I. Property 1 A. Definition 1

D. Equitable Servitudes

1. Defined

a. a covenant respecting the use of land enforceable against successor landowners in equity regardless of its enforceability at law

2. Requirements

a. Parties must intend the promise to run

b. the subsequent purchaser have actual or constructive notice of the covenant

i. covenants run in equity against successors who have given no consideration (donees, heirs, will beneficiaries), even though they have no notice

c. the covenant must touch and concern the land

3. Horizontal and Vertical Privity?

a. Horizontal privity is of no importance in equity

b. vertical privity is not required for the burden to run

4. Rule

a. all subsequent possessors are bound by the servitude, just as they bound by an easement. However, for a person other than the original covenantee to enforce the benefit, in some jurisdictiions the beneficiary must show that he acquired title to his land from the covenantee, either before or after the covenant was made. In this sense, vertical privity may be required for enforcement of the benefit in equity

5. Burdens the land and not the estate

a. in this respect it is like an easement

6. Property or contract?

a. most modern courts and writers see them as property rights which has been helped along by courts calling them negative easements

b. Property theory facilitates the holding that, after the original promisor has conveyed the burdened land, the promisor canot be sued on the convenant

c. Concomitantly, the original promisor may not enforce restrictions after he has conveyed the benefited land

d. Nonetheless, even though it is a property interest, it arises out of a contract and many contract doctrines are applicable to it

e. Property theory also supports the holding that, if the govt condemns the burdened land, the govt must pay the benefitted owner damages for loss of the servitude

7. Damages?

a. the remedy for a breach of a real covenant is damages in a suit at law. The remedy for a breach of an equitable servitude is an injunction or enforcement of a lien in a suit in equity

b. If, in the US, a court acting in equity were to grant damages for breach of a covenant in any case where an injunction could have been awarded, even though damages would not be allowed at law, the real covenant would disappear -- what does this mean?

E. How to deal with these problems?

1. try a negative easement first -- then try covenants running with the land and then go to equitable servitude

F. Why aren't equitable servitudes always used?

1. the parties may not be taking into account externalities imposed on the rest of the community

2. transaction costs?

3. expense to enforce?

4. realizing the shortcomings of private negotiation, we have to find another way to deal with market failures - so we look at govt intervention

XII. Law of Nuisance

A. Definitions and Tidbits

1. General

a. no one can use there property so as to harm another person's use of their property

b. notion of reciprosity makes this a useless definition -- accordingly you have to have some moral theory involved

2. Nuisance per se?

a. an act, occupation, or structure that is a nuisance at all times and under any circumstances, regardless of location and surroundings

3. Nuisance in fact?

a. acts, occupation or structure that becomes a nuisance by reason of it location, or by reason of the manner in which the are constructed, maintained or operated

4. Private nuisance?

a. exists in a legal sense when one makes an improper use of his own property and in that way injures the land of some incorporeal right of one's neighbor

5. Public Nuisance?

a. R2d definition -- CB 982

i. an unreasonable interference with a right common to the general public

ii. Factors to consider?

a) does the conduct in question significantly interfere with public health, safety, peace, comfort or convenience?

b) is the conduct of a continuing nature or produced a permanent or long lasting effect

iii. underlying basis is same as that for private nuisance

6. Important differences b/t public and private nuisances?

a. First

i. since a pvt nuisance arises from interference with the use and enjoyment of land, only owners of interests in land can bring the suit

b. Second

i. since a public nuisance arise from interference with public rights, any member of the affected public can sue, but usually only if the person bringing the suit can show special injury

a) special injury generally only required for suits for damages

b) environmental concerns have led suits for abatement to be brought by almost anyone -- private attorney generals

7. Available Remedies

a. temporary damages

b. permanent injunction against future uses of the property

B. Morgan v. High Penn Oil Co.

1. Analysis

a. the court says that this is not a nuisance per se

i. an oil company is necessary so it will not always be a nuisance

b. so you have to look at whether it is a nuisance in fact

i. use of land harming another in the use and enjoyment of their land, and

a) negligence (unintentional) or

b) intentional and unreasonable

c. What is unreasonable?

i. Efficiency approach -- gravity of harm from activity outweighs its utility -- this is the R2d position -- see below

ii. threshold analysis

a) when the harm gets too big it will be a nuisance -- but what is too big?

d. R2d position?

i. it's a nuisance if the gravity of the harm is greater than the utility or if harm to the individual is serious and the financial burden of compensation would not make continuation of the business unfeasible

a) if you can compensate without going out of business then it is a nuisance

e. When is an act intentional?

i. intentional in the law of private nuisance when the person whose conduct is in question as a basis for liability acts for the purpose od causing it, or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct

a) creates or maintains

f. court found an intentional nuisance so it did not have to deal with negligence

g. the court here appears to be using a threshold analysis