1. MUSIC: BACKSTREET BOYS MILLENIUM (1999)

2. Chapter 8: Servitudes 1.Easements a.Express (Positive & Negative) b.Implied (Positive Only) 2.Promissory Servitudes (Brief Intro) 3.Homeowner’s Associations

3. Negative Easements Express agreement not to use servient estate in any way that causes specific type of harm to dominant estate

4. Negative Easements Express agreement not to use servient estate in any way that causes specific type of harm to dominant estate Limited # of harms can be protected this way. – Access to Light & Air – Access to View – Unimpeded flow of artificial stream – Extra lateral or subjacent support Most forms essentially negative rights of way: path that cannot be impeded for light/view/ water to get to dom. estate across serv. estate

5. Negative Easements Agreement not to use servient estate in any way that causes specific type of harm to dominant estate Limited # of harms can be protected this way. Most forms essentially negative rights of way: path that cannot be impeded for light/view/ water to get to dominant estate across servient estate.

6. Negative Easements Petersen v. Friedman (Cal. App. 1958) D Placed TV Antenna Within Negative Easement for Light, Air & View

7. Negative Easements Petersen v. Friedman: D’s Arguments 1.D may have argued no such thing as a view easement in California. Court says weight of authority supports existence of view easements Need to check in each jurisdiction for list of recognized negative easements

8. Negative Easements Petersen v. Friedman: D’s Arguments 1.D may have argued no such thing as a view easement in California. 2.Parties could not have intended to ban TV antennas (in 1942 still unknown). Court says doesn’t matter; easement bans “any structure”; “any obstruction” Scope of negative easement is easy b/c anything violates. (E.g., 45-foot statue of Harry Potter)

9. Negative Easements Petersen v. Friedman: D’s Arguments 1.No such thing as view easement in Cal. 2.No intent to ban TV antennas 3.Antenna doesn’t violate easement b/c it doesn’t in fact block light & view. Court: Fact Q implicitly decided below.

10. Negative Easements DQ111: D’s Arguments (Petersen) 1.No such thing as view easement in Cal. 2.No intent to ban TV antennas 3.Antenna doesn’t in fact block light & view. 4.Potential argument: Burden much greater than contemplated by parties. – “Not TV” much more important than “Not Flagpole” – Pre-Cable Reception in SF iffy

11. Negative Easements DQ111: D’s Arguments (Petersen) 1.No such thing as view easement in Cal. 2.No intent to ban TV antennas 3.Antenna doesn’t in fact block light & view. 4.Potential argument: Burden much greater than contemplated by parties. – “Not TV” much more important than “Not Flagpole” – Pre-Cable Reception in SF iffy – BUT not that important in 1958 + cd renegotiate

12. Chapter 8: Servitudes 1.Easements a.Express (Positive & Negative) b.Implied (Positive Only) 2.Promissory Servitudes (Brief Intro) 3.Homeowner’s Associations

13. Implied Easements Four Types Easement by Estoppel (Implied from Reliance) Easement by Implication (Implied from Intent) Easement by Necessity (Implied from Public Policy) Easement by Prescription (≈ Adverse Possession

14. Implied Easements: Sewage Pipe Hypo Developer builds line of houses. Sewer pipes connecting houses to city sewer system pass under all other houses in line closer to sewers. No express easements created to allow passage of sewage from one lot through pipes on other lots.

15. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1

16. Implied Easements: Sewage Pipe Hypo Developer builds line of houses; sewer pipes connecting houses to city sewer system pass under all other houses in line closer to sewers. No express easements. When can owners of houses further from sewer system claim one or more types of implied easement for the flow of sewage through pipes under other lots? (Can have more than one on same facts.)

17. Easements by Estoppel LICENSE: Permission by owner for third party to use owner’s property. Generally, licenses are revocable. Examples: 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.

18. Easements by Estoppel An owner may be estopped from barring a 2d party access to the owner’s property (license may become irrevocable) where: 1.The owner apparently allows 2d party to use the property 2.2d party reasonably and detrimentally relies on this acquiescence

19. Easements by Estoppel DQ131: In Stoner, D relies on P’s promise to build ditch. Reasonable to rely on Oral Permission? P presumably aware of D’s expenditures v. Should get it in writing before spending Might explore more facts (nature of promise; extent of awareness of reliance, etc.)

20. Easements by Estoppel DQ131: In Stoner, D relies on P’s promise to build ditch. Detrimental Reliance (Easier) $7000 in 19 th Century to construct ditch Maybe other missed opportunities (e.g., alternate forms of irrigation now more expensive to install)

21. Implied Easements: Sewage Pipe Hypo Developer builds line of houses; sewer pipes connecting houses to city sewer system pass under all other houses in line closer to sewers. No express easements. When can owners of houses further from sewer system claim one or more types of implied easement for the flow of sewage through pipes under other lots? (Can have more than one on same facts.)

22. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1

23. Easements by Estoppel An owner may be estopped from barring a 2d party access to the owner’s property where: 1.The owner apparently allows 2d party to use the property 2.2d party reasonably and detrimentally relies on this acquiescence Sewage Pipe Hypothetical: Michael buys #2 w/o house (but with sewage pipe in place) from Joshua, owner of #1. M makes clear he will build a house on #2 and J doesn’t object to use of sewer until after house is complete. When is reliance reasonable & detrimental ?

24. Easements by Estoppel DQ132: Policy Arguments re Easements by Estoppel: Common Concerns include Doctrine undermines Statute of Frauds Claimants should make sure of legal rights before relying on mere license. BUT: Neighbors don’t typically commit all arrangements to signed writings (like border disputes in adv. poss.).

25. Easements by Estoppel DQ132 & Note 2: Should states allow Easements by Estoppel …? (policy Q for you) Whenever there’s reasonable and detrimental reliance (many states); Only after compensation paid (narrow set of cases); – OR– Never (Many states!)

26. Easements by Estoppel Note 3 (P851): Nelson v. AT&T: Easement contained in deed invalid b/c lack of formalities. D placed 32 poles & maintained for 30 years. Stronger or weaker case than Stoner for granting Easement by Estoppel? AT&T: Clearer that easement rather than license intended b/c explicit in writing & probs w deed after O signed BUT AT&T sophisticated party; should’ve known that deed was invalid & fixed Mass SCt holds no easement b/c AT&T shd have known easement not properly created (and so mere license)

27. Easements by Estoppel 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 useful? – So long as no cheap alternatives?

28. Easements by Estoppel 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 … In the hypo in Note 4: – House built in reliance on use of right of way, which created E-by-E. – House burns down. – Can it be rebuilt using that right of way?

29. Easements by Estoppel 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 in the hypo in Note 4: House built in reliance on E-by-E burns down. Can owner rebuild? See quote from Rerick (middle P849) Could read to allow right to rebuild May turn on evidence of nature of reliance – Return on investment w/o rebuilding? (insurance $) – Connection between safety and dilapidation

30. Easements by Estoppel Qs on Easements by Estoppel or Stoner?

31. Easements by Implication & Necessity Both Arise from Split of Larger Parcel – E-by-I: Parties Intend that Prior Existing Use Should Continue – E-by-N: Split Creates Landlocked Parcel Needing Access Same Facts Can Give Rise to Both

32. EASEMENTS BY NECESSITY : 1.One parcel is split in two 2.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). 3.At time parcels split, access necessary to enjoyment of landlocked parcel

33. EASEMENTS BY NECESSITY : 1.One parcel is split in two 2.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). 3.At time parcels split, access necessary to enjoyment of landlocked parcel Sewage System Hypo: Claimant buys house #6 new from owner of #5; sewer lines unused but in place.

34. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1

35. EASEMENTS BY IMPLICATION: 1.One parcel is split in two 2.Prior Use of one part of parcel to benefit another part (“Quasi-Easement”) 3.Circumstances suggest parties intended to continue prior use after split NOTE: STATES VARY ON PRECISE FORMULATION

36. EASEMENTS BY IMPLICATION: 1.One parcel is split in two 2.Prior Use of one part of parcel to benefit another part (“Quasi-Easement”) 3.Circumstances suggest parties intended to continue prior use after split SEWAGE PIPE HYPO: David owns and uses houses on #5 and #6. He subsequently sells one of the two houses to Jeremy.

37. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1

38. EASEMENTS BY IMPLICATION: 1.One parcel is split in two 2.Prior Use (“Quasi-Easement”) 3.Intent to continue prior use 4.*Apparent, visible or reasonably discoverable 5.*Some degree of necessity * Some jurisdictions treat 4 & 5 as separate elements; some treat as evidence of intent

39. Easements by Implication & 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

40. Easements by Implication & NECESSITY Implied by Grant v. Implied by Reservation Some jurisdictions 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.”

41. EASEMENTS BY IMPLICATION: NOTICE Need notice to bind subsequent purchasers (not original parties to transaction) Actual Notice (Fact Q): Did buyer know about easement? Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask? Usually can’t be notice from records b/c implied easement.

42. EASEMENTS BY IMPLICATION: NOTICE Need notice to bind subsequent purchasers Actual Notice (Fact Q): Did buyer know about easement? Inquiry Notice (Legal Q): Sufficient info to create duty in reasonable buyer to ask? Application to “Sewage Pipe Hypo”: David owns and uses houses on #5 and #6. He subsequently sells #6 to Jeremy. David later sells #5 to Andrea. If J has an E-by-I., is A bound by it? What would be notice here?

43. SEWAGE PIPE HYPOTHETICAL: 65 4 3 2 1

44. EASEMENTS BY IMPLICATION: NOTICE Need notice to bind subsequent purchasers Application to “Sewage Pipe Hypo”: See Kirma (cited in Williams Island @ P854): underground pipes that crossed servient estate emerged at river bank where they emptied into river = Inquiry Notice

45. EASEMENTS BY NECESSITY : NOTICE In theory, also need notice to bind. Court finding the easement necessary unlikely to find lack of notice. (Courts sometimes stretch to find inquiry notice: should have been aware that pipes underground might connect, etc.)

46. Williams Island & the Elements of EASEMENTS BY IMPLICATION 1.One parcel is split in two (undisputed) 2.Prior Use (“Quasi-Easement”) (undisputed) 3.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 toeasement – References to “Easements” in Deed (but Not Specified) – Overall Circumstances (incl. continual use)

47. Williams Island & the Elements of EASEMENTS BY IMPLICATION 1.One parcel is split in two (undisputed) 2.Prior Use (“Quasi-Easement”) (undisputed) 3.Intent to continue prior use (good evidence) 4.Apparent, visible or reasonably discoverable? – Paved; 9 feet wide; “in constant use” + references in deed

48. Williams Island & the Elements of EASEMENTS BY IMPLICATION 1.One parcel is split in two (undisputed) 2.Prior Use (“Quasi-Easement”) (undisputed) 3.Intent to continue prior use (good evidence) 4.Apparent, visible or reasonably discoverable? 5.Necessity: Court says yes; we’ll do later 6.Notice to Subsequent Purchasers?: Actual: Buyer’s Rep Told 4 mos. Before Closing Inquiry: Established Regular Use

49. Williams Island & the Elements of EASEMENTS BY IMPLICATION 1.One parcel is split in two (undisputed) 2.Prior Use (“Quasi-Easement”) (undisputed) 3.Intent to continue prior use (good evidence) 4.Apparent, visible or reasonably discoverable? 5.Necessity: Court says yes; we’ll do later 6.Notice: Both Actual & Inquiry Unusually good evidence of both intent & notice.

50. Easements by Implication & Necessity Necessity Requirement EASEMENTS BY IMPLICATION: Usually reasonable necessity required Some states (not FL): strict necessity required if implied by reservation EASEMENTS BY NECESSITY: Most states: strict necessity

51. Easements by Implication & Necessity Necessity Requirement N.3: “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 Ct. (P852): “No practical or safe alternative route”

52. Easements by Implication & Necessity Necessity Requirement N. 3: “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 Lawyering Task: Other Possible Alternatives?

53. Easements by Implication & Necessity Necessity Requirement Note 3: Should lack of access to utilities meet the strict necessity test? Not landlocked or worthless & usually possible to get utility service at some expense BUT can’t use for many purposes without new expensive utility connection PLUS Very inefficient to reroute utility service if existing pipes or wires (cf. Marcus Cable)

54. Easements by Implication & Necessity Necessity Requirement 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)

55. Easements by Implication & Necessity Necessity Requirement Thoughts on Dupont: FL Necessity Standards Confusing 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”

56. Easements by Implication & Necessity Necessity Requirement Thoughts on Dupont: FL Necessity Standards Confusing Fl. Stat. §704.01(1): “reasonably necessary”; “reasonable & practicable” (“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” What would you have to show to meet tests in “ Sewage Pipe Hypo”?

57. 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

58. 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 (sellers) building road prior to closing on sale of land probably makes reliance reasonable

59. Thoughts on Dupont: Terminology Court says can’t have easement w/o writing Allows possibility of “irrevocable license” Really means same thing as Easement by Estoppel

60. Thoughts on Dupont: E-by-N Tricky Road to Southern part of lot existed in 1981 when purchased, so lot as a whole was not landlocked House on Northern part not built when purchased, so no necessity for enjoyment in 1981 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?

61. Easements by Implication & Necessity A Little More Doctrine E-by-N end when the necessity ends; E-by-I do not (based in intent; necessity really is just evidence of intent) Courts almost always hold that negative easements can’t be created by implication or by necessity. Penn. case in N.4 is very rare in even considering. Some states have private condemnation statutes like those described in Note 8 to address situations that might give rise to E-by-N.

62. Easements by Implication & Necessity Qs on Easements by Implication or by Necessity?