PROBLEM 7B: MANGOS For Mike: Sonderling; Blankstein; J.Mason For Debbie: Hutzler; Milson; Tanner Judges: Gottlieb; Leibowitz; Sarinsky Reserves: Dryer; Laufer; Salsburg; Tano MUSIC: Billy Joel, The Stranger (1977)

Problem 7B 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.”

Problem 7B 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.

Arguments from Marcus Cable? 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.”

Arguments from Chevy Chase? 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.”

PROBLEM 7B: POLICY Q What to do if increase in burden is negligible but not withing literal language of grant?

EASEMENTS BY PRESCRIPTION featuring FICUS continued

EASEMENTS BY PRESCRIPTION 115. To what extent do the following rationales for adverse possession also support the doctrine of Prescriptive Easements? (a) reward beneficial use of land

EASEMENTS BY PRESCRIPTION 115. To what extent do the following rationales for adverse possession also support the doctrine of Prescriptive Easements? (b) punish sleeping owners

EASEMENTS BY PRESCRIPTION 115. To what extent do the following rationales for adverse possession also support the doctrine of Prescriptive Easements? (c) recognize psychic connection to land

EASEMENTS BY PRESCRIPTION 115. To what extent do the following rationales for adverse possession also support the doctrine of Prescriptive Easements? (d) protect people and legal system from being burdened with “stale” claims

EASEMENTS BY PRESCRIPTION Continuous Use Open & Notorious [Exclusive] Adverse/Hostile

EASEMENTS BY PRESCRIPTION ELEMENTS: CONTINUOUS 1.Evidence in Macdonald? 2.Evidence in Lyons?

EASEMENTS BY PRESCRIPTION ELEMENTS: CONTINUOUS Note that can be seasonal use like Adverse Possession (Ray)

EASEMENTS BY PRESCRIPTION Continuous Use Open & Notorious [Exclusive] Adverse/Hostile

EASEMENTS BY PRESCRIPTION ELEMENTS: OPEN & NOTORIOUS DQ117. Evidence of “open and notorious”: MacDonald actual notice; other states do not. Is it a good idea to do so?

EASEMENTS BY PRESCRIPTION ELEMENTS: OPEN & NOTORIOUS DQ117. Evidence of “open and notorious”: Can a claim of prescriptive easement with regard to underground utilities like sewer pipes ever be open and notorious?

EASEMENTS BY PRESCRIPTION Continuous Use Open & Notorious [Exclusive] Adverse/Hostile

EASEMENTS BY PRESCRIPTION ELEMENTS: EXCLUSIVE Many Jurisdictions Don’t Require (Nature of Easement is Non-Exclusive Use) Some: Means Exclusive of Everyone but Owner Some (TX): Shared w Owner  Presumption of Permissive

EASEMENTS BY PRESCRIPTION Continuous Use Open & Notorious [Exclusive] Adverse/Hostile

EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY Note 2: What is the significance of the following presumptions? 1.Continuous use for AP Period presumed adverse (MacDonald)

EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY Note 2: What is the significance of the following presumptions? 1.Continuous use for AP Period presumed adverse (MacDonald). How do you disprove?

EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY Note 2: What is the significance of the following presumptions? 2. Public recreational use presumed permissive (Lyons)

EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY Note 2: What is the significance of the following presumptions? 2. Public recreational use presumed permissive (Lyons) v. Undeveloped land presumed permissive (Lyons Dissent)

EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY Note 2: What is the significance of the following presumptions? 3. Shared use with the owner (e.g., of a driveway) presumed permissive (Texas)

EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY Presumptions frequently decide cases because hard to disprove.

EASEMENTS BY PRESCRIPTION ELEMENTS: ADVERSITY 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.

EASEMENTS BY PRESCRIPTION: POLICY QUESTIONS DQ118. “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?

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?)

NOTICE & THE RECORDING SYSTEM

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)

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

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

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

Recording Acts: Problem Addressed Transfer of Interest in Same Property to Two Different Grantees(O  A, O  B) 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

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”

Recording Acts: Operation Recording has no effect on rights of parties to original transaction as betw. themselves : 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

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

BFP for VALUE: Definitions Bona Fide Purchaser = good faith What is value? (jurisdiction specific) donees, heirs, devisees usually not prot’d split re amount of consideration needed