Land Use Control

Question 1

Private Nuisance

Answer 1

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any (1) substantial (2) non-trespassory (3) invasion (4) of another’s interest in the private use and (5) enjoyment of land (6) by any type of liability-forming conduct (can be intentional or unintentional)

(1) “Substantial” = more than petty annoyance; some material physical discomfort or injury to plaintiff’s health or property (standard is “normal persons in a particular locality” → smell of poop in the country is acceptable, but not in the city
(2) “Nontrespassory” = not a physical or tangible invasion
(3) “Invasion” = an interference/unwanted activity
(4) “Another’s interest” = includes holders of possessory and nonpossessory estates
(5) “Enjoyment” = quiet enjoyment
(6) “Any type of liability forming conduct” = acts or omissions

-Doesn’t require negligence
-Interest protected = use and enjoyment of the land

Question 2

Intentional invasion

Answer 2

unreasonable conduct under the circumstances when a person act w/ the purpose to invade another’s interest in the use and enjoyment of their land OR
knows the nuisance would result, or was substantially certain to result, from his conduct

-Doesn’t need to be inspired by malice or ill will → harm doesn’t have to be the motivator

Question 3

Unintentional invasion

Answer 3

requires a showing of negligent, reckless, or ultrahazardous conduct

Question 4

What is the test for “unreasonable” under intentional invasion?

Answer 4

Would a reasonable person, looking at the whole situation impartially and objectively, consider it unreasonable?

Consider the 4 factors:
(1) The nature, utility, and local suitability of defendant’s conduct.
(2) The nature, utility, and local suitability of plaintiff’s use and enjoyment.
(3) The extent, nature, and frequency of the harm to plaintiff’s use and enjoyment
(4) Priority of occupation as between the parties.

Question 5

Is lawful conduct a defense against a nuisance claim?

Answer 5

NO

A land use may be lawful but still constitute a nuisance bc of the conditions or manner of operation of the use (e.g., spraying pig manure into the air)

Although compliance with the law may be considered in determining whether a nuisance exists.

Question 6

Is consent a defense against a nuisance claim?

Answer 6

YES

Generally one who expressly consents to conduct w/ knowledge of the purpose will later be estopped from claiming a nuisance

Question 7

Nuisance per se

Answer 7

Creating liability at all times and under any circumstances regardless of location or surroundings

E.g., certain unlawful activities, such as malicious conduct

Question 8

Nuisance (rule statement)

Answer 8

A nuisance occurs when one substantially interferes with someone’s use and and enjoyment of neighboring property in a way that’s either

(1) Intentional and unreasonable, or

(2) Unintentional and the result of negligent, reckless, or ultrahazardous activity

Question 9

Public nuisance

Answer 9

unreasonable interference with a right common to general public (rights enjoyed by collected group instead of individual or set of individuals)

Question 10

What’s the difference between a private and a public nuisance?

Answer 10

A private nuisance is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public

While a public nuisance is one affecting the rights enjoyed by citizens as a part of the public.

Question 11

Easment by Implication by Prior Use (Rule Statement)

Answer 11

Unless a contrary intent is expressed or implied, the creation of an easement may be implied by prior use if:
(1) Initial unity of ownership followed by severance of land into 2 or more parts;
(2) Prior use was made of one part for the benefit of another;
(3) That use was known or apparent at the time of severance; and
(4) Easement is reasonably necessary for the enjoyment of the dominant estate (“Reasonably necessary” usually means that alternative access or utilities can’t be obtained w/o substantial expenditure of $ or labor)

Question 12

Factors to consider when determining implication by prior use

Answer 12

(1) Whether the prior use was not merely temporary or casual, and
(2) continuance of the prior use was reasonably necessary to enjoyment of the parcel, estate, or interest previously benefited by the use, and
(3) existence of the prior use was apparent or known to the parties, or
(4) the prior use was for underground utilities serving either parcel.

Question 13

Easement by Implication by Necessity (Rule Statement)

Answer 13

Unless a contrary intent is expressed or implied, the creation of easement may be implied:
(1) A conveyance severing the ownership of land into 2 or more parts;
(2) Caused on land to be landlocked; and
(3) An easement is necessary to access the land.

Mere convenience is not enough

Question 14

Easement by Prescription (Rule Statement)

Answer 14

An easement may be created by prescription when its use is:
(1) Adverse (i.e., hostile or under a claim of right);
(2) Open and notorious;
(3) Continuous and uninterrupted use; and
(4) For the prescriptive period

Note: unlike adverse possession, exclusive use is not necessary

Question 15

Easement by Estoppel (Rule Statement)

Answer 15

A landowner may be estopped from denying the existence of an easement when:
(1) The owner or occupier permitted another to use his land (or represented that his land was burdened by an easement);
(2) It was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked
(3) And the user did substantially change position in a reasonable reliance on that belief

Question 16

Who’s entitled to use the easement?

Answer 16

The easement holder is entitled to use (meaning maintain, repair, improve) the servient estate in a manner reasonably necessary for the convenient enjoyment of the servitude

Question 17

Scope of Easement (Rule Statement)

Answer 17

An easement holder can use the servient estate in a manner that is reasonable necessary for the convenient enjoyment of the easement, including:
(1) Maintenance, repairs, and reasonable improvements
(2) Extended use that are normal developments of the dominant estate (i.e., it was reasonably foreseeable
(3) UNLESS it unreasonably interferes w/ the servient estate

Question 18

5 ways that an easement can terminate

Answer 18

(1) abandonment,
(2) merger,
(3) written release,
(4) termination of purpose or condition,
(5) foreclosure

Question 19

Factors to determine whether real covenant runs with the land?

Answer 19

Generally, real covenant runs with the land “at law” if:
1. the original covenanting parties intended the benefits and the burdens of the covenant to run with the land;
2. the subject of the covenant touches and concerns the land;
3. there is privity of estate between the party enforcing the covenant and the party against whom the covenant is being enforced.
4. there is notice of the covenant (e.g., by a recorded instrument in the chain of title).

Question 20

How to tell is burden or benefit?

Answer 20

Burden = having a promise enforced

Benefit = doesn’t impact use of land but has economic impact on property value

Question 21

Factors to determine whether equitable servitude runs with the land?

Answer 21

Generally, real covenant runs with the land in equity* if:
1. the original covenanting parties intended that the burden run to successors in interest of the covenantor’s land.
2. the subject of the covenant touches and concerns the land of the person against whom enforcement is sought; and
3. there is notice of the covenant (e.g., by a recorded instrument in the chain of title).

• Party seeking to enforce covenant seeks only injunction.

Question 22

Why do real covenants runs with the land more easily in common interest communities (CICs)?

Answer 22

Real covenants run with the land more easily bc
(1) Potential buyers all have notice of covenants
(2) Any gaps in scope of covenants are easily filled by common practice
(3) Order in which lots are sold becomes irrelevant

Question 23

How do you know if zoning regulation is constitutional?

Answer 23

If it’s an appropriate exercise of local gov’t’s police and not clearly arbitrary and unreasonable, having no relation to the public health, safety, morals, or general welfare

Question 24

Variance

Answer 24

Allows landowner to build on land or use the land in a manner otherwise not allowed under the applicable zoning when unique hardship is involved

Ex: deviations from area, set-back, floor space, height

Question 25

Vested Right

Answer 25

right to continue a use or complete a project as it was approved, despite subsequent changes to the zoning ordinance.

Question 26

What must property owner show in NC to demonstrate vested right?

Answer 26

(1) obtained a valid governmental approval;
(2) reasonably relied upon the approval;
(3) made a substantial expenditure;
(4) acted in good faith; and
(5) experienced detriment to comply.

Question 27

Factors to determine existence of spot zoning (NC)

Answer 27

Factors determined by NC Superior Ct to be relevant in showing existence of SZ:
(1) Size of tract in question
(2) Compatibility of the disputed action w/ an existing comprehensive zoning plan
(3) Benefits and detriments for the owner, his neighbors, and the surrounding community
(4) Relationship of uses envisioned under new zoning and uses currently present in adjacent tracts

Question 28

What landowner must prove in order to demonstrate need for a variance

Answer 28

(1) suffer a hardship without the ordinance, (2) that the variance would not damage or harm the neighborhood, and (3) that he is not at fault or a bad actor in his request.

Question 29

Eminent Domain

Answer 29

The power of an entity authorized to take private property for public use without the owner’s consent

This power can be exercised via condemnation → the procedure prescribed by law for taking authority to exercise its power of eminent domain

Question 30

Public Use (Rule Statement)

Answer 30

Broader than “use by the public” (e.g., economic development purposes)

SCOTUS “Test”: Requirement met as long as cts can conceive some legit purpose legislation had in mind

But ⅔ of state cts have enacted statutes limiting this type of taking (taking of non-blighted parcels for economic development)

Question 31

Factors ct should analyze when assessing whether a regulatory taking occurred

Answer 31

(1) The character of the government action.
(2) The economic effect of the regulation on the landowner.
(3) The extent to which the regulation has interfered with distinct investment-backed expectations.

Question 32

Spot Zoning requirements (NC)

Answer 32

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Benefit, Detriment, Size, Compatibility, Relationship

(1) Benefits and Detriments for the owner, his neighbors, and the surrounding community

(2) Size of tract in question

(3) Compatibility of the disputed action w/ an existing comprehensive zoning plan

(4) Relationship of uses envisioned under new zoning and uses currently present in adjacent tracts

Question 33

Color of Title

Answer 33

a claim founded on a written instrument (deed or will) or judgment or decree that is for some reason defective and invalid

Question 34

Ouster

Answer 34

when the tenant who is not in possession attempts to physically occupy the premises and the occupying tenant refuses to allow access.

If an ouster does occur, the ousted joint tenant is entitled to recover his pro rata share of the reasonable fair rental value of the premises from the other.

Question 35

Easement (Rule Statement)

Answer 35

An easement is a non-possessory right to enter and use land in the possession of another for a particular use and which obligates the possessor not to interfere with the uses authorized by the easement.

Creation of an easement usually requires a written instrument signed by the party to be bound in order to satisfy the statute of frauds.