Miscellaneous Flashcards
Lateral support
If land is improved by buildings and an adjacent landowner’s excavation causes the improved land to cave in, excavator will only be liable for negligence.
No SL unless π shows that because of ∆’s actions π’s improved land would have collapsed even in its unadorned state
In other words, SL wont attach to ∆’s digging/ excavation unless π can show that bc of ∆’s actions, π’s land would have collapsed in the unadorned states.
That π’s structure (like garage, fountain) did not contribute at all to the collapse. ∆’s digging was that significant. π’s adornments never played a contributory role.
Water rights- two major systems for determining allocation of rights
a. Riparian doctrine : water belongs to those who own the land bordering the water
ii. One riparian will be liable if his or her use unreasonably interferes with others’ use.
b. The prior appropriation doctrine: water belongs initially to the state, but right to divert/ use it can be acquired by an individual, regardless of whether or not he’s a riparian.
i. rights are determined by priority of beneficial use.
1. First in time, first in right
3. any productive use (agriculture) is sufficient to create appropriation right
Groundwater aka percolating water
Not in a confined channel
a. Surface owner is entitled to make reasonable use. Use must not be wasteful
b. Reasonable use = anything that is not malicious/ waste.
a. Natural flow approach: landowner cannot alter the rate or manner of natural flow of surface waters if it would injure others above or below him.
b. Common enemy approach: surface water is a nemesis, it is the enemy to be eradicated.
i. Landowner can do whatever he wants to stop water from stagnating on land. Generous rule, levy, change surface.
1. but prohibited to causing unnecessary harm to others’ lands
Posessors rights
Possessor of land has right to be free from trespass and nuisance
I. Trespass: invasion of land by physical object
a. to remove, bring an ejectment action
II. Private nuisance: the substantial and unreasonable interference with another’s land use
a. Note: unlike trespass, nuisance doesn’t require physical invasion. includes odors and rise.
b. Nuisance and hypersensitive π
i. A operates a dog kennel located near a power plant. A notices that her dogs are chronically agitated, causing her to lose business. She learns that the power plant emits a high frequency sound heard by animals but not humans. A sues the plant for nuisance. What result? A loses—her use is hypersensitive
Zoning defined
I. Defined: pursuant to police powers, government may enact statutes to reasonably control land use.
Zoning variance
the principal means to achieve flexibility in zoning.
a. Proponent of the variance must show undue hardship and that the grant of the variance will not work diminution to neighboring property values
i. asking to please not the same zoning terms that apply to everyone else
ii. grant/denial is through administrative action, usually zoning board
Zoning: nonconfomring use
III. Nonconforming use: a once lawful, existing use now deemed non-conforming by a new zoning ordinance. it cant be eliminated all at once unless just compensation is paid. Otherwise, it would be an unconstitutional taking.
Cumulative vs. noncumulative zoning
IV. Cumulative zoning: there are 2 types of zoning ordinances: cumulative and noncumulative.
a. Cumulative—hierarchy uses of land, where a single family home is the highest use, followed by for ex a two family home, then an apartment building, then a strip mall, then a factory
i. Land that is zoned for a particular use may be used for that particular use or for any higher use
1. For ex if zoned for commercial, if the ordinance is cumulative, can also build a single family zone.
2. Can put higher use in lesser use zone, but not vice versa
b. Under a noncumulative zoning ordinance, land can ONLY be used for that which it is zoned.
Unconstitutional exactions
must be reasonably related in nature and scope to the impact of the proposed development
a. Defined: exactions are those amenities that gov’t seeks in exchange for permission to build.
i. Ex: to build an apartment you have to provide new streetlights, park, wider roads. To pass constitutional scrutiny, the exactions must be reasonably related in nature and scope, to the impact of the proposed development. for ex wider roads bc what you’re building is so dense.
1. If not reasonably related, could mount to government extortion
Condominiums defined
I. Condominiums defined: each owns the interior of her individual unit plus an undivided interest in the exterior and common elements, like common stairways, landscaping, front gate, game room, etc.
Homeowners association
HOA oversees the common elements of a condo property. Owner of each condo is a member of HOA.
a. HOA passes rules (contained in covenants, conditions and restrictions “CC&R”) listing what owners can’t and can do. Like pets, posting of for sale signs
i. rules are binding.
ii. Members of HOA vote to elect a board which governs and enforces the CC&Rs
b. Each condo owner has to pay regular dues/ fees to the HOA. If the monthly fees are insufficient to pay necessary expenses (for ex a major roof is needed) the HOA may impose additional 1-time fees that each owner must pay. Called a special assessment.
Installment land ks
Many installment ks use forfeiture instead of foreclosure as a remedy. Harsh result, to avoid it, courts use:
- Equity of redemption: some states give the k purchaser a grace period to pay the acceleralted full balance and keep the land after default.
- Restitution: Some courts grant forfeiture but require a refund to the purchaser any amount by which payments are greater than vendor’s damages.
- Treat as a mortgage: some states treat installment ks as mortgages, requiring foreclosure.
- Waiver—many cases say that a vendor’s pattern of accepting late payments = a waiver of the right of strict performance. to reinstate strict performance, vendor must send purchaser notice of intention to do so and must allow purchaser reasonable tiem to make up
- Election of remedies—vendor must choose only one remedy and forgo all others (damages or specific performance)
