PROPERTY D SLIDES

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PROPERTY D SLIDES

• 4-14-14

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Monday April 14Music to Accompany Tims Party
in Rev Prob 7ABrad Paisley, Time Well Wasted
(2005)featuring Alcohol

• No Class or Deans Fellow Tomorrow

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Chapter 6 Easements

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

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

• Notice Issues
• What constitutes notice of underground pipes?
• Actual Knowledge
• 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

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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

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

• Necessity Issues
• Is utilities access Necessary? Cases split
• Assuming some access to utilities is necessary,
  how expensive must alternatives be to meet tests?
  
• Drill through mountain ridge?
• Policy Very inefficient to reroute utility
  service if existing pipes or wires (cf. Marcus
  Cable)
• Rev. Prob. 6H Well Return to Sewage Pipe Hypo
• Easements-by-Implication

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Chapter 6 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-PrescriptionGenerally

1. Easement Created by Particular Use of Anothers
   Land for Adverse Possession Period
2. Need to Show Adverse Possession Elements (with
   Some Variations in Some States)
3. Well Look at Elements Individually

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Easement-by-PrescriptionElements

1. Actual Use of Pathway
2. Open Notorious
3. Continuous
4. Exclusive (Some Jurisdictions)
5. Adverse/Hostile

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REDWOOD DQ 6.08-6.11
REDWOODS FERNS
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Easement-by-PrescriptionRedwood Actual Use

1. Not listed as separate element in MacDonald but
   there must be some kind of use
2. Usually Straightforward Use of, e.g., Path or
   Driveway
3. Sometimes Q of Whether Use is Sufficient to
   Constitute Possession and Trigger AP Claim
   Instead of E-by-P (See Note 3 P876-77)
4. MacDonald (DQ6.09) What Meets?

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Easement-by-PrescriptionRedwood Actual Use

1. Not listed as separate element in MacDonald but
   there must be some kind of use
2. Usually Straightforward Use of, e.g., Path or
   Driveway
3. Sometimes Q of Whether Use is Sufficient to
   Constitute Possession and Trigger AP Claim
   Instead of E-by-P (See Note 3 P876-77)
4. MacDonald (DQ6.09) Golf Shots Retrieval (Very
   Atypical!!!)

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Easement-by-PrescriptionRedwood Open
Notorious DQ6.10 (See P877)

• Some States Traditional Definition of ON
• Use of Path or Driveway Almost Certainly Meets
• Underground Utilities (Sewage Pipe Hypo)
• Hard to Meet ON (Like Marengo Caves)
• Could Analyze Like Notice for E-by-I or E-by-N

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Easement-by-PrescriptionRedwood Open
Notorious DQ6.10 (See P877)

• Some States Traditional Definition of ON
• Some States Require that Servient Owner Have
  Actual Knowledge (e.g., MacDonald)
• Policy Concerns Similar to Border Disputes Dont
  Necessarily Need O in Possession to Monitor
  Closely
• Evidence of Actual Knowledge in MacDonald
  (DQ6.10) Building Restrictions in Agreement
  Designed to Allow Continued Use of Area in Q

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Easement-by-PrescriptionRedwood Continuous (See
P877)

• Obviously Doesnt Need to be 24/7 for Whole SoL
  Period
• Could Just Be Use Throughout Period
• Might Ask re Normal Utilization of That Type of
  Easement
• Can be Seasonal Use like Adverse Possession in
  Ray
• Evidence in MacDonald (DQ6.09)?

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Easement-by-PrescriptionRedwood Continuous (See
P877)

• Obviously Doesnt Need to be 24/7 for Whole
  Statutory Period
• Could just be use throughout period
• Might Ask re Normal Utilization of That Type of
  Easement
• Can be Seasonal Use like Adverse Possession in
  Ray
• Evidence in MacDonald (DQ6.09) Golf Course in
  Use Through Whole Period Steady of Users End
  Up on Land in Q

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Easement-by-PrescriptionRedwood Exclusive (See
P877-78)

• Many Jurisdictions Dont Require
• Sensible Nature of Easement is Non-Exclusive Use
• MacDonald doesnt list as element
• Some Means Exclusive of Everyone but Owner
• Some (TX) Shared w Owner ? Presumption of
  Permissive
• Hard to overcome
• Need evidence that O didnt give permission but
  didnt interfere)

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Easement-by-PrescriptionAdverse/Hostile
Presumptions

• General Difficulty Reasonable to Assume
  Permission If
• O in Possession of Servient Estate AND
• Use is Open Notorious?
• Presumptions frequently decide cases because hard
  to disprove.
• Shared use with the owner (e.g., of a driveway)
  presumed permissive (Texas) How do you disprove?
• Continuous use for AP Period presumed adverse
  (MacDonald). How do you disprove?

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Easement-by-PrescriptionAdverse/Hostile
Presumptions

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

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Easement-by-PrescriptionRedwood Policy Questions

• DQ6.08. To what extent do the rationales for AP
  also support E-by-P?
• Clearly protect people and the legal system from
  being burdened with stale claims
• Ideas re Rest?
• (a) reward beneficial use of land
• (b) punish sleeping owners
• (c) recognize psychic connection to the land
• For you to consider use to help decide close Qs.

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SEWAGE PIPE HYPOTHETICAL 6 5
4 3 2 1
To City Sewer ?
E-by-P Raised Use of Pipes by More Distant
Users for Adv. Poss. Period Likely Qs re Open
Notorious, Exclusive
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Implied Easements GenerallyRedwood DQ6.11

• 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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Previously in Property D

• Express Easements
• Easement v. Fee (Text Context Arguments)
• Scope of Positive Easements (Text Context
  Arguments)
• 3 Blackletter Tests
• Railroad Easements ? Recreational Trails
• Changes in Technology (Electric Wires ? Cable
  Wires)
• Review Problems 6B 6F
• Scope of Negative Easements (Easy Because Total)

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Previously in Property D

• Implied Easements
• Four Kinds Focus Legal Requirements
• Easements-by-Estoppel
• Easements-by-Implication
• Easements-by-Necessity
• Easements-by-Prescription
• Sewage Pipe Hypothetical (Showing Overlap,
  Differences, Specific Concerns)

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PROPERTY D 4/14
Monday Pop Culture Moment

• 150 Years Ago This Spring
• Ulysses S. Grant Takes Command of the Army of the
  Potomac
• The Bloody Mathematics of the Civil War
• From Shiloh to The Wilderness

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PROPERTY D 4/14
Monday Pop Culture Moment

• McLELLAN v. GRANT
• A General Metaphor for the
• Next Two Weeks

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Easement-by-Implication Review Problem 6H

• Quick Summary of Facts
• Webers own lot with 4 guest cottages connected to
  one set of pipes running one mile west, then
  across edge of lot to connect to municipal water
  sewer lines.
• S purchases western part of lot including
  westernmost guest cottage.
• After the purchase, pipes from other 3 cottages
  (and connecting to Ss cottage and municipal
  water/sewer) continue to run under Ss part of
  lot.

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SEWAGE PIPE HYPOTHETICAL ? REV. PROB. 6H
GC GC GC Ws S GC
To City Sewer/Water ?
E-by-I Raised Pipes in Use Before Ws Sell
Western Part to S
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Easement-by-Implication Review Problem 6H

• Prepare Arguments for Each Party re
• One parcel is split in two YES
• Prior Use (Quasi-Easement) YES
• Intent to continue prior use?
• Apparent, visible or reasonably discoverable?
• Some degree of necessity?
• Well Do in Reverse Order

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YELLOWSTONE (Rev. Prob. 6H)
GIANT GEYSER
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Easement-by-ImplicationReview Problem 6H
(Yellowstone)

• Sufficient Necessity
• Extent of Necessity at Time of Split?
• Relevant Considerations?
• Sufficient to Meet Relevant Test?
• Arguments If Reasonable Necessity?
• Arguments If Strict Necessity?
• Why Might This Be Test?

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Easement-by-Implication Review Problem 6H
(Yellowstone)

• Apparent, Visible or Reasonably Discoverable
  (Notice)
• Actual Knowledge by S Evidence/Arguments?
• Inquiry Notice to S Evidence/Arguments?

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Easement-by-Implication Review Problem 6H
(Yellowstone)

• Intent to Continue Prior Use (at Time of Split)
• If both aware of pipes, probably intended (or
  atty S likely would have addressed before sale)
• If Webers aware but no notice to S,
• Maybe punish Ws by saying no
• Ws might claim they reasonably believed S knew
• If neither party aware?
• Hard to say intent as a factual matter
• BUT Court might be reluctant to punish Ws for
  mutual mistake.

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Divided Rights in the Same Piece of LandTwo
Sets of Property Rights to Consider

• Chapter 6
• Easements
• Holder of Easement
• Owner of Underlying Land (Servient Tenement)

• Chapter 7
• Landlord-Tenant
• Leaseholder (Term of Years)
• Landlord Holds Reversion)

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Divided Rights in the Same Piece of LandParadigm
is Contractual, BUT -- Overlay of Rules that
Augment Sometimes Replace -- Some Default
Rules Some Non-Waivable Rights

• Landlord-Tenant
• Written Lease ?
• Implied Statutory Terms

• Easements
• Written Document Creating Express Easement ?
• Implied Easements

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Divided Rights in the Same Piece of LandSkills
Focus Different for Each

• Easements
• Working with Stated Unstated Facts

• Landlord-Tenant
• Working with Statutory Provisions

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Review Problem 7A Tims PartyBISCAYNE(for L)
SHENANDOAH (for T)
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Review Problem 7A Tims PartyBISCAYNE(for L)
SHENANDOAH (for T)

• Tim Tenant College Student
• Holds Big Party at Apt. ? Noise
• Several Neighbors Call Police
• Police Arrest 2 of Ts Friends (Drunk/Disorderly)
• Party Continues w/out Further Complaint
• No Prior Violations of Lease or Statute

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Review Problem 7A Tims PartyBISCAYNE(for L)
SHENANDOAH (for T)

• Tim Tenant College Student
• Holds Big Party at Apt. ? Noise Police Arrest 2
  Friends
• No Prior Violations of Lease or Statute
• Assume Violation of Fl. Stat.
• 83.52. Tenant's obligation to maintain dwelling
  unit. The tenant at all times during the tenancy
  shall (7) Conduct himself or herself, and
  require other persons on the premises with his or
  her consent to conduct themselves, in a manner
  that does not unreasonably disturb the tenant's
  neighbors or constitute a breach of the peace.
• Can Linda (Landlord) Evict Tim for the Party?

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Review Problem 7A

• Example of Common Statutory Problem
• Statute Creates Two Categories
• 83.56(2)(a) Evict Immediately
• 83.56(2)(b) Right to Cure (One Free Bite)
• Need to Argue Into Which Category Does Tims
  Conduct Fit?

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Review Problem 7A

• Preliminary Points About Statute
• Examples that the TNT should not be given an
  opportunity to cure include, but are not limited
  to, destruction, damage, or misuse of the LDLD's
  or other TNTs' property by intentional act or a
  subsequent or continued unreasonable disturbance.
  
• Examples that TNT should be given opportunity to
  cure include, but are not limited to, activities
  in contravention of the lease or this act such as
  having or permitting unauthorized pets, guests,
  or vehicles parking in an unauthorized manner
  or permitting such parking or failing to keep
  the premises clean and sanitary.

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Review Problem 7A

• Example of Common Statutory Problem
• Statute Creates Two Categories Into Which
  Category Does Tims Conduct Fit?
• Common Types of Argument
• (I) Literal Within language of either (a) or
  (b)?
• (II) Comparison More like items listed in (a)
  or (b)? (Characterization)
• (III) Policy Should this behavior be
  sufficient for a landlord to evict without more?
  (Think about relevant interests of both Ldld
  Tnt)

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Review Problem 7A

• (I) Literal Within language of either (a) or
  (b)?
• Examples that the TNT should not be given an
  opportunity to cure include, but are not limited
  to, destruction, damage, or misuse of the LDLD's
  or other TNTs' property by intentional act or a
  subsequent or continued unreasonable disturbance.
  
• Examples that TNT should be given opportunity to
  cure include, but are not limited to, activities
  in contravention of the lease or this act such as
  having or permitting unauthorized pets, guests,
  or vehicles parking in an unauthorized manner
  or permitting such parking or failing to keep
  the premises clean and sanitary.

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Review Problem 7A Qs 1 2BISCAYNE(for L)
SHENANDOAH (for T)

• (II) Comparison More like items listed in (a) or
  (b)?
• Characterization Exercise
• destruction, damage, or misuse of the LDLD's
  or other TNTs' property by intentional act or a
  sub-sequent or continued unreasonable
  disturbance.
• having or permitting unauthorized pets,
  guests, or vehicles parking in an unauthorized
  manner or permitting such parking or failing to
  keep the premises clean and sanitary.