EVERYTHING 2

Question 1

What’s the difference in Trespassing & Nuisance?

Answer 1

The rule of law states that the intentional Tort of Trespass can be inflicted Indirectly.
Ex.: Pollution is a common example of Indirect Trespass.

Nuisance is an interference or an impidment to the enjoyment of one’s property.
Ex.: Sound & Clapping are physical nuisances;

Question 2

Horizontal Privity =

Answer 2

This means that the original owners had, at some point, a shared interest in the land; found where there is:

Grantor/grantee relationship (Most Common),
Landlord-tenant relationship or,
Mortgagor-mortgage relationship

Horizontal privity is not present if two neighbors simply agree on a covenant.

Question 3

A plaintiff sues under a theory of equitable servitude if he wants an equitable remedy such as an:

Answer 3

Injunction

Question 4

A real covenant to bind successors, needs PINT

P
I
N
T

Answer 4

Privity
Intent- to bind future successors (expressed)
Notice - to the person the covenant is being
enforced against (usually record notice)
Touch & Concern - the covenant must touch & concern the land (that is, make it more valuable or useful)

Question 5

Equitable Servitudes to bind successors, needs TIN

Answer 5

Touch & Concern
Intent
Notice

Question 6

Reciprocal negative servitudes arises when:

Answer 6

A person (usually a developer or some someone who owns several lots of land) places a servitude on the lots he grants.

Question 7

What are the requirements for Negative Servitudes?

Answer 7

Intent - to create a common scheme or plan. Intent can be proved by a building plan, recorded plat, or general pattern.

Notice - the grantee has AIR (actual, inquiry, or record notice)

Question 8

What are some equitable defenses available?

Answer 8

A CLUE (Mnemonic)

Acquiescence - the P let others do the same thing

Changed conditions - neighborhood condition changed so much that it would be inequitable to enforce the restriction,

Laches - P took too long to bring suit,

Unclean hands - P is violating a restriction of the same general nature on his own land

Estoppel - there is a statement by the P/D amd reliance upon that statement

Question 9

Equitable Servitudes Case Brief

Answer 9

Tulk v. Moxhay: Tulk asked the court to enjoin Moxhay from altering land in violation of a covenant. Moxhay argued that the covenant was not binding since there was no horizontal privity and the covenant did not therefore run with the land. The court said it did not matter that the covenant did not run with the land. Rather, a subsequent owner with notice of the restriction is in the same equitable position as the person who originally agreed to the restriction, and Moxhay was likewise bound by the covenant.

Question 10

Reciprocal Negative Servitudes

Answer 10

Sanborn v. McLean: The McLeans decided to build a gas station on their lot located in a residential neighborhood. The neighbors objected, arguing the gas station violated a restrictive covenant allowing only residential uses. The McLeans’s lot was not subject to an express covenant, though their lot was one of many on the same street with a prior common owner who had sold many of the lots subject to express restrictive covenants allowing only residential uses. The court explained that when common owners sell multiple lots with an intent to create a common scheme of covenant restrictions, the owner implicitly makes a reciprocal promise to the buyer. Since the common owner had already implicitly covenanted that the McLeans’s lot would likewise be used only for only residential purposes when it sold the other lots, the McLeans were bound.

Question 11

Who can enforce the servitude?

Answer 11

Any neighbor in the subdivision if the scheme existed at the time he or she purchased his or her lot.

Question 12

A state may enact zoning regulations to control the use of land for the health, safety, morals, and welfare of its citizens.

Question 13

What is estoppel in a nutshell?

Answer 13

Summary: If an original party is suing a new party, they generally need to show that the burden runs with the land. If a new party is suing an original party, they generally need to show that the benefit runs. If a new party is suing a new party, they must generally show both the burden and benefit run.

Question 14

What is RLUIPA?

Answer 14

The Religious Land Use & Institutional Persons Acts that protects religious institutions from unduly bufdensome or discriminatory land use regulations.

Question 15

Substantial Burden =

Answer 15

A substantial burden imposed on the religious exercise of a person or institution, unles the government can show that it has a compelling interest for imposing this restriction & that the least restrictive way for the government to further that interest.

Question 16

Equal Terms =

Answer 16

Religious assemblies and institutions must be treated at least as well as nonreligious asemblies and institutions. a government must not exclude or unreasonably limit religious institutions.

Question 17

Standing =

Answer 17

Religious institutions have standing to enforce provisions of RLUIPA,

Question 18

Many Zoning ordinances protect or grandfather in prexisting uses. However once that property is sold to a new purchaser:

Answer 18

The prexisting use is no longer protected.

Question 19

What is the General View of Community Interest Communities?

Answer 19

The distinctive feature of a common interest communitiy is the obligation that binds the owners of individual lots or units to contribute to the support of the common property or other facilities, aor to suport the activies of an association, whether or not theowner uses the common property or facilities or agrees to join the association.

Question 20

What are the Standards for that govern associations as they relate to Restrictive Covenants?

Answer 20

If a restriction is contained in the declaration of the comon interest development, and is properly reorded, it carries a presumption of reasonablenes and will be enforced. This puts the burded on a P to prove that the restriction is unreasonable To find that the restriction unreaonable, it would have to be an arbitrary or substantially outweigh the benefits of the restriction to the co-owners.

Question 21

What is the Business Judgement Rule?

Answer 21

A rule that has been extended to some of the actions taken by homeowner asociations and coperative boards, and is the most deferential to the board’s decision.

Question 22

What is the Triad Rule of Capture

Answer 22

The general rule is that the first person to “capture” such a resource owns that resource

Question 23

What is Hostility in Adverse Possession?

Answer 23

Merely one’s interest against another’s property.

Question 24

Zoning restrictions are Unconstitutional if:

Answer 24

They are Clearly Arbituary, & Unreasonable & without substantial relation to the Public Health Safety, morals or general welfare.

Question 25

The Continuity Test in the requirements of Zoning:

Answer 25

Does not mean 12 months in all cases.

Question 26

To acquire title by Adverse Possesion:

Answer 26

Must be Actual Possession, Open and Notorious, Continous and Exclusive under a claim of right for a statutorily specified period of time.

Question 27

Is Subjective belief in one’s claim of right necesary to acquire Title by Adverse Possession?

Answer 27

No

Question 28

Must an Adverse Possessor hold land exclusively by using or possessing it to the exclusion of others?

Answer 28

Yes - the type of possession by using or possessing it to the exclusion of others.
The possession need not be totally exclusive but must be of a type of exclusion that would be expected by the true owner.

Question 29

How is the “Claim of Right to Title Satisfied?

Answer 29

As long as the possesor treats the land as exclusively his through the statuttory period - regardless

Question 30

To take land by Adverse Possession, the Adverse Possessor must do so under?

Answer 30

A Good Faith Claim of Right

Question 31

What is Tacking?

Answer 31

In meeting the time period of Adverse Possession, the successive owners of a property may add their occupancy times together whey they share privity in the ownership interest.

Question 32

What does the Public Use requirement of the Taking Clause of the 5th Amendment say?

Answer 32

The government may take private property for public use, but only if it provides just compensation.

Question 33

A forced transfer of land from one private entity to another pprivate entity constitutes a Public Use if the receiving entity is?

Answer 33

1-Involved in a Public Necessity or

2-Remains subject to the public oversight w/respect to the transfered property, or

3-If the subjedct property is selected because of an independent public need.

Question 34

A state’s use of Eminent Domain to condemn property from private individuals and redistribute it to other private individuals constitutes a?

Answer 34

Public use under the 5th amanedment if it is rationaly related to a conceivable public purpose.

Question 35

Kelo v. City of New London

Answer 35

The state’s Eminent Domain authority to condemn private property and sell it to private developers is Constitutional for the purpose of creating new jobs and increasing tax revenues with violating the public use requirement of the 5th Amendment.

Question 36

Hawaii Housing v. Midkiff

Answer 36

A state may NOT use the Eminent Domain process to take property that is heavily concentrated in the hands of a fewprivate landowners and redistribute it amo the general populatio of private individuals.

Question 37

Berman v. Parker

Answer 37

This was about an Eminent Domain provision in the District of Columbia which condemned private property from one private interest to another. This was upheld as Constitutional because they redistributed an oligopoloy land ownership that was absolutely within the Police Powers provided to Hawaii as a Sovereign State

Question 38

County of Wayne v. Hartcock

Answer 38

The Lower Courts found that the proposed development constituted a Public Purpose. However, on appeal, the Supreme Court found:

-This was not a public necessity or a vital instrumentality of commerce,

-The development plan had no mechanisism by which the public may insure that the property will be for public use,

-The receiver is fully expected to purse it own financial interest on its own terms, and finally,

-There has been no showing the the subject property was condemned for a public purose other than to transfer it for private development.

In summary, the higher court stated: “To allow private property to be taken and transfered to a 3rd party simply because the later can make better use of it would drastically and impermisissibly reduce property rights.”

They reversed the decision of the lower courts.

Question 39

Do Easements & Restrictive Covenants of record which are not violated render a title unmarketable title?

Answer 39

No. Unless the parties agree otherwise, a seller is required to tender title which is readily available for resale, and a purchaser has the right to a title that reasonably assures him that no flo or doubt will arise to affect its marketability.

Question 40

Is a title considered unmaketable if a resasonably prudent person under the cirmcustances would refuse to acept the title in the ordinary couse of businesa?

Answer 40

Yes because it is not necessary that the title is actualy bad for it to be unmarketable.

Marketable titles assures the transferre the quiet and pecefull enjoyment of the property which MUST be free of encumbrances.

Question 41

What is an Encumbrance?

Answer 41

An encumbrance is anything that constitutes a burden of another’s claim upon the title, such as: Right of Way Easement, a condition that may work a forfeiture of the estate, or th right to withdaw resources of minerals.

This does not mean, however that the seller mut convey the land from any and al burdens; rather, only those that afect the marketable title.

The title must alson be fully insurable.

Question 42

Madhaven v. Sucher

Answer 42

The trial court reasonable concluded that the drainage easement that encroached unto the patio within a few fet of thehouse, and therefore the insurance company refuesed to insure against this Encumbrance & the higher court affirmed this decision.

Question 43

Does a Zoning Violation render Title Unmarketable?

Answer 43

No. Absent an express, contrary agreemet, a Zoning violation does not render title Unmarketable. A Marketable Title is a Title free from reasonable doubt but not from every doubt.

The lower courts afirmed that the failure to obtain subdivision approval rendered title Marketable. The higher court disagreed, stating that Marketable Title emtao;s the right to unencumbered ownership and possession, not the right to use the property for a particular purpose and a zoning ordinane exicsting at the time of the contrct only regulates the use of property and therfore generally does not make the Title Unmarketable. But if the seler expressly warants and respresents that the property wil not be in violation of any Zoning provision, the seller is liable thereof. Tompkins made no representations about obtaining subdivision approval and Vorhesvile expresly agrfed to purchase the property subject to zoning laws. Therefore the higher course reversed the apellate;s court decision and the Tompkis summary judgment motion should be granted.

Question 44

Nelson v. Anderson:

1-Does a violation of a restrictive covenant render Title Unmarketable?

2-Does insuring against a dect in the title cure the defect?

Answer 44

1-Yes - Violation of a Restrictive Covenant may render Title Unmarketable. The Marketable title must be reasonably secure against the hazard, annoyance, and expense of future lititagion.
Marketable tile need not be beyond all doubt, but it must be free of doubt or cloud that would afect the value of the property.

2-No. insuring against a defect in the title does not cure the defect. Indemnification against future litigation over a Title defect might peruade a purchases to accept the defective title, but the court cannot compel a skeptical buyer to close on the transaction. In Nelson v. Anderson, Anderson bargained for Marketable, uncumbered title and receied a Covent with an Encumbrance of lantd and the insurace did not change the fact. Bot the lower court and the higher courty held that the seller, Nelson, failed o deliver unencumbered title.