PROPERTY D SLIDES

PROPERTY D SLIDES4-10-14

Thursday April 10 Music (to Accompany Thursday April 10 Music (to Accompany MacDonaldMacDonald):):

Eagles, Eagles, Hotel California Hotel California (1976)(1976)featuringfeaturing “The Last Resort” “The Last Resort”

Biscayne Critique of Rev. Prob. 6B due Today @ 10amBiscayne Critique of Rev. Prob. 6B due Today @ 10am

Review Problem 6F (S147): Arches•For P (Andy/Serv.): Fata, Gaid, Hoffman, Wheeler

• Alts: Menendez, Verley

•For Defendant (Gudr. Acad./Dom.): Altman, Kratzer, Lopez, Rasile

• Alts: Ciampittiello, Westerhorstmann

Redwood Critique Due Saturday 4/12 @ 4pmRedwood Critique Due Saturday 4/12 @ 4pm

Review Problem 6F: ArchesAndy/Serv. = P Andy/Serv. = P Gudridge Academy/Dom. =DGudridge Academy/Dom. =D

•S-acre = Large wooded lot between public road & private beach.• House on lot built by grandfather (GF) of present owner A• Paved driveway connects road & beach w branch in middle to house

• Dawson Inst. = Former art school for college-aged students• Used to be across road from S-acre• Got as gift from GF an easement to use the private beach and the driveway during daylight hours.• DI students used driveway & beach to sketch or paint.

Review Problem 6F: ArchesAndy/Serv. = P Andy/Serv. = P Gudridge Academy/Dom. =DGudridge Academy/Dom. =D

•S-acre = Large wooded lot between public road & private beach.•Dawson Inst. = Former art school for college-aged students• Got as gift from GF an easement to use the private beach and the driveway during daylight hours.• DI students used driveway & beach to sketch or paint.

•Gudridge Academy buys Dawson Inst.• Runs post-high school “transition schools” for troubled teens. • Uses easement for student athletic activities like running /swimming

Arguments from 3 Blackletter Tests (incl. Missing/Ambiguous Facts)

Review Problem 6F: ArchesAndy/Serv. = P: Andy/Serv. = P: Fata, Gaid, Hoffman, Wheeler

(Alts: Menendez, Verley)Gudridge Academy/Dom. =D: Gudridge Academy/Dom. =D: Altman, Kratzer, Lopez, Rasile

(Alts: Ciampittiello, Westerhorstmann)

““Use must be reasonable considering the Use must be reasonable considering the terms of the grant”terms of the grant”

The owner of Silver-Acre, for himself, his successors and assigns, grants the Dawson Institute, its

successors and assigns, the right for its owners, employees and pupils to use, during daylight hours, the private beach on Victory Bay and the driveway

connecting the beach to the county road.




“Burden must not be significantly greater than that contemplated by parties”

Arguments

(incl. Missing/Ambiguous Facts)?




“Evolutionary not revolutionary” changes allowed.

(Chevy Chase: Same “Quality)

Arguments (incl. Missing/Ambiguous Facts)?

LOGISTICS: My Priorities 4/10-4/26• Chapter 7 Materials & Assignments (On Course Page by Sat. @ Noon)• Complete Feedback on 1st Set of Sample Exam Answers (Rev Prob 1E)• Complete Info Memos on Individual Chapters• Feedback on Second Set of Critiques (A Little Less Thorough)• Draft Exam• Feedback on 2d Set of Sample Exam Answers (Due Sat. 4/19)• I’ll Post Status-of-Feedback Updates at Top of Course Page Starting

This Weekend

Chapter 6: Easements1. Overview & Terminology2. Interpreting Language

a. Easement v. Feeb. Scope of Express Easements

3. Implied Easementsa. By Estoppelb. By Implication and/or Necessity (Cont’d)c. By Prescription

Easement-by-Implication Elements: States Vary on FormulationElements: States Vary on Formulation

1. One parcel is split in two2. Prior Use (“Quasi-Easement”)3. Intent to continue prior use 4. *Apparent, visible or reasonably discoverable5. *Some degree of necessity

* Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

Easement-by-Necessity ElementsElements

1. One parcel is split in two2. Landlock: One resulting parcel is cut off from key

access (e.g. to roads or sewer system) by other parcel (alone or in combination with parcels owned by 3d parties).

3. At time parcels split, access necessary to enjoyment of landlocked parcel

Easement-by-Implication & Easement-by-Necessity:

Recurring Concerns/ComparisonsRecurring Concerns/Comparisons

• Implied-by-Grant v. Implied-by-Reservation• Degree of Necessity•Notice (of Existence of Easement)• To Subsequent Purchasers• At Time of Split (E-by-I Only)

• Termination

Easement-by-Implication: Notice

Subsequent purchasers of servient tenement only bound to continue easement if notice of its existence at time of

purchase

•Actual Notice/Knowledge (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 won’t be notice from public land records b/c documents unlikely to refer to implied easement.

Easement-by-Implication: Notice

Notice to Parties of Existence of Easement 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

Easement-by-Necessity: NoticeNotice

• Subsequent Purchasers of Servient Estate– In theory, also need notice to bind.– Court finding the easement necessary for dominant

estate to operate probably will be hesitant to find lack of notice.

• At Time of Split: Doesn’t Arise b/c Parties Should Be Aware that Newly Created Parcel is Landlocked

Easement-by-Implication & Easement-by-Necessity:

Recurring Concerns/ComparisonsRecurring Concerns/Comparisons

• Implied-by-Grant v. Implied-by-Reservation• Degree of Necessity• Notice (of Existence of Easement)

•Termination

Easement-by-Implication & Easement-by-Necessity: Termination

• Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Poss., etc.) (See S143)

• 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

Doesn’t Undo Express Agreement

BISCAYNE: Williams Island & E-by-I

SUNRISE AT ADAMS KEY

Easement-by-Implication (Biscayne)Williams IslandWilliams Island

Use of Path Across Servient Tenement to Connect Two Holes of Golf Course

1.One parcel Split in Two (Undisputed)2.Prior Use (Undisputed)

3.Intent to continue prior use: Evidence?

Easement-by-Implication (Biscayne)Williams Island: Path from 13Williams Island: Path from 13thth 14th Holes 14th Holes

1. One parcel is split in two (Undisputed)2. Prior Use (Undisputed)

3. Intent to continue prior use (Unusually Good 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)

*Apparent, visible or reas. discoverable: Evidence?

Easement-by-Implication (Biscayne) Williams Island: Path from 13Williams Island: Path from 13thth 14th Holes 14th Holes

1. One parcel is split in two (Undisputed)2. Prior Use (Undisputed)3. Intent to continue prior use: (Unusually Good Evidence)

4. *Apparent, visible or reas. discoverable:• Paved; 9 feet wide; “in constant use” + references in deed

Easement-by-Implication (Biscayne) Williams Island: NecessityWilliams 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.” Evidence?

Easement-by-Implication (Biscayne) Williams Island: NecessityWilliams 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 defendant’s tract• Note: No discussion of possible renumbering or

reconfiguration of course


1. One parcel is split in two (Undisputed)2. Prior Use (Undisputed)3. Intent to continue prior use: (Unusually Good Evidence)4. Apparent, visible or reas. discoverable: (Good Evidence)5. Reasonable necessity: (Court finds)

6. Notice to Subsequent Purchasers: Evidence?



6. Notice to Subsequent Purchasers: Evidence?– Actual: Buyer’s Rep Told 4 mos. Before Closing– Inquiry: Established Regular Use



6. Notice to Subseq. Purchasers: (Unusually Good Evidence)

• Pretty Easy Case if You Accept Court’s Necessity Analysis–Dependent on Use as Golf Course in Present Configuration1.Might be Different if Strict Necessity Required

Questions on Williams Island?

YELLOWSTONE (DuPont & E-by-N)

GIANT GEYSER

DuPont DuPont & & Easement-by-Necessity (Yellowstone)

1.DuPonts sell Three-Part Lot to Whitesides– “Riverfront” where W’s want to build house– “Lower Portion”: accessible from public road– “Wetlands” in between

2.Undisputed that, prior to sale, DuPonts built road across their own land providing access to Riverfront so Whiteheads could build

3.Dispute as to whether DuPonts said this access was permanent or temporary

Easement-by-Necessity (Yellowstone) Necessity in Necessity in DuPont DuPont OpinionsOpinions

• DuPonts sell Three-Part Lot to Whitesides– “Riverfront” where W’s want to build house– “Lower Portion”: accessible from public road– “Wetlands” in between

• Court Resolves Easement-by-Necessity on Necessity Element• Majority: Not Strict Necessity: WHY?Majority: Not Strict Necessity: WHY?• Dissent: Meets Strict Necessity:



• Majority: Not Strict Necessity: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: Why?Dissent: Meets Strict Necessity: Why?



• Majority: Not Strict Necessity: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: Why?Dissent: Meets Strict Necessity: Why?– 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”

Easement-by-Necessity (Yellowstone)Necessity in Necessity in DuPont = DuPont = Tricky in 1981Tricky 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).




• 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”)

Easement-by-Necessity (Yellowstone) DuPont: DuPont: Necessity Confusing in FLNecessity 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 SCt): “absolute necessity”• Hunter (1st DCA interpreting Tortoise Island): “no other reasonable

mode of accessing the property”


Possible Implied Easements?1.Easement-by-Necessity: Turns on Necessity

2.2.Easement-by-Implication: Why Not? (Look to Easement-by-Implication: Why Not? (Look to Elements)Elements)3.Easement-by-Prescription: 4.Easement-by Estoppel:

Easement-by-Implication Elements: States Vary on FormulationElements: States Vary on Formulation

1. One parcel is split in two2. Prior Use (“Quasi-Easement”)3. Intent to continue prior use 4. *Apparent, visible or reasonably discoverable5. *Some degree of necessity

* Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent


Easement-by-PrescriptionElementsElements

1. [Actual] Use of Pathway2. Open & Notorious3. Continuous (14 years; Florida SoL = 7)4. Adverse/Hostile5. (Most Jurisdictions Don’t Require Exclusive)



• Easement-by Estoppel: (“Irrevokable License”)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 D’s Say “Temporary” & Ws Spend $$?• Note that Ds Not Very Sympathetic: License Revoked After 14 Years

for No Apparent Reason

– Court Remands for Determination

Questions on DuPont?

Documents

PROPERTY D SLIDES