1. PROBLEM A Santa-acre and Elfacre are neighboring parcels of land. S is adjacent to a garbage dump. E is a big lot containing a small cottage. The owners agree that: E’s owners shall have the right to cross S to dump garbage in the adjacent garbage dump. Later, E’s owners tear down the cottage and put up a toy factory, which produces seven times the garbage that the cottage did. Discuss whether they can use the right of way to dump the factory’s garbage.

2. Reasonable considering terms of grant ? Santa-acre and Elfacre are neighboring parcels of land. S is adjacent to a garbage dump. E is a big lot containing a small cottage. The owners agree that: E’s owners shall have the right to cross S to dump garbage in the adjacent garbage dump. Later, E’s owners tear down the cottage and put up a toy factory, which produces seven times the garbage that the cottage did. Discuss whether they can use the right of way to dump the factory’s garbage.

3. Evolutionary not revolutionary change allowed? Santa-acre and Elfacre are neighboring parcels of land. S is adjacent to a garbage dump. E is a big lot containing a small cottage. The owners agree that: E’s owners shall have the right to cross S to dump garbage in the adjacent garbage dump. Later, E’s owners tear down the cottage and put up a toy factory, which produces seven times the garbage that the cottage did. Discuss whether they can use the right of way to dump the factory’s garbage.

4. Greater burden than contemplated by parties? Santa-acre and Elfacre are neighboring parcels of land. S is adjacent to a garbage dump. E is a big lot containing a small cottage. The owners agree that: E’s owners shall have the right to cross S to dump garbage in the adjacent garbage dump. Later, E’s owners tear down the cottage and put up a toy factory, which produces seven times the garbage that the cottage did. Discuss whether they can use the right of way to dump the factory’s garbage.

5. Problem A: Possible Concerns 1.Want precision in language: punish Santa for not specifying limits 2.Want people to bargain fairly 3.Check unequal bargaining power 4.Check who drafted

6. Problem A: Possible Concerns 1.Want precision in language 2.Want people to bargain fairly: punish elves if hid intent to expand factory 3.Check unequal bargaining power 4.Check who drafted

7. Problem A: Possible Concerns 1.Want precision in language 2.Want people to bargain fairly 3.Check unequal bargaining power A.Santa, Inc. v. little elves Keebler Cookies & Toys Int’l B.Old man v. Keebler Cookies & Toys Int’l 4.Check who drafted

8. Problem A: Possible Concerns 1.Want precision in language 2.Want people to bargain fairly 3.Check unequal bargaining power 4.Check who drafted: construe against the drafter

9. Problem B Mike gets poor TV reception b/c of valley location Debbie owns neighboring ranch above M’s land 1962 Agreement: “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow television reception for that property.” Antenna installed; reception still not good; cable unavailable 2007: M wants to put a satellite dish where antenna is now, but D objects.

10. Arguments from Marcus Cable? Mike gets poor TV reception b/c of valley location Debbie owns neighboring ranch above M’s land 1962 Agreement: “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow television reception for that property.” Antenna installed; reception still not good; cable unavailable 2007: M wants to put a satellite dish where antenna is now, but D objects.

11. Arguments from Chevy Chase? Mike gets poor TV reception b/c of valley location Debbie owns neighboring ranch above M’s land 1962 Agreement: “[Owner of M’s land] may place and maintain an antenna onto [Debbie’s] barn and run wires from the antenna to [M’s land] to allow television reception for that property.” Antenna installed; reception still not good; cable unavailable 2007: M wants to put a satellite dish where antenna is now, but D objects.

12. Thoughts on Dupont Bad facts for servient owners: their own story is revoking license after 14 years If Whiteside’s version of facts is true, good case for easement by estoppel: –Purchasing land & building expensive house = detrimental reliance –Duponts building road prior to closing probably makes reliance reasonable No easement by implicaton (no prior use) No easement by prescription (permission)

13. Thoughts on Dupont Easement by Necessity Tricky Road to Southern part of lot when purchased, so lot as a whole is not landlocked House on Northern part not built when purchased, so no necessity for enjoyment Would have to view as two separate parcels divided by water with no access between them to get E-mt by Nec. to Northern part What if road crossing wetlands easy in 1981?

14. EASEMENTS BY PRESCRIPTION continued still featuring TEMPTATIONS

15. EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY Note 2: What is the significance of the following presumptions? 1.Continuous use for AP Period presumed Adverse (MacDonald) 2.Public recreational use presumed Permissive (Lyons) 3.Shared use with the owner (e.g., of a driveway) presumed Permissive (Texas)

16. EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY Presumptions frequently decide cases because hard to disprove. Policy Q: What do you do with case like MacDonald or Dupont where use continues for a long time and then servient owner says no? (plausible to say permissive) Could create hybrid of prescription & estoppel: if use goes on long enough, can’t change your mind.

17. EASEMENTS BY PRESCRIPTION ELEMENTS: OPEN & NOTORIOUS DQ111. Evidence of “open and notorious”: MacDonald Properties requires actual notice; other states do not. Is it a good idea to do so? Can a claim of prescriptive easement with regard to underground utilities like sewer pipes ever be open and notorious?

18. EASEMENTS BY PRESCRIPTION: POLICY QUESTIONS DQ112. “The best justifications for granting an implied easement are reliance and need. Thus, if claimants cannot meet the elements of an Easement by Estoppel or of an Easement by Necessity, they should not be able to get a Prescriptive Easement unless they pay market value for it.” Do you agree?

19. EASEMENTS BY PRESCRIPTION: POLICY QUESTIONS Note 6: Should there be prescriptive rights to commit nuisance? (Any reason not to let statute of limitations operate as it does for trespass?) Note 8: Pros & Cons of different legal approaches to public beach access? (for you)

20. Introduction to Promissory Servitudes

21. Contracts Regarding Land that Bind Subsequent Owners Origins in Landlord-Tenant Law: Bind Assignees to Terms of Lease Modern Neighbors: Many Agreements Not Worth Much Unless Binding Refer to Ageements that Bind as “Running with the Land”

22. Common Law Disfavored, So Strict Technical Elements Over time, easier and easier to do Short essays on historic development in readings

23. Major Categories are Causes of Action, Not Things Is agreement “enforceable as a real covenant”? (= can you get damages) Is agreement “enforceable as an equitable servitude”? (= can you get injunction) Agreement can be enforceable as both Very difficult to ensure at time of agreement that it will be enforceable later as either.

24. BASIC ELEMENTS REAL COVENANT Intent to Bind Successors Touch & Concern [Notice] Privity EQUITABLE SERVITUDE Intent to Bind Successors Touch & Concern Notice

25. Touch & Concern Begins as literal requirement re physical connection to land Evolves into less and less literal test Today often replaced by reasonableness tests We’ll look at Friday in detail

26. PRIVITY: See Chart P894 Privity = sufficient legal conection between party trying to enforce original promise & party who would have to conform to it Horizontal privity = connection between original parties to the agreement Vertical privity = connection between original party and current party to dispute Need to memorize relationships that qualify

27. NOTICE (of Conflicting Property Rights) Actual Notice: Fact Question Constructive Notice: Generally Legal Q –Record Notice (from public records) –Inquiry Notice (facts suggesting conflicting interest)

28. NOTICE & THE RECORDING SYSTEM

29. Operation of the Recording System Every jurisd. in US has recording office If a real property interest is transferred, normally record document –Deeds, Mortgages, Easements –Court judgments; lis pendens etc. Clerks of court: blind recipients w date stamps County keeps documents & notes in indexes

30. Purposes of Recording System Provides public record of land titles: gov’t knows who is responsible Secures copies of important documents Provides notice to subsequent buyers –Can see chain of title of seller –Can see non-ownership interests (e.g., easements, other servitudes) –Gives grantees incentive to record

31. Recording Acts: Problem Addressed Transfer of Interest in Same Property to Two Different Grantees(O  A, O  B) –Can be resale of whole parcel –More frequently, transfer of partial interest (e.g., easement or mineral rights) that conflicts with later transfer of complete interest O liable for fraud or breach of warranty –A v. B: who gets lawsuit & who gets ppty rt? –Common law answer: 1 st in time = 1 st in Right

32. Recording Acts: Operation Recording has no effect on rights of parties to original transaction as betw. themselves: –Unrecorded O  A deed still valid –O can’t defend suit by A by saying “unrecorded” Protects buyers who record against other transferees –Often yields different results than 1 st in time –Most jurisdictions protect later BFP for value against unrecorded interests

33. BFP for VALUE: Definitions Bona Fide Purchaser = good faith No notice of prior transaction Status is specific to one prior transaction Can only be true of later player What is value? (jurisdiction specific) donees, heirs, devisees usually not prot’d split re amount of consideration needed

34. 3 Kinds of Recording Acts 1.Race 2.Notice 3.Race-Notice

35. 3 Kinds of Recording Acts 1.Race –1 st to Record Wins –N.C. + La. + Del. for all interests –Some others for some specific interests 2.Notice 3.Race-Notice

36. 3 Kinds of Recording Acts 1.Race 2.Notice –Protects BFP for Value ag. Prior unrecorded interests regardless of when or if BFP records –About half the states (e.g. TX + FL) 3.Race-Notice

37. 3 Kinds of Recording Acts 1.Race 2.Notice 3.Race-Notice –Protects BFP for Value ag. prior unrecorded interests only if BFP records 1st –About half the states (e.g. NY + CA)

38. DQ113: Situation 1 O  A O  B (BFP) B records [O  B deed] A records [O  A deed] WHO WINS IN …? RACE: NOTICE: RACE-NOTICE:

39. DQ113: Situation 1 O  A O  B (BFP) B records [O  B deed] A records [O  A deed] WHO WINS IN …? RACE: B NOTICE: B RACE-NOTICE: B

40. DQ113: Situation 2 O  A A records O  B B records WHO WINS IN …? RACE: NOTICE: RACE-NOTICE:

41. DQ113: Situation 2 O  A A records O  B B records WHO WINS IN …? RACE: A NOTICE: A RACE-NOTICE: A

42. Moral of Situations 1 & 2: If you record immediately, you are always in the best position possible.

43. DQ113: Situation 3 O  A O  B (NOT BFP) B records A records WHO WINS IN …? RACE: NOTICE: RACE-NOTICE:

44. DQ113: Situation 3 O  A O  B (NOT BFP) B records A records WHO WINS IN …? RACE: B NOTICE: A RACE-NOTICE: A RACE STATUTE: PROTECTS BAD FAITH PURCHASER WHO RECORDS FIRST

45. DQ113: Situation 4 O  A O  B (BFP) A records B records WHO WINS IN …? RACE: NOTICE: RACE-NOTICE:

46. DQ113: Situation 4 O  A O  B (BFP) A records B records WHO WINS IN …? RACE: A NOTICE: B RACE-NOTICE: A NOTICE STATUTE: PROTECTS BFP EVEN IF DOESN’T RECORD FIRST