Rights in Land Flashcards
Covenants Running with the Land (Real Covenants)
A covenant is a promise to do or not to do something in regard to real property. In order for the burden of a real covenant to run with the land and bind a subsequent party, there must be 1) a writing 2) the original parties must have intended to bind successors 3) the covenant must touch and concern the land 4) the successor must have notice of the covenant AND 5) there must be both horizontal and vertical privity. The traditional remedy for a violation of real covenant is damages.
Covenants Running with the Land (Real Covenants) - Intent to Run
The original parties must intend that the covenants bind future owners in order for the burden to run. Intent is most commonly found in the express language of the covenant. Words such as “heirs, successors, and assigns” usually evidence intent.
1) Additionally, intent may be inferred from the nature of the restriction and other circumstances surrounding the covenant.
Covenants Running with the Land (Real Covenants) - Touch and Concern
The burden must also touch and concern the land. This means the burden must somehow relate to the use of the land. If the land is rendered less valuable by the promises, then the burden touches and concerns the land. Similarly, if the land is made more valuable by the promise, then the benefit of the covenant touches and concerns the land.
Covenants Running with the Land (Real Covenants) - Notice
The successor must have notice of the promise in order for it to be enforced. The notice requirement can be satisfied by 1) actual notice 2) record notice OR 3) inquiry notice.
Covenants Running with the Land (Real Covenants) - Horizontal Privity
Horizontal privity refers to the relationship between the original contracting parties. This means the parties must share mutual interests in the same land. The most common example is a landlord and tenant. The tenant has a leasehold estate while the landlord has an ownership interest in the same property. Similarly, with easements, the owner of the dominant tenement holds a right of access “in the same land” as a fee simple owner of the servient estate. In each example, both parties mutually share an interest in the same property.
1) In comparison, adjacent property owners lack horizontal privity because they don’t hold simultaneous interests in the same land.
Covenants Running with the Land (Real Covenants) - Vertical Privity
Vertical privity concerns the relationship between an original contracting party and his successor. If the successor acquires the party’s entire interest, vertical privity exists.
Equitable Servitude
In order for the burden of an equitable servitude to run 1) the covenant must be in writing OR implied from a common plan 2) the original parties must intend to bind successors 3) the covenant must touch and concern the land AND 4) the successor must have notice of the covenant. Unlike a real covenant, neither horizontal nor vertical privity is required.
1) The traditional remedy for a violation of an equitable servitude is an injunction, not damages. However, an equitable servitude is easier to enforce than a real covenant.
Lateral Support
A landowner has an absolute right to lateral support of his land in its natural condition. Lateral support is support from adjoining parcels of land. Thus, an adjacent owner who withdraws lateral support (usually by excavation on her land) is strictly liable for any damage caused by the resulting subsidence.
1) Moreover, a landowner always has a cause of action in negligence for the interference of his right to lateral support. Thus, if the landowner’s property is already improved with a building, the adjacent landowner is liable only if she failed to use due care to avoid injury to the landowner’s property e.g. by failing to investigate soil conditions or use improper excavation methods.
Zoning Laws (Land Use Regulations)
Zoning restricts the rights of landowners in the use of their land. Under the 10th Amendment, states have the police power to enact zoning laws in order to promote the health, safety, and welfare of the general pubic. This power is often delegated to cities and other local governmental entities through the state’s zoning enabling act.
1) A zoning ordinance enjoys a presumption of validity. Thus, an ordinance restricting the use of land is presumed valid unless it is arbitrary and unreasonable having no substantial relation to the public health, safety, morals, or general welfare.
Spot Zoning
Spot zoning confers a special benefit on a small parcel or parcels of land regardless of the public interest. It refers to the situations where a small area or spot of land is zoned differently than the surrounding area for the benefit of certain property owners. Spot zoning is seen as the unconstitutional use of the zoning power to benefit private interests rather than the collective interests of the community.
1) Inverse spot zoning is the reverse of spot zoning. Inverse spot zoning is where one parcel of a small number of parcels are singled out for less favorable treatment.
2) In short, spot zoning makes unjustified exceptions for certain parcels.
Variance
Most state zoning enabling acts grant zoning boards the power to issue a variance. A variance is a waiver of the usual restrictions of a zoning code. There are two types of variances 1) use variances AND 2) area variances. Use variances permits an owner to make some of the land that is not permitted in the zone e.g. a business in an area zoned for residential use. Area variances allow modifications of height, setback, size, or similar requirements for a use that is permitted in the zone.
1) To obtain a variance, the landowner typically must establish that owing to special conditions, enforcement of the ordinance will result in unnecessary hardship. Usually, the central issue is whether owner has presented adequate evidence of hardship. Hardship is defined to mean that, unless the variance is granted, the owner cannot obtain a reasonable return on the property.
2) Finally, the issuance of a variance should not be contrary to the public interest. This is interpreted to mean that the use authorized will not alter the essential character of the surrounding area. The focus is on the impact the variance will have on the neighborhood.
Non-Conforming Use (A Use that is Grandfathered in)
Zoning only regulates future development. A non-conforming use is a use that does not comply with current zoning, but existed lawfully prior to the enactment of the ordinance. A non-conforming use is allowed to continue otherwise the ordinance would be vulnerable to constitutional attacks. Thus, a non-conforming use is grandfathered in.
1) However, the right to continue a non-conforming use has limitations. A non-conforming may continue until it has been 1) abandoned 2) amortized OR 3) completely destroyed.
Non-Conforming Use - Amortization Period Must be Reasonable
Many ordinances require the termination of a non-conforming use within a fixed period of time. Such provisions are known as amortization periods and are upheld so long as the amount of time the owner has to terminate the use is reasonable.
1) The theory behind amortization is that the owner will be able to recover his investment by continuing the non-conforming use for a reasonable period of time. This way the government can gradually end the use without any obligation to compensate the owner.
Vested Rights (The Building Permit Rule)
A property owner who 1) obtains a building permits AND 3) makes substantial expenditures in good faith reliance on that permits obtains a vested right to develop the property, regardless of any later change in law. Time stops when rights vests.
1) The issuance of a building permit remains a precondition to obtaining a vest right to develop. This doctrine is often referred to as the building permit rule.
2) Substantial expenditures in reliance on the permit means that construction must have started. Actual construction, not preparation for it. The reason is preparatory activities are often consistent with may types of improvements. A developer who expends large sums for architectural, engineering, and planning services – but never begins construction – is unlikely to acquire vest rights.
3) Simply put, the doctrine of vested rights applies where a landowner seeks protection against the government’s attempt to revoke a permit after construction has commenced.
