Nuisance is Adverse to a Covenant when Zoning is Eminent

Question 1

Nuisance

Answer 1

Nuisance Defense

(1) Nuisance = substantial + unreasonable interference + use or enjoyment + offends sensibilities; Damages = injunction or dimunition
(2) Defense = came to or conforms with zoning = public health/safety
(3) Public nuisance is brought by the government; private nuisance is only recoverable if they can show different harm.

Question 2

Adverse

Answer 2

Adverse Tacking

(1) Ripen = exclusively + continuous (10/7) + Hostile + Open and notorious.
(2) Tacking = privity; Tolling = jail or insane
(3) Paying taxes + defective deed = color of title

Question 3

Covenant

Answer 3

Covenant Equitable Defense

(1) restrictive covenant = a writing + intent to bind successors + horizontal (in deed conveyance) and vertical privity (exact description) + touch and concern; Can be transferred
(2) In order for the burden of an equitable servitude to bind the original promissor’s successors, four elements must be met: (1) the promise must be in a writing that satisfies the Statute of Frauds or implied from a common plan; (2) the original parties must intend to burden successors; (3) the promise must “touch and concern” land; and (4) the successor must have notice of the promise.Equitable servitude = only has lax vertical privity (HoA member) + Notice = inquiry + common plan; only injunctions or specific performance are available;
(3) Defense = unclean hands or abandonment or estoppel

Question 4

Zoning

Answer 4

Zoning Rezone Grandfather Variance

(1) Zoning = regulation = development to certain areas + certain uses
(2) Rezone = changed conditions in neighborhood != spot zoning = discriminatory benefit
(3) Grandfather = nonconforming after rezone = intensification != expansion
(3) Variance = unique hardship

Question 5

Eminent

Answer 5

Eminent domain = take (condemn), restrict (inverse condemn) + public use; just compensation = FMV or dimunition