ASP Property session 2

1
ASP Property (session 2)

• Agenda
• Questions?
• Class preparation to brief or book brief?
• Writing Exercise

2
What do you want to cover?

• Take out a piece of paper (or new office
  document)
• Write down what you think you need to work on and
  what I can try to do to help.
• Hand the paper to me or e-mail the doc as an
  attachment later (randrews_at_kentlaw.edu)
• I will try to cover skills or methods that you
  guys want to get advice or help on.

3
Class Preparation

• Briefing Ryans personal method (may not be for
  everyone)
• You shouldnt be writing down everything (keep
  them short)
• First, complete the whole reading highlighting
  the important information
• List the important facts, any rule, and the
  reason the court gives for the rule
• In class write down the elements Baker says are
  important and the major points from any policy
  discussion that takes place
• Advantages
• You are prepared to answer questions about facts,
  procedural posture, and rules if called on
• You can closely pay attention to any discussion
  and take good notes b/c you are not trying to get
  the facts and the rule down when the discussion
  has moved on
• You dont have to hurriedly copy the facts as a
  classmate is reciting them
• Makes you analyze and think about what was
  important in a case, which can be compared to
  what Baker highlights.
• If there are important things that are not
  discussed in class, you will have the in your
  notes.
• Make sure you note any inaccurate information you
  may have included so that you are not confused
  when sitting down to make your outline.

4
Other preparation methods

• Book Briefing
• Summarize each paragraph in a few words in the
  margin so you can look at the book and easily
  find what you need to if called on
• Highlight using different colors
• In class, copy down the summary of the facts, any
  rule, and any justifications the court gives
• Write down the important points from any policy
  discussion
• Advantages
• it does not take as much time as briefing
• Forces you to analyze each paragraph and
  summarize the main point in a few words
• Disadvantages
• It can be hard to try to copy the facts and rule
  down while paying close attention to the dialog
  in class and you could miss something important
• Reading Twice Ryans friend Davids method
• First, read the case quickly so you have a
  general idea about what is happening and what
  issues are involved
• Second, read the case slowly highlighting what is
  important
• Some people use different colors for different
  parties, to separate rules from facts, so
  separate rules from policy
• Does anyone have a method they would like to
  share?

5
Writing Exercise

• In 1980, Mickie Piatt bought a large piece of
  land, which included a small lake, in the central
  part of the State of Kent. In 1995 Piatt sold
  all of the land surrounding the lake to Kent Real
  Estate Development, Inc, but retained a lot for
  herself. As part of the deal KRED wanted title
  to a twenty foot tract of land surrounding the
  lake, including the area on the lot Piatt kept
  for herself, for flood plains, sewer, and water
  lines. Prof. Piatt was told by KRED she could
  cross the tract to access the lake. Before
  selling the land, Prof. Piatt installed a
  sprinkler system, drawing water from the lake, to
  water the grass in the 20 foot strip leading from
  her property to the lake. She also would swim
  with her family in the summer and in the winter
  she would ice skate and play hockey on the frozen
  lake. The house built next door to Prof. Piatts
  lot has recently been occupied by the Fat Mike,
  a member of the punk rock band NOFX. When fat
  mike is at the house, he and his band like to
  practice their new songs outside at ear piercing
  volume. He has even thrown empty beer cans onto
  Prof. Piatts lawn. If this wasnt enough, KRED,
  inc has recently sold the 20 foot tract of land
  surrounding the lake to Mr. K. Marx. Marx has
  recently posted no trespassing signs and erected
  a fence around the lake. Marx then sent the lot
  owners a letter offering to rent them use of the
  lake. You are an associate at Baker, Ryan,
  Associates and a senior partner comes to you with
  the above story. Prof. Piatt would really like
  to use the lake come summertime and she would
  really like to stop fat Mike from being so loud
  and drunk. Discuss any possible causes of
  actions and their likely outcome.

6
Ryans Answer

• Can Piatt get an easement to cross the 20 ft.
  strip to use the lake?
• Easements Prescription, implication, or
  necessity?
• Prescription No because not hostile (the use was
  permissive)
• Open Notorious swimming and boating in the
  lake would put the buyer on notice that the 20 ft
  land was being crossed
• Adverse / Hostile permission to cross the land
  was given and can also be implied by the lots
  close proximity to the lake
• For the statutory period?
• Implied From Prior Use Even though parties have
  not meant to create an easement, the court can
  infer the intent of the parties to create one
  from the presence of a pre-existing use
• Prior ownership of whole piece of land and
  conveyance of part of it Piatt owned the whole
  piece of land before she sold part of it to KRED
• Before severing the land, one part of the land
  was used to the benefit of the other part in a
  manner that was obvious and continuous Before
  the sale Piatt was using the 20 foot area in
  question to access the lake. While the sprinkler
  system is not obvious, her multi-season lake
  activates should be enough to put both KRED and
  Marx on notice that the land in question was
  being crossed.
• Use is reasonably necessary for the enjoyment of
  the dominant estate while using the lake may not
  be absolutely necessary, absolute necessity is
  not required. Piatt bought the land to use the
  lake and we have seen that use of water is
  important.

7
Ryans Answer (continued)

• Easement by Necessity
• Severance of title Piatt owned the whole piece
  of land, then sold part of it
• Necessity of the easement owner basically has to
  show that when the land was conveyed it caused
  the property to be landlocked. That is not the
  case here, there is access to the property, we
  are just arguing about a lake
• Constructive Trust Trust created by the court,
  regardless of any agreement or consent of the
  parties. When a party has been wrongfully
  deprived of a right or title to property by
  fraud, the court will impose on the present owner
  a trust to benefit the wronged party. It
  prevents the owner from being unjustly enriched
  by forcing that party to hold the property as a
  trustee for the wronged parties beneficial use.
• Was there an act of fraud? Maybe, by telling
  Piatt she could still use the lake then selling
  it to Marx, apparently not telling him of the
  agreement, could be fraud that might justify the
  court awarding a constructive trust.

8
Ryans Answer (continued)

• Nuisance a nuisance is a substantial and
  unreasonable interference with the use or
  enjoyment of land
• Customary it is not customary to play real loud
  music, outside, real drunk.
• objectively disagreeable most people, would find
  a neighbors band practicing outside and extreme
  volumes to be disagreeable (especially the vulgar
  nature of the music and drunken conduct)
• Least disturbing method No, sound studios are
  made to play loud music in, not backyards
• Value to defendant fat mike will likely argue
  that it is important that he be able to play his
  music outside so he can make more records
• Value to society music, even punk, is an art
  form and has some value to society (or you could
  argue that it is just noise and just breeds bad
  hair cuts and angry teenagers).
• 1st in time Piatt lived there first. She did
  not come to the nuisance.
• Conclusion most of the factors weigh in favor of
  Piatt so she likely will be successful in her
  nuisance claim against mike
• Trespass Trespass is an intentional (physical)
  invasion of the Ps interest in the exclusive
  possession of property
• Here, the beer cans that have been thrown on
  Piatt lawn would be considered trespassing