Property Outline part 1 Basic Concept

PART 3 – Other People's Property – How 2 Adjacent Lands can affect eachother

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PART 3 – Other People's Property – How 2 Adjacent Lands can affect eachother. Nuisance Judgemade tort doctrine that regulates competing uses in land – use of your own property unreasonably to interfere with another's lawful use of their land Almost always conceptually messy! 2 kinds of nuisance (Morgan v. High Penn, pg. 747) Per se – always a nusiance, regardless of location Extremely dangerous to everything around it OR Illegal activities, immoral or indecent Per accidens Become a nusance because of the location, the way it is used, built, or operation Not unreasonably dangerous. Can be private or public Private – Intentional (if intentional and unreasonable under the cirumstances), or unintentional (negligent, reckless or ultrahazardous) Public – Affects the public at large vs. something that affects the use of a specific parcel of land. What makes the use of the land unreasonable? Two approaches Unreasonable as an order of magnitude Unreasonable because the gravity of the harm outweighs the utility of the conduct (Restatement test) Estancias v. Schultz – the air conditioner case. Court says to get an injunction you must examine the Four Factors to Balance Likelihood of the success of the case on its merits Harm to the Δ Harm to the π Harm to the public The majority rule means – balance factors to get an equitable decisison. If the harm to π is significantly less than to Δ by stopping, then we don't want to stop. Makes economic sense to continue In determining nuisance we balance the equities either in determining the unreasonablness (Rest.) or in the remedy (majorty) Restatement rule – Even if there is a harm, if the balance is in favor of the other, then no remedy Majority rule – If there is harm, then the other party can get remedy, even if his harm is lesser than the harm to the other party. (notes 11/6) Notes 11/6 – externality, cost, ex post ex ante Economic, distributive, moral implications Types of Relief Available Estancias – Granted an injunction Π essentially gets to choose. Be happy with the injunction, or could accept some payment from Δ. Not economically efficient – more damage to the company than to the homeowner, but could lead to an efficient result Boomer v. Atlantic - *pg. 759* granted temporary injuction, to be lifted when the defendant paid the π permanent damages (a conditional injunction) But π doesn't get to choose – they must take the money. Δ has the choice here, can either deal with the injunction, or can pay off π. Compensation is measured through a market based approach. Economically fair, but could be undercompensation, not compensating for the loss of enjoyment of the yard. Problem – permanent damages paid means Δ has no incentive to fix the problem. Already paid "total" damages. Also dissent says it licenses a continued wrong. Spur v. Webb – pg. 766 – Grants injunction, but forces party who "came to the nuisance" to compensate the nuisance for having to move. Coming to the nuisance An exisiting community of sensitve users, place a nuisance in the middle. The nusiance COMES TO the area of sensitive people. Easy case – fault is the person who came to the senisitve area, evict. Where a sensitive party moves right next to a pre-exisitng nuisance. Harder case, because it wouldn't be a nuisance if the sensitive party hadn't come there. First in time issue If you "come to the nuisance" you assume the risk, but if the nuisance was not forseaable, then coming is not unlawful. Fairness Spur didn't do anything wrong. Del Webb came to it. But the court grants injunction. Why? Because of the people Del Webb brought with them. Unfair to the public interest. There is a city now. So the court issues the injunction, but then requires Del Webb to pay Spur for the cost of moving or shutting down. The burden is not entirely on Spur Limited to cases where the nuisance creator could foresee the nuisance. Fair? Seem so. Del Webb got the land cheap because of the nusiance, shouldn't be allowed to get double benefit (cheap land and no nuisance) Quick overview of Remedies Abate the activity by injuction relief – the typical case Continue the activity if you pay damages – socially important nuisance, necessary, balance weighs in favor of nuisance, but unfair to punish the other Continue by denying all relief – where one comes to the nusiance Abate activity, but other party pays damages for the cost of abatement. Servitudes 2 Types Easements Easements Profits Licenses – not technially an easement, but similar Covenants Real covenants Equitable servitudes Easements Easements (little e) – gives someone a right to enter on land of another and USE it Profits – gives someone a right to enter on land of another and TAKE something from it. Both are legal interests in land, but aren't estates in land Classified in three ways by law Basic dicotomy – must be either an Easement appurtenant – when in creation it is attached to a piece of land other than the one the easement is on, and it benefits the owner of the other piece of land. Requires two pieces of land The dominant tenement (land whose owner is benefited) The servient tenement (land burdened by the easement) Can't be dettached from the dominat tenement without consent of BOTH owners COURTS PREFER EASEMENTS APPURTENENT) Easement in gross – intended to benefit the owner of land, but intended to exist without a dominate estate X owns an easment, not by virture of owning land, but owns it as a person (ex. – X has a right to go onto Y's land and pick apples) X is the dominant tenant *but no dominant tenement) Y is the servient tenant and his land is the servient tenement Typically a profit, but could be an easement Can be alienated without consent of the servient tenant By means of creation – by how it was created By prescription, by express provision, by implication, by estoppel, by eminent domain By the difference between easements and profits (definitional) An easement gives the owner only a right to use land with no right to take anything from it A profit allows the owner to take something from the land and includes an implied right to use the land to the extent necessary to be able to take from the land. Willard case (pg. 785, notes 11/12) – an easement can be reserved in a 3rd party – sold the land, with an easement for the church to use the lot. Licenses – an alternative way to get the same result as an easment, but it is not an interest in land, only a right to use land. Oral licenses are enforceable Permission to do something on someone's land A defense to trespass Revokable at any time Unless it is connected with an interest in land (license to enter and hunt – have a profit, with an implied license to enter, can't revoke that license) Can't revoke if estopped – equitable discretion of the court. An irrevokable license is functionally the same as an easement. Easement Cases Holbrook v. Taylor – H has land, T bought some to build house, asks H if he can use land as access road, H says yes. H later blocks road, T sues. Easement by estoppel – blocking the road is inequitable, H would be unjutly enriched by barring T's use. T had reliance on the use of the land. Permission plus substantial investment is an irrevokable license. H can't take away the easement. Estoppel easements last as long as there would be an injustice if it were taken away – ie. as long as the investment is present, if the investment is gone, no reason for estoppel. Argues Easement by prescription (like by adverse possession) – court says no. Need hostility for prescription – no hostility, or adverse possession, not continuous use. Implied Easements – not in writing, implied by circumstance, no statute of frauds, arise out of division of one plot into smaller plots. Must show that both pieces of land were part of one plot owned by same person at one time. Quasi Easements – easement implied by an exisitng use (Van Sandt) Van Sandt – Sets out test for whether an easement is implied – look at the 3 factors together. The Factors Is the use of the land apparent? Is the use continuous or permanent? Is the use of the land reasonably necessary for the enjoyment of the quasi dominant tenant? The purchaser who is arguing no easement – says it wasn't recorded. A quasi easement doesn't have to be recorded. Can't be! Also, purchaser had notice – he knew he had plumbing… the existence of his sewer isnotice. Easements implied by necessity (problems, pg. 810 what do you need 11/19 notes) It will end when the necessity is gone. Other v. Rosier To show easement by necessity Tract must have been divded so a portion of the tract is now deprived access to a road Must be necessary to go through the alleged servient tenement to get to the dominant tenement In this case O couldn't show that his land was landlocked when it was originally sold from the original parcel. Basically loses because his evidence wasn't good enough (COULD HAVE WON BY ESTOPPEL – but council missed it, or could have raised quasi-easement, based on prior existing use) Easement by prescription Not here – R gave O permission to use the land, and O's use didn't interfere with R's use. Easement by prescription Gives a party a right to use by long adverse use, generally like adverse possession, but hostitlity and exclusivity differ Hostility – means use in absence of license or permission, hostility to owner's wishes to keep you from using the property, not hostilitiy to actual ownership Exclusive use – nature of easement is shared, exclusiviyt means your claim is different from the person you share it with To stop a prescriptive easement – either physically stop the use, or stop by revoking license. Bayhead – town trying to keep people from out of town off the beach Foreshore and water – publicly owned Dry sand and land with road access to sand – privately owned Public wants an easement to cut through the private land and dry sand to get to the wet sand and water. Public also wants easement to use dry sand when incident to enjoyment of wet sand and water. Court rules that the public must have access to the wet sand, but can't use it whereever they want. Must use the roads – makes them quasi public. When the dry sand is essential to the enjoyment of the wet sand, also ok to use. Okay? Seems like a big intrusion onto the private right to use land and exclude who you want. Potential remedy – open up the "membership" to the public. This is really an easement by necessity, which shouldn't require compensation. (notes on 11/19) Assignability and Transferability Appurtenant – can't be detached without permission from both D & S In gross – freely alienable Recreational personal easements in gross are generally not assignable Affirmative and Negative Easements Affirmative – allows holder to do something on another's land Negative – takes away from an owner of the servient state the right to do something Example – A agrees not to build a building on land he owns, so as not to obstruct B's view. Court's have been unwilling to expand negative easments Covenants Real covenants – enforceable at law, but very messy An agreement between landowners that one will or will not do something to their land They run with the land, and are enforceable by assignees Four Requirements for Running with the Land Agreement must be on paper There must be intent for the covenant to run with the land Must touch and concern the land Must be privity of estate between the parties. A successive relationship to the estate in land from one of the original parties. Horizontal privity – analagous to privity of estate between the grantor and grantee, B's land must be granted to A, then A can give back to B. Need horizontal privity for the BURDEN to run Vertical Privity – required for all covenants to run For burden to run, assignee must have estate of same derivation that assignor had For the benefit to run, all that is necessary is that some part of the estate is given to the assignee Example – House on A's land, B promises to A not to build a factory on B's land. A and B have horizontal privity and are in privity of contract and estate. Assume A conveys the land to D. A had the benefit of B's promise. Does the benefit run to D? D and B are not in horizontal privity. But A and D are in vertical privity, which is all that is needed for benefit to run. Assume B conveys the land to C. Does the burden run to C? B and C are in vertical privity, but C and A are not in horizatonal privity – so no, burden does not run. Under the restatement approach, privity is not required. Real covenants are actions at law. A party can only recover damages. Equitable Servitudes – an action in equity, remedy is injunction Four Requirements Must be a writing Must be intent Touch and concern NOTICE – must be notice in the deed or writing of the restriction, if you take with notice, then it isn't fair to allow a violation. (Under the restatement approach, there is no Real covenant, all are equitable servitudes) Tulk v. Moxhay – old case that first came up with a way around the strict rules of real covenants P sold to E, with a covenant that E would not cover a garden. E sold to Δ, Δ knew of the covenant, although it wasn't in the deed. Δ tries to cover garden, P sues. P doesn't want damages, wants injunction. Court says that Δ knew of the covenant and is trying to hid behind the technicality of the law to avoid it, which is unfair. Allows the injunction Potential of Covenants and Limits Under the Law Violation of a constitutional right Shelly v. Kramer – strikes down a racial covenant. Strikes it based on theory that a court enforcing it would be like a court making the rule. 14th amendment issue. But that would have severe implications – courts enforce all rulings on all their decisions, makes anything a state action So it has not been read that broadly Could just argue that it violates a fundamental concept of freedom of alienation. We don't like restraints upon alienation, this is one. Private Communities – what rights do they have to burden their members? CA rules that covenants will be upheld in private land use situtations where they are not unreasonable. Justifies by 4 reasons Says lititgation costs would be high if could sue every time Conserves the expectations of the members Policing costs would be high Protects the social fabric – upholds a written instrument, settles expectations of the community. Dissent No social fabric interruption – these are cats in the home, don't have any effect on the outside area, or on the neighbors. Not a mundane issue like the color of a door, pets are a quality of life issue Conceptual objection – "a man's home is his castle", home ownership is central to the American Dream and American society. Basic right of humanity to do as we please in our own homes. Zoning Big Questions To what extent do we want zoning? How much authority over controlling land use can we vest in zoning boards? *CONSTITUTIONAL QUESTION* How much authority should we vest in zoning boards? *POLICY QUESTION* Village v. Euclid (pg. 960) Uphold zoning regulations Illustrates the most common type (even called Euclidian zoning) – by uses, by heights, by area. The use classifications are inclusive, lowest to highest. They sue, attacking the entire statute, saying it is unconstitutional Court says zoning is ok. Ideas behind it are good – makes sense to separate residential areas from commercial areas from industrial areas. Analogy to nuisance law Concerned about "the children" – wants to protect the single family home. Rests on the social thoery that separation of uses, single family home, low-rise developments, medium density of population are good things Maybe not though – more cars, traffic, more suburban, "small town values", perhaps aren't all great Nonconforming Uses What happens when you have a pre-existing use and then a zoning law is passed that makes the use illegal? Can the new law just make the "nonconforming use" go away? Amortization – phases out the nonconforming use over time The PA court says no, it is unlawful and you can't control a pre-existing use unless it is a nuisance, illegal, abandoned, or taken with a payment Minority says no, amortization should be okay, but the time period should be reasonable to allow them time to get out. Policy perspective Good – times change, areas change, what used to be industrial might be residential… Bad – unfair to the owners, they didn't do anything wrong. Even if you give them a long time to get out, they are still being harmed, even if the harm is lessened. Today, most courts uphold amortization if the period is long. Aesthetic Zoning Ladue! House case – want to build "ugly" modern house in area with old colonial type style home. Board says no – can't build it. Why? Property values would be effected, against the "general health and welfare" Homeowner's make three arguments Zoning board creation is unauthorized Says it is beyond the power of the statue. But the court says no. The purprose the statute is to protect the general welfare and ensure property values – this justifies the creation of a board to enforce that. Using aesthetic factors to determine what can be built is an arbitraty exercise of police power – the Court says no, here you are taking asethetic factors into account where there is a clear defined type in the area. It isn't the sole factor being used, the court argues the main factor being used is the effect on property values. Board authority is an unconstitutional legislative deligation of the law making power. No, the court just says it is ok. String cites. Overall the court is saying that preservation of value and beauty is an acceptable reason for zoning. Anderson case Court says here the standards are too vague. The law is consistent with Ladue, that aesthetic zoning of some kind is allowed, just not in this case. Why different result? No consistent character here, Ladue had one. Harmonious is the standard here, what does that mean? In Ladue, the standard was "grotesque"… much easier to determine what "grotesque" is, and it is a higher standard to meet. Ladue again – the signs case Consitutional right of free speech was being surpressed by the ban on signs of a policital nature. While some type of restrictions are ok, a general ban is unfair. Overregulates – can't just make a widespread ban. Can't just ban all signs. Can't restrict information flow, it is an expressive medium Underregulates – can't restrict too little. Can't restrict just "government speech", must also restrict other types of speech on same level. Or not just commercial area, but also residential. 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