property law: april 9 2010 class notes.

recap.


easements
1. where the parties intended such a right to exist, from the relevant circumstances (van sandt v. royster: right to continue use of something that had been done before the two parcels were separated, a "quasi-easement") in this case we ask if we can infer that the owners of the separated parcels wanted the use to continue? what do we look to to answer this?
  a. what was happneing when this parcel was split in two? was there already a use, such that there could be a continuation of the use (cause if it hasn't happened yet, it can't be continued)
  b. was the burdened party aware? if they weren't, we can hardly say that they intended to have the easement.
  c. is the use permanent or intermittent? we don't consider non-permanent use to be an easement.
  d. was this use necessary to the enjoyment of the dominant tenant? if it's not really necessary, maybe it's not so clear that the party taking title to the dominant would have relied on the subserviant tenant in the way it was being used when the two parcels were split.

other factors from the restatement may comein to play, but basically come to whether or not the two parties intended uses on the two parcels of land to continue.

for example, we construe against an easement more for the grantorr than grantee, has to do that we expect people to write stuff out (put it in the deed, and if you don't we may be more skeptical of what you say)
we may require the degree of necessity etc, to make up for this (see the restatement on real property!!!)

othen v. rosier
claiming the right to use a right of way through the rosier's property.
the parcels were once owned by a common grantor (mr. Hill)
the right of way is a necessity and not a convenience
that necessity to traverse the allegedly subservient estate existed at the time that the two estates were subdivided from the original common parcel

othen wasn't able to prove a common division from the estate: to prove that the owner of the 100 acre provision had to traverse, we would need to know about the surrounding land. we don't know what other options were availalbe, and so we can't say taht the right of way was a necessity. additionally, the 16 acres in front were
you can't create an easement in land you own, so the 16 acres in front do not have an easement for him that way.

however, there may be an easement by prescription, which is similar to adverse possession.
via use through the statutory period, adverse possession may satisfy the requirements for an easement interest.
the use is continuous.
it is an open and notorious use of the land.
is the use exclusive? no...

but if it's exclusive, you don't have an easement you would have adverse possession: we would be saying that you are now the possessor of the property interest in question.

should there be any difference between exclusive use and exclusive possession?
there's a possiblity to call it open and notorious but still not permissive. however, the court didn't see it this way here, the court still viewed it as not hostile.

the court doesn't want to allow othen to combine the periods of use because it's not proven that the road is the exact same that was created and used prior to the upkeep maintenance .

what should be done?
1. maybe the answer is the market -- you could bargain for a position to use the right of way, or bargain with a neighbor to create a

on it's face this seems inconsistent with the open and notorious requirement, to say that the use hasn't been exclusive even if concurrent with the owner of the subserviant estate.

think of suburban common driveways -- the courts are not always aligned on how those cases will come out.

covenant enforceable at law.

covenants are like contracts, if they have consideration.
but in real covenants, we're speaking about promises that are sought to be enforced by a damages award.

land lasts a lot longer than people's promises do. the land may have passed to a successor, and the promisee may pass the land to a successor... so then are the promises still enforceable for action for damages when there is no contract between successor parties?

as to a contract, we can't say that one has consented to the other or that one has relied on the other, as we do with contracts. there must be some other reason as to the binding and enforcement. we do this through...

privity!

privity of contract: A and B have a contract of how to use the land, that's enforceable.
                              but that's nto necessarily true to someone you sell/pass the land to.
                               though we woud want for it to be....

so in order to get at this problem, the common law created a series of complex rules:

1. in order to determine if the successor is liable, we ask if the burden of the covenant runs with the land. the burden of the covenant will be enfo at law only if there is horizontal privity to estate (made in an insturment that made an interest in the property, not just a contract but a deed or covenyance of real prop that included this covenant to be enforced. this is a differnt privity than we're used to seeing in adverse possession with tacking or landlord/tenant law with assignment... totally different! horizontal relationship is how the interest came to be: if the interest came to be throught he intsrument conveying interest in the estate in land. but if there's not, there's no legal interest in the estate in land passing betwen the parties so no privity that will suffice. horizontal privity of estate is important to determining whether the burden of the covenant will run at law. if there's no burden, then there's no successsor who will be boudn by the promisor! that's not true with respect to the benefit --
2. in order to determine if a successor to the beneficiary, we ask if the benefit runs with the land.
in determining the benefit parcel, we don't care about privity of estate.

problem.
A and B are neighbors who plan to restrict to sengle family use. sing a promise: A to assign to her heirs for isngle family purpose only. recorded nder the name of each signer.

we have a promisor and promisee. does their agreement (consisting of promises of how to use the land) made in an instrument making an estate in land? NO
are A and B making a life estate? NO, this is just a contract.

B sells to C who builds an apt building. A sues. what result?
if C is to be bound by the promise of the predecessor, does the burden run from B to C? this is the party against who enforcement is sought. so does the BURDEN run at law to this party (B/C)?
1. was there horizontal privity of estate between A and B? if not the burden cannot run. this interest was not an estate in land. so there's no horizontal privity/ no burden running with land at law.

A and B make their promises in instrument not conveying interest in real property. B sells to C. A acts in violation. C sues to enforce promises against A. what result?
C did not create the promise, A did. C is seeking to enforce, does the benefit run from B to C? yes.
this is the party seeking enforcement. so does the BENEFIT run at law to this party (B/C)? yes.
1. we dont' need horizontal privity for the benefit to run... why??? because A made the promise, and so there's not as much trouble enforceing the promises of the person who made them. whereas it's difficult to enforce promises of people who didn't make the promises, but upon whom promises were conveyed.

vertical privity of estate: this is more like successor privity relationships, like howard v. kunto (tacking with respect to the same piece of land). we are asking whether the successor to the burden parcel has succeeded to the same estate owned by the original promisor. if so, the burden will run to those successors... what does that mean. if the sucessor aginst whom sought has gotten a portion, like LE or DF, doesn't run to the same estate. for the benefittor, the rules are more relaxed as well -- we are only asking if the successor has succeeded to any part of the original parcel, in which case the owner of that parcel has standing to enforce the covenant. hwoever, adverse possession still doesn't give you standing on either side because it's considered a new source of title to which covenants woudn't have been made.

somewhat rare, not typical that these will be sought in covenants enforceable by law. instead, injunctive relief will be more expected. still, we gotta know this...


tulk v. moxhay
moxhay wants to build and tulk sues for an injunction on the ability to build on the garden in lester square. 

rules to vertical privity estate (england only has this between landlord and tenant, not even as broadly as we do). in law of england, can't say that the privity extended from elms to moxley.

what is the court to do? court says moxhay, you knew that you would get this land for less because it was encumbered upon. to now turn around and say that the promises dn't encumber the land, is unfair. but this is only true if everyone's expectations were that the promise was enforceable against him -- but if the expectation wasn't a function of the promise, and didn't create an encumberance then this is

3d party beneficiaries: the interests of others who have relied on the square being open must be looked at. why? because tulk owns the land around the area, but doesn't want to own the garden to maintain it.

why would anybody buy the garden instead? it holds value, because the property has a provision for the collection of rent from the surrounding inhabitants for the use of the garden.... tulk is basically conceding the ownership of the land.

fairness: it's unfair to allow moxhay to get the land at a discount with an encumberance, but then not to reap the full value of hte land. the grantor of this land extracted a promise, and is enjoying their property on the reliance of that promise. allowing the purchaser to use the land as he'd like irregardless of the promise, then that's against the covenant. and that's not fair to anybody...

so this case is not really about fairness or about the doctrine.

the uses of one piece of land can have an effect on the value and usage of neighboring pieces of land... but so what?

there's a right to build and to move forward. the person who wants to not have a build (tulk) and then a person who wants to build on the land (moxhay). and the promise to keep the property to not be built on has value -- but if the subsequent persons don't have a value in that promise then what does it matter?

what would be the effect of saying it's not unfair to let the promisor to go back on the promise? would anybody ever accept such a promise as conveyance of real property? -- yes

covenants are different than other dispositions to the use of property after the original possessor is gone! allowing people to control the uses to the land that they convey/sell/etc. may build on people's comfort to convey.

eventually, tulk or his successors sold the injunction right to the party who wanted to build, which menat that nothing stood in the way of leichester square becoming a big mall. so the public wanted moxhay to create a public park in 1974.

why do it in 1874 instead of 1848? because we are respecting private parties and their decisions.
but moxhay was a private party: why are tulk's private intentions more important than moxhay's? because moxhay bought certain rights and bargained for certain things. he was on notice.

why would it be so bad if it had remained private property instead of becoming state property? if it's private it's for the subjective interest of the private owner and public property -- for all the people who live near this -- their property interests may be affected.

this debate is over the locus of control, not a debate over what's fair and efficient, just over who gets to decide how land is used. this case is a discussion of who gets to decide how resources will get used.

these are the issues of the rest of the course.

till now, we've been talking about two extremes
1. private interests
2. interests of society as a whole

now we're filling in the interest details...

the authority to regulate the uses of property come from the state and from private parties:
- zoning
- takings
-

servitudes continued:
- p. 798 - 815
- p. 40 W. 67th st. v. pullman
- p. 821 - 841, 849 - 857

A has no claim to damages because there is no covenant running with the land, and so there is

property law: april 8 2010 class notes.

title assurance, cont. 

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

lot 19 belonged to the jones to the van sandt. lot 20 belonged to the murphys to the royster and lot 4 belonged to the baileys, and then to the grays.
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