Rights in Land Flashcards
What are the natural rights incidental to land ownership?
An owner of real property has the exclusive right to the usage and possession of:
- the surface of the property
- the soil
- the airspace above property
What is the “right to lateral support of land?”
The right to receive physical support from adjacent soil
This right is absolute and an adjacent landowner that uses care may be liable
*example of lateral support are retaining walls after excavating an adjoining parcel
What are the 2 approaches to water rights in the US?
1.Riparian Doctrine: owners of land contiguous to a stream or lake may make reasonable use of the natural flow of that water
- Prior Appropriation Doctrine: water rights are determined by the priority of appropriation of the water
What is the Riparian Doctrine for water rights?
Riparian land is land adjacent to a stream or river - doctrine states that the owner of riparian land has the reasonable right to use the bodies of water and land underneath, as long as the owner doesn’t interfere w/ others’ use of the bodies of water
What is the “natural flow” theory of water rights?
A downstream riparian owner has the absolute right to unaltered water flow, meaning an upstream riparian owner may only use the water if it does NOT diminish the flow by quantity or quality
*MINORITY RULE
What is the “reasonable use” theory of water rights?
-courts balance the reasonableness of the needs and uses of both upstream and downstream owners
-a downstream owner may only enjoin an upstream owner’s water use if they deprive the downstream owner of necessary water or substantially interfere w/ downstream use
*majority rule
What is the “prior appropriation doctrine”?
-any prior appropriation of water will dictate legal rights to water
-prior appropriation causes the establishment of water rights to be independent of land, meaning the right may be severed and sole to another to use on the land
What are the 4 theories of groundwater ownership?
- absolute ownership
- reasonable use
- correlative rights
- prior appropriation
What are the 2 ways a property owner may use surface water on their land?
When an owner has surface water on their land, they may:
- capture the water and divert it for use and
- expel the water from property
May a property owner exclude others from the airspace above their property?
NO
When may a local gov create a zoning ordinance?
Can create based on delegation of the state legislature’s “police power” to safeguard the health, safety and welfare of citizens
What is a “common-interest ownership community”?
Include condominiums, cooperative, and subdivisions w/ homeowners’ associations run by private governments (ie, boards) that enforce and make rules, assess charges, and make repairs and improvements
What is a homeowners association?
is a cooperative association w/ the power to control the physical layout of the land in a neighborhood and continued maintenance through the use of covenants
What is a “fixture”?
A chattel that has become so connected to real property that a disinterested observer would consider the chattel to be part of the property permanently
*chattel = personal property
What is an easement?
A grant of an interest in land that entitles a person to use land possessed by another
*easements may be created by express grant or reservation, by implication, or by prescription
What is a license?
A privilege to use the land of another in a particular way
*licenses do NOT need to be in writing and ARE REVOCABLE at the will of the licensor
What is a real covenant?
Non-possessory interest in land that obligates the holder to either do something (affirmative) or refrain from doing something (negative) on the land
It is enforceable by a successor owner of the promisee’s land and is enforceable against a successor to the promisor’s land
*a real covenant gives rise to personal liability ONLY
What is an equitable servitude?
Is a covenant (ie, a promise to do or not do something relating to the land) enforceable in equity or against successors to the land of the original parties to the K
*the usual equitable remedy granted is an injunction against violation of the covenant
What is the difference between an affirmative easement and negative easement?
Affirmative Easement: allows the holder of the easement to do something on someone else’s land
Negative Easement: allows the holder to prohibit a landowner from doing something that is normally permissible on his own land
What is an easement appurtenant?
When an owner of a tract of land allows another person to use the owner’s land in a way that benefits the other person’s physical enjoyment of their own property
RUNS WITH THE LAND unless it has been terminated
*X gives Y an easement appurtenant that allows Y to cross through X’s property (the servant estate) to better access Y’s own property (the dominant estate)
What is an easement in gross?
An easement that does NOT benefit its owner in the use and enjoyment of their land, but merely gives them the right to use the servant land
An easement in gross can be personal OR commercial
*“in gross” is the term used to signify that the benefit of the easement is not appurtenant to other land
What are the 4 ways to create an easement?
- express grant
- necessity
- implication
- prescription
What are the 3 requirements for creating an easement by implication?
IMPLICATION:
- PRIOR USE: meaning the undivided parcel was continuously used before division in such an obvious way such that the parties expect that use to survive division
- COMMON OWNERSHIP: meaning the original undivided tract was commonly-owned and an owner retains a parcel after division AND
- REASONABLE NECESSITY: meaning the easement is reasonably necessary for the now-dominant owner’s use and enjoyment of the parcel
*an easement by implication is also know as an easement implied from prior use
What are the 3 requirement for creating an easement by prescription?
- open and notorious sue;
- w/out the permission of the owner
- continuous and uninterrupted use for the statutory period
*exclusivity is NOT required to create an easement by prescription
What are the 7 ways to terminate an easement?
- in accordance w/ the express terms of the easement
- by a merger of the dominant and servant estates
- by a written release of the easement to the servient owner
- by abandonment of the easement
- by prescription
- by destruction or condemnation of the servant tenement AND/OR
- by expiration of the necessity that created that easement
*abandonment requires more than mere non-use –> there must be an act showing clear intent to abandon
What are the 5 requirements for the burden of a real covenant to run with the land?
- intent by the OG parties for the burden to run
- horizontal privity
- vertical privity
- the burden touches and concerns the land
- notice of the burden for subsequent purchasers
*distinguish from the benefit of covenant running with land
What is “horizontal privity”?
-means that the covenant was created during the transfer of burdened and benefitted land
-to establish horizontal privity, the promisor and promisee must share an interest in the real property independent of the covenant or equitable servitude at the time the promise is made, such as is in connection w/ the conveyance of an interest in the property (ie, between landlord and tenant or mortgagor and mortgagee)
*horizontal privity is required for the BURDEN of a covenant to run
What is vertical privity?
Means the current owners (successor in interest) obtained land by legal transfer from OG covenantors
The successor is to the holder of the entire interest that the OG covenantor had
-vertical privity is present in a sale, lease, inheritance, or foreclosure
-vertical privity is NOT present in adverse possession because the prior owner did not formally transfer their interest
*vertical privity is required for the BENEFIT AND BURDEN of a covenant to run w/ the land
What are the 3 requirements of the BENEFIT of a real covenant to run w/ the land?
- intent by OG parties for the covenant to run
- vertical privity
- the covenant touches and concerns the land
*horizontal privity is NOT required for the benefit of a covenant to run w/ the land
What is a “condominium”?
means of housing and real property ownership that is settled amongst other similar arrangements w/ common facilities that are controlled by a joint-ownership association
What is a cooperative?
land and one or more buildings held by a corporation, where the units are leased to residents who also own shares of stock in the corporation
What is the difference between a mortgage on a condominium and cooperative?
Condominium: each unit owner owns their own interest in the unit and may mortgage it
Cooperative: each unit has a blanket mortgage, where detail on the mortgage would result in foreclosure of the building and termination of ALL leases
What is a “declaration” as applied to common-interest ownership communities?
is a recorded document that imposes the covenants and easements creating a common-interest ownership community
What are the 4 governing documents for common-interest ownership communities?
- the declaration
- article of inc
- bylaws
- rules and regulations adopted by association
What is a common-interest association?
Is the governing body of a common-interst ownership community that manages the community’s affairs
What are the 4 duties of a common-interest association?
- provide services
- maintain facilities
- manage the affairs of the common-in ownership community
- enforce covenants and easements
May a developer of a common-interest community have covenants enforced against it?
the developer is the OG promisee of the purchasers’ covenants and is a proper party to enforce them against for as long as they now any land in the development
What are some of the powers of the common-interest ownership community, actin through the homeowners’ association board?
-levy assessments
-charge fees for services and property maintenance
-manage and improve common property, including making substantial alterations, improvements, and additions
-enforce and amend governing documents and rules
-litigate in its own name
What is the standard for the validity of a rule adopted by a common interest ownership community board?
May adopt rules around the use of common property as long as the rule pass the standard of “reasonableness” in furthering a legitimate purpose of the association
May a board impose rules on individual owners’ lots as to design and landscaping?
YES - boar dis able to unless the rules are unreasonable
-rules contained in the originating document have a very strong presumption of validity
*the trend is to strike down these OG covenants ONLY IF they are arbitrary or violative of public policy or constitutional right
What duties does a common-interest ownership community owe to its members?
-use of ordinary care in management and financial affairs
-treat members fairly
-act reasonably in its discretionary powers
-provide member reasonable access to info
What is the extent of liability of members of an association for torts that occur on the property?
-members are NOT jointly and severally liable for torts
-HOWEVER, members are only liable for their proportionate share of the association’s liability, determined by their share of liability for common expenses
What is Zoning?
The governmental regulation of permissible uses of land (ie, commercial, residential, industrial)
What is the source of law for the federal government’s zoning power?
Comes from:
- zoning statutes
- regulations authorized by Article IV, Section 3 (power over federal lands)
What is an enabling act?
an act of the legislature that gives zoning authority to cities (or sometimes counties)
*remember that the authority to zone comes from the STATE legislature, which delegates it to cities and counties
What is the source of law for local governments’ zoning powers?
Through their state legislature’s enabling act, which delegates zoning to municipalities and counties
*state legislatures delegate this authority so cities and counties may handle local affairs of zoning and city planning
When will a court strike down a zoning ordinance?
When it violates federal due process or equal protection
What are the 3 categories of zoning law?
Residential, commercial, industrial
What is “exclusive use zoning”?
Is a type of zoning regulation that allows only one type of land use in a particular established zone/district
What are the 4 types of zoning restrictions allowed on property development to control density?
- heigh limitations
- setback requirements
- minimum lot sizes
- minimum house sizes
Which level of scrutiny applies to zoning ordinances that discriminate against a suspect class?
STRICT SCRUITINY
**SUSPECT CLASS: race, national origin, and alienage
What must a challenger of a zoning law prove to establish a violation of the Equal Protection Clause?
A challenger must prove that the zoning law had a discriminatory purpose or intent
*merely a discriminatory effect is NOT enough
What are the 6 categories protected under the Fair Housing Act?
- race or color
- religion
- sex
- national origin
- familial status
- disability
What is a “nonconforming use”?
An existing use of a parcel of real property that does not conform w/ the other use in the city or count’s general plan
*such use is USUALLY PERMITTED IF the property was being used before the adoption of the zoning ordinance which it now violates
What is the effect of “grandfather” in a nonconforming use?
means that the existing use will be allowed to continue even tho in violation of new ordinance
What is the effect of a vested right on a nonconforming use?
If a person has acquired a vested right, the zoning ordinances cannot be change to prohibit their rights to develop their property
*vested rights are usually acquired when a person spends a substantial sum in reliance on a building permit
What is “zoning estoppel”?
prevents enforcement of a new zoning ordinance after a property owner relied upon the local gov’s conduct, to precent unjustness to prop owner
What is an “amortization ordinance”?
Is a zoning ordinance that provides that a nonconforming use must terminate after a specified period of time
May an owner w/ a nonconforming property that has been grandfathered in EXPAND that use?
NO
Generally cannot expand
IN which 3 ways may a grandfathered nonconforming use be terminated?
- the owner abandons the nonconforming use
- a specified time period of non-use passes
- by involuntary termination by natural forces (eg, fire, flood, natural disaster)
What is a zoning variance?
Is a legal allowance from the zoning code
A variance is granted when its enforcement would cause unnecessary hardship because of the affected property’s unique features and allowing the variance will not damage or harm public welfare
What are the 2 requirements for a property owner to receive a zoning variance?
- unnecessary hardship because of the affected property’s unique features AND
- that granting a variance for this property will not adversely affect neighboring properties or the zoning plan
How are zoning laws changed?
through amendments to the zoning code by local gov’s
Which party bears the burden of proof in a zoning challenge?
Traditional view: zoning ordinances are presumptively valid
THEREFORE burden on person objecting to them to prove that the ordinance shouldn’t be enforced
What is spot zoning?
an amendment not in accordance w/ the comprehensive plan
*IS UNLAWFUL
How is zoning restriction different from the bylaws of a residential subdivision?
The gov agencies that administer the zoning process also may administer the subdivision approval process, BUT subdivision developers generally must comply w/ both the subdivision ordinance (which addresses issues such s street layout and lot location) and the zoning ordinance
What is easement by necessity?
is created when 2 parcels of land are so situated that an easement over one is strictly necessary to the enjoyment of the other
What are the 3 requirements of an easement by necessity?
- the necessity is strict rather than reasonable
- the parcels were under common ownership just before a conveyance AND
- the necessity came into existence at the time of, and be caused by, the conveyance that breaks up the common ownership
*landlocked parcels w/out access to a public road are the most common type of these
What is an easement by implication?
Recognized by the courts when there is not a recorded easement, but circumstances show an easement was intended
May an express easement be granted orally?
NO
-stat of frauds
What is an easement by prescription?
easement created under the principles of adverse possession
May a license be given orally?
YES
How is an express easement created?
Must be:
- signed by the grantor to satisfy stat of frauds
- identify the land and parties involved; AND
- indicate an intent to convey the easement
How is an easement extinguished by merger?
When the dominant and servient estate become owned by same person
*for extinguishment thru merger to apply, the duration of the servient estate must be equal or greater than the duration of the dominant estate
How is an easement extinguished thru abandonment?
when the owner of the easement demonstrates thru physical action the intention to permanently abandon the easement
*nonuse alone is NOT sufficient to automatically give rise to abandonment
How is an easement terminated by prescription?
The owner of a servient estate must interfere w/ the easement to create a COA in favor of the easement holder
The interference must be actual, open and notorious, non permissive and continuous for the stat period
*easement may be created or extinguished by prescription
How is an easement by necessity terminated?
as soon as the necessity the easement created upon expires
What is a profit?
the right to take something from the land of another (eg, A has the right to take gravel from B’s land)
What is the right to subjacent support of land?
is the right to receive support from the underground soil
This arises when something is removed from below the surface (eg, minerals)
What do courts consider when considering whether an item is a fixture?
- nature of the item
- manner in which it was attached
- the damage that would result if removed AND
- the extent to which the item is adapted or fitted to the real estate
What is a trade fixture?
Is a chattel that is annexed to the land by a commercial tenant for use in a business or trade during their tenancy
Are trade fixtures removable?
YES
There is a presumption that they are removable
Modern Trend: trade fixtures may be removed a reasonable time after the expiration of the lease
What are the 3 requirements for the burden of an equitable servitude to run?
- intent by parties
- notice of the burden for subsequent purchasers
- the burden touches and concerns the land
*maj of jurisdictions, successors of the burdened land who are NOT purchasers are bound regardless of notice
What is an “implied reciprocal servitude” (common scheme doctrine)?
A court will imply a reciprocal servitude if:
- the OG owner intended a common scheme or plan (evidenced by a. recorded play, general pattern of restriction, or oral representation of early buyers) AND
- the purchaser had notice (actual, inquiry, or record) of the scheme
*the common scheme doctrine applies ONLY TO NEGATIVE covenants and equitable servitudes
What is a common-interest community?
development or neighborhood in which individual lots are burdened by a servitude imposing an obligation to pay for or contribute to maintenance or pay dues to an association that provides services to the common property
Residents are bound by and subject to covenants that have been recorded and run w/ the land
What is the remedy for a breach of a real covenant?
monetary damages
*if equitable relief, such as an injunction, is sought the promise is enforced as an equitable servitude
What is the remedy for a breach of an equitable servitude?
Injunction in equity
*if monetary damages sought the promise is enforced as a real covenant
What are the 2 requirements for the benefit of an equitable servitude to run?
- intent by OG parties
- the servitude touches and concerns the land
What is a prior nonconforming use?
an exiting use of property that was once lawful use on the land but is now disallowed by new zoning ordinance
*usually permitted but any future substantial changes to the use of the property will have to obey new ordinance
What is the effect of a cumulative zoning ordinance?
land may be used for the stated purpose of the zoning OR for any higher use
what is the effect of a noncumulative zoning ordinance?
land may be used only for the state purpose for which it was zoned
