Week 13 Flashcards
Requirements for burden to run with the land
(1) intent (often common plan)
(2) notice
(3) touch and concern (appurtenant and not in gross)
Requirements for benefit to run with the land
intent + touch and concern
Tulk says covenant attacked to real property enforceableas___
equitable servitude against subsequent purchasers who have notice
Tulk says D __
bound by OG covenant to maintain the garden
Tulk says it would inequitable to allow OG purchaser to __
turn around and immediately sell the property, unencumbered by covenant at higher price
Sanborn says that when developer transfers some lots with restrictions that benefit lot she retains suggesting ___ the restrictions are ___
common plan, enforceable against later transferees of retained lots provided they have notice of the restriction
Sanborn says D had inquiry notice because __
fact all other properties in the subdivision were residential
Sanborn says for restrictions to not be enforced would __
defeat expectations of buyers of the first lots (in reliance on plan)
Real covenant requirements for burden to run with land
intent
horizontal privity (OG grantor and grantee)
vertical privity
touch and concern
appurtenant to land
Requirements for benefit to run real property
intent
vertical privity (partial)
touch and concern
Two neighbors who sign agreement to restrict land not in horizontal privity because ___
not in grantor-grantee relationship
Partial vertical privity means __
only need some interest in land (not entire durational interest)
Neponsit said covenant touched and concerned the land because __
charge used for maintenance of public works and spaces in which grantee obtained easement or right of enjoyment
Eagle says even when parties ___ it only does if meets other requirements
expressly state covenant will run with the land
Eagle said obligation to receive water from element was ___ rather than ___ so don’t run with land
personal K promise, significant interest attaching to respondent property
Affirmative covenants are __
disfavored in the law
Termination of covenants based on changed circumstances involves factors of
(1) restrictions made inequitable due to changed circumstances
(2) harm or burden to owner of property
(3) benefits to recipient
Generally ___ defeats covenant termination
any finding of benefit even to one other owner
Bolotin says deed restrictions will be enforced so long as ____ even if ___
OG purpose can be realized, higher market value without restrictions
Bolotin held that commercial building can’t be built because __
restriction requiring single family still benefited other lots
Other ways to terminate a covenant
abandonment
laches
estoppel
public policy
Peckham says restrictive covenant deemed abandoned where ___
habitual, substantial violations have eroded general plan making enforcement inequitable
Peckham says this covenant ___
has not been abandoned nor does it violate public policy
Peckham says no abandonment because ___
even though a few businesses in development not abandoned because lots in violation very small %
Peckham says no laches or estoppel because __
P brought suit as early as he could and never made statements inconsistent with current position
Modern zoning has moved from ___
planning model to deal-making model
Purposes of zoning
stable regime of residential land use
minimize negative externalities
Pros of zoning
(1) lower info costs and more predictable than nuisance law or covenants
(2) deal with externalities
(3) judges ill equipped for detailed governance regime
(4) residents self-sort, prevent free riding
Costs of zoning
(1) limits of bureaucratic decision making
(2) increases price of housing
(3) enable segregation
(4) home voter hypothesis
Board of Zoning Appeals hears requests for __
variances and special exceptions
Zoning ordinance not unconstitutional if it has ___
reasonable relation to public health, safety, morals, or general welfare
Euclidean zoning
portions of community marked off in zones with individual parcels restricted to uses permitted in their zone
PUD zoning
no comprehensive plan, based on negotiation between developers and local authorities
Euclid says because ___ policy reasonable enough to prevent court from striking down
separation of private residential use to increase safety and decrease nuisance
Some judges have held that having ___ on same block as single family homes is a nuisance
apartments
Mt Laurel says zoning contrary to ___
general welfare is invalid
Mt Laurel says state constitution requires land use regulations __
to not foreclose opps of low and moderate income housing people to live
Zoning ordinances usually grandfather __-
non conforming uses of property in existence when scheme enacted
Problem with grandfather non-conforming uses
assume would disappear but often get stronger due to local monopoly
Amortization approach to non-conforming uses says that right __
is not perpetual and may be terminated after reasonable time and notice
Amortization doesn’t __
require compensation
Termination periods for non-conforming usually based on __
normal life of structure without extensive alterations or repairs
