Cases White v. Brown Operative text: White to have my home to live in and not to be sold. My house is not to be sold Brown claimed life estate Holding: Granted fee simple absolute with invalid restraint on alienation (Flips common law rule Baker v. Weedon – Baker owns life estate, wants to sell land and put in trust to live on Remaindermen (grandkids) object claiming waste Holding: Property sold if (1) necessary and (2) in best interest of all parties Rule – Alienation of life estate in favor of life tenant is affirmative waste Woodrick v. Wood – Action to prevent barn being torn down Tear down would increase land value = not waste $3200 to Woodrick for value of barn to protect her interest Melms v. PBR – Life tenant can make substantial alterations to the property as long as it doesn’t diminish the value of the remainder/reversion Mahrenholz v. County Board of School Trustees Operative text: This land to be used for school purposes only; otherwise to revert to Grantors herein “only” = condition subsequent, “otherwise to revert” = determinable Holding: Grant is for fee simple determinable which cannot be transferred inter vivos, but can be inherited Result is that son sold property interest to Board NOTE: Important because either the son had the property interest through reversion or he had right of re-entry which couldn’t be transferred Mountain Brow Lodge v. Toscano Grant of land to Mountain Brow restricted use to benefit Mountain Brow only, reverts to grantor if not used for Mountain Brow or if attempt to sell Holding: Sale restriction is void, but use restriction is acceptable NOTE: Use restriction like this would have to be periodically recorded Dissent: Use restriction amounts to a restraint on alienation Falls City v. Missouri Pac. R. Co. – Invalid use restriction providing land must be used as company HQ which has the practical effect of restraining alienability by unreasonably limiting the class of person to whom it may be alienated Ink v. City of Canton – Land to be used only as a park Issue: Who gets proceeds from condemnation of defeasible fee? What is the value of a reversion/right of reentry/executory interest? Common law (Majority rule) – Reverter has no value Holding: Ink should get difference between fee simple determinable and fee simple absolute
Grantor-Grantee Index – Majority – separate alphabetical/chronological indices by surname NOTE: In grantor index, upon finding deed, search from year of execution not year of recording Tract Index – Indexing by parcel ID number – problematic if tracts are subdivided Example Statutes Notice Statute (FL) – No conveyance shall be good against subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to the law Race-Notice Statute (CA) – Every conveyance of real property is void against any subsequent purchaser in good faith whose conveyance if first duty recorded, and as against any judgment affecting the title, unless the conveyance shall have been duly recorded prior to the record of notice of action Easy Example Problems Fact Pattern OA OB no notice A records A v. B OA OB no notice B records A v. B OA OB no notice A records BC with notice A v. C OA O diesH HB no notice B records A v. B OA OB no notice A records AC no notice B records C records B v. C Common Law A wins A wins A wins A wins C wins Notice B wins B wins C wins (Shelter Rule) B wins C wins Race-Notice A wins B wins A wins B wins C wins Note: A is first to record an Tricky Example Problems and Case Rules Fact Pattern Messersmith v. Smith OA OB not notarized BC B records C records A records OA not notarized A records AC C records OB no notice & no title search B records B v. C OA OB BC C records A writes name on deed** A records B records A v. C OA OB with notice B records A records BC C records A v. C*** Common Law A wins C wins A wins A wins Notice XXXXXXXX B wins A wins Morse v. Curtis – C wins Woods v. Garnett – A wins Race-Notice A wins Improper notarizing can’t record C wins* A wins (C has a Wild Deed) A wins
Lick Mill Creek Apartments v. Chicago Title Insurance Co (CA) Land contamination requiring cleanup doesn’t affect marketability of title Different outcome if government had put a lien on the property Walker Rogge Inc. v. Chelsea Title and Guarantee Co. (NJ) Land purchased with price based on size of plot, survey was incorrect, Δ had a correct survey but didn’t mention it Without a recital of acreage in the title, or an agreement from Δ to run a title search, there is no duty regarding the records NUISANCE – Who is the best cost/nuisance avoider??? Rule – Private nuisance is an act or condition on Δ’s land that substantially and unreasonably interferes with the use and enjoyment of Π’s land Factors Extent and character of the harm Social value attached to Π’s use or enjoyment Social value the law attaches to Δ’s conduct and suitability of Δ’s activities to the character of the general locality Burden on Π to avoid the harm Did Π come to the nuisance? No nuisance for ugly shit Analysis Threshold – Under Coase it is a nuisance if the best cost-avoider caused it. What happens if court finds a nuisance? What happens if court does not find a nuisance? Which outcome will drive the more efficient solution? Note the 2-way monopoly Propose a rule Who has the burden and are they in the best position to avoid conflict? How easy is it to administrate? Was the user abnormally sensitive? Coase Theorem – As long as only economic interests are at stake, the legal rule won’t affect the outcome absent transaction costs Remedies – Balancing test using factors from above Abate activity and grant injunction (Morgan/Estancias) Intentional invasion – Liability when unreasonable Unintentional – Liability when negligent, reckless, or ultrahazardous Have Δ pay damages but allow activity to continue (Boomer) Let Δ continue and tell Π to fuck himself Abate the activity and have Π pay damages to Δ (Spur) CONSIDER EACH, WEIGHT BOTH SIDES
Common Law – Can’t reserve an easement for a stranger to the title Circumvent Common Law Rule Deed property to church, have church reserve easement Reserve easement in gross then assign to church Grant easement to church, then transfer land Holding: Common law rule gone, intent of grantor rules RTP §2.6(2) – Easement can be created in favor of 3rd parties NOTE: Majority still uses common law rule License – Permission to do something that is otherwise trespass – revocable Easement by Estoppel/Irrevocable License Holbrook v. Taylor – H gave T’s predecessor license to cut road on H’s land Elements Servient owner consents to dominant owner’s use Servient owners knows/should know dominant owner will materially change his position believing that permissive use would not be revoked owner substantially changes his position by investment in either the dominant or servient estate Subsequent purchaser is bound through inquiry notice RTP §2.10 – Investment in improvements in either estate may result in estoppel §4.1 cmt. g – Reasonable expectations creating the servitude define its scope. Easement by Necessity Elements Common owner severed property Necessity existed at the time of the severance (severance caused necessity) Othen v. Rosier Easement is strictly necessary for egress/ingress to parcel Not for convenience nor for reasonable necessity Only lasts as long as necessary Policy – An owner that buys a landlocked parcel would never do so knowingly Strict Necessity – NY/TX use strict, majority use reasonable necessity Schwab v. Timmons – No strict necessity when public road was available on foot down a steep cliff Weaver v. Cummins – Easement when access to land exists but is inadequate, difficult, or costly Othen v. Rosier (TX) – Hill owned parcells, sells, O using road on R’s land which R renders useless by flooding it Court indicates that Hill owned land to north/south so necessity didn’t exist at severance Easement from Prior Use Elements
Common owner severed the property Use was in place, AND visible/apparent prior to severance (Quasi-easement) Includes anything discoverable by reasonable inspection (Van Sandt) Van Sandt v. Royster – Sewage in home from upstream. Lateral sewer easement. Quasi-easement – sewer burdened one part of O’s property for benefit of another part Apparent – If Π carefully inspects, modern plumbing had to drain somewhere Necessary – Plumbing is necessary for enjoyment of Δ’s home Easement by Prescription Elements Actual Use – Only affirmative easements Open and Notorious – Servient owner must have notice Hostile – Without permission ≠ Acquiescence. Permissive possession can become adverse if claimant acts beyond scope Continuous and uninterrupted – Consistent with reasonable easement holder Exclusive – Concurrent use with servient owner is consistent Minority – must be distinguishable from general public, landowner can’t use the property in a way that interferes with the easement For statutory period NOTE: Very hard to do with co-tenants, requires more than just ouster!!! Scope of Easements Intensity RTP §4.10 – Manner, frequency, and intensity may change over time to take advantage of new technology, and accommodate normal development of dominant. Cannot unreasonably damage servient estate or interfere w/ enjoyment. Consider how the easement was created in arguing for/against expansion Non-dominant Property Brown v. Voss – Dominant owner buys adjacent lot expanding his estate Liability rule vs. Property Rule Liability rule – Restricts dominant to single family home Holding: Extension of a parcel that enjoys an easement appurtenant is a misuse of the easement. Selection of a rule depends on the facts. Sterk: Is there a case for estoppel? Location – Servient owner can locate ex ante within reason Ex Post – Davis v. Bruk – Once fixed, need dominant owner permission RTP §4.8 cmt f – Servient owner can Δ at his expense if it doesn’t lessen utility of the easement, increase burden on dominant, or frustrate purpose of easement
Termination Terms of the Grant – Expiration date, etc. Purpose ends Merger – Easement owner buys servient estate Forfeiture for Misuse – Usually injunction, not forfeiture Release – Requires a writing Abandonment – More than mere non-use, must be unambiguous and identifiable act that is inconsistent with the easement use Preseault v. US – RR-Co abandons easement which gov. takes for “rails-to-trails” Rule – Without regard to documentation, RR acquires only the estate needed for its purposes almost always an easement Rule – Δ in scope almost never encompasses substantive Δ in use Rule – For abandonment, need acts by dominant conclusively and unequivocally manifesting present intent to relinquish or inconsistent w/ future use Policy – Protect subsequent purchasers who may see easement and see recorded instrument and assume it is part of purchase Estoppel – Dominant consents to use inconsistent with easement which he should know will result in servient owner materially changing position in reliance Prescription – Servient prevents use of easement for prescriptive period Recording Act – Subsequent purchaser takes without actual, constructive, or inquiry notice of the easement is not bound Eminent Domain – Government must pay damages to easement holder RTP §7.10 – Court may modify/terminate servitude if circumstances have changed COVENANTS AND SERVITUDES Running with the Land Tulk v. Moxhay – Eng. – Garden in square, servitude to maintain garden Equitable Servitude – Seek injunction, requires notice Real Covenant – Seek damages, requires privity BOTH require touch and concern Land from Common Owner – Notice Problem – Individuals buying from developer @ different times wouldn’t be able to sue each other to enforce covenants – CIRCUIT SPLIT Sanborn v. McLean – Gas station in residential neighborhood Inquiry Notice – Significant # of bound deeds; Uniformity of houses