Land Use Controls Flashcards
1
Q
What is a nuisance
A
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
2
Q
How is nuisance different from trespass?
A
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)
3
Q
Private Nuisance
A
Interferes with a property owner’s use and enjoyment of land
4
Q
Public Nuisance
A
An unreasonable interference with a right common to the general public
5
Q
Elements of Nuisance
A
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
6
Q
When is something intentional?
A
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.
7
Q
Nuisance per Se
A
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)
8
Q
Balance the Equities to decide if something is unreasonable (5)
A
(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
9
Q
Lateral Support
A
Refers to support provided to one piece of land by the parcels of land surrounding it
10
Q
Subjacent Support
A
Refers to support from underneath the land (instead of support from the sides)
11
Q
Rule of Lateral & Subjacent Support
A
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
12
Q
Remedies for Nuisance (4)
A
(1) Injunction
(2) Damages
(3) Temporary damages
(4) Permanent Damages
13
Q
Temporary Damages
A
Damages for past harm that has been caused to the P (typical kind of damages we think of)
14
Q
Permanent Damages
A
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.
15
Q
Private Land- Use Controls: Servitudes
A
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
16
Q
Types of Servitudes (4)
A
(1) Easements
(2) Covenants
(3) Licenses (widely used)
(4) Profits a pendre
17
Q
Negative Easement
A
A right to restrict an owner from using land in some way (EX. not develop commercially)
18
Q
Real Covenant Or Equitable Servitude
A
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)
19
Q
Easement
A
Non-Possessory right to use (or enter) the land of another. Can be revocable
20
Q
Affirmative Easement
A
Give the interest holder a right to do some act on land that someone else owns
21
Q
Easement Appurtenant
A
Gives the easement right to whomever owns a parcel of land that the easements benefits (If unclear, then this one… law favors these)
22
Q
Easement in Gross
A
Gives the easement rights to some person. It isn’t dependent on ownership of land. ONLY BENEFIT A PERSON–NOT LAND
23
Q
Traditional transfer of easements in gross
A
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
24
Q
Modern Transfer of Easements in gross
A
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.
25
Can easements in gross be divided to benefit other people?
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.
26
Four ways to create an Easements
(1) Expressly Created
(2) Implied by Prior Use
(3) Implied by Necessity
(4) Creation by Prescription
27
Expressly Created Easement
Created through a writing (a deed, usually) because the SOF applies to interests in land, such as easements.
28
Easements Implied by Prior Use
In certain situations, the law will imply that an easement was created
29
Easements implied by Necessity
If an easement is the only way to access land or get something done. (Absolute necessity required-- Not just convenience)
30
Easement Created by Prescription
Earned by regular use, like adverse possession
31
Can an easement be created to benefit a third party?
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.
32
Reservation (easement)
A provision in a deed creating some NEW servitude which did not exist
33
Exception (easement)
A provision in a deed that EXCLUDES from the grant some EXISTING servitude on the land
34
License
An oral or written permission given by the land's occupant allowing someone to do some act that would otherwise be a trespass. Revocable.
35
Requirements for an irrevocable license (Aka easements by estoppel)
(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
36
Factors to determine intent to lease or license (4)
(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.
37
What is a quasi easement (aka easement implied by prior use)
apparent and continuous use which the parties would reasonably expect to continue when the land is divided.
38
Quasi easement (Relevant factors to determine intent and reasonable necessity) (4)
(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
39
Easements by prior use
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)
40
How do you end an implied easement?
If the dominant parcel and the servient parcel come into the same ownership, the implied easement is extinguished.
41
Elements for easements implied by prior use (quasi easement) (4)
(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)
42
Elements for implied easement by necessity for rights of way: (3)
(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!!!
43
How much necessity is strict necessity?
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).
44
Difference between implied easements by prior use and implied easements by necessity?
(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.
45
Prescriptive Easements
Easements by adverse possession. Cannot get a negative easement
46
Elements for prescriptive easements
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
47
Scope of easements
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
48
Remedies for Misuse of an easement
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.
49
How do you determine easement's location (express easement)
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.
50
How do you determine easement's location (Prior use and prescriptive)
the location is fixed by the use made at severance (or the start of the prescriptive period).
51
How do you determine easements location (necessity)
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.
52
What kind of easement can you increase the scope of? and Why or How idk?
“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)
53
Restatement 3rd: Increasing the use ON the dominant Estate's Premises
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.
54
Scope of Prescriptive Easements
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.
55
Ways to Terminate Easements
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.
56
How do you show evidence of intent to abandon?
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.
57
Covenants
Divided into (a) real covenants – covenants enforceable at law and (b) equitable servitudes – covs enforceable in equity.
58
Two ways covenants can be enforced (real and equitable)
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.
59
Affirmative Covenants
require the owner of the burdened estate to perform some act (or to pay money).
60
Negative covenants
restrict or prohibit uses that can be made of the burdened property.
61
Requirements for real covenants to "run with the land"
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.
62
When does a covenant touch and concern the land?
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.
63
Horizontal Privity
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.
64
Vertical Privity
is created based on the transactions between the original parties and the new parties who buy the burdened and benefited estates.
65
Is horizontal privity NOT required to enforce the covenant?
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.
66
When is horizontal privity required to enforce the covenant with $$ damages?
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******
67
What happens if someone acquires the burdened parcel by adverse possession?
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.
68
Equitable Servitudes
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.
69
Requirements for Equitable Servitudes (4)
(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
70
Is horizontal privity necessary for equitable servitudes?
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.
71
Is vertical privity required for the burden to run?
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
72
How do you tell the difference between a real covenant & equitable servitude?
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.
73
Theory of common plans
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.
74
Creation of reciprocal negative covenants (3)
A common owner (typically a developer)
A scheme of restrictions (for the development)
All other elements of an equitable servitude
75
Restatement's Unification of Servitudes Approach
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.
76
Features of the Restatement's Unification of Servitudes Approach
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.
77
Termination of Covenants
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.
78
Change-Conditions Doctrine
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.
79
What is a common-interest community (CIC)
A form of residential ownership in which the development is separated from possession.
(1) Condominiums
(2) Cooperatives
(3) Planned subdivisions (including gated communities)
80
Ownership of Condos
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.
81
What if a condo unit owner fails to pay taxes or a mortgage payment?
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.
82
Declaration of Condominium
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.
83
Cooperatives
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
84
How is a Co-Op finances?
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.
85
What happens if the CIC's covenants are not given with a deed?
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.
86
Homeowner's Associations
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.
87
Discriminatory Covenants
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)
88
When is a restriction unreasonable?
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
89
Restatement 3rd Standard for validity of servitudes
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”)
90
When does a servitude violate public policy?
(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.
91
Restrictions regarding Nahrstedt
(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
