PROBLEM 7B: MANGOS For Mike: Sonderling; Blankstein; J.Mason For Debbie: Hutzler; Milson; Tanner...

of 39 /39
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)

Embed Size (px)

Transcript of PROBLEM 7B: MANGOS For Mike: Sonderling; Blankstein; J.Mason For Debbie: Hutzler; Milson; Tanner...

  • PROBLEM 7B: MANGOSFor Mike: Sonderling; Blankstein; J.MasonFor Debbie: Hutzler; Milson; TannerJudges: Gottlieb; Leibowitz; Sarinsky Reserves: Dryer; Laufer; Salsburg; TanoMUSIC: Billy Joel, The Stranger (1977)

  • Problem 7BMike gets poor TV reception b/c of valley locationDebbie owns neighboring ranch above Ms land1962 Agreement: [Owner of Ms land] may place and maintain an antenna onto [Debbies] barn and run wires from the antenna to [Ms land] to allow television reception for that property.

  • Problem 7B1962 Agreement: [Owner of Ms land] may place and maintain an antenna onto [Debbies] barn and run wires from the antenna to [Ms land] to allow television reception for that property. Antenna installed; reception still not good; cable unavailable2007: M wants to put a satellite dish where antenna is now, but D objects.

  • Arguments from Marcus Cable?1962 Agreement: [Owner of Ms land] may place and maintain an antenna onto [Debbies] barn and run wires from the antenna to [Ms land] to allow television reception for that property.

  • Arguments from Chevy Chase?1962 Agreement: [Owner of Ms land] may place and maintain an antenna onto [Debbies] barn and run wires from the antenna to [Ms land] to allow television reception for that property.

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

  • EASEMENTS BY PRESCRIPTIONfeaturingFICUScontinued

  • EASEMENTS BY PRESCRIPTION115. 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 PRESCRIPTION115. To what extent do the following rationales for adverse possession also support the doctrine of Prescriptive Easements?(b) punish sleeping owners

  • EASEMENTS BY PRESCRIPTION115. 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 PRESCRIPTION115. 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 PRESCRIPTIONContinuous UseOpen & Notorious[Exclusive]Adverse/Hostile

  • EASEMENTS BY PRESCRIPTIONELEMENTS: CONTINUOUSEvidence in Macdonald?Evidence in Lyons?

  • EASEMENTS BY PRESCRIPTIONELEMENTS: CONTINUOUSNote that can be seasonal use like Adverse Possession (Ray)

  • EASEMENTS BY PRESCRIPTIONContinuous UseOpen & Notorious[Exclusive]Adverse/Hostile

  • EASEMENTS BY PRESCRIPTIONELEMENTS: OPEN & NOTORIOUSDQ117. Evidence of open and notorious:MacDonald actual notice; other states do not. Is it a good idea to do so?

  • EASEMENTS BY PRESCRIPTIONELEMENTS: OPEN & NOTORIOUSDQ117. 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 PRESCRIPTIONContinuous UseOpen & Notorious[Exclusive]Adverse/Hostile

  • EASEMENTS BY PRESCRIPTIONELEMENTS: EXCLUSIVEMany Jurisdictions Dont Require (Nature of Easement is Non-Exclusive Use)Some: Means Exclusive of Everyone but OwnerSome (TX): Shared w Owner Presumption of Permissive

  • EASEMENTS BY PRESCRIPTIONContinuous UseOpen & Notorious[Exclusive]Adverse/Hostile

  • EASEMENTS BY PRESCRIPTIONELEMENTS: ADVERSITYNote 2: What is the significance of the following presumptions?Continuous use for AP Period presumed adverse (MacDonald)

  • EASEMENTS BY PRESCRIPTIONELEMENTS: ADVERSITYNote 2: What is the significance of the following presumptions?Continuous use for AP Period presumed adverse (MacDonald). How do you disprove?

  • EASEMENTS BY PRESCRIPTIONELEMENTS: ADVERSITYNote 2: What is the significance of the following presumptions?2. Public recreational use presumed permissive (Lyons)

  • EASEMENTS BY PRESCRIPTIONELEMENTS: ADVERSITYNote 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 PRESCRIPTIONELEMENTS: ADVERSITYNote 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 PRESCRIPTIONELEMENTS: ADVERSITYPresumptions frequently decide cases because hard to disprove.

  • EASEMENTS BY PRESCRIPTIONELEMENTS: ADVERSITYPolicy 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, cant change your mind.

  • EASEMENTS BY PRESCRIPTION:POLICY QUESTIONSDQ118. 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 QUESTIONSNote 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 QuestionConstructive Notice: Generally Legal QRecord Notice (from public records)Inquiry Notice (facts suggesting conflicting interest)

  • Operation of the Recording SystemEvery jurisd. in US has recording officeIf a real property interest is transferred, normally record documentDeeds, Mortgages, EasementsCourt judgments; lis pendens etc.Clerks of court: blind recipients w date stampsCounty keeps documents & notes in indexes

  • Purposes of Recording SystemProvides public record of land titles: govt knows who is responsibleSecures copies of important documentsProvides notice to subsequent buyersCan see chain of title of sellerCan see non-ownership interests (e.g., easements, other servitudes)Gives grantees incentive to record

  • Recording Acts: Problem AddressedTransfer of Interest in Same Property to Two Different Grantees(OA, OB)Can be resale of whole parcelMore frequently, transfer of partial interest (e.g., easement or mineral rights) that conflicts with later transfer of complete interest

  • Recording Acts: Problem AddressedTransfer of Interest in Same Property to Two Different Grantees(OA, OB)O liable for fraud or breach of warrantyA v. B: who gets lawsuit & who gets ppty rt?Common law answer: 1st in time = 1st in Right

  • Recording Acts: OperationRecording has no effect on rights of parties to original transaction as betw. themselves: Unrecorded OA deed still validO cant defend suit by A by saying unrecorded

  • Recording Acts: OperationRecording 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 1st in timeMost jurisdictions protect later BFP for value against unrecorded interests

  • BFP for VALUE: DefinitionsBona Fide Purchaser = good faithNo notice of prior transactionStatus is specific to one prior transactionCan only be true of later player

  • BFP for VALUE: DefinitionsBona Fide Purchaser = good faithWhat is value? (jurisdiction specific)donees, heirs, devisees usually not protd split re amount of consideration needed

    ****************************