Class 3: Zoning Flashcards
Review: What is an easement?
A right to do something on someones land. Non-possessory right.
Review: What is the different between an affirmative or negative easement?
Affirmative gives the right to do something on your land
Negative forbids someone from doing something.
Review: What are some negative easements?
Water easements, view easements, solar easements etc.
Review: What is an easement appurtenant or in gross?
Easement appurtenant attaches to the land.
Easement in gross attaches to a person.
Review: Whats the difference between a dominant tenement and a servant tenement?
A dominant is a property benefited by the easement.
A servant is a property burdened by the easement.
Review: These are the ways to create an easement. Explain each one.
Expressly created
Implied by prior use
Implied by necessity
created by prescription
Ways to create an easement:
Expressly Created – through a writing b/c the statute of frauds applies to interests in land, such as easements.
Implied By Prior Use – in certain situations, the law will imply that an easement was created. It is reasonable assumed the easement was to continue when the land was divided.
Implied By Necessity – if an easement is the only way to access land or get something done. (Absolute necessity required – not just convenience.)
Created By Prescription – earned by regular use, like adverse possession.
Review: The elements for a easement by prior use are:
Initial unity of ownership
Severance of the title
An existing apparent and continuous use
Reasonable neccessity for that use.
Explain each.
Initial unity of ownership (of the now dominant and servient estates).
Severance of the title to create the dominant and servient estates.
An existing (some prior use), apparent, and continuous use of one parcel for the benefit of the other parcel.
Reasonable necessity for that use. (Necessity helps impact the intent of the parties, which is why it is a requirement.)
Review: What is an easement for necessity?
The elements are:
Unity of ownership
The right of way is a necessity
it must exist at the time of
Explain them.
It is for rights of way (must be absolute, strictly)
Elements for implied easement by necessity for rights of way:
1) Unity of ownership of the alleged dominant and servant estates.
2) The right of way is a necessity, not a mere convenience (strict necessity required); AND
3) The necessity must exist at the time of the severance of the estate.
Review: Whats the difference between implied easements by prior use and implied easements by necessity?
Easements by necessity apply only to rights of way – ingress and egress – to landlocked parcels.
Easements by necessity do NOT require that the use be in existence at the time of creation – that is, it need not be a prior use
Review: What is a prescriptive easements?
If you have permission then what?
When does the SOL begin?
Its a easement by adverse possession (OCEAN)
If you have permission, it’s not adverse thus not prescriptive.
SOL begins when the dominant and servant estates are not owned by the same person.
Review: Hypo
Right next to Wendi’s home is a golf club. Every day, several golf balls are driven onto her property, and the players routinely come onto Wendi’s property to retrieve the golf balls.
If this continues for the statutory period, will the golf club acquire a prescriptive easement over Wendi’s property?
Yes! This actually happened to Conrad Hilton (of Hilton Hotels fame), and he lost.
How to prevent this?
Erect a fence to interrupt/stop people from getting the golf balls – or get a written agreement with the club to ALLOW/permit them to get the balls, which would negate the hostility element.
Review: Hypo
Eric owns Blackacre. He records a deed with himself naming himself the grantee of an easement for a road over Blackacre (from adjacent property that he also owns).
Is this easement valid?
No.
Rule: A person cannot create an easement in their own property.
Review: Hypo
Courtney owned two adjoining lots with existing houses on them. She sold one to Natalie. A driveway and a sewer line ran from Natalie’s new house to the street. After the sale, part of the driveway and part of the sewer line ran over (and under) Courtney’s lot. The deed conveying the lot to Natalie did not mention the driveway or sewer line.
Does Natalie have a right to continue using the drive or sewer line?
Yes, if she can show all the elements of an easement by prior use.
(1) There was unity of ownership that was severed. (2) the use was likely in place before the severance. (3) the use was visible for the driveway and apparent for the sewer; and
(4) it is likely reasonably necessary to use the lot for a residence.
Review: Hypo
Kyle deeds to his next-door neighbor, Tim, the right to park in his parking lot, which gives Tim an easement. But Tim then sells his home to his sister, and moves five miles away. When Tim comes to visit he continues to park in Kyle’s lot, and Kyle doesn’t object. But Kyle does object when Tim’s sister parks in his lot.
What would Kyle’s best argument be for this discrepancy?
That this is an easement in gross that only was intended to benefit Kyle, no matter where he lived. Tim’s sister would argue that the intent was for an easement appurtenant, which benefits the land.
Thus, when she bought Tim’s property, she now gets the benefit of the easement.
Review: Hypo
The deed from Matt to DeMarr, which land-locks DeMarr’s property provides for access to DeMarr’s land over a strip of Matt’s land that is narrow, steep, and very inconvenient for DeMarr to use. DeMarr later protests that he needs better access and asserts a way of necessity.
Is DeMarr likely to get an easement by necessity? Why or Why not?
No. There must be strict necessity in most jurisdictions – that means no access. Inconvenient access isn’t good enough, especially in situations where an easement of way was already bargained for in the land transaction.
Review: What is the meaning behind the “scope” of the easement?
Whats the general rule for this?
Refers to the location, and manner of use. General rule is that an easement holder can use the easement in a reasonable way.
Review: Brown v Voss
Facts: Brown wanted to build a house but Voss had an easement over their land by prior use.
Issue: Can he use the easements to benefit a non-dominant estate?
Holding:
Ratio: No. A easement cannot benefit a non-dominant estate.
Review: Hypo
O in 1900 granted E an easement appurtenant over O’s land so E could reach a public road. In 1900, both properties were rural, and travel was by foot, horse, and buggy. 100 years later, O’s successors and E’s successors own the respective properties.
Are E’s successors limited to using foot, horse, and buggy to travel over the dirt-path easement?
No. Cars, trucks, and motorcycles are natural developments, so the scope of the easement will likely be adjusted to accommodate progress.
Eight ways to terminate easement. Explain:
Release
Expiration
End of Neccessity
Merger
Estoppel
Abandonment
prescription
Condemnation
- Release: These typically require a writing to comply with the Statute of Frauds.
- Expiration: If the terms of the easement limit it by date or by some condition subsequent, then it ends on that date or on the occurrence of that event.
- End of necessity (for easements by necessity)
- Merger: Ends by merger if the easement owner later becomes the owner of the servient estate.
- Estoppel: Can end if the servient owner reasonable relies to their detriment on statements made by the easement holder.
- Abandonment (the most common way)
- Prescription: If the servient owner wrongfully and physically prevents the easement from being used for the prescriptive period, then the easement terminates.
- Condemnation: Gov’t exercises its eminent domain power.
Review: Hypo
Farmer Ted sold Erin a landlocked lot – Lot 36. In the deed, Farmer Ted deeded Erin a ten-foot-wide easement for ingress and egress over Lot 24, which allowed Erin to reach Cove Road. Farmer Ted continued selling lots. A year later, he deeded Lot 24 to Wilbur, subject to Erin’s easement of way. A year after that, Erin purchased Lot 35, which adjoins her lot and fronts High Street. Wilbur has always wanted to get rid of the easement over his lot.
Does the easement over Wilburn’s lot end when Erin buys lot 35?
No. This was an express easement that was granted in Erin’s deed – not an easement created by necessity. So even though the necessity ended, that doesn’t impact her express easement over Lot 24.
Review:
Farmer Ted sold Erin a landlocked lot – Lot 36. In the deed, Farmer Ted deeded Erin a ten-foot-wide easement for ingress and egress over Lot 24, which allowed Erin to reach Cove Road. Farmer Ted continued selling lots. A year later, he deeded Lot 24 to Wilbur, subject to Erin’s easement of way. One year later, Wilbur sells his property (with a home on it) to Erin, who moves into Wilbur’s home. Six months later, she finally finds a buyer for Lot 36, so she sells it by quitclaim deed (where she doesn’t mention anything about the easement).
Is her original easement still in existence?
No. The easement terminated when Erin bought Wilbur’s lot because she owned both the dominant and servient estates – and you cannot have an easement in your own property.
Note: They buyer may have to sue to try and get an implied easement by necessity.
Start of Class 3 Material:
What is zoning big picture?
City planning:
How do we decide where certain types of uses are going to be, what will be allowed versus what is not allowed?
Why did zoning develop big picture?
As a response to the rapid industrialization and urbanization that took place in the late 19th & early 20th centuries.
What is a limit for zoning?
Since zoning is a governmental activity, city planning is subject to the Constitution’s limitations on the regulation of certain personal liberties.
What is Euclidian Zoning (aka building block zoning)?
Euclidean zoning segregates land uses into specified geographic districts and dimensions. The zoning stipulates limitations on the type and magnitude of development that is allowed on lots within each “zone.”
Ex. Residential district (single family), residential (multi-family), commercial, industrial.
In most cases, you can put lower zoned uses into higher zoned districts, but not vice versa – residential homes in an industrial area are allowed, but not industrial complexes in residential areas.
Whats the main point of euclidean zoning?
For Euclidean zoning, Wholesome housing is the central aim, to which all else is subsidiary.
Wholesome housing is defined as single-family homes with a yard around. If that is not feasible, then two-family homes, and, if necessary, apartments.
What can you do in a euclidean zoning? (aka what can the police enforce)
Police can enforce a height limit, what can be in each zone, number of stories, size of building etc.
What is performance zoning?
Performance zoning uses goal-oriented criteria to establish parameters for proposed development projects in any area of a municipality. Using building codes to establish performance standards.
(Eg: “that walls, floor and ceiling be so constructed as to contain an interior fire for one hour.”)
What is incentive zoning?
Incentive zoning provides a base of prescriptive limits on development and also provides an extensive list of incentive criteria that will encourage development through bonuses that meets established urban development goals.
(Ex. Giving some tax break for building low-income housing)
What is a non conforming use in regards to zoning?
Whats the idea when its said a property can be grandfathered in?
Give me an example:
A non-conforming use is a use of property that does not fit a localities zoning ordinance.
Typically, these non-conforming uses were in existence BEFORE the zoning ordinance took effects, so they were allowed (grandfathered, so to speak).
Example: A grocery store that has been in existence for 20 years is now located in a single-family residential use district that is exclusively residential according to the newly enacted zoning ordinance. The store would be a non-conforming use, but typically be allowed under the ordinance because it pre-existed the ordinance.
Does a change of ownership change the non-confirming use?
Does abandonment ends non-conforming use?
How many days creates the presumption of abandonment?
A change of ownership does not end the non-conforming use status – that is, non-conforming uses run with the land (not the landowner).
Abandonment of the non-conforming use ENDS the right to not conform. When this happens, no current owner or future owner can restart that use.
Most ordinances say that a long enough period of non-use (60 day to 1 years) creates a presumption of abandonment.
Most jurisdictions allow “natural expansion” of the non-conforming uses to grow over time – i.e., changing how the building looks or minor expansion on the same lot.
The below are the three ways euclidean zoning is flexible. Explain each.
Variances, Special Exceptions, Zoning Amendments
Flexibility is needed in Euclidean zoning because of the tightly drawn use districts.
1) Variances: The power of the Zoning Board to allow a landowner to build on land (or use land) in a manner that is otherwise not permitted.
2) Special Exceptions: The power of the Zoning Board to allow a use provided for in the text of the ordinance, but which is not located on the zoning map that accompanies the text.
3) Zoning Amendments: Adding/removing provisions from the zoning ordinance.
Below are the two rules for variances.
Explain each.
(Exceptional/undue hardship and variance would not be detrimental)
To qualify for a variance, two tests must be satisfied:
(1) the applicant must show exceptional and undue hardship;
(2) the applicant must show that to grant a variance would not be detrimental to the area (zoning plan).
Undue hardship means that without a variance, the property in question could not be effectively used.
Courts will consider efforts by the property owner to alleviate the hardship — e.g., efforts to acquire additional land to build up an undersized lot, or efforts to sell the undersized lot to a neighbor, at a reasonable price.
What is a conditional variance?
Does this run with the land?
Given a variance only when a condition is met.
These conditions might relate to fence size, amount of outdoor lighting, enclosure of buildings, etc.
All variances run with the land.
