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 not in deed for lot 20

• Easements by Writing

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

Willard v. First Church of Christ, Scientist

• Legal theory as to why not enforceable?

• If still applied, how could get around?

• Stare Decisis concerns?

• Does this decision look like any other cases we have covered?

• How does easement in writing fit general benefit > burden rationale for servitudes?

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

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?

Van Sandt v. Royster

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?

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?

Othen v. Roiser

Othen v. Roiser

Othen v. Roiser

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?

Easements by Prescription

1. Actual Entry Giving Exclusive Use that is2. 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

• Problems for Othen?• 3. Adversity• 1. Actual Entry

Brown v. Voss

1952easement granted across parcel A for "ingress to and egress from" to parcel B

Negative Easements

1. Against blocking windows2. Interfering with air flowing to your land in a

defined channel3. Removing lateral support4. Interfering with the flow of an artificial stream

Uniqueness of Conservation Easements

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 (p. 850)

• Horizontal Privity• privity of estate between original covenanting

parties

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

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

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 of admission . . . .”

• Elms’s land eventually conveyed to Moxhay

• Type of servitude(s)?• Privities? HP? VP?• Notice?

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

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

Sanborn v. McLean

• Which covenant/equitable servitude requirements are met?

• HP?• VP?• Writing?

• No writing, so what fills its place?• Scheme or General Plan (Notice)• Unique – “reciprocal negative easement”

• Equitable Servitude

• Still need notice for enforcement?

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

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

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 other 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”

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

on alienation under § 3.4 or § 3.5; • (4) a servitude that imposes an unreasonable restraint

on trade or competition under § 3.6; • and (5) a servitude that is unconscionable under §

3.7.

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.”

Caullett v. Stanley Stillwell & Sons, Inc.

•Touch & Concern – 1st Restatement• “[R]especting the use of the land,” that is “a use

of identified land which is not merely casual and which is not merely an incident in the performance of the promise.”

•Benefit in Gross

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

FactorsCaullett*

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

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?

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."

Shelley v. Kramer

•Why might want to do more than simply not enforce?•Way to invalidate covenant?

• HP?• Touch & Concern?

•How does this case exemplify a common theme(s) in this class?