Unit 5 - Public Rights and Private Responsibilities

Easement: Define

A non possessory right to use and/pr enter onto the real property of another without possessing it.

Dominant Estate

The land/estate that is benefited by the easement

Servient Estate

The estate/land that is burden by the esasement

Appurtenant Easement

An appurtenant easement benefits the holder in her use of a specific parcel of land, the dominant estate

In Gross easement

An easement in gross is not connected to the holder's use of any particular land, rather it is personal to the holder of the easement

Affirmative easement: What does it allow for the dominant user?

Allows the holder to perform an act on the servient land

- ex: crossing onto the land

Negative easement: What does it allow for the dominant user?

Allows the holder to prevent the servient owner from performing an act on the servient land

A profit: What does it allow for the dominant user

Allows the holder to enter on land that he or she does not possess and remove resources from it

ex: mining coal or harvesting timber

What did negative easements traditionally protect?

- light

- water

- air

- land

- view

License

- what is it?

- revocable?

- relation to easements

A license is a special permission to do something on, or with, somebody else's property which, were it not for the license, could be legally prevented or give rise to legal action in tort or trespass.

- revocable at any time

- failed easements (not written) are usually license

What are the five types of easements?

1. Express Easement

2. Implied Easement by prior existing use

3. Implied easement by necessity

4. Prescriptive Easement

5. Easement by estoppel

What are two ways an express easement is created?

1. By grant

2 By reservation

Express Easement by Grant: how does it arise?

arises when the servient owner grants an easement to the dominant owner

Express Easement by Reservation: how does it arise?

arises when the dominant owner grants the servient land to the servient owner, but retains or reserves an easement over that property.

Express Easements: Requirements

Must be:

- in writing

- signed by the holder of the servient estate

- comply with deed requirements (reasonably describe the servient land and the dominant land (if any), reasonably ID the parties)

Express Easements: wha should it include

- Describe the exact location of the easement on the servient land

- State the purposes for which the easement may be used

Implied Easement by prior existing use: Requirements

1. Severance of title to land held in common ownership

2. An existing, apparent, and continuous use of one parcel for the benefit of another at the time of severance AND

3. Reasonable necessity for enjoyment of dominant estate

Implied Easement by necessity: requirements

1. Severance of title to land held in common ownership; AND

2. Necessity for the easement for property access (road/utilities) at the time of severance - Reasonable necessity or strict necessity

Strict Necessity

- Common Law or Modern

- Majority or Minority

- What is it?

- Common Law and Minority View

If there is any alternative means then there is not strict necessity

Reasonable Necessity

- Common Law or Modern

- Majority or Minority

- What is it?

- Modern Law and Majority View

"Reasonable necessity" usually means that alternative access or utilities cannot be obtained without a substantial expenditure of money or labor."

Prescriptive Easement: requirements

OCEANA w/o the E

1. Open and Notorious

2. Adverse and Hostile

3. Continuous

Easement by Estoppel (irrevocable License): Requirements

1. A landowner allows another to use his land, thus creating a license

2. The licensee relies in good faith on the license, usually by making physical improvements or by incurring significant costs, AND

3. The licensor knows or reasonably should expect such reliance will occur

Interpreting Easements: Extent of use

- Manner, Frequency, Intensity

If there are changes in the manner, frequency and intensity of the use of an easement, the use must still fall within the purposes for which the easement was created. (Marcus Cable).

Interpreting Easements: Transferability of Appurtenant Easements

- Transfers automatically within the dominant estate

- Can't be transferred separately from the dominant estate, except to servient estate

Interpreting Easements: Transferability of In Gross Easements

- For the holder's personal pleasure? Usually not transferable by default, but can change

- Serves an economic or commercial interest? Usually transferable by default

- Transfer via deed, record, etc.

Interpreting Easements: Rule on Relocating an Easement

- Common Law

The traditional rule is that the location of an easement can be changed only if both the servient and dominant owners agree.

Interpreting Easements: Rule on Relocating an Easement

- Modern/ Restatement

Servient owner may relocate an easement as long as this does not significantly lessen the utility of the easement, increase the burdens on the easement holder, or frustrate the purpose of the easement

Type of easement that last forever

perpetual easement

8 ways to terminate an easement

MEND CRAMP

- Misuse

- Estoppel

- Necessity

- Destruction

- Condemnation

- Release

- Abandonment

- Merger

- Prescription

Termination of Easement: Misuse

In some jurisdictions, if the holder seriously misuses the easement, it may be ended through forfeiture of the easement.

Termination of Easement: Estoppel

Servient owner materially changes position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced.

Termination of Easement: Necessity

- How is it created?

- Exception

Easements created by necessity expire as soon as the necessity ends.

EXCEPTION: necessity created by express grant, it will not end once the need ends.

Termination of easement: Destruction

Destruction of the servient tenement, other than through the willful conduct of the servient owner, will terminate the easement.

Termination of Easement: Condemnation

Condemnation of the servient land also terminates the easement. In this event, the easement holder is entitled to just compensation. (Usually eminent domain by gov't)

Termination of Easement: Release

The easement holder may release the servient owner by executing and delivering a writing that complies with the SOF.

Termination of Easement: Abandonment

Abandonment requires both nonuse of the easement and words or conduct manifesting an intention to relinquish it. (Preseault)

Termination of Easement: Merger

If one person obtains title to both the easement and the servient land, then the easement terminates under the doctrine of merger.

Termination of Easement: Prescription

Essentially, the same standard for acquiring a prescriptive easement. If the servient owner blocks use of the easement in an open and notorious, adverse and hostile, and continuous manner for the prescriptive period, the easement ends.

Real Covenants: Type of Damages Requested

Monetary damages (& injunctive relief if applicable)

Equitable servitude: Type of Damages Requested

Only injunctive relief

Real Covenants: Requirements for the burden to run

Privity (Horizontal + Vertical)

Intent to bind successors

Notice

Touch and Concern

Statute of Frauds

Real Covenants: Requirement for Benefit to Run

Privity (Horizontal + Vertical)

Intent to bind successors

Statute of Frauds

Real Covenants: Horizontal Privity

- Majority

- Minority

- Majority: mutual or successive interests in land

- Minority: No requirement

Real Covenants: Vertical Privity

- for the burden to run

For Burden: Vertical privity exists only if the successor receives the entire estate that the original promisor held

Real Covenants: Vertical Privity

- for the benefit to run

For Benefit: Vertical privity is found if the successor receives either the original promisee’s entire estate or a smaller estate

Covenants/Servitudes: Intent to bind successors

The original parties must intend to bind their successors. The needed intent is usually found in the express language of the document, but it may also be inferred from circumstances.

Covenants/Servitudes: Touch and Concern

it must relate to the enjoyment, occupation, or use of the property

Negative covenant

one that restricts the use of land

Affirmative covenant

one that requires the promisor to perform an affirmative act, usually the paying of money

Covenants/Servitudes: Notice

satisfied by actual notice, record notice, or inquiry notice

Equitable Servitudes: For the burden to run

Intent to bind successors

Notice

Touch and Concern

Statute of Frauds (or common plan)

Equitable Servitudes: For the benefit to run

Intent to bind successors

Touch and Concern

Statute of Frauds (or common plan)

Equitable Servitude: 5 Equitable Defenses

ECUAL

- Estoppel

- Change

- Unclean Hands

- Acquised

- Laches

Equitable Defenses: Estoppel

A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived

Equitable Defenses: Change

The neighborhood has changes so significantly that enforcement would be inequitable

Equitable Defenses: Unclean Hands

The person seeking enforcement is violating a similar restriction on his own land

Equitable Defenses: Acquised

A benefited party acquiesced in a violation of the servitude by one burdened party

Equitable Defenses: Laches

The benefited party fails to bring suit against the violator within a reasonable time

5 Defenses to Covenants and Servitudes

- Unreasonableness

- Abandonment

- Changed Conditions

- Public Policy

Defenses to Covenants and Servitudes: Unreasonableness

The burdens imposed on affected properties so substantially outweigh the benefits of the restriction that it should not be enforced against any owner

Defenses to Covenants and Servitudes: Abandonment

Existing violations are so great as to lead people to reasonably conclude that the restriction in question has been abandoned

Defenses to Covenants and Servitudes: Changed conditions

The neighborhood has changes so much that enforcement would be inequitable

Defenses to Covenants and Servitudes: Public Policy

A servitude is valid unless it is illegal or unconstitutional or violates public policy

- Is arbitrary, spiteful, or capricious

- Unreasonably burdens a fundamental constitutional right

- Imposes an unreasonable restraint on alienation

- Imposes an unreasonable restraint on trade or competition

- Is unconscionable

Nuisance: Rule

The plaintiff must establish that the defendant's conduct resulted in an (1) intentional, (2) nontrespassory, (3) unreasonable, and (4) substantial interference with the (5) use and enjoyment of the plaintiff's land

Nuisance: Intentional

D's conduct is intentional if he acts for the purpose of causing the harm or he knows that the harm is resulting or is substantially certain to result from his conduct

Nuisance: Nontrespassory

The interference must not involve any physical entry onto the land of another (light, noise, vibration, are fine)

Nuisance: Unreasonable

- what are the three tests?

1. Gravity of the harm test

2. Restatement Standard

3. Multi-Factor Test

Nuisance: Unreasonable

- Gravity of the harm test

D's conduct is unreasonable if it causes substantial harm regardless of the social utility of the conduct

Nuisance: Unreasonable

- Restatement Standard

conduct is unreasonable if the gravity of the harm outweighs the utility of the conduct

Nuisance: Unreasonable - Gravity of the Harm factors

- Extent

- Character

- Social Value of the invaded use

- suitability of that use for the neighborhood

- Burden to the person harmed

Nuisance: Unreasonable - Social Utility factors

- Social value

- Suitability to the character of the neighborhood

- Impracticability of preventing or avoiding the invasion

Nuisance: Substantial Interference

there must be a real and appreciable invasion of P's interests

Nuisance: Use and Enjoyment of Land

D’s conduct must interfere with the use and enjoyment of land

(ex. Causing physical damage to the property of personal injury to the occupants)

What are the two limits to nuisance?

- Anticipatory Nuisance

- Aesthetic Nuisance

Anticipatory Nuisance

In most states, a plaintiff can obtain an injunction against conduct which will be a nuisance in the future

Aesthetic Nuisance

In most states, the mere appearance of a thing does not make it a nuisance.

Public Trust Doctrine after Whitney - what does it cover

Public trust doctrine after Whitney covers commerce, navigation, and fisheries, plus preservation of lands in a natural state, food and habitat for birds and marine life, scenery and climate of the area, recreation

National Audubon on the Public Trust Doctrine

the doctrine protects navigable waters from harm caused by diversion of non navigable tributaries

Tidelands, all navigable lakes and streams, and non-navigable waters as necessary to protect these waters

What was the standard state zoning enabling act?

A model law that states could adopt if they wished and many did

What did the standard state zoning enabling act do?

1. empowered local government adopt zoning ordinances AND

2. Specified the key provisions for an effective ordinance

What is cumulative zoning?

zones go from the most restrictive to the least restrictive

What does least restrictive zoning mean?

Allows all uses

What is typically the most restrictive zoning?

Single-family residential

What is exclusive zoning?

Zoning that controls uses in each district

What does exclusive zoning protect?

Protects desirable specialized concentrations of uses from undesirable unnecessary intrusion

How do you determine the constitutionality of zoning (assuming no discrimination of impairment of fundamental right)

Rational Basis Test

What is the rational basis test?

A law is unconstitutional only if it is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.

When is strict scrutiny test used in zoning?

- When the law discriminates against a suspect class OR

- impairs a fundamental right

What is the strict scrutiny test?

A law is constitutional only if it is narrowly tailored to accomplish a "compelling state interest."

- usually failed

What are the assumptions of Euclidean Zoning?

- Separation of uses is desirable

- The single-family residence is the most important use

- Low-density development is desirable

- Residents will travel by private automobiles

- Development will proceed on a lot-by-lot basis; AND

- Once zoning is established, there will be little or no need to change it in the future

What does zoning regulate?

Zoning regulates future development, not existing uses

How do repairs work under zoning?

Ordinary repairs are allowed, major repairs that would extend the duration of the use are barred

Trip Associates rule on intensification under zoning?

Rule: A preexisting nonconforming use may be intensified but not expanded.

The amount of adult dancing could be increased (that is intensification), but business could not increase capacity or add a room (that is expansion).

How do you end non-conforming uses?

- Eminent domain

- authorization

- dropping the bar for abandonment/discontinuance

- barring rebuilding

- ending via nuisance

- encouraging abandonment/limits to expansion or intensification

What does eminent domain require?

Requires payment for taking

What happens if zoning changes during project construction?

Vested if development has already (1) acquired permits & (2) spent substantial $$ in good faith reliance

Ending Non-conforming uses: ending via authorization

- Most jurisdictions allow the use of amortization to terminate a nonconforming use as long as a reasonable period is allowed.

- No required # of years

Ending Non-conforming uses: Abandonment

Abandonment occurs if the landowner both (1) intends to relinquish his right to the use and (2) voluntarily ceases the use for a set period of time, varying by jurisdiction from 30 days to two years.

Zoning: Amendments to zoning

- Majority Rule

Re-zoning must be...

(1) for a public benefit and

(2) not harm the goals of the comprehensive plan

Zoning: Amendments to zoning

- Minority Rule

A proponent of re-zoning must show that the re-zoning is necessary either

(1) to correct a mistake or

(2) to adapt to substantial changes in neighborhood conditions