Property: Miscellaneous rules Flashcards
Water Rights: (1) Percolating Water (underground water)
Reasonable Use Rule (Majority): surface owner may make reasonable use of underground water for all purposes (residential, agricultural, commercial) on site; water may not be exported off site if it harms neighbors.
Water Rights: (2) Surface Streams and Lakes
a. Riparian Doctrine (Majority)
What land is riparian?
Each person (freehold or leasehold) with land that borders the water source has riparian rights.
What rights do riparian owners have?
Reasonable Use Theory (Majority): all riparian owners share the right of “reasonable use”; a riparian owner (A) can enjoin another riparian owner’s (B) use only if such use substantially interferes with A’s needs (i.e., A does not have enough water)
If there is not enough water for all riparian owners, natural uses (e.g., household consumption, gardening, domestic livestock) prevail over artificial uses (e.g., irrigation, industrial, commercial, large livestock operation).
Water Rights: (3) Diffuse Surface Water (flood water)
a. Disposal (three theories)
Natural Flow Theory (about half of states): a landowner cannot divert surface water on to the land of another and cannot alter the natural flow if such action would injure a neighbor
Common Enemy Theory (about half of states): surface water is a common enemy and thus an owner may divert it onto the land of another
Reasonable Use Theory (trend): an owner can divert surface water only if such diversion is reasonable.
b. Capture
a landowner has an absolute right to capture as much surface water as he or she wishes, unless such capture is malicious.
Water Rights: (4) ownership of submerged land
a. Navigable waters belong to the public, so no trespass
b. Non-navigable waters belong to adjacent landowners, so there is trespass
Lateral and Subjacent Support Rights: Lateral support
support provided to a parcel of land by adjacent landowners.
a. A landowner has an absolute right to lateral support for the land in its natural state; adjacent landowners are strictly liable for damage to such land.
b. In cases where the landowner has erected structures on the land and the structures (and land underneath) subside:
If the land subsides in whole or in part because of the weight of the structures, the adjacent landowner is liable only for negligent excavation.
If the land would have subsided even in its natural state, the majority of jurisdictions would hold the adjacent landowner strictly liable for the damage to the land and the structures.
Lateral and Subjacent Support Rights: subjacent support
support provided to a parcel of land by subsurface owners (e.g., mineral rights).
a. The subsurface owner is strictly liable for damage (subsidence) to the land itself and any structures existing at the time the surface and subsurface rights were severed.
b. Absent negligence, the subsurface owner is not liable for damage to any structures added to the land after the time the surface and subsurface rights were severed.
Fair housing act
The Fair Housing Act covers most housing (e.g., dwellings—not commercial property) in the United States. It prohibits discrimination in the sale, rental, or financing of real property on the basis of race, color, national origin, religion, gender, family status, or disability. Except for retirement homes, a landlord may not discriminate against persons with children. Evidence of discriminatory intent or effect is sufficient for the Act.
Recording a deed with a racial restriction is also prohibited by the Fair Housing Act.
Apartments of four units or fewer are exempt from the Act if the owner lives in one of the units. However, even if this multifamily exemption applies, the Act bans advertisements that indicate a limitation or preference based on race, religion, or any other protected category.
conflicts of law
The title to, as well as the acquisition and disposition of, real property within the territory of a particular state are regulated and controlled solely by the laws of that state. All instruments (including mortgages, leases, and liens) affecting the title to real estate, regardless of their nature, must therefore be governed, as to their execution, construction, and legal sufficiency, exclusively by the laws of the state where the real estate is situated.
zoning general rule
Most municipalities control the use of land for the protection of the health, safety, morals, and welfare of its citizens. A municipality may exercise zoning power only if authorized by a state enabling act. A local zoning law usually consists of two components:
(1) an ordinance that divides the community into zoning districts and regulates the use of land in each district; and
(2) a zoning map that shows the zoning classifications for the entire community. Zoning authority is limited by the Due Process Clause and the Takings Clause.
types of zoning
Use Zoning: limits the kinds of activities (e.g., residential or commercial) that can be performed on the land; in jurisdictions with cumulative zoning laws, higher uses (e.g., single-family residential) are permitted in lower use (e.g., commercial) districts (but not vice versa)
Area (or Lot) Zoning: regulates the size and shape of lots
Building (or Bulk) Regulation: regulates the size, shape, and placement of buildings on a lot
Zoing: nonconforming use
A use that exists at the time a zoning law is enacted that does not conform to the new law cannot be eliminated immediately. Some phase-out period is required (i.e., a period in which the nonconforming use may continue). During the phase-out period, the property owner is not permitted to change the use to a different nonconforming use or to extend the geographic boundaries of the nonconforming use. A change in ownership is not considered a change in use; thus, the new owner may continue the nonconforming use.
zoing: Variances
A variance may be granted if the zoning law imposes an unnecessary hardship on the property owner and the variance is not contrary to public policy
zoing: special use permits
Some uses (e.g., hospitals, schools, gas stations) impose significant burdens on the area where they are located. These uses require issuance of a special permit.
zoing: vested rights
A landowner obtains a vested right to the zoning classification in effect when he obtained a building permit if he expended substantial funds in reliance on it before a new zoning law was enacted.
zoing: re-zoning
If a zoning amendment benefits a single landowner, it is subject to greater judicial scrutiny. Such “spot” rezoning will be invalidated unless special circumstances justify the preferential treatment.
