Introduction to Easements Prof. David Glazier Feb 20, 2007 PropertyProperty

Today’s Class Basic Terminology Easement Example Express Easement Creation - Willard v. First Church of Christ Easements by Prescription and Estoppel - Holbrook v. Taylor

TerminologyTerminology Servitude : a right by which property owned by one person is subject to a specified use or enjoyment of another (Findlaw Legal Dictionary) Easement : an interest in land owned by another that entitles its holder to a specific limited use or enjoyment (Findlaw Legal Dictionary) [Restrictive] Covenant : [provision] in a deed or lease that restricts the free use or occupancy of property (Findlaw Legal Dictionary)

TerminologyTerminology Profit a prendre : 'prä-fet-ä-'prän-der right to enter another’s property and take a specific resource (e.g., oil, minerals, timber, or wild game) cf License : revocable permission to enter another’s property

Covenant Terminology Real Covenant: enforceable in a court of law Equitable Servitude : covenant enforceable in equity

Easement Terminology Affirmative : right to do something on the land of another Negative : right to forbid landowner from doing something on his own property Appurtenant : benefits owner of another specific parcel of land In Gross : benefits specific individual

Easement Terminology Dominant Estate : land benefiting from the easement Servient Estate : land burdened or restricted by the easement Appurtenant: In Gross:

Servitude Types 1.A gets right to enter B’s land 2.A gets right to take resource from B’s land 3.A gets right to enforce restriction on B’s land 4.A gets right to require something be done on B’s land 5.A gets right to require B to pay for facility upkeep

What do you need to know? Terminology Rules for each type of servitude - how created - by who/how are they enforced - how are they terminated - what they can/can’t accomplish Do not need to know: - history - theoretical foundations/relationships

Easement Hypothetical A B A to B: I’ll let you swim in my pool if.... B to A: X C Who gets to swim in A’s pool now?

Easement Hypothetical A B A to B: I’ll let you swim in my pool if.... B to A: X C Who gets to swim in A’s pool now?

Willard v. First Church of Christ, Scientist (Ca. 1972) The Facts First Church of Christ, Scientist, Pacifica 2218 Francisco Boulevard

Willard v. First Church of Christ, Scientist (Ca. 1972) Some Issues Raised by The FactsThe Facts Dealings between fiduciary and principal Sale of property not owned by seller Notice to Willard: - Actual? - Constructive? - Inquiry? First Church of Christ, Scientist, Pacifica 2218 Francisco Boulevard

Willard v. First Church of Christ, Scientist (Ca. 1972) What is the primary legal issue? How does court resolve it? Why?

Some More Terminology Reservation: deed conveying property to grantee “reserves” an interest to the grantor - Willard allowed reservation for 3 rd party - “Modern” but minority view Exception: deed conveys property “except” for easement - traditionally just notice of existing easement - now generally accepted form of creation

Willard v. First Church of Christ, Scientist (Ca. 1972) How could Genevieve have accomplished her noble goal without depending on the mercy of the California Supreme Court?

Willard v. First Church of Christ, Scientist Hypo Christian Scientists build new church nearby Sell existing building to Methodist Church - both have services Sunday at 10 Who gets to use the parking lot?

Holbrook v. Taylor (Ky. 1976) How can easements be created?

Holbrook v. Taylor (Ky. 1976) Requirements for easement by prescription?

Holbrook v. Taylor (Ky. 1976) What did court decide here?

Upcoming Reading No class or office hours 2/22 For next Tues, 2/27 Read Intro and Othen v. Rosier, pp Read Matthews v. Bay Head Improvement and n1 pp

Questions?