Q’s are arranged roughly by topic, maintaining the sequence in the casebook.
I’ve enjoyed Property and am considering practice in this area. What other courses should I take?
Some obvious choices would include Land Use Planning, Real Estate Transactions, Housing Law, and Secured Transactions. You’d also get a lot out of Local Government Law, State Constitutional Law, Federal Income Tax, Bankruptcy, Accounting for Lawyers, Estates and Trusts, and of course Business Associations. Environmental Law and Development deals with the ever-present environmental concerns in real estate development. Also, be sure to pay attention to Dan Kelly’s new Real Estate Institute, which will offer many relevant opportunities.
For adverse possession, how should we differentiate between hostility and exclusivity? There seems to be a bit of overlap.
There is definitely some overlap! Exclusivity has to do primarily with whether actual use has been shared or not — with anyone, not just the record owner. Ask: has the adverse possessor acted as though he/she had the sole right to be there? Or are their actions more similar to the defendant in ITT Rayonier, in which others accessed the same land and Bell never acted as though they had no right to enter?
By contrast, hostility has to do with the adverse possessor’s actions with respect to the record owner. Ask: has the adverse possessor acted as one would who intended to dispossess the “true” owner?
Hostility/adversity is one of the required elements of adverse possession, but as I read Mannillo, it is not a requirement in that case — is that correct? Are there jurisdictional differences?
Adversity is always a requirement, but it is easily the most confusing element of adverse possession. In most states, it boils down simply to the requirement that the claimant is on the claimed land without permission from the true owner. In a few states, adversity is a matter of the state of mind of the claimant (Maine/Connecticut doctrines); the Court in Mannillo rejected this minority view and adopted the majority position, holding that entry “even though under mistaken claim of title is sufficient to support a claim of title by adverse possession” (p 177).
What if a true owner knows of another’s use of land but doesn’t say anything? Would that be considered implicit permission, or adverse use?
Typically, if the true owner is aware of another’s possession and communicates nothing, the possession is considered adverse. Silence does not generally indicate permission. However, this would depend on the circumstances of the case; permission can probably be expressed without using words (e.g., nods of approval).
If O conveys Blackacre to “A for life, then to B & her heirs,” does O retain a reversion?
No. If a grantor conveys or devises a life estate followed by a vested remainder, there is no reversion.
What type of recording act does Nebraska have in Caruso?
It’s a race-notice statute. See the indented text on p. 595.
Are the rules of law for easements and profits identical?
They are very similar, although easements are far more numerous in the American system, and many rules have arisen which are specific to easements. For example, easements by implication/necessity have no analogy in the context of profits.
When an easement is ambiguous, is there a judicial preference for construing it as appurtenant? in gross? neither?
I would say that there is not a general preference for one or the other. The goal always is to discern the intent of the parties creating the easement. Ideally, the language of the easement would be sufficient to make this determination. Language like “to X and her heirs and assigns” is taken by some courts to create a presumption of appurtenance if the language is otherwise ambiguous, but not always (see the Shallcross Lake case). If the language is indeterminate, then we have to examine the circumstances in which the easement was created and see if they suggest an intention one way or the other.
Can groups or corporations own easements in gross? Or only individuals?
An easement in gross can certainly be owned by a business entity. Families per se can’t own land, but land rights can be held jointly by the members of a family, or by any other group of individuals. In addition, a number of individuals could hold individual easements on the same servient estate (for example, if a number of people each have the right to use the same footpath to reach a lake).
For states that allow the creation of easements for third parties, must that easement be created when the grantor is selling the property? Or could that party come back later, after selling the land, and purchase an easement benefiting a third party at that time?
Under the “modern” rule (as opposed to the “stranger to the deed” rule) it would be permissible to acquire an easement on behalf of a third party after the land has been sold, but it would require an entirely separate transaction. That is, the party seeking the easement would have to negotiate with the landowner to purchase a brand new easement, and then specify in the deed or contract that the easement was for the benefit of some other party.
What exactly distinguishes an easement by prior use from an easement by necessity, since easements by prior use require necessity as well?
The necessity theory allows an easement to be created even where there was no prior use. An easement by necessity arises by operation of law when a parcel is landlocked, whether or not there was evidence of prior use. Moreover, easements by necessity are rights-of-way; they are created to provide access to landlocked parcels. Easements by prior use may arise for other purposes, such as utilities service. If X sells to Y a parcel of land served by a sewer pipe that crosses X’s land, X may be prevented from removing the sewer pipe after the sale; Y could claim an easement by prior use for the pipe. An easement by necessity would not make sense under that scenario.
Whose job is it to maintain land subject to an easement?
It depends primarily on the express terms of the easement. Oftentimes an easement will make clear that the servient landowner must, e.g., maintain a driveway, keep an easement clear of overgrowth, keep a ditch clear and unblocked, etc. But in other instances, the easement will say nothing. In those cases, courts tend to allow landowners to maintain their land however they please, so long as their action (or inaction!) doesn’t prevent the dominant owner from using the easement in accordance with its purpose.
But I don’t know what happens when an easement owner is singularly responsible for degradation of property. Let’s say A owns an easement to use a dirt road on B’s land. Let’s say B doesn’t use that road at all, and eventually A’s use creates a bunch of ruts that make the road totally impassable. Would A be able to compel B to improve the road? I doubt it, but I’m not certain of that. Would B be able to compel A to repair the road? That seems more likely, but again, I’m not sure.
Why are conservation easements in gross? I struggle to see how conservation easements bind future generations and accomplish their intended purpose, if they are attached to people as opposed to the property. If the conservation entity were to be dissolved for some reason, wouldn’t the land no longer be protected? I think their needs would be better served if these easements were appurtenant or am I wrong?
Conservation easements are carefully regulated by state law, and every state imposes limitations on entities that can own conservation easements. Those entities are required to organize themselves such that, if they wind up their operations, their assets would pass immediately to another qualifying entity. By the way, this is also how standard non-profit entities are structured: in return for certain tax benefits, non-profits must specify (in their Articles of Incorporation and/or their Bylaws) that their assets will pass to another non-profit entity if/when they terminate their existence.
Bear in mind, too, that conservation easements could not easily be made appurtenant. Conservation entities would need to purchase land adjacent to each protected parcel, which would largely defeat the purpose of the conservation easement in the first place (i.e., a way of protecting land without requiring outright land ownership).
I’m having trouble following the court’s decision in Tulk v. Moxhay regarding equitable servitude. From what I understand, the court did not find horizontal privity between the plaintiff and Elms. Given that the plaintiff had conveyed the land to Elms, wouldn’t that establish horizontal privity?
See note 1 following the case (“Under the English view of privity, Tulk and Elms were not in privity of estate”). In England, privity amounted to land tenure — outside of a tenured land relationship, no privity could exist.
Can renters bring nuisance claims?
The casebook’s answer to this question is found on the top of p 676: “Renters, owners of easements, and owners of reversionary interests can bring suit … By contrast, a holder of a license … and any other person who does not have an actual property interest in the land will not be able to pursue a private nuisance claim.”
What is the dividing line between public and private nuisance?
You should think of public nuisance and private nuisance as two different, but overlapping, theories of liability. Private nuisance is characterized by interference with the use/enjoyment of land of one or a small number of landowners. How many is small? There is no fixed number, but if the harm affects the public generally, then private nuisance is inapplicable. Public nuisances, by contrast, interfere with the rights/interests of the general public, and need not affect the use/enjoyment of land: for example, prostitution has long been classified as a public nuisance in many jurisdictions, though it does not interfere with property use per se. Generally, a public nuisance action can only be brought by a public entity acting on behalf of the public. A private party can bring an action for public nuisance only if he or she has suffered a harm different in kind from that of the general public.
I don’t understand the denominator problem as it arises in Penn Coal v. Mahon. Hasn’t the coal company lost 100% of its coal interest? How could Justice Brandeis construe this as anything other than a 100% loss?
On these facts, the coal company has lost 100% of its coal estate. But Justice Brandeis’ point is that we don’t want to create a legal rule by which firms could manipulate the “shape” of their property interests in such a way as to allege a complete loss. In other words, if we wouldn’t compensate an owner of the complete estate (coal + surface) who’s lost only the use of their coal, why would we compensate the coal company here? To do so would be to encourage owners to fragment their interests in such a way as to allow them to allege a 100% loss. A coal firm that had previously retained the surface could simply sell the surface and then claim a taking of the coal estate.
You can see this logic at work in the middle of p. 822. (“The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil. The sum of the rights in the parts cannot be greater than the rights in the whole…”) By extension of Holmes’ logic, Brandeis argues, one might sever and sell “his interest above one hundred feet from the surface” and be able to allege a complete taking of that interest, if the state limited building heights.
In Lucas, why does Justice Stevens accuse the Court of “freezing” the common law? Doesn’t the majority opinion actually make the common law more important, by using it as the baseline against which to assess takings?
The common law is the baseline, but that baseline is now frozen in time, according to Justice Stevens. Even courts are now powerless to change it. There is nothing in Justice Scalia’s logic that limits it to legislative changes to the law. By his logic, any change to, say, the law of nuisance–including a change instituted by a state supreme court–might give rise to a compensation requirement as to a particular landowner. In that sense, says Stevens, the common law of property is now virtually frozen in time.