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Property Law: Easements & Express vs Implied Rights

Learn about easements in property law, including express and implied rights, scope interpretation, and examples of common scope issues.

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Property Law: Easements & Express vs Implied Rights

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  1. PROPERTY A SLIDES 4-10-17 NATIONAL SIBLING DAY NATIONAL FARM ANIMALS DAY

  2. Music to Accompany Chevy ChaseCarlos Santana, Supernatural (1999) NO CLASS TOMORROW DF AT USUAL TIME NO OFFICE HOURS TUESDAY OR WEDNESDAY Second Window for Submitting Sample Answers Open We’ve Covered Material Needed for All Four Adverse Possession Options

  3. PROPERTY A: 4/10 Monday Pop Culture Moment 70 Years Ago This Week in Brooklyn: 1st Night of Passover Why is This Night Different …?

  4. PROPERTY A: 4/10 Monday Pop Culture Moment Why is This Night Different …? A Brief Tribute to Jackie Robinson & Branch Rickey

  5. PROPERTY A: 4/10 Monday Pop Culture Moment Why is This Night Different …? … Back in Brooklyn!!!

  6. Chapter 5:Bearing Other People’s Crosses:Easements Express & Implied

  7. Chapter 5: Easements • Introduction • Terminology • Overview of Chapter 5 (+ Comparison to Others) • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity • By Prescription

  8. Chapter 5: Easements Terminology • Easement = Property Right to Use Land Owned by Someone Else for Specific Purpose • Most Commonly: Right of Way = Roads/Paths Across Others’ Land • So Graphics = Yellow Brick Road • Key Vocabulary: • Express v. Implied Easements • Positive v. Negative Easements • Appurtenant v. In Gross • Dominant Tenement (= Holding) v. Servient Tenement

  9. Chapter 5: Easements Chapter in Perspective • Paradigm Conflicts: • Chapter 3 (& Some of 2): Present Rights v. Future and/or Conditional Rights • Chapters 1 & 4: Legal Owners v. Others Who Wish to Use (Implied Easements Similar) • Chapter 2: Express Division in Property Rights Created by Contract (Express Easements Similar Let’s Compare)

  10. Divided Rights in the Same Piece of Land:Two Sets of Property Rights to Consider Easements • Holder of Easement • Owner of Underlying Land (Servient Tenement) Landlord-Tenant • Leaseholder (Term of Years) • Landlord (Holds Reversion)

  11. Divided Rights in the Same Piece of Land:Paradigm is Contractual: Terms/Intent Important-- Objective Manifestations of Parties’ Intent -- Reasonable Understanding under All the Circumstances Easements Written Document Creating Express Easement Landlord-Tenant Written Lease

  12. Divided Rights in the Same Piece of Land:Paradigm is Contractual, BUT-- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights Easements Written Document Creating Express Easement  Implied Easements Landlord-Tenant Written Lease  Implied & Statutory Terms

  13. Divided Rights in the Same Piece of LandDifferent Primary Skills Focus for Each Easements Using Stated & Unstated Facts to Work with Legal Rules/Standards Landlord-Tenant Working with Statutory Provisions

  14. Chapter 5: Easements • Introduction • Interpreting Language • Easement v. Fee (Skipping in 2017) • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity • By Prescription

  15. Chapter 5: Easements • Introduction • Interpreting Language: Scope of Express Easements • Positive Easements • NegativeEasements • Implied Easements • By Estoppel • By Implication and/or Necessity • By Prescription

  16. Interpreting Language: Scope of Express Easements • “Scope” is the Central Testable Issue for Express Easements • Q is whether new/additional use proposed by dominant tenement-holder allowed. • Legal dispute often arises with changed circumstances: which party should bear different burden? • Generally interpret scope issues like contracts • Objective indications/manifestations of whether proposed use might be covered by parties’ original understanding • Secret intent of one party NOT relevant (if not apparent from agmt) • Don’t need to show parties specifically contemplated proposed use

  17. Interpreting Language: Scope of Express Easements (Coverage) Sample Blackletter Tests (S124) • “Use must be reasonable considering the terms of the grant” • “Evolutionary not revolutionary” changes allowed. • “Burden must not be significantly greater than that contemplated by parties” Sample Cases • Chevy Chase (& Preseault): Common Transition from RR Rights of Way to Recreation Trails • Marcus Cable: Common Problem of Improved Technology Lot of Review Problems: 5A-5H plus 2016 QIV(c)

  18. Common Scope of Easement Issues • Proposed Use Seems to be w/in Literal Language, but Arguably Significant Change in Purpose or Burden • Chevy Chase; Rev. Probs 5A & 5D-G • Change in Technology; Might be Outside Literal Language, but Arguably Not Significant Change in Purpose or Burden • Marcus Cable; Review Problem 5B

  19. Intro to Scope of EasementsReview Problem 5A:Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” • Santa-acre = next to garbage dump. • Elf-Acre = • Time of Grant: Big lot w small cottage. • Later: Cottage  Toy factory (7x garbage).

  20. Review Problem 5A:Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” • Santa-acre = next to garbage dump. • Elf-Acre = • Time of Grant: Big lot w small cottage. • Later: Cottage  Toy factory (7x garbage). We’ll Apply Blackletter Tests & Consider Missing or Ambiguous Facts

  21. Scope of Express Easements Generally Sample Blackletter Tests (S124) (1) “Use Must Be Reasonable Considering the Terms of the Grant” • Initial focus on literal language • Then check if proposed use is reasonable in light of language c. Can use ordinary contract interpretation principles • e.g., Interpret ambiguities against drafter

  22. Review Problem 5A:Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” • Santa-acre = next to garbage dump. • Elf-Acre = • Time of Grant: Big lot w small cottage. • Later: Cottage  Toy factory (7x garbage). • “Use Must Be Reasonable Considering the Terms of the Grant”

  23. Scope of Express Easements Generally Sample Blackletter Tests (S124) (2) “Evolutionary not Revolutionary” Changes Allowed. • Focus on nature of change • Is proposed use similar in method or purpose (water pails  pipes) • Not really about speed of change (pails don’t morph into pipes) • Q of Characterization: Fair to View as “Evolution”? • Compare to Other Characterization Issues: • FL Ldld-Tnt Statutes: Right to Cure List v. Immediate Evict List • Use Like Ordinary nOwner of Simiular Property

  24. Scope of Express Easements Generally Sample Blackletter Tests (S124) (3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties” • Look for change in burden on servient renement. • Compare to what parties appear to have reasonably intended. • Burden must be “significantly” greater to fail test.

  25. Review Problem 5A:Elf-Acre & Santa-Acre “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” • Santa-acre = next to garbage dump. • Elf-Acre = • Time of Grant: Big lot w small cottage. • Later: Cottage  Toy factory (7x garbage). (2) “Evolutionary not Revolutionary” Changes Allowed. (3) “Burden Must Not Be Significantly Greater than that Contemplated by Parties”

  26. Review Problem 5A:Elf-Acre & Santa-Acre • “E-Acre’s owners shall have the right to cross S-Acre to dump garbage in the adjacent garbage dump” • Santa-acre = next to garbage dump. • Elf-Acre = Big lot w small cottage Toy factory (7x garbage). Other Relevant Concerns? 1. Want precision in language: Could punish S-acre for not making limits clear 2. Want people to disclose intent: Could punish elves if didn’t make plans clear 3. Check unequal bargaining power: a. Santa, Inc. v. little elves b. Keebler Elfin Toys & Cookies Intl v. poor old man 4. Check who drafted.

  27. Review Problem 5C: ThursdayEVERGLADES SEQUOIA(Arguments for R) (Arguments for J) • Prepare Arguments Based on Three Blackletter Tests Noting Missing Facts • Look for Additional Arguments from Cases

  28. Scope of Easement: RR Easement  Recreational Trail Common Transition with Decline of RRs • Federal statute encourages and gives RRs authority to transfer rights-of-way (no longer used for operating trains) to state/local govts for use as recreational trails. • BUT fed’lstastute doesn’t purport to resolve whether these trails are allowable use of these rights-of-way (state law scope issue). • We’ll compare Chevy Chase (MD 1999) to Preseault(Fed. Cir. 1996) (See P774-75 Note 2)

  29. Scope of Express EasementsRR Easement  Recreational Trail Chevy Chase: Tests for Scope (DQ5.02) • Start with Language of Grant (If no limits, presumption in favor of grantee’s desired use). • Is Proposed Use of “Same Quality”/Consistent w Purpose? • Check for Unreasonable Increase in Burden (“so substantial” that creates “a different servitude.”) Looks like slight variation on my three blackletter tests in same order.

  30. Scope of Express EasementsRR Easement  Recreational Trail (Language) Chevy Chase: Tests for Scope (Application to RR Easement) • Start with Language of Grant • “Primary Consideration” • If no limits, presumption in favor of grantee’s desired use. • Cf. “Use must be reasonable considering the terms of the grant”

  31. Scope of Express EasementsRR Easement  Recreational Trail (Language) Chevy Chase: Tests for Scope (Application to RR Easement) • Start with Language: To RR, “its successors & assigns, a free and perpetual right of way.” Court’s Reading: • No express limits (e.g., only to “RRs” or “freight RRs”) • “Free & Perpetual” suggests “few, if any” limits contemplated; can change w evolving circumstances • “Successors & Assigns” • Means Transferability (Not Ltd. to RRs) • Also suggests possibility of changing use.

  32. Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality” (= Character or Nature) • Consistent w Purpose & Reasonable Expectations? • cf. “Evolution, not Revolution” • Again, no need to show use specifically contemplated by parties • NOTE: Common Distinction between “Purpose” and “Intent” • Depends on Characterization of Purpose • Lawyering Task/Game • How do you Generalize from RR’s Normal Use?

  33. Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality? • Chevy Chase: “Forms of Transportation” • Hiking/Biking = Transport, so OK (+ Onomatopoeia ) • Relies on Cases Broadly Reading Grants for “Public Highway” to Include New Types of Transport • Analogy Seems Suspect: Could You Change RR Easement into Highway for Cars?

  34. Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality? • Chevy Chase: “Forms of Transportation” • Preseault: “Use by Commercial Entity as Part of its Business” • Also a little questionable. • Why prohibit trains run by gov’t or charitable org.? • Examples of things that fit into this category that • Could take place on a RR easement BUT • Seem unlikely to be approved by a court?

  35. Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) • Preseault: “Use by Comm’l Entity as Part of its Business” • Court: Here, Individual Recreation, So Too Different • Court: Hard to Believe w/in Contemplation of Parties • MAF: BUT often true in changing technology cases that parties didn’t/couldn’t imagine exact scenario. • Neither Chevy Chase nor Marcus Cable require this kind of foresight. • If you want to use this idea on a test, make clear that it comes from Preseault and that many courts don’t agree.

  36. Scope of Express EasementsRR Easement  Recreational Trail (Quality/Purpose) Chevy Chase: Tests for Scope (Application to RR Easement) • Is Proposed Use of “Same Quality? • Chevy Chase: “Forms of Transportation” • Preseault: “Use by Commercial Entity as Part of its Business” • For You on Review Problem/Test Q: • Try out two or more ways to characterize. • Then discuss which characterization seems more convincing (& why)

  37. Scope of Express EasementsRR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) • Unreasonable Increase in Burden • Can’t be “so substantial” that creates “a different servitude.” • Cf. “Burden must not be significantly greater than that contemplated by parties” • Here: Trains  Hikers/Bikers

  38. Scope of Express EasementsRR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) • Unreasonable Increase in Burden?: • Chevy Chase says no: Says less burden than RR w/o specifying. • Clearly bigdecrease in (i) noise & (ii) safety concerns. • Court: “Self-Evident” that change “imposes no new burdens” (You need to do better on test in 2 ways). • Court: Plus new use adds benefit to servient tenements (trail access) • Idea seems to be that you can offset some/all of burden with benefits • Preseaultand Marcus Cable courtsseem unlikely to agree.

  39. Scope of Express EasementsRR Easement  Recreational Trail (Burden) IMAGINATION EXERCISE (~5.02) Possible Increases in Burden? Everyone (but BADLANDS First)

  40. Scope of Express EasementsRR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) • Possible Increases in Burden? Preseault: • No limits on location, number, frequency of users • No schedule (at whim of many individuals) • Trains stay on tracks; hiker/bikers might wander off trail & trespass • Other: privacy; litter; total time easement in use; crime • Possible increase in insurance rates • Possible overnighters/tent people • If a back wall, maybe graffiti or posted ads

  41. Scope of Express EasementsRR Easement  Recreational Trail (Burden) Chevy Chase: Tests for Scope (Application to RR Easement) • Unreasonable Increase in Burden? Hard Q: • Primary Burdens Decrease • Lots of New Smaller Ones Arise • Hard to Weigh; Might Suggest Preseault is Correct That Should Fail “Same Quality” Test • In determining “reasonableness” of burden, a generous court might also choose to weigh strong public policy behind hiker/biker trails against harms to servient owners. Qs on Chevy Chase?

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