#11378 - The Law Of Neighbors - Long Merril & Smith Property Outline

Servitudes: Contracts that bind successors in ownership. Two types:

1. Easements: Contract in which an owner agrees to waiver his or her right to exclude certain kinds of intrusions by another and give the other a right to use [essentially, easements move around the right to exclude)

   • Most common easement is easement of access (sharing a driveway)

     1. Appurtenant easements always run with the land

     2. Easements have always been regarded as a type of property right

     3. Have an in rem effect in the sense that third parties may not interfere with the performance of rights under an easement

   • Usually conveyed by deed, must be in writing

   • Reservation to the Grantor: Easement can be created by granting B to A, but reserving an easement over B.

2. Covenants: Contract in which an owner agrees to abide by certain restrictions on the use of his or her land for the benefit of one or more others

   • More of a governance mechanism and more often than easements to prescribe affirmative behavior on the part of the burdened landowner

     1. Covenants against commercial use, for maximum building height and door color etc.

     2. Covenants sometimes run with the land, if some conditions are met

   • Less often spoken in terms of property rights, more often spoken as “promises respecting the use of the land”

   • Do not generally give rise to any rights against third parties, and in this sense are more in personam

Easement: Non-possessory right to enter and use land; usually limited to one particular use – just “one stick” out of the bundle (any other use is not protected). It is NOT possessory because it is ONLY the right to use the land for a limited purpose

• It is an irrevocable conveyance – though not necessarily indefinitely

• An easement gives rise to a general duty on the part of all the world not to interfere with the easement- for example, if A has an easement to use B’s driveway, C would be guilty of a wrong if he attempted to block A’s use of the driveway

• Contrast with a Possessory Right: A gatekeeper right that allows the possessor to determine all of the uses to which the property will be devoted, and who will be allowed to engage in them

Profit: the right to enter on the land of another in order to extract something of value, such as timber or fruit from trees

• Carries the same rules as an easement appurtenant

Affirmative Easements: Permit the easement holder to perform some affirmative act on the land of another

Negative Easement: Permits the easement holder to demand that the owner of the servient tract desist from certain actions that might harm the easement holder.

Public Easement: Allows the public to use land (public beach)

Private Easement: Allows particular private parties to have an easement over your land

Baseball Publishing CO. v. Bruton: Plaintiff was in the business of controlling locations for billboards and signs and contracting with advertisers for the exhibition of their posters. D gave P a signed writing allowing P to use a spot on a building to hang posters. P sent D the money for consideration but the checks were never cashed and when P put the sign up D removed it.

• Question in the case was whether an easement or license was granted. License is revocable at any time and specific performance is not allowed. Court rules this is an easement, however, because it gave “the exclusive right and privilege to maintain a sign on defendant’s wall” but defendant maintains possession of the wall, so it is irrevocable for the term of years maintained. [License=right of possession, Easement=Right of Use]

Schwab v. Timmons: The Schwabs wanted an easement over the Timmons’ and Lenzs parcel so they can get to the road. Otherwise they had no way to get to/from their land other than by water. Problem here is that the Schwabs used to own the adjacent parts of the land, but they sold that part that connected them to the road (they landlocked themselves). Schwabs assert two arguments, Easement b Necessity and Implicit Reservation of Easement:

• Implicit Reservation of Easement: “must be so obvious or manifest as to show that it was meant to be permanent, and it must appear that the easement is necessary to the beneficial enjoyment of the land granted or retained.” Schwabs argue that since the bottom half of the land that they sold was the part that connected them to the road, they argue the court should find that they implicitly reserved an easement of access to the road.

  • Jurisdictions are split with regards to this, but this court basically says it would have been very easy to put it in the deed so they reject the argument

• Easement by Necessity: “arises where an owner severs a landlocked portion of his property by conveying such parcel to another. Must show:

  • Common ownership of the two parcels prior to severance of the landlocked parcel, and

  • The owner of the now landlocked parcel cannot access a public roadway from his property

    • Court rejects this as well, Doctrine of Necessity DOES NOT APPLY when grantee land locks the grantor, only applied when grantor land locks the grantee

      • Sometimes courts will grant a sort of imminent domain and allow you to pay fair market for such an easement (no matter who landlocked who, but court didn’t do that here).

Warsaw v. Chicago Metallic: Plaintiff and defendant had adjacent buildings. Plaintiff’s driveway was an inadequate size because the large trucks which carried material to and from P’s loading dock could not turn and position themselves at these docks without traveling on defendant’s property. In the original negotiations between P and D, the proposal to create an easement was rejected. For seven years plaintiff used the same general area while driving the trucks to get to the loading dock. D wanted to (and starts to) build a building in the area where the trucks drove, P sued for an injunction citing that they had a prescriptive easement over the area.

• Elements of a Prescriptive Easement:

  • Open, notorious, continuous and adverse for an uninterrupted period of 5 years (statute of limitations)

  • Definite and certain line of travel for the statutory period “the beaten bath”

    • Slight deviations are OK, but a substantial change in the route will break the continuity

  • No exclusivity requirement like there is with Adverse Possession

• Court rules it’s a prescriptive easement, and defendant wants costs to tear the building down. Court says no because they were put on notice of this lawsuit before the started to build the building

  • FORK: if this wasn’t the case, should we give them just compensation? Also, has paintiff been unjustly enriched here? Should they give restitution?

Fontainebleau Hotel Corp v. Forty-Five Twenty-Five: There was a bad falling out between Fontainebleau partners. One left and built another luxury hotel right next door to the north (Eden Roc). This created a shadow on the Fontainebleau. So Fontainebleau responded by building an extension upward with a wall with no windows, casting a shadow on Eden Roc for a large portion of the day.

• First Assertion is the blocking of the sunlight is a nuisance. The American rule says that casting a shadow CANNOT be a nuisance (9/10 times the befits [in this case the hotel] outweigh the harm so you cannot say that it is an unreasonable interference.

  • A small number of states will run it through the nuisance balancing

• Next Assertion is that they got an easement by prescription to the upward “property” that Fontainebleau was not using, because they were using the “absence of property” for the sunlight for a continuous period of ~20 years

  • Court denies this claim, saying there is no such thing as an easement not to cast a shadow. Also court says that the addition was built partly/mostly out of spit is irrelevant – if there are at least mixed motives it is OK..

    • Such would be called a prescriptive negative easement and obvious problems arise w/r/t/ honors such a claim – how do you know how your neighbor is using the way you are not using your property? People would essentially be able to claim an easement for whatever you are not doing

  • You could have a covenant to not cast a shadow, but there are no prescriptive covenants, must be by agreement

Most approved method of terminating an easement is by deed that releases the easement. Three other methods:

• Easement can be terminated as a matter of law when the dominant and servient trat come under common ownership, thus merging the easement into the larger fee simple

• Can also be terminated by adverse possession or...