Private Land Use Controls & Eminent Domain & Takings

Question 1

Easement

Answer 1

a nonpossessory right to use the land of another

Question 2

Express easements

Answer 2

Easements by grant

Easements by reservation

Question 3

Implied easements

Answer 3

Easements implied by prior use
Easements implied by necessity
[Easements by prescription]
[Easement by estoppel]

Question 4

Easements implied by prior use

Answer 4

Severance of parcel
Existing, apparent and condition arising from severance
Reasonable necessity to use servient estate

Question 5

Easements by necessity

Answer 5

Severance of parcel producing landlock
Strict necessity to use servient estate
Some movement toward reasonable necessity, e.g., Berge

Question 6

Easements by prescription

Answer 6

Adverse use
Open and notorious use
Continuous use for statutory period
Exclusivity (minority of jurisdictions, why?)

Question 7

Easements by estoppel (permanent licenses)

Answer 7

Use license from landowner (written or implied)
Good faith reliance by licensee
Of which licensor knew or should have known
Equities favor licensee

Question 8

Can easements be transferred?

Answer 8

Easements appurtenant: yes—they run with the land
Benefit of easement always transfers
Burden of easement transfers with sufficient notice

Easements in gross: harder case
Old rule: never assignable
New rule: transferable unless clear intent to the contrary
Commercial easements in gross generally held assignable
Personal easements in gross may be held not assignable

Question 9

Easement Scope of Use

Answer 9

Scope of use
Determined by grant and strictly construed
Consider role of language and intention, see Marcus Cable
Use may be intensified as context and technology change, see Restatement sec. 4.10
Servient owner can move location only if no prejudice to dominant owner
Cannot use to access different land, see Brown v. Voss

Question 10

Easement termination

Answer 10

Release
Expiration
Merger
Estoppel
Condemnation
Abandonment: non-use + some indication of intent
Prescription
[Extreme] misuse

Question 11

Covenants

Answer 11

Covenants are private, restrictive land use agreements that run with the land.

Whether they run with the land depends on
Theory of relief sought, and

Whether burden, benefit, or both is running.
Different elements apply to these four different situations.

Question 12

Real covenants v. equitable servitudes

Answer 12

What does the party seeking to enforce the agreement seek as a remedy?

If money, we’re in real covenant land
Damages are a legal remedy, and historically developed separately from equity

If an injunction, we’re in equitable servitude land
Injunctions are an equitable remedy, and historically developed differently from courts of law

Question 13

Three variations on horizontal privity

Answer 13

Successive ownership interests
Grantor-grantee relationship

Any mutual interests
Includes also landlord/tenant, easements, etc.

No requirement
Some states no longer require horizontal privit

Question 14

Burden - Real Covenant

Answer 14

Notice 
Writing
Intent to run
Touch & concern land [through here for ES]
Privity: 
--Horizontal (some states)
--Vertical

Question 15

Benefit

Answer 15

Writing
Intent to run
Touch & concern land [through here for ES]
Privity: 
--Vertical

Question 16

Common plans

Answer 16

Subdivisions may include covenants that restrict and regulate development

But they may be enforced in the absence of such a typical writing if

Restatement rule: common plan in any chain of title within development may be enforced against another owner

Inquiry notice: common plan may be inferred from common features of development

Question 17

Covenants: Termination

Answer 17

Termination forms shared w easements
Expiration
Release
Merger
Condemnation
Abandonment

Termination forms not shared w easements
Changed circumstances
Acquiescence (cf. waiver)
Unclean hands 
Laches

Question 18

Covenant termination by abandonment

Answer 18

Number, nature and severity of then-existing violations

If not determinative, also consider
Prior acts of enforcement
Whether still possible to realize substantial benefits of covenant

Question 19

Touch and concern: covenants must relate to enjoyment, use or occupation of property

Answer 19

Easy case: land use restrictions/obligations
Easy case: purely personal contract between nearby landowners
Harder case: purely financial obligations
HOA dues: do T&C
Covenants not to sue: do not T&C

Question 20

Abandonment by changed circumstances

Answer 20

Elements
Purpose of covenant has been altered or destroyed by changed [external social] conditions;
And no substantial benefit still accrues to residents from enforcement
Examples
Alcohol restrictions not abandoned, even though liquor served in nearby areas, Vernon Twp. (Pa. 2004)
But see El Di (Del. 1984) (alcohol restrictions abandoned where church-affiliated residential area had become tourist resort)
Residential-only restriction not abandoned as to border lots because still benefited lots inside development, River Heights (Va. 2004)
Restatement: Courts should be more willing to find CC when large numbers of residents create transaction costs, sec. 7.10 cmt a

Question 21

Covenants, conditions & restrictions

Answer 21

Presumptively valid

Unless resident can show unreasonable

Question 22

Defining “unreasonable,” Nahrstedt

Answer 22

Arbitrary
Without any stated rationale

No relationship to land use
Against clearly articulated public policy

Need stated policy in statute or constitution
Burdens&raquo_space; benefits

Question 23

Restatement: covenants are enforceable unless contrary to law or public policy

Violations of PP?

Answer 23

Arbitrary or spiteful restrictions
Unreasonable burden to fundamental constitutional right
Restraints on alienation
Unreasonable restraint on trade
Unconscionable

Question 24

What is a taking?

Answer 24

States have power of eminent domain: they can take private property
US: subject to constitutional limitations of public use and just compensation

Historically, only physical appropriation of land
Modernly, regulations may amount to takings where they reduce value or restrict use of property
Penn Coal: regulations that “go too far” effectuate takings

Question 25

Penn Central three-part test specified when regulations “go too far”.

Answer 25

Three factors:
1. Reduction in value
Needs to be substantial
2. Interference with investment-backed expectations
Focuses on mental state of claimant and their understanding of available uses when acquired
3. Character of  government action
Benefit conferring vs. harm preventing
Degree of physical invasiveness

Question 26

regulates nuisance or noxious uses

Answer 26

Regulation is never a taking if it regulates nuisance or noxious uses;
But cf. Penn Coal (regulation of dangerous use held taking);

Question 27

Regulation is a taking requiring just compensation if:

Answer 27

It effectuates a permanent physical occupation of the claimant’s land, OR;
It deprives the claimant of “all economically beneficial or productive use of land” and is not consistent with the state’s historical “law of property and nuisance”, OR;
Penn Central factors weigh in favor of claimant.

Question 28

What is public use?

Answer 28

Rational basis means/ends test, see Midkiff
Is the state aiming at a conceivable public purpose?
Is the state’s strategy rationally related to that end?

What might not be a public use? See Kelo
Developer-initiated takings; small number of affected plots; no or pretextual public purpose;

Question 29

Defining “just compensation”

Answer 29

Background principle: just compensation is
Fair market value (FMV)

At time taking occurs
FMV = amount that a buyer would pay to a seller in a standard market transaction
Objective, not subjective test
Psychic attachment to property not compensable

Evidence:
Recent comparable sales, usually based on
Expert testimony about market conditions
Proximate costs (e.g., moving expenses) not compensable
But cf. partial takings & severance damages, infra

Question 30

Four variations of just comp

Answer 30

Replacement costs

Future uses

Business goodwill

Partial takings/severance damages

Question 31

Takings: analytical overview

Answer 31

1. Is there a taking?
   A. Physical appropriation of land: always a taking
   B. Regulations: may be a taking
   I. Per se rules
   *Regs that impose “permanent physical invasions” are takings (Loretto)
   *Regs that eliminate all economically viable use are takings (Lucas)
   *Regs of nuisances or noxious uses tend NOT to be takings (Hadacheck)
   II. Penn Central balancing test
   *Reduction in economic value of land
   *Interference with distinct investment-backed expectations
   *Character of government action
2. Is the taking for a “public use”?
   A. Ends test: if intended end of taking is to benefit public, then it is for a public use
   I. Very broad standard
   B. Substantial court deference to government determinations of what is a “public use”
   II. More or less coterminous with police power
3. Is the government’s payment “just compensation”?
   A. Fair market value at time of taking
   B. Subjective or other external value considerations not part of calculus