Property II Post Midterm

  1. Nuisance
    Nuisance law is the means by which common law judges resolve conflicting land uses.
  2. Nuisance

    Prima Facie Case
    - Act by Defendant

    • - Nontrespassory invasion of Plaintiff's Interest.
    • - Intent, Negligence, or Strict Liability

    - Substantial and Unreasonable Harm to Plaintiff

    - Causation
  3. Nuisance

    Act by Defendant
    Act required. Cannot be based on natural conditions.
  4. Nuisance

    Nontrespassory Invasion of Plaintiff's Interest
    Nuisance protects the plaintiff against interference with the use or enjoyment of her land; 

    trespass involves a physical invasion of the plaintiff's and.
  5. Nuisance

    Intent, Negligence, or Strict Liability
    This distinction determines which defenses are available. 

    Intentional nuisance is where D knows that his conduct is interfering with plaintiff's right or that it is substantially certain to do so.

    *Most nuisances are intentional.*

    Negligent nuisance is where D breaches the reasonable person standard of care and causes a nuisance.

    Strict liability is imposed for nuisances caused by abnormally dangerous activities.
  6. Nuisance

    Substantial and Unreasonable Harm to Plaintiff
    • Substantial
    • Something that a reasonable person would take offense at, rather than a de minimis annoyance to which only a super sensitive person would object to. 

    • Unreasonalbe
    • For intentional or negligent acts, use a balancing test and look at these factors, among others:
    •  -> Extent and character of the harm.
    •  -> The social benefits from allowing the condition to continue. 
    •  -> Suitability of invading use to the neighborhood.
    •  -> The cost of the defendant to eliminate the condition complained of. 

    • For strict liability, no balancing test required.

    • Aesthetic Considerations
    • Prior Occupation (Coming to the Nuisance)
    • Effect of Zoning
  7. Nuisance

    If the case is one of intentional nuisance, causation is satisfied if D's act directly or indirectly results in the interference. 

    If the nuisance is predicated on negligence or strict liability, the rules of causation are based on the negligence standard.
  8. Remedies for Nuisance
    • Damages
    • Injunctive Relief
    • Self Help Remedy of Abatement
  9. Defenses to a Nuisance Claim
    Where a nuisance results from negligence or strict liability, contributory negligence can be a defense. 

    However, where the nuisance is intentionally committed, contributory negligence is not a defense.
  10. Private Nuisance v. Public Nuisance
    A private nuisance is a nontrespassory interference with the plaintiff's use and enjoyment of the property. 

    A public nuisance is an act by a defendant that obstructs or causes inconvenience or damage to the public in the exercise of rights common to all, or in the enjoyment of common property. 

    -> Criminal and civil sanctions may be imposed. 

    -> Generally, only the state can redress a public nuisance; a private industrial may sue if she suffers an injury "peculiar in kind."
  11. Servitudes
    Servitudes refers generically to a family of 5 non-possessory interests: 

    1. The easement

    2. The license

    3. The profit

    4. The covenant; and 

    5. The equitable servitude.
  12. Easement
    The easement is the grant of a non-possessory property interest in land. 

    • Easement Concepts:
    • -> Dominant tenement v. servient tenement
    • -> Affirmative easement v. negative easement
    • -> Appurtentant to land v. held in gross
  13. Easement Concepts:

    Dominant tenement v. servient tenement
    Dominant Tenement: The parcel that drives the benefit as a consequence of the easement

    Servient tenement: The parcel that bears the burden of the easement
  14. Easement Concepts:

    Affirmative easement v. negative easement
    An affirmative easement gives its holder the right to do something on another's land, called the servient tenement. 

    A negative easement entitles its holder to compel the servient land-owner to refrain from doing something that would otherwise be permissible.
  15. Easement Concepts:

    Appurtenant v. held in gross
    The easement in appurtenant when it benefits the easement holder in his physical use or enjoyment of his own land. 

    The easement is in gross when its holder realizes only a personal or commercial gain, not linked to the easement holder's use and enjoyment of his own land. i.e. billboards
  16. Four Ways to Create an Affirmative Easement

    • Prescription
    • Implication
    • Necessity 

    • Grant
    • An affirmative easement can be created by express grant. Statute of frauds applies. The writing is called a deed of easement.
  17. Licenses
    The license is a freely revocable, mere privilege to enter to another's land for some narrow purpose. i.e. Tickets to events

    Not subject to the statute of frauds. Oral agreements are sufficient to create licenses.

    Although licenses are freely revocable at the will of the licensor, estoppel can bar revocation. Estoppel applies when licensee has invested substantial money, labor, or both, in reasonable reliance of the license's continuation.
  18. The Profit
    The profit entitles its holder to enter the servient tenement and take from it the soil or some other resource, such as minerals, timber, oil, fish, or wildlife. 

    • The profit shares all of the rules of easements.
    • i.e. statute of frauds applies and can be held appurtenant or in gross.
  19. Easement by Prescription
    Use (not possession) has to be COAH:

    • Continuous
    • Open and Notorious
    • Actual and exclusive
    • Hostile
  20. Implied Easements
    Also known as the "easement implied from prior existing use" or as "quasi easement."

    Sometimes there is a particular use that occurs on a parcel that ought to survive division of the parcel. 

    Note: Implied easements endure indefinitely.

    Rule: Courts will imply an easement from a prior or existing use if the use was:

    1) Apparent at the time of division; and 

    2) The parties expected that the use would survive division because it is reasonably necessary to the now dominant tenement's use and enjoyment.
  21. Easement by Necessity
    Rule: An easement of a right of way will be implied by necessity if grantor conveys a portion of his land with no way out, except over some part of grantor's remaining land. 

    Strict Necessity - The claimed easement is the only way to access the dominant tenement. 

    Reasonable Necessity - Other access to the dominant tenement exists but it is inadequate, difficult, or costly.
  22. Duration of an Easement by Necessity
    An easement by necessity endures only so long as it is necessary. If the dominant owner secures another way out of the landlocked parcel, the easement by necessity ceases.
  23. Transferability of Easements
    • Easement Appurtenant 
    • Dominant tenement (benefit) automatically transfers

    Servient tenement (burden) automatically transfers as long as the owner a BFP with notice of the easement.

    • Easement in Gross
    • The easement in gross is not transferable unless it is for commercial purposes. It is not automatically transferred.

    If there is a division of a commercial easement in gross, the easements must be used in their entirety by the easement holders acting as one person - i.e. as "one stock"

    *Note: Modern courts look to the intent of the parties.
  24. Scope of Easements
    The scope of an easement is set by the terms or conditions that created it. Unilateral expansion of an easement is not permitted.
  25. Termination of Easements
    There are 8 main ways to terminate an easement:


    Estoppel: The servient owner materially changes position in reliance on the easement holder's assurances that the easement will no longer be enforced.

    Necessity: Easement created by necessity expire as soon as the necessity ends. However, if the easement, attributable to the necessity, was nonetheless created by express grant, it will not end once the need ends. 

    • Destruction: Destruction of the servient tenement, other than through the willful conduct of the servient owner, will terminate the easement. 
    • Condemnation: Condemnation of the servient tenement, by governmental eminent domain power, will end the easement.

    Release: Release, in writing, given by the easement holder to the servient land owner. The written release is the most customary way to terminate an easement. 

    Abandonment: The easement holder must demonstrate, by physical action, the intent to never make use of the easement again. mere non-use, without something more, is not enough for abandonment. 

    Merger (also known as unity of ownership): The easement is terminated when title to the easement and title to the servient tenement become vested in the same person. 

    Prescription: An easement can be terminated when the servient owner interferes with it in accordance with the elements of adverse possession. Remember COAH!
  26. Negative Easements
    A negative easement entitles its holder to compel the servient land-owner to refrain from doing something that otherwise would be permissible. 

    A negative easement must be created expressly, in a signed writing called "a deed of easement."

    Historically, negative easements were disfavored. Today, they are recognized in only four categories. Remember LASS.

    Light: not allowed to block parcel's access to sunlight.

    Air: not allowed to block parcel's free flow of air. 

    Support: not allowed to compromise parcel's subjacent support.

    Streamwater from an artificial flow: not allowed to interrupt or impede access to that flow.
  27. The Public Trust Doctrine
    All of the land covered by tidal waters belongs to the sovereign held in trust for people to use.
  28. Matthews Factors to determine "what privately owned upland sand area will be available and required to satisfy the public's rights under the public trust doctrine."
    Location of the dry sand area in relation to the foreshore. 

    Extent and availability of publicly owned upland sand area. 

    Nature and extent of the public demand. 

    Usage of the upland sand by the owner.
  29. Covenants
    The covenant is a promise to do or to not do something related to land. 

    The covenant is unlike the easement because it is not the grant of a property interest. 

    Instead, the covenant starts out as a mere contractual limitation regarding land.

    This covenant (or contract) becomes a real covenant when it is capable of running with the land at law, meaning that it is able to bind successors to the originally contracting covenanting parties.
  30. Restrictive Covenant v. Affirmative Covenant
    Restrictive Covenant: A promise to refrain from doing something related to land. Most covenants are restrictive. 

    Affirmative Covenant: A promise to do something related to land. 

    • Real Covenant v. Equitable Servitude
    • Real Covenant: A promise regarding land that is capable of binding successors and enforceable at law. (money damages follows a breach)

    Equitable servitude: A promise regarding land that is capable of binding successors and enforceable in equity. (injunctive relief follows a breach)
  31. When will a covenant run with the land?
    When it is capable of binding successors.
  32. Does the burden run with the land?
    For the burden to run, remember WITHN.

    • Writing: The original promise, between A and B, must have been in writing. 
    • Intent: The original parties, A and B, must have intended that the promise would bind successors. Courts are generous in imputing to the parties the requisite intent. 
    • Touch and Concern: The promise must touch and concern the land, meaning that it must affect the parties' legal relations as landowners, and not simply as members of the public at large. 
    • Horizontal and Vertical Privity:
    • Horizontal privity refers to the nexus between the original covenanting parties, A and B. It requires that A and B, at the time of the promise was made, were in "succession of estate." (Also called "privity of estate")

    • Succession of estate means that when the promise was made, A and B were in:
    • -> a grantor-grantee relationship;
    • -> a landlord-tenant relationship;
    • -> a mortgagor-mortgagee relationship; 
    • -> that they shared some other servitude in common in addition to the covenant now in question.

    Vertical Privity: Refers to some non-hostile nexus between A and A-1. 

    • The non-hostile nexus can be the product of contract, blood relation, or devise. Vertical privity will be absent if A-1 acquired her interest through adverse possession. 
    • Notice: A-1 must have had some form of notice of the promise when she took. Remember the three types of notice: AIR
  33. Does the benefit run with the land?
    For the benefit to run, remember WITV

    • Writing
    • Intent
    • Touch and Concern
    • Vertical Privity
  34. Equitable Servitudes
    The equitable servitude is a promise that equity will enforce against successors. It is accompanied by injunctive relief.

    To create an equitable servitude that will bind successors, remember WITNES:

    • Writing
    • Intent
    • Touch and Concern
    • Notice
    • and the ES is a reminder that we're dealing with Equitable Servitudes.

    *Note: privity is not required
  35. Equitable Servitudes: The Changed Conditions Doctrine
    Narrow defense to enforcement of an equitable servitude.

    Change is so pervasive that the entire area's essential character has been irrevocably altered. 

    Piecemeal or borderlot change is never sufficient.
  36. Equitable Servitudes: The Implied Servitude or Common Scheme Doctrine
    A majority of courts will allow an equitable servitude to be implied, even in the absence of a writing, if the elements of the general common scheme doctrine are satisfied.

    Under the common scheme doctrine, the majority of courts will imply what is called an implied equitable servitude (also known as a reciprocal negative easement/servitude), to hold B, the unrestricted lot holder, to the restriction.

    • 2 Elements of the Common Scheme Doctrine:
    • 1) When the sales began, the subdivider, A, had a general scheme of residential development which included the defendant lot now in question. 

    2) The defendant, B, must have had some form of notice of the restriction when he took. remember AIR.
  37. Discriminatory Covenants
    Mechanisms for Residential Segregation 

    • - Racially Restrictive Covenants
    • - Racial Zoning
    • - Redlining
    • - Racial Steering
    • - Blockbusting
    • - Intimidation, Harassment, Violence
  38. Termination of Covenants
    Real Covenants and Equitable Servitudes
    • Merger
    • On the basis of unity of ownership of the benefit and burden by the same person. 
    • Release
    • Normally written and recorded.
    • Acquiescence
    • Arises when P has failed to enforce the servitude against other breaches by D and then seeks to enforce the servitude against D.

    • Abandonment
    • Resembles acquiescence except that it makes the servitude unenforceable as to the entire parcel rather than only as to the P immediately involved. 

    The violations must be so general as to frustrate the original purpose of the covenant. 

    • Unclean Hands
    • The court will refuse to enjoin a violation of a servitude that the P previously violated.
    • Laches
    • Involves an unreasonable delay by P to enforce a servitude against D causing prejudice to D (laches does not extinguish the servitude but only bars enforcement).

    • Estoppel
    • If D has relied upon the P's conduct making it inequitable to allow the P to enforce the servitude. 

    • Eminent Domain
    • Condemnation of the burdened parcel, by governmental eminent domain power, will end the covenant.
    • Prescription
    • A covenant can be terminated when the owner of the burdened parcel interferes with the benefited parcel from benefiting from the covenant in accordance with the elements of adverse possession (COAH).

    • Changed Conditions Doctrine
    • When a party seeks to be released from the terms of an equitable servitude because of changed conditions, he or she must convince the court that the change complained of is so pervasive that the entire area's essential character has been irrevocably altered. Piecemeal or borderlot change is never sufficient.
  39. Zoning
    Zoning is an inherent power of the state, derived from its police powers (10th Amendment). We allow government to enact zoning ordinances to reasonably control land use, for the protection of general health, safety, welfare, and morals. 

    Before zoning started in 190, the primary ways to restrict land use was through restrictive covenants and nuisance law.
  40. Why are covenants and nuisance suits inadequate to control land use?
    By dividing up a city into use zones from which harmful uses are excluded, zoning purports to prevent one landowner from harming his neighbor or bringing an incompatible us.
  41. Zoning accomplishes its purposes through:
    • Separation of Powers
    • - highest use is housing
    • - commercial and industrial uses
    • - principal of cumulative uses

    • Density Controls
    • - height limitations
    • - setback requirements
    • - minimum lot and house size requirements
    • - direct population density restrictions
  42. Three Ways to Achieve Flexibility in Zoning
    • Variances
    • Special Exceptions
    • Zoning Amendments
  43. Nonconforming Uses
    A once lawful, existing use that is now rendered nonconforming b/c of a new zoning ordinance. 

    At the outset of zoning, nonconforming uses were tolerated. 

    The hope was that nonconforming uses would just fade away.

    But when this did not happen, zoning law came up with ways to eliminate nonconforming uses.

    The nonconforming use cannot be eliminated all at once, unless just compensation is paid. 

    Otherwise, its wholesale elimination would be tantamount to an unconstitutional governmental taking without compensation.
  44. Amortization
    To escape the takings conclusion, some jurisdictions provide for amortization. 

    Defined by statute, amortization is the gradual elimination, or the gradual phasing out, of the nonconforming use.
  45. Apart from amortization (if it is authorized in the jurisdiction), a lawful nonconforming use can be extinguished if:
    1. It is deemed a nuisance. 

    2. It is abandoned. 

    3. If the land is taken by eminent domain.
  46. Variances
    A variance is permission to depart from the literal requirements of a zoning ordinance. 

    - The variance is the principle means to achieve flexibility in zoning. 

    - The variance is granted or denied by administrative action, typically in the form of a zoning board.
  47. Area Variance
    Deals with the problems of compatible use, but ill fit. 

    To obtain an area variance, the applicant must show:

    • 1. Exceptional and undue hardship that has not been self-imposed. 
    • - Undue hardship means that without a variance, the property in question could not be effectively used. 
    • - Courts will consider efforts by the property owner to alleviate the hardship. 

    2. The grant of the variance will not harm neighboring property values. 
  48. Use Variance
    • Seeks to depart from the list of uses that are permitted in a given zone. 
    • -Harder to obtain than the area variance. 

    Only granted in the presence of very exacting "special circumstances."
  49. Special Exceptions
    • Allowable where certain conditions specified in the ordinance are met. 
    • - These are also called special use permits or conditional use permits. 

    • Theory: Certain uses can peacefully coexist with their neighbors when special conditions occur. 
    • - Different theory than variances (hardship).
  50. Zoning Amendments
    Arise when a private entity  petitions a municipality, requesting that a particular area or tract be rezoned. 

    Note that town planners are typically reluctant to oblige the request to rezone, largely to avoid the problem of spot zoning.
  51. Zoning Amendments: Spot Zoning
    Refers to a zoning change that results in a use that is incompatible with surrounding uses.
  52. The Standard State Zoning Enabling Act
    A model zoning statute that appeared in 1922. 

    Empowers municipalities to regulate buildings, other structures, and public space for: use, location, height, size, and density. 

    Permits division of municipalities into different types of zones.
  53. To enact a zoning ordinance under the Standard Act, a city must:
    Create a planning (or zoning) commission and a board of adjustment (sometimes called a board of zoning appeals).

    Zoning regulations must be "made in accordance with a comprehensive plan" that promotes health, safety, and general welfare.
  54. Planning/Zoning Commission
    Advised by planning experts, has the function of recommending a comprehensive plan and a zoning ordinance to the city council. The zoning ordinance must be enacted by the city council.
  55. Board of Adjustment/Zoning Appeals
    Ensures that broad zoning regulations do not operate inequitably on particular parcels of land.
  56. Comprehensive Plan
    A statement of the local government's objectives and standards for development.

    Usually made up of maps, charts and descriptive text. 

    Shows the boundaries of different types of zones and the locations of streets, bridges, parks, public buildings, and the like.
  57. Examples of Non-Euclidean Zoning
    Contract Zoning: City agrees to zone or rezone a particular tract if owner contracts ot restrict the use in a certain way. 

    Density Zoning: Ordinance focuses on overall population density of an area rather than having lot size restrictions. 

    Floating Zones: Zoning ordinance establishes a zone (i.e. light industrial) but does not assign it to a particular location until a landowner requests reclassification to the zone. 

    Planned Unit Development: Owner of a large tract of land is allowed to mix uses as long as overall population density limits are not exceeded. 

    Zoning by Referendum: Rezoning (usually for multi-family dwellings) is allowed only if approved by public referendum.
  58. Aesthetic Regulations
    Old Doctrine: In the late 19th century, the courts laid down the rule that the police power cannot be used to accomplish objectives that are purely aesthetic. 

    New Doctrine: In recent years, many state courts, discarding the old doctrine, have held that cities may enact regulations primarily for aesthetic objectives. 

    Architectural Review Boards: Most courts now uphold the power of city architectural review boards to deny building permits for proposed buildings that the board disapproves.
  59. Advertising Signs
    • Political Advertisements: 
    • Political speech occupies a preferred position and is given greater protection than most other kinds of speech. 

    Political speech includes comment on any matter of public interest.
  60. Eminent Domain
    Government's 5th Amendment power, made applicable to the states by the 14th Amendment, to take private property for public use in exchange for just compensation.

    Note: Under the police power, states can regulate nuisances without paying just compensation to the land owner. The regulation of nuisances does not implicate the Takings Clause.
  61. Eminent Domain: What is public use?
    Narrow Reading: The public must have the right to use the condemned property.

    Broad Reading: The condemnation must be for some public purpose.
  62. Eminent Domain: Procedures for Takings
    Condemnation Action to Take Title to Property

    If, after notice and opportunity to be heard, the taking is deemed constitutionally permissible, the government must pay the land owner just compensation for the taking.
  63. Eminent Domain: What is a taking?
    • Physical Occupation or Invasion
    • A permanent physical occupation or invasion by the government is a taking. The government must pay the landowner just compensation. This is a categorical taking - i.e. a taking per se. 

    • Implicit or Regulatory Takings
    • Here, a private landowner claims that a government regulation, although never intended to be a taking, nonetheless has the same effect. The given regulation has significantly compromised that property owner's reasonable, investment-backed expectations. Apply the balancing test.
  64. Implicit or Regulatory Takings Balancing Test
    If a government regulation of a use that is not a common law nuisance imposes too great a burden on property owners, the government must provide just compensation

    The Diminution in Value Case: A very large reduction in the value of regulated land may be a taking.

    The Reasonable Return Case: If the landowner is left with a reasonable return on his investment, even in the presence of governmental regulation, a taking has not occurred. 

    The Categorical Taking Case: This occurs when the given regulation deprives land of all economically beneficial uses.
Card Set
Property II Post Midterm