Final Examination in Property

Spring Semester, 2006

Professor Perritt

Model Answer

QUESTION I.

1. Martin will lose his trespass suit against Agustin and Agustin probably will win his trespass suit against Martin. Martin also will lose his quiet-enjoyment suit against Agustin, and whether Agustin will win his quiet-enjoyment suit against Martin is problematic. The members of GBM have an affirmative easement appurtenant that they bought from A. Coustic Listener. The entirety of Concertacres is the servient tenement, and Musicacres is the dominant tenement. The easement runs with the land on both sides because the terms of the easement refers to “heirs and assigns forever.” The owner(s) of Musicacres is entitled to exercise the easement. The members of GBM currently own Musicacres and therefore own the easement as tenants in common, but the grant of the easement plainly confers it on “the owners of Musicsliver,” rather than on the members of GBM personally—in which case it would be an easement in gross and not assignable.

Because the members of GBM recorded the easement, and one can only record a document, the easement satisfies the Statute of Frauds. Because they recorded it, it is in Martin’s chain of title. Listener would be shown in the grantor/grantee index as the grantor, and therefore even a cursory title search would reveal it. In any event, whether or not Martin did a title search, he has record notice and is bound by it as the current owner of a part of Concertacres which is included within the easement’s spatial scope.

The easement creates a privilege in Agustin (and the other members of GBM) to enter Martin’s property to perform the activities covered by the easement. There is no indication that Agustin was doing anything more than what the easement contemplated, and therefore he was not a trespasser, and Martin’s trespass suit against Agustin will result in judgment for Agustin.

Whether Agustin wins his trespass suit against Martin depends upon whether Martin’s conduct constitutes “entry” into Agustin’s “land.” The easement is an interest in land, but it does not include a broad right to exclude. For example, if Agustin simply came to hear the concert, or if he was simply present in the area of the concert without interfering with it, he would have committed no trespass. Since the property on which the concert occurs is still his, he is privileged to use it. On the other hand, if his conduct in demanding that GBM leave his property immediately constituted an interference with Agustin’s activities privileged by the easement—and it seems that the demand did--then he has committed a trespass, and Agustin can recover against him.

Quiet enjoyment is problematic. Historically, it was a duty that a landlord owed a tenant. Contrary to what its name suggests, it only protects the tenant against interference by the landlord or someone acting under the landlord’s authority with the tenant’s possession. Here, there is no possibility of recovery by Martin against Agustin on a theory of the covenant of quiet enjoyment because Agustin did was privileged by the easement.

On the other hand, Agustin may be able to recover on this theory against Martin if he can get the court to accept three legal propositions: first, that the covenant of quiet enjoyment should be extended beyond the landlord tenant context to a dominant-tenement/servient-tenement controversy; second, if he can get the court to accept the proposition that Martin stands in the shoes of the grantor of the property interest—the easement—or third, that Martin is a “third party” which the original grantor of the easement has authorized to interfere with the dominant tenement’s possession. The hardest part of this will be to persuade the court to extend the covenant of quiet enjoyment beyond the landlord tenant context.

2. It does not make any difference the GBM has broken up. The former members still own the easement as tenants in common, and each has the power to assign as much as he or she owns. That is exactly what Agustin did in his quit claim deed to Bramms. As a quit claim deed instead of a warranty deed it had exactly the same effect in conveying his interest; it simply did not include any warranties. So Bramms obtained a tenancy in common in the easement from Agustin, with exactly the same rights and privileges that Agustin had. Accordingly, if she had performed a garbage-can-lid concert from dusk to dawn and been told to leave by Martin, she would have won her trespass and quiet-enjoyment suits and he would have lost his.

But that is not what she did. She performed a bird-song violin concert at noon, thus exceeding the scope of the easement in two respects--in terms of time of day, and in terms of the type of music. One who exceeds the scope of an easement is a trespasser. Accordingly, Martin would win his trespass action against Bramms. Whether he also would win his quiet-enjoyment action against Bramms depends on whether it applies outside the landlord tenant context, as discussed in the answer to sub question (A), and also on whether the trespassory music can be said to have ousted Martin from possession. That is dubious. However annoyed he was by the music, it only occurred in the middle of the day on one day of the year. No reasonable person would feel obliged to quit the premises because of that.

There is no reason to believe that the easement has been extinguished by this overuse. Therefore Bramms would remain free to perform garbage-can-lid concerts from dusk to dawn one day a year in June.

Bramms’ only conceivable argument is that her music somehow qualifies as “celebrating” garbage-can-lid music, as it might if she has selected violin renditions of birdsongs that evoke certain themes of garbage-can-lid music. Any argument she might make that the easement should be interpreted elastically to encompass her use is unlikely to succeed, because the easement was so clear about the kind of music that was to be performed. This thus is unlike the California case in which the privilege of operating trains was extended to buses (if those were the facts).

3. Now the covenant comes into play. The easement granted a privilege to the members of GBM but imposed no duties to perform music on anyone. The covenant, in contrast, gives a right to those benefiting from it to have music performed by those burdened by it. In other words, those burdened by it have a duty to perform the music.

While Bach will begin his legal preparation by thinking about real covenant, he will need to move away from that theory in order to get what he wants. First of all, breaches of real covenants are not remediable by injunction, but only by judgments for damages, and Bach wants to “compel them” to resume the concert. Moreover, the covenant is not in Martin’s deed; nor is it in his chain of title so Bach would have a hard time showing that Martin’s property is burdened by the covenant, and it surely imposes no duty on Martin personally.

Bach’s best theory is equitable servitude. That may get Bach relief against Martin, although it surely will not get him relief against the members of GBM. An equitable servitude is enforceable by injunction, so that much is taken care of. Moreover, an equitable servitude arises when its content appears to be part of the rights and obligations associated with the use of land that results from subdivision of property—here Concertacres. But, while it appears that Listener may have intended that all parts of Concertacre be benefited by the annual garbage-can-lid concerts, Martin must be shown to have had notice of some kind before his property can be burdened. There is no indication that he has actual notice, unless he somehow could be held to have inferred the possibility of a covenant because he had record notice of the easement. But that is nonsensical because an easement only creates a privilege to use the land and not an obligation to engage in the use. The best argument for Bach is that the actual performance of the garbage-can-lid concerts put Martin on notice. But that is a weak argument also because even if the garbage-can-lid concerts went on for many years, and Martin knew about them, he still reasonably would infer only that they were privileged, not that they were obligatory. So Bach’s probability of success against Martin is not high.

Bach’s probability of success against GBM is zero. They were not, nor was Musicsliver, touched by any covenant. And Musicsliver was never part of Concertacres so any equitable servitude associated with the Concertacres subdivision has nothing to do with them or their property. Their only legal relationship with Concertacres is that they were the grantees of an entirely distinct easement granted by the original owner of Concertacres. If anything fails to satisfy horizontal privity, this covenant does. Moreover, there is nothing to show that the members of GBM had any notice of the covenant in the deeds to parts of Concertacres.

4. The barbecuers have a good argument that they are doing nothing more than barbecuing on their own property, acquired by adverse possession. The building of the barbecue pit and its use was open and notorious—how could Wontco or its predecessors, especially Martin, fail to notice the barbecue pit and smell the smoke and see the barbecuers once a year? It also seems clear that these activities were hostile, in that there is nothing in the facts that suggest that Martin or anyone else who ever owned the Martin lot of Concertacres ever invited the barbecuing. If Martin participated in barbecuing and encouraged the barbecuers to continue that activity, then there would be an argument that the use was permissive and therefore did not satisfy the hostile element of adverse possession. But there are no facts to suggest that. It also appears that the barbecuers activity was continuous. Even considering only the use of the barbecue pit, which surely did not occur every day of the year, it nevertheless apparently occurred consistent with the customary seasonal use of a barbecue pit. Moreover, the use giving rise to adverse possession comprised not only the barbecuing, but the presence of the pit. And the pit was there all the time. Another way to analyze this problem is to suppose that the barbecue pit gave rise to adverse possession, and the barbecuing gave rise to a prescriptive easement, which has the same requirements as adverse possession, but extends only to nonexclusive uses of land.

There is nothing in the facts to suggest that Wontco will escape the conclusion of adverse possession or prescriptive easement. Wontco were not a BFP without notice. They had an obligation to inspect the property before they bought it. If Wontco had inspected it, they would have seen the barbecue pit. They has a weak argument that they did inspect it and saw the pit or if they had inspected and seen the pit they would have thought it belonged to Martin. But the barbecuers likely would argue that the barbecue pit was like the manure pile case and therefore Wontco had an obligation to inquire further as to why the barbecue pit was there, in which case they would have discovered the hostile activity on the property they were about the purchase.

One other argument Wontco might want to make is that the barbecuing and the construction of the pit were incident to the garbage-can-lid concerts and that once the garbage-can-lid concerts ceased, use of the pit for barbecuing under other circumstances constituted an entirely different use, and thus the prescriptive period—probably 20 years—had to run from the cessation of the concerts, not from the first barbecue.