Natural rights & Coops, Condos, Zoning Flashcards
In general, the owner real property has exclusive right to use and possess parentheses these 3 things)
- The surface
- The airspace
- The soil
What is the right to lateral support: support of land in natural state? Support of land with buildings?
- In natural state, a landowner is STRICTLY LIABLE if his excavation causes adjacent land to slip or cave-in
- Support of land with buildings: a landowner is STRICTLY LIABLE for damage caused by excavation, if it is shown that the land would have collapsed in its natural state. Otherwise, he is liable only if his excavation was done NEGLIGENTLY.
What is the right to subjacent support?
An underground occupant of land (a mining company) must support the surface and buildings existing on the date the subjacent estate was created. Liability for subsequently erected buildings requires NEGLIGENCE.
With respect to watercourses, 2 doctrines may apply: riparian or prior appropriation. Discuss each.
- Riparian doctrine: the water belongs to those who own the land bordering the watercourse. An owners use resulting in substantial or material diminution of quality, quantity, or velocity is enjoinable. All riparians have the right of reasonable use. Natural uses (consumption, gardening) prevail over artificial uses (irrigation, manufacturing).
- Prior appropriation doctrine: individuals acquire rights by actual use.
Four doctrines determine rights in diffuse underground water recovered through Wells
- Absolute ownership (rare) can take whatever you want
- Reasonable use doctrine (take as much as you want but don’t harm other owners)
- Correlative rights doctrine (joint tenants, reasonable use)
- Appropriative rights doctrine (priority of use, not ownership, is determinative)
With respect to surface waters, the question is usually about an owner of land changing the natural flow. It depends on which of 3 theories is used
- Natural flow theory (common) owners cannot alter natural drainage patterns
- Common enemy theory: an owner can take protective measures to get rid of the water, but cannot damage other people’s land
- Reasonable use theory (balancing the utility against the gravity of the harm)
In co-ops, is a direct restraint on alienation of an individual interest valid?
Yes, because in a co-op, the tenants are interdependent economically
Condos are treated as fee ownerships, what effect on alienation?
Freely alienable
With respect to zoning, how does grandfathering work?
A use that exists at the time of passage of the zoning act it does not conform to the act cannot be eliminated at once. It may be gradually eliminated.
What is a special use permit and who gets them?
Is special use permit is obtained even though zoning is proper for the intended use. E.g., hospitals, funeral homes, drive-in businesses.
When are zoning ordinances invalid?
When they have no reasonable relation to public welfare, are too restrictive, are discriminatory, are beyond the grant of authority, violate due process, or discriminate based on race.
The zoning ordinance may constitute a taking under the 5th and 14th amendments. How do you determine remedies?
If all economic value is gone, it is a taking. If NEARLY ALL value is taken, use a balancing test to waive the social goals of regulation against the decreased value of the property and the owner’s reasonable expectations for its use.
If a local government demands that a landowner give up land for a public purpose in order to receive zoning approval for a new project, what effect?
This is unconstitutional under the 5th and 14th amendments, unless the government proves a rational connection between the demand and the burden of the project receiving approval, and proves that the dedication is reasonably related in nature and extent to the proposed development.
