Land Use Controls

Question 1

What is a nuisance

Answer 1

An unreasonable or substantial interference with the use or enjoyment of a person’s real property by the actions of a person on a nearby property. Ex. Noise; Dust; Odors; Insects; Rodents

Question 2

How is nuisance different from trespass?

Answer 2

Nuisance is an indirect interference which causes actual damages. Pl must prove damages for nuisance and that the harm was unreasonable. (doesn’t need for trespass)

Question 3

Private Nuisance

Answer 3

Interferes with a property owner’s use and enjoyment of land

Question 4

Public Nuisance

Answer 4

An unreasonable interference with a right common to the general public

Question 5

Elements of Nuisance

Answer 5

Nuisances arise from (1) substantial, non-trespassory invasion of (2) use and enjoyment of land that is (3) caused by negligent, reckless, or ultra-hazardous activities

Question 6

When is something intentional?

Answer 6

When a D acts for (a) the purpose of causing the invasion; OR (b) knowing that it is resulting or is substantially certain to result from the conduct in question.

Question 7

Nuisance per Se

Answer 7

D engages in activities prohibited by law, or violations of statutes, or engaging in abnormally dangerous activities. If the interference is substantial there is strict liability. (Brothels, Crack houses; fireworks; spite fences)

Question 8

Balance the Equities to decide if something is unreasonable (5)

Answer 8

(1) The extent and character of the harm
(2) The social value of the P’s and D’s property Use
(3) The sustainability of P’s & D’s use to the locality in question
(4) The burden on the P of avoiding the harm; and
(5) The impracticality of making the D prevent the harm

Question 9

Lateral Support

Answer 9

Refers to support provided to one piece of land by the parcels of land surrounding it

Question 10

Subjacent Support

Answer 10

Refers to support from underneath the land (instead of support from the sides)

Question 11

Rule of Lateral & Subjacent Support

Answer 11

There is a duty on neighboring landowners to provide the support that the subject land would need and receive under natural conditions. EXCEPTION: There is no right to support of structures on the land

Question 12

Remedies for Nuisance (4)

Answer 12

(1) Injunction
(2) Damages
(3) Temporary damages
(4) Permanent Damages

Question 13

Temporary Damages

Answer 13

Damages for past harm that has been caused to the P (typical kind of damages we think of)

Question 14

Permanent Damages

Answer 14

Damages for all past and future harm the nuisance will bring to the property– Usually determined by the diminution in market value of the property. No future nuisance laws because the award stays with the land… it is a “servitude” of the land.

Question 15

Private Land- Use Controls: Servitudes

Answer 15

Land-use arrangements arising out of some private agreement (or private activity). Restrict/allow a certain type of use of the land. Private agreements create land interests that not only bind the parties, but “run with the land” and benefit/burden future land owners

Question 16

Types of Servitudes (4)

Answer 16

(1) Easements
(2) Covenants
(3) Licenses (widely used)
(4) Profits a pendre

Question 17

Negative Easement

Answer 17

A right to restrict an owner from using land in some way (EX. not develop commercially)

Question 18

Real Covenant Or Equitable Servitude

Answer 18

A right to compel an owner to perform some act on their land (maintain a fence); A right to compel an owner to pay money to maintain something (maintain a swimming pool available to all residents)

Question 19

Easement

Answer 19

Non-Possessory right to use (or enter) the land of another. Can be revocable

Question 20

Affirmative Easement

Answer 20

Give the interest holder a right to do some act on land that someone else owns

Question 21

Easement Appurtenant

Answer 21

Gives the easement right to whomever owns a parcel of land that the easements benefits (If unclear, then this one… law favors these)

Question 22

Easement in Gross

Answer 22

Gives the easement rights to some person. It isn’t dependent on ownership of land. ONLY BENEFIT A PERSON–NOT LAND

Question 23

Traditional transfer of easements in gross

Answer 23

Easements in gross were only transferrable if they were commercially beneficial. If it was just for a personal benefit, then they couldn’t be transferred

Question 24

Modern Transfer of Easements in gross

Answer 24

Courts have started allowing transfer of all easements in gross as long as the intent to transfer the easement from person to person is clear.

Question 25

Can easements in gross be divided to benefit other people?

Answer 25

Yes, when (1) creating document says it is divisible OR (2) when the Easement in gross is “exclusive” meaning the owner has the sole right to engage in the activity the easement permits. EXCEPTION: If the easement division substantially increases the burden on the servient estate, then court’s won’t allow it because to would exceed the scope of the easement.

Question 26

Four ways to create an Easements

Answer 26

(1) Expressly Created
(2) Implied by Prior Use
(3) Implied by Necessity
(4) Creation by Prescription

Question 27

Expressly Created Easement

Answer 27

Created through a writing (a deed, usually) because the SOF applies to interests in land, such as easements.

Question 28

Easements Implied by Prior Use

Answer 28

In certain situations, the law will imply that an easement was created

Question 29

Easements implied by Necessity

Answer 29

If an easement is the only way to access land or get something done. (Absolute necessity required– Not just convenience)

Question 30

Easement Created by Prescription

Answer 30

Earned by regular use, like adverse possession

Question 31

Can an easement be created to benefit a third party?

Answer 31

Common Law: No
Modern: Give effect to the grantor’s intent:Easements can have any duration from a term of years to a life estate to a fee simple. The language in the granting document controls.

Question 32

Reservation (easement)

Answer 32

A provision in a deed creating some NEW servitude which did not exist

Question 33

Exception (easement)

Answer 33

A provision in a deed that EXCLUDES from the grant some EXISTING servitude on the land

Question 34

License

Answer 34

An oral or written permission given by the land’s occupant allowing someone to do some act that would otherwise be a trespass. Revocable.

Question 35

Requirements for an irrevocable license (Aka easements by estoppel)

Answer 35

(1) Permission by the landowner to use their land
(2) Good-faith reliance on the permission the license gives, and
(3) The landowner’s knowledge (actual or constructive) of this reliance

Question 36

Factors to determine intent to lease or license (4)

Answer 36

(1) Uses permitted (the more the use of space is limited to a specific use, the more likely an easement);
(2) The specificity of location (the more specific a location, the more likely a lease)
(3) Rent reserved (periodic payment may indicate a lease)
(4) Duration (a lease is a limited in time; easements are usually unlimited).
** This matters because only a tenant, not an easement holder, can bring possessory actions such as ejectment, trespass, or nuisance.

Question 37

What is a quasi easement (aka easement implied by prior use)

Answer 37

apparent and continuous use which the parties would reasonably expect to continue when the land is divided.

Question 38

Quasi easement (Relevant factors to determine intent and reasonable necessity) (4)

Answer 38

(1) difficulty and cost of establishing another use;

(2) whether price paid reflects expected continued use of the servient portion of the original tract;

(3) whether grantee was given a warranty deed when a reservation is claimed (and the language of the grant)

(4) The extent to which the prior use was known (or might have been known) to the parties

Question 39

Easements by prior use

Answer 39

Arise when one part of the land owned by one person is sold off, and there was some prior use between the formerly singularly owned property. When the sole owner sells off a parcel, the SHOULD reserve it expressly int he deed. (but they often don’t, which has led to quasi easement body of law)

Question 40

How do you end an implied easement?

Answer 40

If the dominant parcel and the servient parcel come into the same ownership, the implied easement is extinguished.

Question 41

Elements for easements implied by prior use (quasi easement) (4)

Answer 41

(1) Initial unity of ownership (of the now dominant and servient estates).

(2) Severance of the title to create the dominant and servient estates.

(3) An existing (some prior use), apparent, and continuous use of one parcel for the benefit of the other parcel.

(4) Reasonable necessity for that use. (Intent)

Question 42

Elements for implied easement by necessity for rights of way: (3)

Answer 42

(1) Unity of ownership of the alleged dominant and servient estates.

(2) The roadway 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 or be created because of severance

Note: Unlike quasi-easements (easements by prior use), strict necessity is required – not just reasonable necessity. LANDLOCKED ONLY!!!

Question 43

How much necessity is strict necessity?

Answer 43

Majority rule: strict necessity means no other way out.

Minority rule: necessity will be found if another use would be inadequate (access by foot only), difficult (down a cliff), or costly (700K to build the driveway).

Question 44

Difference between implied easements by prior use and implied easements by necessity?

Answer 44

(1) Easements by necessity apply only to rights of way – ingress and egress – to landlocked parcels.

(2) Easements by necessity do NOT require that the use be in existence at the time of creation – so it does not need to be a prior use.

Question 45

Prescriptive Easements

Answer 45

Easements by adverse possession. Cannot get a negative easement

Question 46

Elements for prescriptive easements

Answer 46

The use must be adverse and hostile;

The use must be open and notorious; (use can be shared with dominant and servient estates, but not with the public)

The use must be continuous

For the statutory period.

Note: you also have to have actually used the right of way, so the actual element is there too, but courts don’t often list it. It’s a given. If a license you have permission, so not adverse. SOL doesn’t begin to run until the dominant and servient estates are severed

Question 47

Scope of easements

Answer 47

Refers to the location, intensity, and manner of use for the easement. An easement holder may use the easement in a manner that is reasonably necessary for the enjoyment of the dominant estate and not unreasonably burdensome to the servient estate. MAY NOT BE USED IN CONNECTION WITH A NON-DOMINANT ESTATE

Question 48

Remedies for Misuse of an easement

Answer 48

Majority rule on remedy for misuse: Misuse of an easement normally requires an injunction to prevent future misuses.

Minority rule on remedy for misuse (the one the Ct followed): If there is misuse of an easement, the court may, in its discretion, award damages instead of injunctive relief.

The court should consider (1) the added burdens on the servient estate, and (2) the burdens on the dominant estate if the extended use is enjoined.

Question 49

How do you determine easement’s location (express easement)

Answer 49

the terms of the grant or reservation control. If location isn’t expressly stated, then look at past usage, if that doesn’t work courts may clarify.

The Takeaway? Always specify the location in the easement document.

Question 50

How do you determine easement’s location (Prior use and prescriptive)

Answer 50

the location is fixed by the use made at severance (or the start of the prescriptive period).

Question 51

How do you determine easements location (necessity)

Answer 51

the servient estate owner has a reasonable time to locate the easement – if the servient owner takes too long or locates it unreasonably, then the dominant owner can reasonably locate it.

Question 52

What kind of easement can you increase the scope of? and Why or How idk?

Answer 52

“When the nature and extent of the use of an easement is unrestricted by its terms, then the use of the dominant tenement may be enlarged….” (Express Easements only)

Question 53

Restatement 3rd: Increasing the use ON the dominant Estate’s Premises

Answer 53

The holder of an easement may use the servient estate in any manner that is reasonably necessary for the convenient enjoyment of the servitude.

The manner, frequency, and intensity may change over time to accomodate technology or normal development of the dominant estate.

Question 54

Scope of Prescriptive Easements

Answer 54

The use of a prescriptive easement once acquired must (1) be consistent with the general kind of use by which the easement was created AND (2) be consistent with what the servient owner would reasonably expect to lose by failing to interrupt the adverse use.

Question 55

Ways to Terminate Easements

Answer 55

1. Release: These typically require a writing to comply with the Statute of Frauds.
2. 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.
3. End of necessity (for easements by necessity)
4. Merger: Ends by merger if the easement owner later becomes the owner of the servient estate.
5. Estoppel: Can end if the servient owner reasonable relies to their detriment on statements made by the easement holder.
6. Abandonment (the most common way): When intent to abandon, terminates automatically
7. Prescription: If the servient owner wrongfully and physically prevents the easement from being used for the prescriptive period, then the easement terminates.
8. Condemnation: Gov’t exercises its eminent domain power.

Question 56

How do you show evidence of intent to abandon?

Answer 56

Non-use of the easement is not enough. There must be some other acts that indicate (1) either a present intent to relinquish the easement OR (2) acts showing a purpose inconsistent with the easement’s future existence.

Question 57

Covenants

Answer 57

Divided into (a) real covenants – covenants enforceable at law and (b) equitable servitudes – covs enforceable in equity.

Question 58

Two ways covenants can be enforced (real and equitable)

Answer 58

As a real covenant, which means that the benefited party seeks to enforce the covenant with a money damage remedy in a court of law; OR

As an equitable servitude, which means the benefited party seeks to enforce the covenant with injunctive relief in the court of equity.

Question 59

Affirmative Covenants

Answer 59

require the owner of the burdened estate to perform some act (or to pay money).

Question 60

Negative covenants

Answer 60

restrict or prohibit uses that can be made of the burdened property.

Question 61

Requirements for real covenants to “run with the land”

Answer 61

In writing (to comply with the Statute of Frauds)

Intent that the covenant run with the land (i.e., burden future purchasers of the burdened estate)

Notice of the covenant to the burdened party (actual, constructive, inquiry)

Privity of estate – both horizontal and vertical

The covenant “touches and concerns” the land

**Intent to bind and benefit successors – same for real & equitable Intent is the easiest of the elements to prove.

Question 62

When does a covenant touch and concern the land?

Answer 62

Affects the physical use or enjoyment of the land (or the title to the land); or

Is to be performed on the land, or

When the covenant affects the “legal relations” of the promisor and promisee. (Minority test)

**Note: Most restrictive covenants do touch and concern the land – if they have anything to do with what you can and cannot do on the property, then it touches and concerns.

Question 63

Horizontal Privity

Answer 63

is privity of estate based on the relationship between the original parties to the covenant.

Once it is established between the original parties, it is not an issue for later transactions.

Question 64

Vertical Privity

Answer 64

is created based on the transactions between the original parties and the new parties who buy the burdened and benefited estates.

Question 65

Is horizontal privity NOT required to enforce the covenant?

Answer 65

Horizontal privity is NOT required when enforcement is sought

Between the original parties to the covenant, (e.g. where Alex seeks to enforce against Bill because there is privity of contract, or estoppel) OR

When a later benefited party seeks to sue the original burdened party. [i.e. horizontal privity is not required for the benefit to run with the land.]

***Ex. Suppose Alex sells his benefited parcel to Donette, then Donette can sue Bill (the original burdened party) to enforce the covenant.

***Donette and Alex must have vertical privity here, but they will because of the sale.

Question 66

When is horizontal privity required to enforce the covenant with $$ damages?

Answer 66

Horizontal privity is required when the benefited party is seeking to enforce the covenant against a NEW party with the burden.

Ex. When Alex split his estate into two and sold his parcel to Bill, he put in a covenant that said that Bill’s parcel must be used for residential purposes only. Bill then sells to Courtney. Courtney is that new party, so there must be horizontal privity between Alex and Bill for Alex to sue Courtney to enforce the covenant.
*** Vertical privity is ALWAYS required to enforce the covenant against the new party (or for a new party to enforce the covenant**

Question 67

What happens if someone acquires the burdened parcel by adverse possession?

Answer 67

An adverse possessor takes new title free and clear of all interests and encumbrances.

So this means that the adverse possessor does not take the original estate of the burdened parcel, so there is no vertical privity.

Question 68

Equitable Servitudes

Answer 68

A covenant where the original grantor and grantee intend to create burdened and benefited parcels that are enforceable against successor owners with notice by an injunction (regardless of the covenant’s enforceability at law)

***Remember, courts of equity are about fairness, so the rules aren’t as strict for equitable servitudes. But intent and fairness are important.

Question 69

Requirements for Equitable Servitudes (4)

Answer 69

(1) Intent to run with the land

(2) Notice to burdened party (actual, constructive, inquiry)

(3) Covenant must touch and concern the land

(4) Comply with the statute of frauds (w/ exceptions)

*Note: Horizontal and vertical privity are not strictly required, but parties do need some interest in the land to sue.

*No need for privity for equitable servitudes

Question 70

Is horizontal privity necessary for equitable servitudes?

Answer 70

No. this means that an equitable servitude can arise by promises that aren’t attached to an interest in land – and even oral promises, in some cases.

Question 71

Is vertical privity required for the burden to run?

Answer 71

No. all subsequent possessors are bound by the servitude, just like for easements.

A few jurisdictions require vertical privity for the benefit to run

***Notice – not privity – is the key for the burden to run with equitable servitudes

Question 72

How do you tell the difference between a real covenant & equitable servitude?

Answer 72

Real covenants = seek money damages and must strictly comply with the statute of frauds and have vertical & horizontal privity. Real covenants cannot arise by estoppel, implication, or prescription (easements can).

Equitable Servitudes, generally, require compliance with the statute of frauds because it is an interest in land, BUT

the existence of an equitable servitude may be implied in equity under limited circumstances (known as a reciprocal negative covenant).

Notice is easier to satisfy than privity, as it only requires actual, constructive, or inquiry notice.

Note: Because equitable servitudes must arise out of a promise, they cannot be obtained by prescription.

Implied Equitable Servitudes Based on a Common Plan

Even if a covenant is not mentioned in a deed, most courts will imply an equitable servitude when a developer of a residential subdivision has manifested its intent in a common plan required throughout the development.

Question 73

Theory of common plans

Answer 73

Developers normally have sales brochures and record the Common Plan, so the buyer typically has constructive or inquiry notice of the restrictions, even if not mentioned in the deed.

Question 74

Creation of reciprocal negative covenants (3)

Answer 74

A common owner (typically a developer)

A scheme of restrictions (for the development)

All other elements of an equitable servitude

Question 75

Restatement’s Unification of Servitudes Approach

Answer 75

Restatement’s basic premise: There ought to be no difference between real covenants and equitable servitudes. So the Restatement calls both types “covenants that run with the land.”

Remedies allowed under Restatement view: The court can order any remedy or combination of remedies that it deems appropriate – injunctive relief alone, damages alone, some combo of the two, punitive damages, restitution, etc.

Question 76

Features of the Restatement’s Unification of Servitudes Approach

Answer 76

No horizontal privity is required for a covenant to run at law – i.e., to obtain money damages for the covenant’s breach.

No vertical privity for the burden or benefit to run.

For negative covenants, all successors are bound regardless of the extent of interest conveyed or how they obtained their interest (grant, inheritance, or gift).

For affirmative covenants, the Restatement sets out different rules for lessees, life tenants, and adverse possessors. (you don’t need to know them)

Covenants are presumed to touch and concern the land – but they can be invalidated later upon showing they are illegal, unconstitutional, or against public policy.

Question 77

Termination of Covenants

Answer 77

1. Merger – unity of ownership like for easements.
2. Release – typically written and recorded.
3. Acquiescence – arises when the P has failed to enforce the servitude against other breaches and then seeks to enforce this breach against this D.

*Note: Acquiescence only applies to the P who has not enforced prior violations. Doesn’t prevent other P’s from suing – just that one who failed to enforce against other breaches.

4. Abandonment – intent to abandon means the servitude is not enforceable by anyone against that burdened parcel.
5. Unclean hands – this is an equitable doctrine, where a court will refuse to enjoin a violation of a servitude that the P previously violated.
6. Laches –involves an unreasonable delay by the P to enforce a servitude, which causes prejudice to the defendant. Note: this doesn’t technically terminate the servitude; it only bars enforcement.
7. Estoppel – if the D has detrimentally relied on P’s conduct/statements, then the court says it is inequitable to allow the P to enforce it.

Question 78

Change-Conditions Doctrine

Answer 78

STRICT: As long as the restriction is of value to some of the land, courts will usually not terminate it even though conditions have changed in such a way that the restriction decreases the value of other land.

Question 79

What is a common-interest community (CIC)

Answer 79

A form of residential ownership in which the development is separated from possession.

(1) Condominiums

(2) Cooperatives

(3) Planned subdivisions (including gated communities)

Question 80

Ownership of Condos

Answer 80

Each unit (interior space) is owned separately in fee simple by an individual owner.

The exterior walls, the land beneath, the hallways, and other common areas are owned by the unit owners as tenants in common.

Question 81

What if a condo unit owner fails to pay taxes or a mortgage payment?

Answer 81

Because each unit is owned separately, each owner obtains individual mortgages. Real estate taxes are assessed to each unit. failure of one unit owner to pay the mortgage or the taxes does not jeopardize the other owners.

Question 82

Declaration of Condominium

Answer 82

This document is filed before the first sale of a condo unit is made, and it provides for an association of unit owners to make and enforce the rules, to manage the common areas, and to set maintenance charges.

Question 83

Cooperatives

Answer 83

he title to the land and building is held by a corporation. The residents own all the shares of stock in the corporation and control it through an elected board of directors. Each resident (in addition to the stock) also has a long-term renewable lease of an apartment unit. Heavy screening of applicants

Question 84

How is a Co-Op finances?

Answer 84

There is usually one blanket mortgage securing the money to build the building and buy the land.

Key feature: If one cooperative owner fails to pay their share, the others must make it up or the entire property may be foreclosed on.

Question 85

What happens if the CIC’s covenants are not given with a deed?

Answer 85

Even if a covenant is not mentioned in a deed, most courts will imply an equitable servitude when a developer of a residential subdivision has manifested its intent in a common plan required throughout the development.

Developers normally have sales brochures and record the Common Plan, so the buyer typically has constructive, or inquiry notice of the restrictions, even if not mentioned in the deed.

Much of this disclosure and recording of CCRs are mandated by state statute.

Question 86

Homeowner’s Associations

Answer 86

entities that enforce the servitudes according to most state statutes.

The homeowners’ associations may adopt new regulations reasonably necessary to manage the common property, to administer the servitude plan, and to protect community from unreasonable interference in use and enjoyment of their individual property.

The homeowners’ association has the power to raise funds reasonably necessary to carry out its functions. Typically, they have the power to levy assessments that are enforceable by fines and a lien against the individual property.

Privity & assns: Even if privity is required for real covenant enforcement, courts say that the associations meet this requirement because the original purchasers of property are all in privity with the developer (horizontal privity) And subsequent purchasers are in privity with the original purchasers. (vertical privity)

Negative covenants almost always touch and concern the land. And the Affirmative Covenant to pay dues to the association are also routinely held to touch and concern the land.

Question 87

Discriminatory Covenants

Answer 87

Courts cannot enforce covenants barring certain protected classes from occupying property because they violate the Equal Protection Clause of the 14th Amendment. (Think FHA & Civil Rights)

Question 88

When is a restriction unreasonable?

Answer 88

Test for unreasonableness: If the burdens the restrictions impose on affected properties so substantially outweighs the benefits of the restriction that they should not be enforced against any owner.

Unreasonableness cannot be shown by the application of a covenant to a particular condominium owner

Question 89

Restatement 3rd Standard for validity of servitudes

Answer 89

Instead of adopting an unreasonableness standard, the Restatement establishes a presumption that servitude is valid unless it is illegal, unconstitutional, or against public policy. (think “’valid unless”)

Question 90

When does a servitude violate public policy?

Answer 90

(1) If it is arbitrary, capricious, or spiteful;

(2) If it “unreasonably burdens a fundamental constitutional right”;

(3) If it “imposes an unreasonable restraint on alienation of the property” or on trade or competition (makes it hard to sell);

(4) If it is unconscionable

In Osborne v. Power, the court held that a large Christmas light display was a nuisance and violated the subdivision regulation against creating nuisances.

Question 91

Restrictions regarding Nahrstedt

Answer 91

(1) Restrictions in the original master plan are enforced regardless of the reasonableness of the restrictions.

They can be struck down if they violate a constitutional right or are against public policy

(2) Restrictions created later by the association are subject to a reasonableness requirement