Land Use Controls Flashcards
Two main kinds:
I. Public land use control
- Nuisance
- Zoning: divides city into diff zones and each zone has own restrictions
II. Private land use controls
- Servitudes
What is a servitude?
A private arrangement concerning the use of land that endures as title + possession of the burdened land is passed from initial contracting party to new owner
What are the types of servitudes?
1) Easement:
the right to use someone’s land in a specific manner
* deed-based
2) License:
temporary permission to use someone’s land
3) Profit:
right to take natural resource/crop from someone’s land
4) Real covenant:
agreement concerning use of land
5) Equitable servitude:
restricts the use of land
What are the two types of easements?
1) Affirmative easement:
Right to use someone else’s land
Two types:
(1) Easement “appurtenant” benefits the land
(i. e. right of way)
- Benefit and burden passes with the land to successors
(2) Easement “in gross” personally benefits easement holder (i.e. utility/gas company)
- Burden passes with land to successors
- There’s only servient tenement
2) Negative easement
Agreement not to do something on the land
Four types:
(1) Light - blocking
(2) Air - blocking
(3) Building support - destabilize
(4) Artificial streams - will not divert it
How are easements created?
1) Express easement:
Must follow SOF w/ similar deed requirements
2) Easements by estoppel:
A license that becomes irrevocable when a licensee relies on a license and make investments
*Requires reasonable reliance to the person’s detriment
3) Implied easement: Easement by: - Prior existing use - Necessity - Map or plat
- *Prescription (follows rules of adverse possession; take out exclusive) Actual use Open and notorious use Adverse use Continue use for Statutory period
Key players for easements
Benefit side: dominant tenement
Burden side: servient tenement
Termination of easements
By:
- Terms - expiration
- Merger - when dominant and servient lands acquired by one person
- Necessity ends
- Purpose is completed/impossible
- Release - when person with easement releases it
- Abandonment - cessation of use AND intent to abandon
- By adverse possession - take away easement from easement owner
What are running covenants?
Promises that are tied to the property and bind future owners to those agreements
Two types:
1) Real covenants
2) Equitable servitudes
Real Covenant**
Created by express easement (consistent w/ SOF)
Five Elements:
1) Enforceable contractual promise
2) Intent to bind successors (explicit - in language v. implicit - terms of years)
3) “Touch and concern” the land
4) Horizontal Privity
(privity b/t OG landowners)
*required for burden to run
5) Vertical Privity
(privity b/t OG landowner and successor)
* always required
Equitable servitudes**
Created by express easement (or implied reciprocal servitude?)
Five Elements:
1) Enforceable contractual promise
2) Intento to bind successors
3) “Touch and concern” the land
4) “Sinking tentacles”
(promise burdens the land itself not estate, so anyone w/ interest is bound!)
5) Notice
(when you took property you had notice of the promise)
Why distinction of real covenant and equitable servitude matters
Matters when you sue and what remedy you seek
You can pick if you want to enforce a promise as a real covenant (and get damages) or equitable servitude (and get injunction)
Termination of covenants
1) Merger
2) Release -normally written and recorded
3) Acquiescence - P failed to enforce servitude against other breaches and seeks to enforce servitude against D
4) Abandonment - both parties agree no longer need
5) Unclean hands - court refuse if P previously violated
6) Laches - unreasonable delay by P for enforce servitude against D causing prejudice to D (like SOL)
7) Estoppel
8) Eminent domain
9) Prescription
10) Changes of condition (hard to do, change must be dramatic)
Enforcement issues of covenants
1) Legality
(i. e. discrimination - may not violate 14th Amendment, but can violate statute)
2) Public Policy
(ie. restraints on alienation)
3) Change of neighborhood
