Property Class Notes 4/14/04

We’re not going to be able to do all of nuisance. We’ll do the private nuisance material and if we have time we’ll do the material about water, which is short. But we wouldn’t be able to do the public nuisance stuff whether we had a makeup class or not.

Implied covenants and the statute of frauds

Do implied covenants violate the statute of frauds, and what did the court say in Warren v. Detlefsen? The court didn’t say anything. But why not? We started out saying that covenants and equitable servitudes are interests in land, and they must be written down to satisfy the statute of frauds. But implied covenants are not written down. So why is there apparently no statute of frauds problem? The statute of frauds doesn’t require the contract be in writing, it only requires that some memorandum of the contract be in writing. So maybe you can say that the restriction in deed from Warren to Detlefsen was enough of a memorandum to satisfy the statute of frauds, even though the complete agreement isn’t in the memorandum. There are a few cases that suggest that this doctrine is barred by the statute of frauds. There is no writing that suggests any restriction on the land retained by the grantor. The statute of frauds would then prevent evidence from coming in that would go to prove that there was some implied contract to the contrary.

Implied reciprocal negative easements

What if Warren sells land to Detlefsen and then sells some retained land to X, and then X wants to enforce the restriction against Detlefsen? Is there any problem with that? Can X sue D? Is there privity of estate? Is there a statute of frauds problem? Is the restriction that X is suing to enforce in writing? Yes! It’s the promise that D made to Warren. Now we’re saying that the promise runs with the land and so X gets the benefit of the restriction. There is no statute of frauds problem at all! X is suing to enforce a written covenant. X can enforce an agreement to which he was not a party because of the doctrine of covenants that run with the land.

Could D enforce the restrictions in his earlier deed against X? Let’s say that Warren doesn’t put any restriction in the deed to X. So D sues X. There are no restrictions against X in writing! It’s a different contract! The agreement between Warren and Detlefsen only restricts what Detlefsen can do with his own land. Now Warren sells some of his remaining land to someone else and doesn’t put in a restriction. But Detlefsen want to enforce a restriction against X! Where does he get that idea? It’s implied. We can say there is an implied burden on Warren that runs with the land, and the statute of frauds is not violated. This is the holding of Warren v. Detlefsen. The restriction that D seeks to enforce is not in a writing. In a state like California, there would be a statute of frauds problem. In Arkansas, for example, you can look through the deeds that Warren gave to prior purchasers and see what restrictions were placed.

What if Warren sells the lot to X and restricts the use that X can make of the lot? Let’s say Warren says that X can only use the land for a single-family residence. If X wants to sue D, it’s the same case as before because X is suing on the restriction contained in Detlefsen’s deed. But what if Detlefsen wants to sue X? Can D win? If so, how? This is a written agreement between Warren and X. Also, we could say that there was an implied restriction on Warren’s land that ran with the land.

But what if we’re in California and we can’t rely on the theory of implied reciprocal negative covenants? Well, there is an agreement restricting X’s use of his land. But does that run to Detlefsen? Sure! Detlefsen is a third-party beneficiary! The covenant can’t run with the land because D isn’t acquiring any more land. We can construe this as a contract entered into for the benefit for D and other prior purchasers. This is like what we talked about with respect to assumption agreements. How are you going to prove who the intended beneficiaries are, though? We’ll do the same thing that we do when we implied the covenant, but we’ll do it for a different reason. We’ll look at the common plan or scheme of development. Those people who are within the common plan or scheme are the intended beneficiaries.

When we have a prior purchaser suing a subsequent purchaser and there are restrictions in the subsequent purchaser’s deed, there are two theories available to you. There is the theory of implied reciprocal negative servitudes, and there is also the third-party beneficiary agreement theory. But if there isn’t an agreement between W and X, you lose on the third-party beneficiary theory. It’s only when the restrictions are contained in the subsequent deed that even though D isn’t a party, he can claim that under the common scheme of development that he is a third-party beneficiary. If all the restrictions were the same, then we would imply what was in all the other restrictions. But they’re not all the same! Some of them deal with price, some with square footage, and some with other stuff. The only thing that the court will imply is that the houses must be single family. When we work with a theory of implication, one question is always: just what are we implying?

The ancient lights problem, p. 693

What’s the doctrine of ancient lights? If you’ve been getting light to your structure through windows or doors or air for some period of time, your neighbor can’t build in such a way as to unreasonably interfere with your access to light and air. The English standard was getting enough light so that a person of ordinary eyesight can read. What you get under this doctrine is a prescriptive easement. If you satisfy the doctrine (the building has been there long enough), you can acquired a negative easement by prescription.

American courts pretty much uniformly reject the doctrine, though. This doctrine doesn’t say anything about protecting a scenic view. Also, solar collectors need direct sunlight. The doctrine that says you just need to be able to read may suggest that you only need indirect light. So this doctrine is probably universally rejected in the United States. The policy reason is that when these issues began to arise in the United States in the 19^th century, we were in a process of modernization. People were building apartments close to each other. The doctrine was seen as one that impeded development. The courts and legislatures were trying to promote the development of cities. Second, you can’t acquire a negative easement by prescription. There must be a wrongful entry that starts the statute of limitations running. Just enjoying looking at someone’s land or collecting the sunlight that flows over someone’s land is not a wrongful act. The statute of limitations never started to run, and therefore it will never run out. In the United States, you can never acquire a negative easement by prescription.

There’s a hotel in Miami called the Fontainebleau. There’s another one that built an addition, allegedly for blocking the sunlight to the Fontainebleau’s pool. Fontainebleau claimed that they had acquired a prescriptive right to sunlight shining on the pool. The court wouldn’t recognize this right! What about an easement implied from preexisting use? Sure! What would be the problems with that, though? What are the requirements for establishing an easement from a preexisting use? There must be common ownership: somebody would have had to have owned both pieces of land at some point. Also, there must have been a preexisting use that was continuous and apparent! How could it have been apparent that the property was used that way? Even if all that is satisfied, you must show some reasonable necessity. Maybe we want to say that promoting solar energy is a priority of public policy.

Could there be an easement by necessity? You’ll have a lot of the same problems: common ownership, showing that there was some necessity created when the parcels were severed from each other, but then you also have to show necessity. The degree of necessity is stronger here than when you’re talking about an easement based on preexisting use. It seems to Braunstein that the view is obviously not a necessity, but rather an amenity at most. He also thinks the solar collectors would fail to rise to the level of a necessity under this standard. There may be alternative sources of heat available. If that weren’t true, maybe you would have a chance, but that would be a pretty tough fight.

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