Private Land Use Controls & Eminent Domain & Takings Flashcards
Easement
a nonpossessory right to use the land of another
Express easements
Easements by grant
Easements by reservation
Implied easements
Easements implied by prior use
Easements implied by necessity
[Easements by prescription]
[Easement by estoppel]
Easements implied by prior use
Severance of parcel
Existing, apparent and condition arising from severance
Reasonable necessity to use servient estate
Easements by necessity
Severance of parcel producing landlock
Strict necessity to use servient estate
Some movement toward reasonable necessity, e.g., Berge
Easements by prescription
Adverse use
Open and notorious use
Continuous use for statutory period
Exclusivity (minority of jurisdictions, why?)
Easements by estoppel (permanent licenses)
Use license from landowner (written or implied)
Good faith reliance by licensee
Of which licensor knew or should have known
Equities favor licensee
Can easements be transferred?
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
Easement Scope of Use
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
Easement termination
Release Expiration Merger Estoppel Condemnation Abandonment: non-use + some indication of intent Prescription [Extreme] misuse
Covenants
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.
Real covenants v. equitable servitudes
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
Three variations on horizontal privity
Successive ownership interests
Grantor-grantee relationship
Any mutual interests
Includes also landlord/tenant, easements, etc.
No requirement
Some states no longer require horizontal privit
Burden - Real Covenant
Notice Writing Intent to run Touch & concern land [through here for ES] Privity: --Horizontal (some states) --Vertical
Benefit
Writing Intent to run Touch & concern land [through here for ES] Privity: --Vertical
Common plans
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
Covenants: Termination
Termination forms shared w easements Expiration Release Merger Condemnation Abandonment
Termination forms not shared w easements Changed circumstances Acquiescence (cf. waiver) Unclean hands Laches
Covenant termination by abandonment
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
Touch and concern: covenants must relate to enjoyment, use or occupation of property
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
Abandonment by changed circumstances
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
Covenants, conditions & restrictions
Presumptively valid
Unless resident can show unreasonable
Defining “unreasonable,” Nahrstedt
Arbitrary
Without any stated rationale
No relationship to land use
Against clearly articulated public policy
Need stated policy in statute or constitution
Burdens»_space; benefits
Restatement: covenants are enforceable unless contrary to law or public policy
Violations of PP?
Arbitrary or spiteful restrictions Unreasonable burden to fundamental constitutional right Restraints on alienation Unreasonable restraint on trade Unconscionable
What is a taking?
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
Penn Central three-part test specified when regulations “go too far”.
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
regulates nuisance or noxious uses
Regulation is never a taking if it regulates nuisance or noxious uses;
But cf. Penn Coal (regulation of dangerous use held taking);
Regulation is a taking requiring just compensation if:
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.
What is public use?
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;
Defining “just compensation”
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
Four variations of just comp
Replacement costs
Future uses
Business goodwill
Partial takings/severance damages
Takings: analytical overview
- 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 - 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 - 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
