PROPERTY F Fall 2007
Information Memo #11: Chapter Seven: Servitudes
TABLE OF CONTENTS
(A) Coverage Overview
(B) List of Relevant Old Exam Questions
(C) Student Questions & My Responses
(D) Review Problems: Comments & Best Answers
(A) Coverage Overview
1. Easements
a. Basic Terminology & Distinctions
b. Express Easements
i) Distinguishing Easements from Fees
ii) Determining Scope of Easements
A) Black letter Tests
B) Cases: Positive Easements (Chevy Chase; Marcus Cable)
C) Case: Negative Easements (Petersen)
c. Implied Easements: Doctrine & Policy
i) Easements by Estoppel (Stoner)
ii) Easements by Implication (Williams Island Country Club)
iii) Easements by Necessity (Dupont)
iv) Prescriptive Easements (MacDonald Properties; Lyons)
2. Promissory Servitudes
a. Traditional Elements: Doctrine & Policy (Runyon)
b. Variations on Touch & Concern: Davidson Bros.
c. Common Schemes: Proof & Consequences (Schovee)
d. Common Interest Communities
i) Basic Operation
ii) Substantive Limits on Restrictions: Range of Approaches
A) Touch & Concern
B) Nahrstedt majority & dissent
C) State Statutes
3. The Recording System
a. Basic Operation of Grantor-Grantee Indexes
b. Operation of 3 Kinds of Statutes in Basic Scenarios (See S150)
c. Shelter Rule
d. Actual, Inquiry and Record Notice
(B) List of Relevant Old Exam Questions
Express Easements: 1A 1J 1L 1M 4D 4X 4Y
Implied Easements: 1A 1J 1M 3J 4B 4E 4W 4Y
Promissory Servitudes: 4D 4E 4N 4X
Homeowners’ Associations: 1G 3I 3O 3P 4X
Recording Acts: 4B 4N 4R 4X 4Y (Note that some of these have Recording Act issues more complex than anything we covered: 4Y is one that is do-able for you)
(C) Student Questions & My Responses
(1) Recording Acts
Q: Is the relevant time to determine when a subsequent purchaser has notice the time of the sale or the time she records?
A: The time of sale. You examine all three kinds of notice as of the time of closing. Information gained subsequently is not relevant. Otherwise, any earlier purchaser who recorded first would win, which is not true in a notice jurisdiction. Moreover, you can be a BFP without recording at all.
Q: What do you do if both purchasers are BFPs?
A: Generally speaking, this cannot happen. BFP means without notice of an earlier transaction. That means the first purchaser is never a BFP because there is no earlier transaction. The issue in cases where notice matters is whether or not the second purchaser is a BFP. To look at the issue another way, keep in mind that the first purchaser will always prevail unless the second purchaser meets the requirements of the relevant recording act. So in order for the second purchaser to prevail in a notice or race-notice jurisdiction, he will have to show that he is a BFP and the first purchaser will have to try to show that the second purchaser had notice.
(2) Express Easements
Q: In terms of defining the scope of an easement, what is the relationship between the parties’ intent and objective evidence of their intent and the black letter tests for the scope of an easement ?
A: The three black letter tests are each formulations the states have used to get at the question of whether the challenged use of the easement is within the parties’ intent. Thus, discussions relating to evidence of the parties’ intent is probably relevant when applying any of the three tests although each test places the focus of the analysis a little bit differently from the others.
· “Use must be reasonable considering the terms of the grant” suggests that you begin with the language of the grant, which is usually seen as the best evidence of intent.
· “Evolutionary not revolutionary” focuses on the extent and nature of the change in use, but whether a change is revolutionary will turn in part on what the parties understood when they entered the agreement.
· “The burden must not be significantly greater than that contemplated by parties” suggests comparing the burdens on the servient estate from the challenged use to the burdens intended by the parties.
Q: Suppose a property owner had a negative light easement (like Brian in old exam question 4X), with which a neighbor clearly failed to comply for a long period of time. In the supplementary materials, you note that "use of the servient tenement for the adv. pos. period in a manner inconsistent with the easement" can terminate the easement. Is this really like a reverse easement by prescription problem (allowing the servient estate to "undo" a negative easement, and create an easement of its own, e.g. the right to grow trees over a neighbor's land)? Or, does this involve a more serious AP claim, wherein the servient estate property owner could actually win title to the land?
A: You need to keep separate two issues:
(i) Trees blocking sunlight to the servient estate (interfering with the right protected by the easement) v.
(ii) Trees encroaching over the boundary line (interfering with the right to exclude)
Note that each issue could be resolved without fixing the other: you could cut trees back to the line, fixing (ii), but they still could be tall enough to block sunlight; you could trim the trees so that they didn’t block sunlight more than 20’ from the property line, but leave part of the trees encroaching.
Importance of this is that undoing the negative easement has legally nothing to do with the creation of any AP or prescriptive easement that might be occurring because the trees are trespassing.
To the extent that you want to try to undo a negative easement through adverse possession, you’d have to do something that blocked the sunlight for the adverse possession period. Here, the blockage isn’t total, so I suspect it wouldn’t count (or at least not for areas where some sunlight has gotten through in the last 12 yrs). Normally, blocking the sunlight would not give you any rights to the dominant estate at all; it would just end the easement. The question of whether the encroachment here gives any kind of prescriptive rights is thus completely separate.
Q: I'm also having a difficult time (also in the context of Question 4X) differentiating between a negative covenant that runs with the land (e.g. forbidding a neighbor from allowing tree branches to intrude onto neighboring property beyond 20 feet), and a negative easement.. What is the difference?
A: Again, the easement in Question 4X had nothing to do with intruding tree branches; trees could intrude over the property line so long as they didn’t block the sunlight beyond the 20 foot line and couldn’t block the sunlight even if they didn’t cross the property line.
But assuming there was a negative covenant requiring the trees be trimmed to a certain height, which might have the same effects on the sunlight: difference is the scope of the right. If dominant estate is just protected by the tree-trimming covenant, servient owner could lawfully erect a 40-foot wall blocking all sunlight to the dominant estate for much of the day. The negative easement is much more powerful, because it prohibits any interference with sunlight, not just one particular interference.
(3) Implied Easements
Q: Are quasi-easements a necessary element of easements by implication?.
A: One element always required for EbyI is use of whatever constitutes the claimed easement prior to the division of the parcels. In some jurisdictions, this earlier use is called a "quasi-easement." So the prior use is always required, but this term is not always used.
Q: Are actual and inquiry notice both required for easements by implication? Is the apparent/visible/reasonably discoverable point part of the notice test?
A: Apparent/Visible/Reasonably Discoverable is a separate element in some jurisdictions and in others, it is merely evidence that is a part of the overall search for intent of the parties. "Notice" is not an element of EbyI, but some form of notice is needed to bind subsequent purchasers of the servient estate to the easement. Either actual or inquiry notice will do. [There is no situation anywhere that I know of that requires both.]
Q: I am having difficulty understanding the difference between easements by estoppel and easements by necessity/implication. They seem to have the same qualities to me!
A: Purposes & elements are different, although there can be some overlap in relevant evidence and sometimes same circumstances can create more than one type of implied easement.
EbyI: Arises from evidence when there's a split in one parcel that the parties must have intended prior use to continue.
EbyN: Arises when there's a split in one parcel that results in one of the resulting lots being landlocked.
EbyE: Arises from detrimental reliance on apparent permission from owner of servient estate.
· Unlike EbyI & EbyN, no need to show one parcel split in two for EbyE.
· Also unlike EbyI or EbyN, need to show for EbyE that owner of servient estate expressly or impliedly gave permission for use to begin.
Note that evidence of extent of necessity is relevant to all of them For EbyE, evidence of necessity is used to show that dominant estate-holder really was relying on the use of the easement.
Q: You mentioned in class [in 2003] that the cases on easements-by-estoppel illustrate the tension that exists between the desire to have a clear set of rules and focusing on wrong-doers and holding them to their word. Is this similar to the tension between the desire to have a clear set of rules and allowing people freedom to contract? How is this tension reflected elsewhere in the course?
A: Both are examples of the common tension between certainty and flexibility. Allowing easements-by-estoppel increases uncertainty because it is very difficult for either landowner to know for sure when the easement has come into being and because subsequent purchasers of either parcel will have trouble determining whether the easement exists unless the dominant owner has litigated the case and recorded the judgment. However, allowing these easements also allows a court to hold the owner of the servient tenement responsible for acting in a way that caused detrimental reliance, arguably achieving justice although sacrificing certainty.
A similar trade-off exists in the vast majority of states that choose to incorporate notice into their recording acts. Although a race statute maximizes the certainty in the system, it allows knowing wrongdoers (those with actual notice) to have priority over innocent parties. Race statutes also disadvantage unsophisticated homeowners, who may not know they need to record but will be protected by the inquiry notice rules in other jurisdictions.
Another example is the choice about how strictly to enforce variance standards. Obviously, a municipality would maximize certainty by allowing no exceptions to its enacted zoning rules. The more you try to achieve justice in individual cases by allowing variances, the less certain the system becomes. However, a strict interpretation of variance rules may result in needless adherence to insignificant rules (see Aronson).
Q: If a parcel is landlocked by three parcels,how do you decide where to place the easement by necessity?
A: An easement by necessity only can arise when a landlocked portion of a larger parcel is split off to become a separate lot. Most frequently, when the split occurs, the result is just two parcels, the landlocked parcel and the remaining piece with outside access. In that case, the easement by necessity is placed over the remaining piece of the original lot, even though other parcels typically adjoin the landlocked parcel as well. This is true even when the easiest route out of the landlocked parcel is not across the remaining piece. The idea seems to be that, at the time of the split, the owner of the remaining piece should have understood that the landlocked parcel would need a way out.
In a few instances, the landlocked parcel is created by a subdivision of the original piece of land into three or more lots and there are plausible access routes across two or more of the remaining pieces. In those cases, you’d have to argue about the best way to place the easement. If I were one of the lawyers, I might suggest that the court choose the access route that caused the least harm to the servient parcel and that the owners of the other remaining parcels contribute land or money to the servient tenement owner to make up for that owner taking on the burden of the easement.
Q: On old exam question 4X, wouldn't a better cause of action for Craig be an easement by prescription for his trees (rather than outright AP)?
A: Easement by prescription would involve a use where the owner could continue to use the same space (so long as the owner doesn’t block the easement). In Question 4X, the trees are going to permanently exist in the space in question, so the owner could not use that space, and the claim would have to be for possession and not use.
Promissory Servitudes
Q: How do you distinguish easements from promissory servitudes?
A: Easements give you a right to use land owned by someone else. Promissory servitudes are rights others have to enforce promises you make to do something or refrain from doing something on your own land. The place where the line can be fuzzy is regarding negative easements, which give the dominant tenement holder a clear passage for sun, air or view to cross to him over the servient tenement. Generally speaking, if the burdened landholder has agreed to put nothing in the way, that creates a negative easement. If the burdened landholder agrees to keep one specific thing out of the way (e.g., trim tree; not build third story on house), then it will be a promissory servitude.