Easement by Implication
- Arises form the original subdivision of land for continuous and obvious use of the adjeacent parcel.
- *Land locked parcel to reach nearest road
- *only requires reasonable necessity
- Oral agreement
- will be made irrevocable through the expenditure of money and labor to improve certain elements (Sewer lines)
- one in which the owner of the servient estate (electric company to come on land to maintain power lines) retains the right to make the same use of the owners land that was granted by the easement.
- *Can not apportion/transfer to another
Water Rights: Natural flow riparian rights theory
Gives a downstream owner the right not to have the flow of water diminished in either quality or quantity from its natural state.
Water rights: reasonable-use theory
only permits injunction if the downstream owner has insufficient water for her needs.
Is created by grant to the grantee "and the heirs of his (or her) body". After the death of the holder of a fee tail, the property in question must transfer to that person's lineal descendant or if not must revert to the original grantor.
A wife received a dower interest in 1/3 in all land in which her husband was seised at his death.
Water Rights: Prior Appropriation
Gives rights in water to the first taker, regardless of his or her ownership or use on riparian land.
Measure of damages for breach of a title insurance contract
The diminution in fair market value of the property caused by the defect.
Measure of damages for breach of the covenant of seisin
Purchase price plus interest.
Rule in Dumpors Case
Once a landlord gives consent to one assignment, any covenant in a lease requiring consent is terminated.
Rule in Spencers Case
States that a covenant relating to a thing not yet in existence must expressly bind successors.
Class gifts/all or nothing rule
Class gifts to grandchildren is void under the Rule Against Perpetuities.
Is an amendment to an existing ordinance that is not in accordance with a comprehensive plan.
Pursuant to its police powers, Gov may enact statues to reasonably control land use.
- Gov may grant a variance, if the proponent demonstrates
- 1) undue hardship, and
- 2) that the variance wont work detriment to surrounding property values. Administrative action, typically a zoning board.
Non-conforming Use (Zoning)
A once lawful, existing use now deemed non-conforming by a new zoning ordinance. It can not be eliminated all at once, unless just compensation is paid. Otherwise, deemed unconstitutional taking.
Unconstitutional Taking (Zoning)
- a) Those amenities that government seeks in exchange for granting permission to build
- Eg: new street lights, a small park, wider roads.
- b) To pass constitutional scrutiny, these exactions must be reasonably related both in nature and scope to the impact of the proposed development. If they are not, these exactions are unconstitutional.
- To avoid "taking" which would require just compensation, Gov often pass new zoning ordinance which allow for non conforming uses to continue.
- for a prescribed period of time after the effective date.
- *issue: is the prescribe time reasonable
A per se taking occurs when the Gov takes title to private property or physically invades private property
- Gov enacts regulation that denies the property owner of all economically viable uses of the land.
- Court will have to balance Government needs for regulation of land use and constitution protections for with in the takings clause.
- Relevant consideration are the economic impact of the regulation and what extent has the regulation interfered with distinct investment backed expectations.