andy associates v. bankers trusts co. 49 N.Y.2d 13
the problem is taht the assignee only records the assignment of the lease, not the rights of the mortgage.
lease is recorded and assigned and assigned again. looking at a grantor-grantee index to the partie's transactions.
1951 - 1954: marce associates (landlord) to marce management (tenant)
1954 - 1968: mortgage and lease assignment to marce handling company
BUT never assigned the mortgage to MHC
1968: mortgage assignment and lease assignment to andy associates
1968-1973: now the problem is MA gives a mortgage assignment to bombay east
1973: satisfaction of the mortgage is recorded in 1973
1974: a new mortgage taken between BE and bombay trading
what's the langugage of recording statutes? andy associates is void against a good faith mortgagee for consideration (whaaa?)
in good faith means "without notice"
what does it mean to have notice?
1. actual notice
2. constructive notice
this is why we have these statutes (see LNH2)
the question isn't whether or not BT had notice, but whether it had constructive notice.
did it? -- YES
why? because BT could have read the subsequent chain of assignments that a reasonable business would have inquired into (LHN2)
so now, we have three different types of notice that remove you from the recording statute:
1. actual notice
2. constructive notice
3. inquiry notice (charged with facts you would have discovered if you had continued inquiry based on facts you had already discovered)
what would BT have done if they had read the documents? it could have done a "block and lot" number search.
BT screwed up they didn't search for the assignment and didn't cross check it against the grantor-grantee index. the lawyer who did this search is liable for malpractice.
title search exercise.
use the NYC automated city register information system (www.nyc.gov/acris) to generate a title report for the property currently for sale on utopia parkway opposite the law school parking lot. use your title report, and any other information you can find in the title records, to answer the following questions:
1. who currently owns the property?
2. when did the coffineaus acquire the property?
3. under what type of deed did the hardings acquire title?
4. what was the interest rate and payment schedule of the hardings' mortgage?
5. on what date did the hardings pay off their mortgage? -- mortgage satisfaction is the date that it was recorded. how do you figure out the date it was executed? -- look at the instrument itself
servitudes.
so far, we've been talking about possessory interests in property (legal interests including right to posess). but right to posess is only one in regard to physical things, and for property there is also the right to use, the right to exclude, the right to alienate etc.
we've discused how rights to property can be divided up over time
servitudes have to do with dividing in respect to interest in someone else's land
types of servitudes
non-possessory interests in real property
1. easements:
A is given the right to enter upon/make use of B's land.
A is given an affirmative easements
2. A is given the right to enter upon B's land and remove something attached to the land;
A's interest is a profit
3. A is given the right to enforce a restriction on the use of B's land;
A's interest may be a negative easement (dominant estate telling the serviant estate what not to do), real covenant or an equitable servitude.
the determination of which type will depend on the remedy sought.
4. A is given the right to require B to peform some act on B's land;
A's interest may be treated as a real covenant or an euitable servitude
depending on the remedy sought.
5. A is given the right to require B to pay money for the upkeep of specified facilities.
this is a real covenant dependent on the remedy sought.
negative easements, which gives a right to control the use of the land but
not a right to use the land yourself
appertenant easement, a parcel of land is benefited by the easement
easement in gross, doesn't require the same burden/benefit relationship. it is the right of use in the
land of another that is personal (fishing or hunting rights for example)
if you want to control the use of someone else's land, typically an easement is not the way to do it. however, easements have grown up recently as conservation easements.
profit: right to do something profitable on the property but not to possess the property itself (like the
right to drill minerals)
real covenants:
equitable servitude (covenant enforceable in equity, by injunction): this interest is more flexible than
the covenant enforceable at law.
permissive use (license): we won't really be looking at this, but it will come up with prescriptive
easements
creation of easements
by express grant (written instrument)
by implication
easement implied by prior existing use
easement implied by necessity
by prescription (n.b. -- determining prior use)
van sandt v. royster 148 Kan. 495
the roysters and the grays sewer lines are connected to his. and then one day
1936: van sandt has a load of shit in his basement.
van sandt wants to enforce his rights as the owner of lot 19 for an injunction for them to have
royster and gray argue easement by perscription (n.b. -- this easement is like adverse possession).
quasi easement was created for the serviant/ dominant tenements... but what does this really tell us about the interests?
1. if you sell a piece of land, do you continue to hold any rights in it?
2. is this the sort of thing you can be on notice about?
why do we care about this???
because the roysters and the grays are deriving a benefit from the fact that the pipes run under the property and they have been for a long time.
we have to now weigh the interests of the three parties: is the defendant's (and their predecessors in interest) use of the pipesmore important, or van sandt's right to exclusion on his property.
a distinction of reserved v. granted easements: under the restatement, it comes in as factor A. why? because it would be easiest for the conveyor to manage how this interest is created and assigned -- just put it into the deed! grantor is in a better position to make the granting explicit. so how does the increased burden manifest itself?
actual requirements for establishing the easement from a prior existing use:
1. existed at the time that the serviant tenement was severed from the dominant tenement
2. permanent and continuous
3. apparent to the owner of the serviant tenements
4. necessary to the enjoyment of the dominant tenement
now we need to know whether there was reliance:
who is asserting, the grantor or grantee?
common or reciprocal benefits derived might put you on notice of the benefits derived in that it's being enjoyed by others.
these are the elements of determining prior use, but the problem can be that they are very fluid. this plus the restatement is what we'll use however. but remember that we can determine degrees of necessity, etc.
othen v. rosier
seems like adverse possession but that doesn't really translate well here because the property is not owned.
reading is 740-750, 755-768
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