Week 6: Light & Air, Covenenant Cases

Question 1

P hotel built in addition next to D that cast a shadow over Dee’s pool in winter at certain times. Dee said it was a nuisance and purely built out of spite (spite wall doctrine).

Was P building against sic utere principle? (One must not use his property to injure the lawful rights of others)

Answer 1

No. Not a spite fence = no actionable nuisance

1. No one at fault
2. Bilateral monopoly means probably wouldn’t come to joint-maximizing solution
3. Blocking Sun generally not illegal
4. Building isn’t an invasive use
5. Nuisance week
6. No prior easement

Fontainebleau hotel Corp v. Forty-five twenty-five (1959)

Question 2

P owned house with solar panels. D bought adjacent property and started to build a house. P asked D to move location of house on the plot otherwise it would cast a shadow on his solar panels. D said yes but only by 10 feet, still interfered. P sued for nuisance.

Is it?

Answer 2

Could be. It’s a jury question. P should have chance to prove blocking sunlight is unreasonable and harmful

1. Changing utility for sun
2. Blocking sunlight unreasonable? Here, court is changing the rule
3. But sunlight protections are weak (aesthetic, no right to prescription, personal use of land)

solar panel holding is an exception to the US prescriptive negative easement

Prah v. Maretti (1982)

Question 3

Bank ends up with homeowners land and a residential community because of a foreclosure. Neponsit (OG developer) subdivided land for residential development and had a covenant requiring all homeowners to pay HOA fees for common areas. Bank refuses to pay back dues. Traditionally law disapprove of enforcing affirmative covenant, especially wants to pay money.

Did covenant touch & concern land/was there privity?

Answer 3

Yes.

1. In writing
2. Notice
3. Intent
4. Touch & concern
   - negative/affirmative obligation dichotomy random
   - not “in gross”
   - affects legal relations of owners but not as community
   - runs with land
   - relaxes privity requirements for property owners

touch & concern requirement can be expanded to HOAs

Neponsit Property Owners’ Association v. Emigrant Industrial Savings Bank (1938)