1. Music: Meat Loaf Bat Out of Hell (1977) NCAA CONTEST §IJ TOP TEN SCORES ROSADO BARRERAS54 GOTTFRIED50 FLOOD39 AINSWORTH37 EBLE37 GONZALEZ35 THOMPSON33 FICAROLA32 SIMEONIDIS32 HOROWITZ, E31 BOTTOM FIVE HOROWITZ, M9 LIEPOLD8 HOFFMAN7 CARLO6 HYMAN5 OTHER NOTABLES HILL36 FAJER20 LOWENTHAL10

2. Easements by Implication & Necessity: CONTINUED Featuring FALCONS (and a guinea pig)

3. EASEMENTS BY NECESSITY : NOTICE In theory, also need notice to bind Court finding the easement necessary unlikely to find lack of notice.

4. Williams Island & Elements One parcel is split & Prior use (Undisputed) Intent to continue prior use: Evidence?

5. Williams Island & Elements One parcel is split & Prior use (Undisputed) Intent to continue prior use: Evidence? –Testimony –References to “Easements” in Deed –Overall Circumstances Apparent, visible or reasonably discoverable?

6. Williams Island & Elements One parcel is split/ Prior use (Undisputed) Intent to continue prior use Apparent, visible or reasonably discoverable Necessity: Court says yes; we’ll do later Notice to Subsequent Purchasers?

7. Williams Island & Elements Notice to Subsequent Purchasers? –Court says both Actual & Inquiry Unusually good evidence of both intent & notice

8. Necessity Requirement EASEMENTS BY IMPLICATION: Usually reasonable necessity Some states: strict necessity if implied by reservation (Florida not) EASEMENTS BY NECESSITY: Most states: strict necessity

9. 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 Original owner sells West, retains East = by Reservation Original Owner Simultaneously Sells Both to Different People = by Grant

10. Questions on Necessity Note 3: Was there “reasonable necessity” in Williams Island? Alternatives (from note 1 on P853): –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

11. Questions on Necessity “Reasonable necessity” in Williams Island Lawyering Task: Other Possible Alternatives?

12. Questions on Necessity Note 3: Should lack of access to utilities meet the strict necessity test?

13. Questions on Necessity Is the majority’s analysis of necessity in Dupont more convincing than that of the dissent? –Access available to Southern part + possibility of road across wetlands (v.) –Getting road built across wetlands costs time, $$, and conservation easement (giving up use of some of land)

14. Thoughts on Dupont: Confusing on Necessity Standards in Florida Fl. Stat. §704.01(1): “reasonably necessary”; “reasonable & practicable” –§704.03: “practicable” means w/o use of “bridge, ferry, turnpike road, embankment or substantial fill.” Tortoise Island (Fla Supr Ct): “absolute necessity” Hunter (1 st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property”

15. Thoughts on Dupont: Confusing on Necessity Standards in Florida Fl. Stat. §704.01(1): “reasonably necessary”; “reasonable & practicable” –§704.03: “practicable” means w/o use of “bridge, ferry, turnpike road, embankment or substantial fill.” Tortoise Island (Fla. S.Ct.): “absolute necessity” Hunter (1 st DCA interpreting Tortoise Island): “no other reasonable mode of accessing the property” What would you have to show to meet tests in “Sewage Pipe Hypo”?

16. Thoughts on Dupont No easement by implicaton (no prior use) No easement by prescription (permission) BUT bad facts for servient owners: their own story is revoking license after 14 years

17. Thoughts on Dupont If Whiteside’s version of facts is true, good case for easement by estoppel: –Purchasing land & building expensive house ($240,000 in 1981) = detrimental reliance –Duponts building road prior to closing probably makes reliance reasonable

18. Easements by Estoppel Terminology in DuPont Court says can’t have easement w/o writing Allows possibility of “irrevocable license” Really means same thing as Easement by Estoppel

19. Thoughts on Dupont: Easement by Necessity Tricky Road to Southern part of lot existed 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 essentially as two separate parcels divided by water with no access between them to get E-by-N to Northern part What if road crossing wetlands easy in 1981?

20. A Little More Doctrine Easements by Necessity end when the necessity ends; Easements by Implication do not (because based entirely in intent) Courts almost always hold that negative easements can’t be implied by implication or by necessity. Penn. case cited in Note 4 is very rare in even considering. Some states have private condemnation statutes like those described in Note 8.

21. Note 8 Suppose a state uses its eminent domain power to condemn easements to provide access to landlocked parcels and has the owner of the landlocked parcel pay for the easement. Does this use of Eminent Domain meet the public use requirement? This Q became Review Problem 2C (Opinion/Dissent Fall 2007)

22. EASEMENTS BY PRESCRIPTION featuring EAGLES

23. EASEMENTS BY PRESCRIPTION DQ115. To what extent do the following rationales for adv. possession also support the doctrine of Prescriptive Easements? (a) reward beneficial use of land (b) punish sleeping owners (c) recognize psychic connection to land (d) protect people and legal system from being burdened with “stale” claims

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

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

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

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

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

29. 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 Pipe Hypo” ever be open and notorious?

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

31. 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

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

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

34. 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?

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

36. 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)

37. 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)

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

39. 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.

40. 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?

41. NOTICE & THE RECORDING SYSTEM

42. 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)

43. 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

44. 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

45. 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

46. 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

47. 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”

48. 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

49. 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

50. 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

51. 3 Kinds of Recording Acts 1.Race 2.Notice 3.Race-Notice

52. 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

53. 3 Kinds of Recording Acts 1.Race 2.Notice –Protects BFP for Value against prior unrecorded interests regardless of when or if BFP records –About half the states (e.g. TX + FL) 3.Race-Notice

54. 3 Kinds of Recording Acts 1.Race 2.Notice 3.Race-Notice –Protects BFP for Value against prior unrecorded interests only if BFP records 1st –About half the states (e.g. NY + CA)

55. DQ119 featuring ALL

56. DQ119 featuring ALL (but mostly Eagles)

57. DQ119: Situation 1 O  A O  B (BFP) B records [O  B deed] A records [O  A deed] WHO WINS IN …? RACE: NOTICE: RACE-NOTICE:

58. DQ119: 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

59. DQ119: Situation 2 O  A A records O  B B records WHO WINS IN …? RACE: NOTICE: RACE-NOTICE:

60. DQ119: Situation 2 O  A A records O  B B records WHO WINS IN …? RACE: A NOTICE: A RACE-NOTICE: A

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

62. DQ119: Situation 3 O  A O  B (NOT BFP) B records A records WHO WINS IN …? RACE: NOTICE: RACE-NOTICE:

63. DQ119: Situation 3: RACE STATUTE: PROTECTS BAD FAITH PURCHASER WHO RECORDS FIRST O  A O  B (NOT BFP) B records A records WHO WINS IN …? RACE: B NOTICE: A RACE-NOTICE: A

64. DQ119: Situation 4 O  A O  B (BFP) A records B records WHO WINS IN …? RACE: NOTICE: RACE-NOTICE:

65. DQ119: Situation 4: NOTICE STATUTE: PROTECTS BFP EVEN IF DOESN’T RECORD FIRST O  A O  B (BFP) A records B records WHO WINS IN …? RACE: A NOTICE: B RACE-NOTICE: A