PROPERTY A SLIDES

1. PROPERTY A SLIDES 4-7-15

2. Tuesday April 7: More Music to Accompany Chevy ChaseIf I Could Turn Back Time: Cher’s Greatest Hits (1999)REVIEW PROBLEM 5F (“Continuous”)Shenandoah Critique due Thursday @ 10 a.m. BISCAYNE (P Monica): • Aleman, Elan • Baquedano , Marlon • Ghomeshi, Sogol • Duke, Katie • Crosby, Shannon • Foote, Jeff (Alternate) ARCHES (D Orig. Owner) • Sandler, Ted • Agramonte, Mat • Kalil, Deanna • Palomo, Christopher • De La Pedraja, Carolina • Dominguez, Anthony (Alt)

3. Review Problem 5F: “Continuous” • M Resided in House with Color of Title for Most of 10Y Statutory Period • Absent 5 Mos. Undergoing Rehab for Physical Injury • While M Away: • Utilities & Mail Service Stopped • M’s Friend David watered plants every 2-3 weeks • M asked David to Feed Cat at M’s House; Instead David Took Cat to Own Home

4. Review Problem 5F: “Continuous” Arguments/Missing Facts Should a 5-Month Interruption for this Reason Break Continuity? Assuming 5 Months with no Evidence of Possession Would Be Too Long, Was There Enough Evidence of Possession During the 5 Mos. M Was Away to Retain Continuity? What is the Legal Significance of David not doing what M asked?

5. Previously in Property A Adverse Possession Elements: Rules, Focus, Evidence, Purpose Exclusive Acts of Other Third Parties (Bell) Acts of OO (Rev. Probs. 5C-5D) Adverse/Hostile & State of Mind Special Rules for Boundary Disputes Policy Considerations Easements: Introduction & Rev Prob 6A

6. Property A: Logistics NCAA Contest Winners: Agramonte/Plowden Finish Chapter 5 Today/Thurs: Rev Probs 5I & 5H Prior Submissions: 1st Critiques Available by Day Before 2d Critiques Sample Exam Qs: Feedback by Wed 4/15 Complete Syllabus & Assmt Sheet on Course Page

7. JETTISONING CHAPTER 7

8. ARCHES: Rev. Prob. 5I (Lawyering) DELICATE ARCHES

9. REVIEW PROBLEM 5I (Arches) • Actual Use • Open & Notorious • Exclusive • Continuous • Adverse/Hostile • State of Mind • Other/General Qs • C bought farm 3 years ago. RR Ranch directly to east; long fence between. • Recent surveys: Several hundred feet of the fence actually on C’s land, about 12 feet west of the true boundary line. • C wants to know if he still owns the land between the fence and the true boundary.

10. 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

11. Chapter 6: Easements Overview & Terminology • Easement = Right to Use Land Owned by Someone Else for Specific Purpose (e.g., Right of Way) • Basic Background Info Last Week & in Readings • Key Vocabulary: • Express v. Implied Easements • Positive v. Negative Easements • Appurtenant v. In Gross • Dominant Tenement (Holding) v. Servient Tenement

12. 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

13. Interpreting Language: Easement v. Fee • Recurring Issue: Document creating the interest says “right-of-way” or similar, but doesn’t say either “easement” or “fee”; which is created? • Good introduction to examining language & purpose of interest created; arguments similar to scope issues. • We’ll look at: • Chevy Chase(MD) [Primary Case P768] • City of Manhattan Beach (CA) [See Note 1 P773-74]

14. Interpreting Language: Easement v. Fee • Ctslooking for evidence of parties’ intent. Look at both: • Language • Circumstances Surrounding Grant • Presumption? (DQ6.01) • From Chapter 4: Normal Presumption is Ambiguous Language Creates a Fee Simple. • Should there be a presumption in context of “Right of Way” favoring either fee or easement? We’ll see what cases do.

15. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Chevy Chase): • Language: • to RR, “its successors & assigns, a free & perpetual right of way” • “right of way” slightly ambiguous • Legal right to use (technical meaning) • Strip of land itself (common non-legal usage: “She left her bicycle on the right of way”) • Court says most likely understanding is easement

16. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Chevy Chase): • Language: • “a free & perpetual right of way” • separate grant for RR station in “fee simple” • Use of different terms suggests different meaning • Common interpretation argument • E.g., White v. Brown • E.g., Statutes

17. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Manhattan Beach): • Language: (Ambiguous) • “remise, release & quitclaim” (looks like giving up all rights, therefore fee) • “right of way” + “upon, over & along” (phrases look more like easement)

18. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Chevy Chase): (ii) Circumstances Surrounding Grant: • Nominal Consideration: Suggests Easement. Why? (Ct isn’t explicit.) • Giving Up Fee is Big Change in Value of Servient Estate (Especially if Bisects Lot) • Thus, would expect more than nominal consideration for Fee

19. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Manhattan Beach): (ii) Circumstances Surrounding Grant: • Motivation is to Get RR to Extend Tracks to Additional City (Important to Local Economy) • Might be Consistent with Fee • Arguably need bigger carrot to convince RR • City might be willing to give up more to get

20. Interpreting Language: Easement v. Fee • Evidence of parties’ intent (Manhattan Beach): (ii) Circumstances Surrounding Grant: • Motivation is to Get RR to Extend Tracks to Additional City (Important to Local Economy) • Other documents (unspecified) indicated fee.

21. Interpreting Language: Easement v. Fee • Chevy Chase: Presumption of Easement • Little Purpose for Fee Interest in RR Strips; Not Necessary for Original RR Purpose • Lot of RR Rights of Way Get Abandoned • If Easement, merges back into servient tenement • If Fee, RR still owns: cuts across & severs servient tenement

22. Interpreting Language: Easement v. Fee B. Manhattan Beach: Applies Presumption of Fee Simple; BUTUsual Rationales Don’t Fit Well • Likely Meets Ordinary Expectations (Unclear) • Furthers Alienability (No) • Giving All Grantor Has Avoids Uncertainty/Partial Intestacy (Not relevant when grantor retains adjoining/underlying lot; like grant when still alive on Ch. 4 Test) Questions?