PROPERTY E SLIDES

PROPERTY E SLIDES O4-22-13

LOGISTICS & SCHEDULE • Info Memo on Chapter 6 Posted on Course Page • Today: Class until 12:12, then Course Evaluations • Tomorrow: Normal Class Time • Thursday: Final Class (May Run Long) • Friday: No Class • Info Memo on Chapter 7 Posted • Office Hours 2-6 • Saturday • Office Hours 2-6 • Optional Sample Exam Answers Due @ 9pm

Chapter 7: Easements • Overview & Terminology • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity • By Prescription

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

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

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

Implied Easements: Sewage Pipe Hypothetical • Developer builds line of houses • Same set of pipes connect all houses in line to city sewer system. Sewage from houses further from the city sewer passes under all houses in line that are closer to the sewer.

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer 

Implied Easements: Sewage Pipe Hypothetical • Developer builds line of houses • Same pipes connect houses in line to city sewers; sewage from houses further from sewer passes under the rest. • Developer sells all houses in line, but creates no easements to allow flow of sewage along the line. Connected nature of sewage pipes not referenced in deeds and no notice provided orally.

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer  Lot #3 Being “Used” by Lots #4-6 to Dispose of Their Sewage

Implied Easements: Sewage Pipe Hypothetical • Developer builds line of houses • Same pipes connect houses in line to city sewers; sewage from houses further from sewer passes under the rest. • Developer sells all houses in line; creates no easements and provides no written or oral notice of connected nature of sewage pipes. • When can owners of houses further from sewer claim one or more types of implied easement? (NOTE: Particular variations on the facts will give rise to each type.)

Easement-by-EstoppelBackground: Licenses (Note 1 P850) • LICENSE = Permission by owner for third party to use owner’s property. E.g., … • Right to enter theater or ballpark with ticket. • Come over & swim in my pool. • Store your things in my house while your house is tented.

Easement-by-EstoppelBackground: Licenses (Note 1 P850) • LICENSE = Permission by owner for third party to use owner’s property. • License generally revokable by owner unless: • Combined with Another Interest (E.g., Right to Pick Fruit) -OR- • Easement-by-Estoppel (Some States)

Easement-by-EstoppelGeneral Rule An owner may be estopped from barring a 2d party access to the owner’s property where • The owner apparently allows 2d party to use the property (Apparent License) • 2d party reasonably and detrimentally relies on this acquiescence Effect in States that Allow Easements-by-Estoppel is that License Becomes Unrevokable

Easement-by-EstoppelGeneral Rule An owner may be estopped from barring a 2d party access to the owner’s property where • The owner apparently allows 2d party to use the property (Apparent License) • 2d party reasonably and detrimentally relies on this acquiescence Usually little debate about Apparent License, so existence of E-by-E usually turns on reliance.

Easement-by-EstoppelReasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch (DQ112) • Reasonable? • P Presumably Aware of D’s Expenditures • BUT Should You Get it in Writing Before Spending? • Might explore more facts (nature of promise; extent of awareness of reliance; parties’ relationship, etc.)

Easement-by-EstoppelReasonable & Detrimental Reliance Stoner: Reliance on Oral Permission to Build Ditch (DQ112) • Detrimental? (Easier) • $7000 in 19th Century to construct ditch • Maybe other missed opportunities (e.g., alternate forms of irrigation now more expensive to install)

Easement-by-EstoppelReasonable & Detrimental Reliance Nelson v. AT&T (Note 3 P851) • Easement contained in deed invalid b/c lack of legal formalities. D placed 32 poles & maintained for 30 years. Compare to Stoner re Reliance. • AT&T: Clearer that easement rather than license intended b/c explicit, in writing, & problems w deed arose after O signed • BUT AT&T sophisticated party; should’ve known that deed was invalid & fixed

Easement-by-EstoppelReasonable & Detrimental Reliance Nelson v. AT&T (Note 3 P851) • Easement contained in deed invalid b/c lack of legal formalities. D placed 32 poles & maintained for 30 years. • Mass SCt: No easement; AT&T should have known easement not properly created meaning they had a “mere license.” Essentially holds reliance was not reasonable by a sophisticated player.

Easement-by-EstoppelDuration/Termination N.4 (P851-52): How Long Does an E-by-E Last? Stoner: “For so long a time as the nature of it calls for.” Means?

Easement-by-EstoppelDuration/Termination N.4 (P851-52): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. • Easy Case: • House Built in Reliance on Access Through Neighbor’s Driveway  E-by-E • New Public Road Built Adjoining Dominant Tenement Creates Alternate Access • Use of House No Longer Relies on Driveway; E-by-E Ends

Easement-by-EstoppelDuration/Termination N.4 (P851-52): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. • What does this mean for an irrigation ditch? • So long as irrigation remains useful to Dominant Tenement? • So long as no cheap alternatives?

Easement-by-EstoppelDuration/Termination N.4 (P851-52): How Long Does an E-by-E Last? Stoner: For so long a time as the nature of it calls for. What does this mean for hypo in Note 4: • House built in reliance on E-by-E burns down. • Can owner rebuild?

Easement-by-EstoppelDuration/Termination N.4 (P851-52): How Long Does an E-by-E Last? • House built in reliance on E-by-E burns down. Can owner rebuild? • See quote from Rerickin Stoner (middle P849): “The right to rebuild [a mill] in the case of destruction or dilapidation and to continue the business on its original footing may have been in fact as necessary to his safety, and may have been an inducement of the particular investment in the first instance.”

Easement-by-EstoppelDuration/Termination N.4 (P851-52): How Long Does an E-by-E Last? • House built in reliance on E-by-E burns down. Can owner rebuild? • See quote from Rerickin Stoner (middle P849): • Could read to allow absolute right to rebuild • BUT may turn on evidence of nature of reliance • Connection between safety and dilapidation • Return on investment w/o rebuilding? (insurance $)

SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer  Dominic buys Lot #2 from Owner of Lot #1 (No House on #2 but Sewage Pipe in Place)

Easement-by-EstoppelSewage Pipe Hypothetical • Dominic buys Lot #2 from Owner of Lot #1 • No House on #2 but Sewage Pipe in Place • D makes clear he intends to build house on Lot #2 • Owner of Lot #1 doesn’t object to use of sewer line until after house on #2 is complete & connected. Assume no other easy way to connect to sewer. • Is D’s Reliance on O’s Silence While House is Constructed Reasonable?

Easement-by-EstoppelPolicy Considerations (DQ119) Should We Allow E-by-E?: Relevant Concerns • Doctrine undermines Statute of Frauds • People making significant investments should make sure of legal rights before relying on mere license. • BUT: Neighbors don’t typically create signed writings for all agreements • People can take offense (My word isn’t good enough?) • Cf. Border disputes in adverse possession).

Easement-by-EstoppelPolicy Considerations (DQ119) Should We Allow E-by-E?: Possible Results (1) Whenever there’s reasonable and detrimental reliance. (Many States) –OR– (2) Only after compensation paid (A Few Cases) –OR– (3) Never (Many States)

Easement-by-Implication &Easement-by-Necessity: Overview • Both Arise from Split of Larger Parcel • E-by-I: Parties Intend that Prior Existing Use Should Continue [Look for Objective Evidence of Intent; Not Secret Subjective Belief] • E-by-N: Split Creates Landlocked Parcel Needing Access [Theoretical Dispute as to Whether Based in Public Policy or (Very Generous Notion of) Intent] • Different Requirements But Sometimes Same Facts Can Give Rise to Both

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

Easement-by-NecessityElements • One parcel is split in two • Landlock: One resulting parcel is cut off from key access (e.g. to roads) by other parcel (alone or in combination with parcels owned by 3d parties). • At time parcels split, access necessary to enjoyment of landlocked parcel

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

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

Easement-by-Implication &Easement-by-Necessity: Implied-by-Grant v. Implied-by-Reservation • 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!”

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 (P860-61)

Easement-by-Implication: Notice Need notice to bind subsequent purchasers of servient tenement • Actual Notice (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 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: Notice • Subsequent Purchasers of Servient Estate • In theory, also need notice to bind. • Court finding the easement necessaryprobably 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: Termination • Both: Can Terminate like other Easements (Agreement; Abandonment; Adv. Poss., etc.) • 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

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)

Easement-by-Implication Williams Island: Path from 13th 14th Holes • One parcel is split in two (Undisputed) • Prior Use (Undisputed) • Intent to continue prior use: 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)

Easement-by-Implication 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

Easement-by-Implication Williams 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

Easement-by-Implication 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 • Actual: Buyer’s Rep Told 4 mos. Before Closing • Inquiry: Established Regular Use

Easement-by-Implication 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

Easement-by-Necessity: DuPont • 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

Easement-by-Necessity: DuPont Possible Implied Easements? • 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

PROPERTY E SLIDES