McGuigan sells lot 19 to Peterson McGuigan sells lot 20 to - - PowerPoint PPT Presentation

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McGuigan sells lot 19 to Peterson McGuigan sells lot 20 to - - PowerPoint PPT Presentation

Mar 25, 2024 7 likes •302 views

Willard v. First Church of Christ, Scientist McGuigan owns lot 19 and 20 McGuigan sells lot 19 to Peterson McGuigan sells lot 20 to Peterson with following: subject to an easement for automobile parking during church

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SLIDE 1

Willard v. First Church of Christ, Scientist

  • McGuigan owns lot 19 and 20
  • McGuigan sells lot 19 to Peterson
  • McGuigan sells lot 20 to Peterson with following:
  • “subject to an easement for automobile parking

during church hours for the benefit of the church on the property at the southwest corner of the intersection of Hilton Way and Francisco Boulevard . . . such easement to run with the land only so long as property for whose benefit the easement is given is used for church purposes.”

  • Peterson sells lot 19 and 20 to Willard
  • Mentions church’s use, but specs. in deed for lot 20
  • Easements by Writing
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SLIDE 2

Easements – Characteristics

  • Affirmative or Negative
  • Affirmative – allows benefited to do

something on burden land

  • Negative – prevents something from

happening on burden land

  • Appurtenant or In Gross
  • Appurtenant – benefit tied to a benefited land
  • In Gross– benefit tied to individual
  • Dominant or Servient
  • Dominant – benefited land
  • Servient – burdened land
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SLIDE 3

Holbrook v. Taylor

  • Concerns a roadway – 10 to 12 feet wide, 250 feet long
  • Holbrook’s buys burdened property in 1942
  • Holbrook gives permission in 1944 to haul coal over

roadway – gets royalty for use

  • Mine closes in 1949
  • Taylor buys adjoining 3 acres in 1964
  • decide to build house in 1965
  • gets permission from Holbrook to use as haul road
  • house costs 25K
  • Taylor continues to use roadway to house
  • puts “red dog” down
  • makes improvements (widens it, adds culverts)
  • 1970 – Holbrook erects steel cable across roadway
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SLIDE 4

Easements by Estoppel

  • Start with License
  • Written or Oral?
  • Explicit or Implicit?
  • Improvement
  • Of what?
  • Need reliance?
  • On what?
  • Consent
  • Explicit or Implicit?
  • How long should it last?
  • Worry about the lack of a writing?
  • Fair there is no payment?
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SLIDE 5

Van Sandt v. Royster

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SLIDE 6

Van Sandt v. Royster

  • Implied Easement
  • Start with a “quasi easement”
  • one part of land benefits other
  • relationship must be
  • apparent
  • continuous
  • necessary
  • Creation once dominant and servient parts split
  • Does this have to happen by conveyance?
  • Do I need common ownership?
  • Any difference if its a grant or a reservation?
  • reservation need strict necessity
  • How long does it last?
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SLIDE 7

Van Sandt v. Royster

  • Implied Easement Under Restatement
  • For either implied easement approach, do we need

notice for future owners?

  • If so what kind?
  • Did Bailey provide “merchantable title” when selling

Lot 19 to Jones?

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SLIDE 8

Othen v. Roiser

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SLIDE 9

Othen v. Roiser

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SLIDE 10

Othen v. Roiser

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SLIDE 11

Othen v. Rosier

  • Easement by Necessity
  • unity of ownership initially and
  • necessity
  • at time of severance
  • How long does it last?
  • What is the difference between easement by necessity

and easement by implication?

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SLIDE 12

Easements by Prescription

  • 1. Actual Entry Giving Exclusive Use that is
  • 2. Open and Notorious,
  • 3. Adverse and Under Claim of Right, and
  • 4. Continuous for the Statutory Period
  • Theories to Disrupt Adversity (#3)
  • Lost Grant Theory
  • Interrupt or Stop Adverse Use
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SLIDE 13

Brown v. Voss 1952 easement granted across parcel A for "ingress to and egress from" to parcel B

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SLIDE 14

Negative Easements

  • 1. Against blocking windows
  • 2. Interfering with air flowing to your land in a

defined channel

  • 3. Removing lateral support
  • 4. Interfering with the flow of an artificial stream
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SLIDE 15

Covenants

  • Restrictive (Negative) v. Positive (Affirmative)
  • Restrictive – burdened promises to not act
  • Like a Negative Easement
  • Positive – burdened promises to act
  • A owner of Blackacre promises B, owner of

Whiteacre, that Blackacre shall not be used for industrial purposes

  • Horizontal Privity
  • privity of estate between original covenanting

parties

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SLIDE 16

Covenants (cont’d)

  • B transfers Blackacre to C
  • Vertical Privity
  • privity of estate between one of the covenanting

parties and a successor in interest

  • Is Either Privity Required for Covenant to Exist?
  • Horiztonal Privity
  • 1st Restatement – For Burden to Run
  • 3rd Restatement – Not Required for Either
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SLIDE 17

Covenants (cont’d)

  • Vertical Privity
  • 1st Restatement:
  • Burden – Must Succeed to Exact Same Estate

(duration)

  • Benefit – Any Estate, But Still Must have

Privity

  • 3rd Restatement:
  • No Privity Required
  • Prob. 1 – p. 851
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SLIDE 18

Tulk v. Moxhay

  • Tulk sells part of land to Elms
  • “that Elms, his heirs, and assigns should . . . keep and

maintain the said piece of ground and square garden . . . in sufficient and proper repair . . . and that it should be lawful for the inhabitants of Leicester Square . . . on payment of reasonable rent for the same, to have keys at their expense and the privilege

  • f admission . . . .”
  • Elms’s land eventually conveyed to Moxhay
  • Type of servitude(s)?
  • Privities? HP? VP?
  • Notice?
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SLIDE 19

Equitable Servitude

  • A covenant enforced in equity
  • Requirements:
  • Notice
  • Intent
  • Touch and Concern
  • Vertical Privity only on benefit side
  • No horizontal privity requirement
  • Difference compared to covenants?
  • requirements (main one, no writing required)
  • available defenses
  • Modern move is to unify with covenants
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SLIDE 20

Sanborn v. McLean

  • 1891 – McLaughlins own 91 lots, convey 10 of them

with following language:

  • No residence shall be erected upon said premises,

which shall cost less than $2,500 and nothing but residences shall be erected upon said premises. Said residences shall front Helene (now Collingwood) avenue and be placed no nearer than 20 feet from the front street line.

  • July 24, 1893 – McLaughlins convey 11 with language
  • Sept. 7, 1893 – Convey Lot 86 with no language
  • 1894-1910 – all conveyed:
  • 53 with express language, 38 without
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SLIDE 21

Covenants -- Summary

1st Restatement 3rd Restatement Equitable Servitude Horizontal Privity Vertical Privity Writing/Notice Intent Touch & Concern For Burden to Run None Required None Required Succeed to Same for Burden, Any for Benefit For Benefit to Run Writing Writing Notice Needed Needed Needed None Required

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SLIDE 22

Neponsit Property Owners’ Assocs. v. Emigrant Indus. Savings Bank

  • 1917 – Neponsit conveys LOT to Deyer by deed

containing following:

  • “ . . . the heirs, successors and assigns . . . shall be

subject to an annual charge . . . not, however exceeding in any year the sum of four ($4.00) Dollars per lot 20x100 feet. . . . Such charge . . . shall be devoted to the maintenance of the roads, paths, parks, beach, sewers . . . .”

  • 1930 -- LOT sold to bank in judicial sale
  • Deed says subject to 1917 covenant
  • Bank refuses to pay; Association is assignee of Realty
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SLIDE 23

Touch and Concern Requirement

  • English Rule:
  • Affirmative covenant DOES NOT T&C
  • Negative does T&C
  • New Test Formulated in Neponsit:
  • “Does the covenant impose, on the one hand, a

burden upon an interest in land, which on the

  • ther hand increases the value of a different

interest in the same or related land?”

  • “[I]t still remains true that whether a particular

covenant is sufficiently connected with the use of land to run with the land, must be in many cases a question of degree”

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SLIDE 24

Touch and Concern Requirement

  • 3rd Restatement – Servitude “is valid unless it is illegal or

unconstitutional or [in violation of] public policy.” These include:

  • (1) a servitude that is arbitrary, spiteful, or capricious;
  • (2) a servitude that unreasonably burdens a

fundamental constitutional right;

  • (3) a servitude that imposes an unreasonable restraint
  • n alienation under § 3.4 or § 3.5;
  • (4) a servitude that imposes an unreasonable restraint
  • n trade or competition under § 3.6;
  • and (5) a servitude that is unconscionable under §

3.7.

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SLIDE 25

Caullett v. Stanley Stillwell & Sons, Inc.

  • Stanley Stillwell sells 1 acre lot to Caullett for 4K
  • Deed includes following under the heading

“covenants, agreements and restrictions,” to the effect that:

  • “(i) The grantors reserve the right to build or

construct the original dwelling or building on said premises. . . . [This is] “covenants running with the land . . . [which] shall bind the purchasers, their heirs, executors, administrators and assigns.”

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SLIDE 26

Caullett v. Stanley Stillwell & Sons, Inc.

  • Touch & Concern – 1st Restatement
  • “[R]especting the use of the land,” that is “a use
  • f identified land which is not merely casual and

which is not merely an incident in the performance of the promise.”

  • Benefit in Gross
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SLIDE 27

Covenants -- Summary

1st Restatement 3rd Restatement Equitable Servitude Horizontal Privity Vertical Privity Writing/Notice Intent Touch & Concern For Burden to Run None Required None Required Succeed to Same for Burden, Any for Benefit For Benefit to Run Writing Writing Notice Needed Needed Needed Needed* None Required Factors Caullett*

* -- Other T&C Approaches – English Rule and Neponsit

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SLIDE 28

Nahrstedt v. Lakeside Village

  • 530 condo units subject to “covenants, conditions,

and restrictions”

  • “No animals (which shall mean dogs and cats),

livestock, reptiles or poultry shall be kept in any unit.”

  • “enforceable equitable servitudes unless

unreasonable.” Cal. Civ. Code § 1354(a)

  • presumption of validity
  • What about subsequent, non-original restrictions?
  • Touch and concern?
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SLIDE 29

Shelley v. Kramer

  • 30 of 39 houses have it
  • ". . . the said property is hereby restricted to the

use and occupancy for the term of Fifty (50) years from this date, so that . . . hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race."