Disputes About the Use of Land - Fixtures & Zoning

Question 1

What is a fixture?

Answer 1

Tangible personal prop. that is attached to real prop. in a manner that it is treated as part of the real prop. when determining ownership

Question 2

Structures & other items Incorporated into structures

Answer 2

The following become part of the realty & owner of the RP is also the owner of teh structure and any materials

• Structures built on real prop. (walls, dams)
• Materials incorporated into a structure (bricks used in making a wal)

Question 3

Attachment of Chattel by Fee Simple Owner

Answer 3

Fee Simple owner of real prop. is free, subject to gov’t land-use restrictions, to make improvements to the real prop.

• Including fixtures

Question 4

Removal of Chattel by Fee Simple owner of real property

Answer 4

FS owner usually intends for the chattel to become a fixture by attaching it to real prop.

• How is intent determined? - Obj. reas. pers. std. factors
  
  • Importance of chattel to the RP
  • Was it specially designed for use on the RP
  • Amount of damage to the real prop. if removed

Question 5

What is the effect if it is determined that the chattel is a fixture?

Answer 5

Buyer of RP is entitled to the chattel unless seller reserves the right to remove it in the contract of sale

Question 6

When can a tenant remove an improvemnet from the leased property?

Answer 6

Tenant can remove fixture he attached to the leased property if:

• leased prop. can be restored to its former cond. after the removal AND
• The removal and restoration is made within reasonable time (generally not beyond the lease term)

Question 7

When must tenant fixtures be removed from a property?

Answer 7

Before the expiration of the lease

• Exception - tenant has no reason to know when the lease is going to end
  
  • Must be given reas. time to remove the fixtures

Question 8

What is zoning & what is the authority?

Answer 8

Government regulation of land

• Local Government’s authority to regulate land use - granted by an enabling act
• States - Have mostly delegated this power to local gov’t entities
• Federal Regulations - Auth. by Article IV, Sec. 3 Power over federal lands

Question 9

What is a zoning ordinace ?

Answer 9

1. Laws restricting the use of land AND
2. are valid exercises of the state’s police power

Question 10

What is the effect if zoning destroys value of land?

Answer 10

Regulatory Taking

Question 11

What is the effect if a zoning ord. makes a once lawful use nonconforming ?

Answer 11

The existing non-conforming use doesn’t need to stop immediately

Question 12

When is a zoning variance granted ?

Answer 12

A variance will be granted if the proponent demonstrates:

1. Undue Hardship AND
2. Public will not suffer subst. detriment from the variance

• Value of the neighboring properties will not decrease as a result of granting the variance

Question 13

What is an exaction?

Answer 13

Concessions requiring the developer or landowner to pay for or provide public facilities or amenities as a condition to a municipality’s approval of a development permit

Question 14

When is an exaction unconstitutional?

Answer 14

They are unconstitutional under the 5th or 14th Amend. unless:

1. The municipality must prove that an exaction’s purpose has an essential nexus to the type of harm that hte development will cause AND
2. A rough proportionality must exist b/w the exaction and the development’s projected costs

Question 15

Unconstitutional Exactions - Essential Nexus

Answer 15

The demands by the gov’t must be rationally connected to the burden the developer’s project would place on public facilities

Question 16

Unconstitutional Exactions - Rough Proportionality

Answer 16

There must be a rough proportionality b/w the harm or costs the development would impose on the community and the cost imposed by the exaction on the developer

Question 17

Eminent Domain (aka The takings clause)

Answer 17

Gov’t can take private prop. for pub. use if it provides just compensation

• Taking can be either poss. or regulatory

Question 18

Possessory Taking

Answer 18

Possessory Taking (condemnation) = Always a Taking

• Occurs when gov’t confiscates or physically occupies a persons prop.

Question 19

Regulatory Taking

Answer 19

Regulatory Taking = No reasonable economically viable use

• occurs when gov’t reg. leaves no reas. econ. viable use of the prop.
• mere decrease in value is suff. to find a reg. taking
• Can be total or Partial taking

Question 20

Total Regulatory Taking

Answer 20

Total Reg. Taking (aka per se taking)

• Deprives the owner of 100% of all econ. viable use of the owner’s prop.
• No requirement that reg. existed when property was acquired
  
  • Prop. owner can still bring takings challenge if reg. existed when prop. acquired
• Temp. denial of use of prop is ok so long as reas.

Question 21

Government Restrictions on Development

Answer 21

Must be justified by a benefit that is roughly proportionate to the burden imposed or there will be a taking

• If proportional = no reg. taking
• If excessive = Regulatory Taking

Question 22

Partial Regulatory Taking

Answer 22

A reg. taking thats not a per se taking will also be considered a taking under the 5th amend. if the taking doesn’t pass Penn Central Balancing Test

Question 23

What is the Penn Central Balancing Test ?

Answer 23

To determine if justice & fairness require that econ. injuries caused by pub. action be compensated by the gov’t SCOTUS set forth the following balancing test

1. Nature of Government Action
2. Level of Diminution in Value of the Owner’s Property AND
3. Property owners reasonable investment-backed expectations

Question 24

What must a reg. taking or poss. taking be for, for it to be constitutional ?

Answer 24

Public Use

• for poss./reg. taking to be const. it must be for public use
• Satisfied if the gov’t acts under reas. belief that taking will benefit the public

Question 25

Takings & Just Compensation

Answer 25

If there is a taking for public use, just compensation at the time of the taking must be paid to the owner of the property

• FMV measured in terms of loss to owner
• Gain to the gov’t is irrelevant

Question 26

What is the effect of an invalid taking?

Answer 26

Terminate the gov’t regulation and pay owner for damages that accrued while regulation in effect