PROPERTY B SLIDES

1. PROPERTY B SLIDES 4-17-19 NATIONAL BAT APPRECIATION DAY NATIONAL HAIKU POETRY DAY Appreciate bats? I can do so quite deeply … When they are elsewhere.

2. Music to Accompany PetersenRicky Nelson (Self-Titled 1958) Last Two DF Sessions: • CHANGE: Review Problem 4M (Lauren: AP Lawyering): FRI @ 10 Here (NOT TODAY) • Review Problem 5G (Brendan: Short Easement Prob) FRI @ 12:30 (Room TBA) 2d Window Open for Submitting Sample Exam Answers • Deadline for Feedback Before CrimPro Exam: Tonight @ 11pm • Final Deadline: Sun @ Noon

3. LOGISTICS ON COURSE PAGE NOW: • Assignments for Fri/Mon • Updates to Info on 2014-17 Exams to Reflect Reduced Coverage in Chapter 5 • By Thurs a.m.: Comments & Best Student Answers for Exam Banks for Q1, Q3, Q4 SCHEDULING INFO • Fri & Mon Classes 7:55-9:55 • Review Session Sun 4/28 • 7pm Here • Strongly Recommended • Mostly Exam Technique/Advice • Office Hours 4/18-4/30 • On Course Page • On My Door

4. Chapter 5: Easements • Introduction • Interpreting Language: Scope of Express Easements • Positive Easements • NegativeEasements • Implied Easements • By Estoppel (NOTIO) • By Implication • By Necessity • By Prescription (NOTIO)

5. Scope of Express Easements:Negative Easements (Recap) • Negative Easement = Agreement not to use servient estate in any way that causes specific type of harm to dominant estate • Limited # of harms can be protected this way. • Most forms essentially negative rights of way: path that cannot be impeded for light/view/water to get to dominant estate across servient estate

6. Scope of Express Easements:Negative Easements Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View Vocabulary: “mesne conveyances” = intermediate transactions

7. Scope of Express Easements: Negative Easements DQ5.04: D’s Arguments in Petersen • Dmay have argued, “No such thing as a view E-mt in Calif.” • Court says weight of authority supports existence of view easements. • Lawyering Note: Need to check in each state for list of recognized negative easements.

8. Scope of Express Easements:Negative Easements DQ5.04: D’s Arguments in Petersen • No view easement in California • D: Not w/in scope b/c parties could not have intended to ban TV antennas (in 1942 still unknown) • Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View • Cf. 16 Foot Tall Statue of Jackie Robinson (in 1942 also still unknown)

9. Scope of Express Easements:Negative Easements DQ5.04: D’s Arguments in Petersen • Court: Bans “Any Structure”/”Any Obstruction” = Anything That Could Interfere with View

10. Scope of Express Easements:Negative Easements DQ5.04: D’s Arguments in Petersen • No view easement in California • Parties could not have intended to ban antennas • D: Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. • Court: Fact Q implicitly decided below • Reviewing Injunction, so Defer to Trial Court • Supporting Evidence: • Size & nature of obstruction; • Lesser rental value b/c of antenna (NOTE: Often Useful)

11. Scope of Express Easements:Negative Easements DQ5.04: D’s Arguments in Petersen Conceivable Argument Not Made in Case: Burden on D Greater than Contemplated • Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden • Pre-Cable TV Reception in SF Not Good • Relative Importance of TV (Public Policy re Access to Information)

12. Scope of Express Easements:Negative Easements DQ5.04: D’s Arguments in Petersen • Conceivable but not in case: Harm from Giving Up Antenna Much Greater Than, e.g., Giving Up Flagpole or Roof Garden • Court’s Likely Responses • TV Not That Important, Especially in 1958 Before Much TV News (But Ricky Nelson as Cultural Indicator) • If Vital to Servient O, can Renegotiate Terms of Easement & Pay For (One-on-One = Much Easier Than in Chevy Chase or Marcus Cable)

13. Scope of Express Easements:Negative Easements DQ5.05 : Why easier to determine the scope of a negative easement than that of a positive easement? Few line-drawing problems • Negative: Bansanything that interferes w light or view v. • Positive: Open to interpretation about allowable uses where language is broad or where technology changes Qs on Negative Easements?

14. Chapter 5: Easements • Introduction • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements (Overview) • By Estoppel (NOTIO) • By Implication • By Necessity • By Prescription (NOTIO)

15. Implied Easements: Overview I will briefly introduce Easements by Estoppel and Easements by Prescription so you can recognize them in past problems. This year, I will only test you on Easements by Implication and Easements by Necessity.

16. Implied Easements: Overview • Easements are both contracts & conveyances (land transfers) • How do you achieve contracts and conveyances without express agreement? Four Theories…

17. Implied Easements: Overview Contract/Conveyance w/o Express Agreement: Four Theories • Promissory Estoppel (Detrimental Reliance) • Implied-in-Fact Contract (Parties’ Intent) • Implied-in-Law Contract (Public Policy) • Adverse Possession

18. Implied Easements: Overview 4 Theories  4 Types of Implied Easement (1) Promissory Estoppel (Detrimental Reliance)≈ Easement-by Estoppel (2) Implied-in-Fact Contract (Parties’ Intent) ≈ Easement-by-Implication (3) Implied-in-Law Contract (Public Policy) ≈ Easement-by-Necessity (4) Adverse Possession ≈ Easement-by-Prescription

19. Implied Easements: Overview 4 Theories  4 Types of Implied Easement (1) Easement-by Estoppel (2) Easement-by-Implication (3) Easement-by-Necessity(4) Easement-by-Prescription Helpful Ways to Think About • Parties generally not trying to create implied easements. • Can view each type as an after-the-fact legal result/remedyreached by a court after review of relevant facts. • Similar situations may yield different type if facts change a bit. • In rare cases, same facts will give rise to more than one type.

20. Implied Easements: Overview 4 Theories  4 Types of Implied Easement (1) Easement-by Estoppel (2) Easement-by-Implication (3) Easement-by-Necessity(4) Easement-by-Prescription Helpful Ways to Think About • Common Student Complaint: Hard to Keep Four Types Distinct • No good way to present these but together in sequence • Your job to organize info in a way that allows you to distinguish • And of course, this class only is responsible for two of them.

21. Chapter 5: Easements • Introduction • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • Easement-by Estoppel (NOTIO) • By Implication • By Necessity • By Prescription (NOTIO)

22. Easement-by Estoppel (NOTIO)Brief Overview • Owner of Servient Tenement Gives Express or Implied Permission for Claimant to Cross Land to Access own Parcel • Claimant Reasonably and Detrimentally Relies on Permission • Usually to Improve Own Lot • Detrimental Reliance Usually Requires Some Degree of Necessity • Facts of Dupont Tomorrow are Likely Example • See also Rev Probs 5I-5K

23. Chapter 5: Easements • Introduction • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel (NOTIO) • Easement-by-Implication • Easement-by-Necessity • By Prescription (NOTIO)

24. Easement-by-Implication&Easement-by-Necessity: Overview • Both Arise from Split of Larger Parcel • Different Requirements • Sometimes Same Facts Can Give Rise to Both. • We’ll Go Through Separately • Primarily E-by-Implication (& Williams Island) Today • PrimarilyE-by-Necessity (& Dupont) Tomorrow • Some Comparisons/Common Issues Both Days

25. Easement-by-Implication&Easement-by-Necessity: Overview • E-by-I & E-by-N 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 (Textbook: “Easement Implied from Prior Use”) • Look for ObjectiveEvidence of Intent; Not Secret Subjective Belief (Like Scope Qs) • Always Default Rule: Clear statement at time of split that it’s not intended precludes E-by-I .

26. Easement-by-Implication&Easement-by-Necessity: Overview • 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 • Look for ObjectiveEvidence of Intent; Not Secret Subjective Belief • Default Rule: Clear statement that not intended precludes E-by-I . • E-by-N: Split Creates Landlocked Parcel Needing Access • Dispute among states/profs re whether based in public policy or (very generous notion of) intent (See Note 2 P800-01) • Resolution of this dispute determines whether E-by-N is default rule or universal policy (See Rev Prob 5N).

27. 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 states treat 4 & 5 as separate elements; some treat as part of evidence of intent

28. 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 the other resulting parcel (alone or in combination with parcels owned by 3d parties). • At time parcels split, access necessary to enjoyment of landlocked parcel

29. E-by-I&E-by-N: Implied-by-Grant v. Implied-by-Reservation (See Note 5 P803) 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

30. E-by-I&E-by-N: Implied-by-Grant v. Implied-by-Reservation • FL & Majority Rule (noted in Williams Island): No Difference • Some states treat some elements of E-by-I or E-by-N more favorably if “by grant” than if “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!”

31. E-by-I&E-by-N: Degree of Necessity Required • 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: Strict necessity • Some Legal Tests/Examples for Reasonable & StrictNecessity in Cases and Note 3 (P801-02)

32. Easement-by-Implication: Notice Subsequent purchasers of servient tenement only bound to allow easement to continue if they have notice of its existence at time of purchase • True for any Type of Implied Easement (see Note 7 P804) • Can be either Actual or Inquiry Notice. • (Unlike Express Easements,) Usually won’t be notice from public land records b/c documents unlikely to refer to implied easement (but see Williams Island).

33. Easement-by-Implication: Notice Subsequent purchasers of servient tenement only bound to allow easement to continue if they have notice of its existence at time of purchase. (Cf. Discussion of O&N) • 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: Buyer should have been aware that pipes underground might connect, etc.

34. 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

35. Easement-by-Implication 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?

36. Easement-by-ImplicationWilliams 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?

37. Easement-by-ImplicationWilliams 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

38. Easement-by-ImplicationWilliams 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?

39. Easement-by-ImplicationWilliams 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

40. Easement-by-ImplicationWilliams 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 of Servient Estate: Evidence?

41. Easement-by-ImplicationWilliams 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: Well-Established Regular Use

42. Easement-by-ImplicationWilliams 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; could dispute) • 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?

43. Review Problem 5CEVERGLADES BADLANDS(Arguments for R) (Arguments for J) EGRET IN MANGROVE SWAMPNORBECK PASS

44. Review Problem 5C (S145) Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise.

45. Review Problem 5C (S100)Everglades for R Badlands for J Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise. • Originally used for jogging & automobile access to Highway. • J moves onto Carr-Acre with her horse DD • Rides horse on easement every morning • Sometimes rides horse to Highway to run errands in nearest village • Can R (owner of Rhodes-acre) prevent J from riding horse on easement?

46. Rev. Prob. 5C: Everglades for R Badlands for J Can R (owner of Rhodes-acre) prevent J from riding horse on E-mt? • Arguments re Language: Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise.

47. Rev. Prob. 5C: Everglades for R Badlands for J Can R (owner of Rhodes-acre) prevent J from riding horse on E-mt? • Arguments re Language: Those living on Carr-acre can use the driveway across the western edge of Rhodes-acre in vehicles or on foot for access to and from Hungerford Highway and for exercise. • OK to say Horse “is living on C-acre” and crossing “on foot for access … and for exercise.”? • Would Bicycle Be OK Under Language?