Regulating Land Flashcards
1
Q
Nuisance
A
Substantial and unreasonable interference with the private use and enjoyment of another’s land
2
Q
Causes of Action to Protect Right to Enjoy Real Property
A
- Reciprocal Theory
- Sic utere tuo tu alienum non laedas
3
Q
Reciprocal Theory
A
Each neighbor loses the right to engage in the nuisance use but gains the right to not be next to nuisance use
4
Q
Sic utere tuo tu alienum non laedas
A
use your own in such a way as to not injure other people’s
5
Q
Suit can be for what in nuisance
A
Damages or Injunction or both
- law differs based on which is sought
6
Q
Rule of Nuisance
A
Acts of a defendant that cause substantial and unreasonable interference with landowner’s right to use and enjoy real property
7
Q
Two approaches to Balancing Interests of Property owners in nuisance suits
A
- Modern View - balancing of interest to see whether there is a nuisance at all; if the D’s interest in the contested use outweighs the plaintiff’s interest in enjoyment of their land it is not a nuisance
- Traditional View - balancing in determining remedy damages v. injunction; if D’s contested use is causing a substantial and unreasonable interference with P’s right to use land it is a nuisance and they owe damages
8
Q
Successful Nuisance suit involves
A
telling landowner they cannot do what they had a legal right to do, and which may be socially beneficial/necessary to do somewhere
9
Q
Unsuccessful Nuisance suit means
A
landowner cannot enjoy property as they hope to/is typical
10
Q
Nuisance law is
A
highly contextual
11
Q
Locality Rule of Nuisance
A
The character of the neighborhood is a factor to consider in determining whether land use constitutes nuisance
12
Q
Legal Stakes of Being Categorized as Trespass
A
- Strictly applied
- No actual damages
- Automatic entitlement to injunction
- Automatic entitlement to nominal damages, maybe punitive damages
13
Q
Legal Stakes of Being Categorized as Nuisance
A
- Squishy unpredictable
- Substantial damages requirement
- Entitlement to injunction requires balancing
- Entitlement to damages may turn on balancing no nominal damages
14
Q
Traditional Factual Distinction of Trespass
A
- Direct physical invasion
- Violation of the right to exclude
15
Q
Traditional Factual Distinction of Nuisance
A
- Something that is not direct physical invasion
- Violation of the right to enjoy
16
Q
Some Jurisdictions on Trespass
A
Trespass can be indirect or not tangible but in those cases it also has an actual, substantial harm requirement, unlike traditional trespass
17
Q
Vegetation/Tree Limbs Trespass?
A
Traditional Rule: Trespass but remedy is limited to self-help
18
Q
Flooding Trespass?
A
Damming water in a way that floods neighbor is generally trespass
19
Q
Property Rule
A
The law protects an entitlement against being taken away without the holder’s consent
20
Q
Liability rule
A
The law allows another person to take an entitlement without consent of the holder, so long as they compensate the holder
21
Q
Liability Rule 1
A
Plaintiff has entitlement, protected by property rule
22
Q
Liability Rule 2
A
Plaintiff has entitlement, protected by liability rule
23
Q
Liability Rule 3
A
Defendant has entitlement, protected by property rule
24
Q
Liability Rule 4
A
Defendant has entitlement, protected by liability rule
25
Public Nuisance
Can offer tort damages or injunctions for unreasonable behavior causing harms
- includes balance of interest
- Usually less about violation of private property rights or expectations
26
How are public nuisances regulated
Statute; a nuisance not to any individual landowner but the public at large
27
Who can bring a Public Nuisance claim
State attorney general or private party specifically impacted by the nuisance
28
What can courts order in public nuisance claims
They can order a plaintiff to pay for an injunction abating defendants nuisance but this is rare
29
Types of Servitude
- Servitudes: consensual regulation of property access and use among neighbors
- Easements: property right to use another's property (in gross or appurtenant)
- Real Covenants: contractual restrictions on use of property
30
Real Covenants
- run with the land
- Enforced by Law (damages): real covenants
- Enforced at Equity: equitable servitude
31
Easements
Right to use another's property in a particular way
32
Easement in Gross
Held by a particular person
33
Easement Appurtenant
Runs with a particular piece of property
- dominant tract holds easement
- servient tract has easement held against it
34
How are Easements created
- Deed (ideally)
- Other writing
- Implication
- Prescription (adverse possession of an easement)
- Estoppel
- Necessity
35
Easement by Implication
An easement was implied when the lots were severed, because of continuous use and substantial benefit or necessity of easement
- courts are reluctant to do this
36
Easement by Necessity
Grantor severs portion of their property and one of the portions is now landlocked
- no need to show intent or expectations of parties
37
Easement by Prescription
Adverse possession of an easement, hostile, continuous for statutory period of time creates easements
38
Easement by Estoppel
Promise or reliance of access that is detrimentally relied on can give rise to easement
39
Sunlight or Airflow Easements
- controversial on if it can be done
- Generally, not by prescription
- Some jurisdictions allow grant deeds of easements to light or air rights
- More commonly accomplished by restrictive covenants against offending construction
- Blocking light or airflow does not constitute nuisance
40
Misuse of Easements
- Any use of easement beyond its terms and intent is a misuse
- Injunctive relief or money damages may be available
- Misuse of easement may lead to its termination but not automatically so long as injunctive relief constraining use to that which is permissible is available
41
Covenant
- Promises about the use of land – question is when promises will be enforceable against subsequent owners of same land (runs with the land)
- Can be affirmative (require landowners to do something) or negative (require landowner not to do something) – same legal analysis either way
42
Promise that runs with the land
Real covenant if enforced at law for money damages
43
Equitable Servitude
Enforced at equity with Injunction
44
Real Covenant Enforcement
- Written – no real covenants by implication
- Intent for promise to run with the land
- Promise touches and concerns the land
- Privity
- For the burden of real covenant or run with the land (for the covenant to be enforceable against subsequent owner), both horizontal and vertical privity required
45
Horizontal Privity
Community of interest between parties agreeing to original covenant (relationship of ownership in same land or grant by one to the other)
46
Vertical Privity
Transfer of full durational interest from one owner to the next
47
Real Covenant need which Privity
Vertical privity
48
Requirements for the Burden of Real Covenant to Run with the Land
- Intent
- Privity
- Horizontal – community of interest between owners agreeing to create real covenant
- Vertical – transfer of (full, for burden) interest from one owner to the next
- Touches and concerns the land – notoriously vague test
49
For Touch and Concern Test look for
- necessity (or substantial importance) of restriction to particular kind of use
- Consider effect of change of circumstances and notice
- And whether there is any limit on the burden
50
Equitable Servitude Enforceability
- Intent
- Touch and concern
- For the burden to run, notice is required
- Can be constructive/record notice
- Writing not necessarily required – common plan doctrine
- Notice not required for benefit to run
51
Common Plan Doctrine
Equity will imply an equitable servitude where 1) it is clear that a particular neighborhood is meant to be dedicated to a particular sue, and 2) most property in the area is burdened by written covenant in chain of title
52
Termination of Covenants
- Change in Circumstances
- Abandonment
- Violation of Public Policy (high bar)
53
For Abandonment look for
Sustained, broad violation, not isolated incidents
54
Change of Circumstances on Restrictive Covenants
- Can invalidate restrictive covenants
- But change has to do more than merely make covenant seem financially pointless or annoying to purchaser
- Show it servers no function, even a plausible aesthetic one
55
Zoning is
General regime of land use regulation that permits and forbids certain uses of land in certain locations
56
Who does the Zoning
State authorized municipalities
57
Zoning must be
Rational, comprehensive, and non-arbitrary
58
Spot Zoning
Making individualized determinations about the use of particular lots is impermissible
59
Zoning is grounded in
state police power to abate nuisance
60
Zoning is limited by
due process clause
- can challenge irrational zoning with due process
61
Who has discretion with Zoning limits
States have broad discretion
62
Criticism of Zoning
exclusionary by income and race
63
Aesthetic Zoning
controversial, growing form of zoning
64
New challenge to zoning
1st amendment claims
65
5th Amendment
Takings Clause
66
Takings Clause says
Implies a power of eminent domain under which the government can take private property for public use with just compensation
67
What is Public Use for Eminent Domain
Can take private property and give it to other private owners but only if it is part of a carefully deliberated reasonable plan for economic development not bare transfer
68
What is Just Compensation for Eminent Domain
- the full and perfect equivalent in money of the property taken.
- The owner is to be put in as good position pecuniarily ads he would have occupied if his property had not been taken
- But courts do not want to encourage arbitrary speculation and windfalls in land values attributable to government’s project
- Look to fair market value of the land at the time it becomes probable the land will be condemned
69
Regulatory Takings is
government action other than explicit eminent domain that restricts pre-existing property rights; typically regulations but can be something else
70
Owner argument against regulatory takings
the government has effectively taken their property and must proceed by eminent domain and pay just compensation
71
Basic Idea of Regulatory Takings
constructively taking property without saying so to avoid paying just compensation under 5th amendment; the law treats it as if they had explicitly used eminent domain and must pay
72
Disagreement about (regarding regulatory takings)
whether restrictions ever qualify as a taking, when they qualify, and the boundaries/origin of this idea
73
Origin of Regulatory Takings
Pennsylvania Coal
74
Modern background rule for if regulations qualify as takings
Penn Central
75
Penn Central doesn't apply in what kinds of regulations
- permanent physical occupations
- total wipeout of economically beneficial or productive use
- any physical appropriation
76
Distinct test applicable to exactions
government regulations triggered in exchange for government benefit, usually permit
77
Regulations or other government exercises that go too far
are takings so must pay just compensation; regulatory takings is a cognizable claim
78
Penn Central
regulations limiting the right to use property may be takings on consideration of:
- economic impact on claimant
- interference with distinct investment-backed expectations
- the character of the government action
79
Interference with distinct investment-backed expectations
Something like what did this particular owner reasonably buy this property to do
80
Character of government action
how much does the regulation look like eminent domain
81
What are automatically takings
permanent physical occupations by government or third party; Penn Central applies to other regulations
82
Exactions count as takings where
- the condition lacks an essential nexus with a legitimate government purpose or
- where the condition is not roughly proportional to the harms of the development
83
A regulation that causes a total loss of value of real property is
a per se taking; courts have read Lucas's holding to be a total wipeout of value is needed
84
States can cause a total wipeout of value in
abating a common law nuisnace
85
Government violation of the right to exclude is always a taking except
- isolated intrusions (traditional trespass)
- background limitations on the right to exclude (necessity exception to trespass; nuisance; searches
pursuant to lawful warrants)
- access rights exchanged for government benefits (requires nexus and proportionality)
86
Penn Central is
default test
