good
  Evidence)
• Apparent, visible or reas. discoverable (Good
  Evidence)
• Reasonable necessity (Court finds)
• Notice to Subseq. Purchasers (Unusually Good
  Evidence)
• Pretty Easy Case if You Accept Courts Necessity
  Analysis
• Dependent on Use as Golf Course in Present
  Configuration
• Might be Different if Strict Necessity Required

49
Easement-by-Necessity DuPont

• DuPonts sell Three-Part Lot to Whitesides
• Riverfront where Ws want to build house
• Lower Portion accessible from public road
• Wetlands in between
• Undisputed that, prior to sale, DuPonts built
  road across their own land providing access to
  Riverfront so Whiteheads could build
• Dispute as to whether DuPonts said this access
  was permanent or temporary

50
Easement-by-Necessity DuPont

• Possible Implied Easements?
• Easement-by Estoppel (Irrevokable License)
• Good Case for Reliance under Ws Version of Facts
  
• Detrimental Bought lot spent 240K in 1981 to
  build house
• Reasonable Probably, since road built before
  purchase
• Under Ds version of facts?
• Reasonable If Ds Say Temporary Ws Spend
  ?
• Note that Ds Not Very Sympathetic License
  Revoked After 14 Years for No apparent Reason
• Court Remands for Determination

51
Easement-by-Necessity DuPont

• Possible Implied Easements?
• Easement-by Estoppel Court Remands
• Easement-by-Implication No Prior Use
• Easement-by-Prescription Clear Permission
• Easement-by-Necessity Turns on Necessity

52
Easement-by-Necessity Necessity in DuPont
Opinions

• Majority Not Strict Necessity
• Access available to Lower Portion
• Possibility of road across Wetlands (though
  expert said 40,000-50,000)
• Dissent Meets Strict Necessity
• Getting road built across wetlands costs time,
  , and conservation easement (giving up use of
  some of land)
• Might be easier to traverse a river by walking
  across the surface

53
Easement-by-Necessity Necessity in DuPont
Tricky in 1981

• Lot as a whole was not landlocked at split (road
  to Lower Portion of lot existed)
• Access to house on Riverfront not necessary for
  enjoyment of lot at split (house built later)
• Wetlands Regs greatly raise cost of road, but no
  evidence if Regs existed at split (probably not).
• To get E-by-N for Riverfront, need to treat large
  parcel as two separate lots divided by water with
  no access between them (cf. Dissent re no
  bridge)

54
Easement-by-Necessity DuPont Necessity
Confusing in FL

• Fl. Stats. on Easement-by-Necessity
• 704.01(1) reasonably necessary reasonable
  practicable
• 704.03 practicable means w/o use of bridge,
  ferry, turnpike road, embankment or substantial
  fill.
• Tortoise Island (Fla Supr Ct) absolute
  necessity
• Hunter (1st DCA interpreting Tortoise Island)
  no other reasonable mode of accessing the
  property

55
SEWAGE PIPE HYPOTHETICAL 6 5 4
3 2 1
To City Sewer ?
E-by-I Raised Pipes in Use Before O Sells
Separate Units. E-by-N Raised Split Creates
Landlocked Lot b/c Sewage Disposal Must Cross
Anther Lot
56
Easement-by-Implication Easement-by-Necessity
Sewage Pipe Hypothetical

• Necessity Issues
• Is utilities access Necessary? Cases split
• Lot not worthless or landlocked (re physical
  access) usually possible to get utility service
  at some expense
• BUT cant use for many purposes without new
  expensive utility connection
• Assuming some access to utilities is necessary,
  how expensive must alternatives be to meet tests?
  
• Drill through mountain ridge?
• Very inefficient to reroute utility service if
  existing pipes or wires (cf. Marcus Cable)

57
Easement-by-Implication Easement-by-Necessity
Sewage Pipe Hypothetical

• Notice Issues
• What constitutes notice of underground pipes?
• Actual Notice
• Courts tend to be generous re inquiry notice
• From any visible element (pipe ends manhole
  covers) (See Kirma cited in Williams Island _at_
  P854)
• From need for utility service no visible access