PROPERTY A SLIDES

1. PROPERTY A SLIDES 4-16-15

2. Thursday April 16 Music (to Accompany Dupont):Jewel: Spirit (1998)featuring “Deep Water” • Yellowstone 2d Critiques Due Today @ 10:00 a.m. • Tomorrow: Extendo-Class (7:55-9:45) • Biscayne 2d Critiques (from today) due Saturday @ 10:00 a.m. • Second Sample Exam Q Due Saturday @ Noon • On Course Page • Version of Syllabus That Will be Attached to Exam • Info Memos #2 (Chapter 1) & #3 (Chapter 2) • Info Memos on Chapters 3 and 5 Will Be Posted by Mid-Day Friday

3. Easement-by-EstoppelPolicy Considerations (DQ6.07) We’ll do as Op/Diss Problem Tomorrow for Both Types of Easements Described in DQ Yellowstones (& ALL): Last Names A-K: Allow Emt-by-Estoppel Last Names L-Z: Disallow Emt-by-Estoppel (or Allow Only if Compensation Paid)

4. Easement-by-Estoppel RelevantPolicy Considerations (DQ6.07) • Policies Underlying Statute of Frauds & Reasonableness of Reliance w/o Writing • Equitable Considerations re Both Parties • How Do We Think Neighbors Should Behave (cf. Adv. Poss. Border Disputes) • Can Add Your Own

5. Chapter 6: Easements • Overview & Terminology • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity (Continued) • By Prescription

6. Easement-by-Implication &Easement-by-Necessity Overview(from Last Time) • Both Arise from Split of Larger Parcel; Different Requirements But Sometimes Same Facts Can Give Rise to Both • E-by-I: Parties Intend that Prior Existing Use Should Continue • E-by-N: Split Creates Landlocked Parcel Needing Access

7. 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

8. Easement-by-Implication Review Problem 6I (Biscayne) For Tomorrow, Prepare Arguments for Each Party re • One parcel is split in two • Prior Use (“Quasi-Easement”) • Intent to continue prior use • *Apparent, visible or reasonably discoverable • *Some degree of necessity

9. Easement-by-NecessityElements • One parcel is split in two • 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). • At time parcels split, access necessary to enjoyment of landlocked parcel

10. Easement-by-Implication &Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Eassement) • Termination

11. 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

12. Easement-by-Implication &Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation • FL & Majority Rule (in Williams Island): No Difference • 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!”

13. Easement-by-Implication &Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Eassement) • Termination

14. Easement-by-Implication &Easement-by-Necessity: Degree of Necessity EASEMENTS BY IMPLICATION: • Some states: Evidence of intent, but not required. • Most states: Reasonablenecessity required. • Some states (not FL): Strictnecessity required if implied by reservation. EASEMENTS BY NECESSITY: • Most states: Strictnecessity Some Legal Tests/Examples for Reasonable & StrictNecessity in Cases and Note 3 (P801-02)

15. Easement-by-Implication &Easement-by-Necessity: Recurring 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

16. 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? (cf. Common Tests for Open & Notorious) • 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.

17. 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

18. Easement-by-Necessity: Notice • Subsequent Purchasers of Servient Estate • In theory, also need notice to bind. • Court finding the easement necessaryfor 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

19. Easement-by-Implication &Easement-by-Necessity: Recurring Concerns/Comparisons • Implied-by-Grant v. Implied-by-Reservation • Degree of Necessity • Notice (of Existence of Easement) • Termination

20. Easement-by-Implication &Easement-by-Necessity: Termination • Both: Can Terminate like Express Easements (Agreement; Abandonment; Adv. Poss., etc.) (See S145) • 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

21. BISCAYNE: Williams Island SUNRISE AT ADAMS KEY

22. Easement-by-Implication (Biscayne)Williams Island Use of Path Across Servient Tenement to Connect Two Holes of Golf Course • One parcel Split in Two (Undisputed) • Prior Use (Undisputed) • Intent to continue prior use: Evidence?

23. Easement-by-Implication (Biscayne)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) • 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) 4. Apparent, visible or reas. discoverable at time of split: Evidence?

24. Easement-by-Implication (Biscayne) 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

25. Easement-by-Implication (Biscayne) Williams Island: Necessity • Legal Standard • Case requires Reasonable Necessity • Some states would require Strict b/c by-Reservation • Ct. (top P794): “No practical or safe alternative route.” Evidence?

26. Easement-by-Implication (Biscayne) Williams Island: Necessity • Legal Standard • Case requires Reasonable Necessity • Some states would require Strict b/c by-Reservation • Ct. (P794): “No practical or safe alternative route.” Alternatives considered (P794 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

27. Easement-by-Implication (Biscayne) 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: Evidence?

28. Easement-by-Implication (Biscayne) 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: Evidence? • Actual: Buyer’s Rep Told 4 mos. Before Closing • Inquiry: Established Regular Use

29. Easement-by-Implication (Biscayne) 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 Court’s Necessity Analysis • Dependent on Use as Golf Course in Present Configuration • Might be Different if Strict Necessity Required Questions on Williams Island?

30. ARCHES: Dupont v. Whiteside DELICATE ARCHES

31. Dupont& Easement-by-Necessity (Arches) • Duponts sell Three-Part Lot to Whitesides • “Riverfront” where W’s 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.

32. Easement-by-Necessity (Arches) Necessity in DupontOpinions • 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? • Dissent: Meets Strict Necessity

33. Easement-by-Necessity (Arches) Necessity in DupontOpinions • Duponts sell Three-Part Lot to Whitesides • “Riverfront” where W’s want to build house • “Lower Portion”: accessible from public road • “Wetlands” in between • 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?

34. Easement-by-Necessity (Arches) Necessity in DupontOpinions • Duponts sell Three-Part Lot to Whitesides • “Riverfront” where W’s want to build house • “Lower Portion”: accessible from public road • “Wetlands” in between • 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”

35. Easement-by-Necessity(Arches)Necessity in Dupont = Tricky in 1981 • Lot as a whole was not landlocked at split (road to Lower Portion of lot existed)

36. Easement-by-Necessity(Arches)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 time of split (house built later)

37. Easement-by-Necessity(Arches)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 in 1980).

38. Easement-by-Necessity(Arches)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”)

39. Easement-by-Necessity (Arches) 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 SCt): “absolute necessity” • Hunter (1st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property”

40. Dupont& Easement-by-Necessity (Arches) Possible Implied Easements? • Easement-by-Necessity: Turns on Necessity • Easement-by-Implication: Why Not? (Look to Elements) • Easement-by-Prescription: • Easement-by Estoppel:

41. 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

42. DuPont & Easement-by-Necessity (Arches) Possible Implied Easements? • Easement-by-Necessity: Turns on Necessity • Easement-by-Implication: No Prior Use • Easement-by-Prescription: Why Not? (Look at Elements) • Easement-by Estoppel:

43. Easement-by-PrescriptionElements • [Actual] Use of Pathway • Open & Notorious • Continuous (14 years; Florida SoL = 7) • Adverse/Hostile • (Most Jurisdictions Don’t Require Exclusive)

44. Dupont& Easement-by-Necessity (Arches) Possible Implied Easements? • Easement-by-Necessity: Turns on Necessity • Easement-by-Implication: No Prior Use • Easement-by-Prescription: Clear Permission • Easement-by Estoppel: Was there Reliance that was Reasonable & Detrimental (Under Claimants’ View of Facts) ?

45. Dupont& Easement-by-Necessity (Arches) • 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?

46. Review Problem 6D (S148): Biscayne CritiqueRedwood= P Andy/Serv. Yellowstone = D Gudridge Academy/Dom. • 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)

47. Review Problem 6D: Biscayne CritiqueRedwood= P Andy/Serv. Yellowstone = D Gudridge Academy/Dom. • 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.

48. Review Problem 6D: Biscayne CritiqueREDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Corrales, Genase(Alts: Engstrom, Powell)YELLOWSTONE = D Gudr. Acad./Dom. = Plowden, Garcia, Santos, Patel, Manimalethu (Alts: McGee, Kim) “Use must be reasonable considering the 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.

49. Review Problem 6D: Biscayne CritiqueREDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Corrales, Genase(Alts: Engstrom, Powell)YELLOWSTONE = D Gudr. Acad./Dom. = Plowden, Garcia, Santos, Patel, Manimalethu (Alts: McGee, Kim) “Burden must not be significantly greater than that contemplated by parties” Arguments (incl. Missing/Ambiguous Facts)?

50. Review Problem 6D: Biscayne CritiqueREDWOOD = P Andy/Serv. = Whitley, Maneri, Boyd, Corrales, Genase(Alts: Engstrom, Powell)YELLOWSTONE = D Gudr. Acad./Dom. = Plowden, Garcia, Santos, Patel, Manimalethu (Alts: McGee, Kim) “Evolutionary not revolutionary” changes allowed. (Chevy Chase: Same “Quality) Arguments (incl. Missing/Ambiguous Facts)?