law school outline: property
- First Possession
- Discovery: Conqueror of an "undiscovered" land can take title from its original inhabitants.
- First occupancy has priority, unless ousted by conquest. Title enforced by state; title by conquest must be enforced by conquestor�s courts. All land title in the US must be able to be traced to the Crown or some other legitimate grant.
Capture � Deprivation of natural liberty dictates ownership; luring from competitor is ok, scaring is not; resource control dictates ownership.
- Water: Rule of reasonable use.
- Western surface waters: First to put to reasonable and beneficial use has rights. Eastern surface waters: Downstream rights.
Creation: A body part is not property.Subsequent Possession
- Prior possessor has superior right
- Lost: Goes to finder
- Misplaced: Goes to owner of land
Adverse - "If a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example."
- Continuous through SOL (tacking ok if in privity and/or voluntary transfer; seasonal use ok if usual). Gaps are debatable. Exclusive Open & notorious Actual Claim of right Hostile & adverse
- Objective: AP acts like true owner.
- Subjective: Hostile trespasser test. AP knows he doesn�t own but tells everyone he does.
- Good faith belief AP owns property.
Does not apply if owner is disabled at onset of entry. Color of title gives constructive possession to the entire titled land, not just the part the possessor is using. If TO also occupying, AP gets chunk he was using. No intent needed. Improvements and encroachments:
- Good faith: Builder gets paid, buys land, or can remove improvements.
- Bad faith: Loss of improvement for builder.
Prescriptive easement allows a claimant the restricted use of property owned by another. Ok for utilities, but not for personal situations where no social duty exists. May not extend so far that it becomes an adverse possession.
- Open & notorious Claim of right Hostile & exclusive
Agreed boundary doctrine
- Legal uncertainty as to true boundary line.
- Acquiescence (passive agreement) of line for statute of limitations time period.
Agreement between owners may be enough of practical uncertainty exists. Estoppel: Encroacher relied to his detriment (buildings, other expenditures) on the boundary as a result of act or omission by true owners.Discrimination (sales and leases)
- Racial or ethnic discrimination never allowed. Public statements (advertisements) that discriminate never allowed re: Race, color, religion, national origin, gender, marital status, children except in senior citizen housing, handicapped person (except drugs & transvestite).
- Expressing preference for tenant speaking specific language is discrimination depending on link between language and national origin.
Discrimination not allowed for: Religion, gender, marital status, children except in senior citizen housing, handicapped person (except drugs & transvestite). Unless:
- Certain religious and private club dwellings
- Single family dwelling
- Small (<5 units) owner-occupied multiple unit
- Proof of impact is sufficient, intent not necessary
- Burden shifts to D once impact shown
- L can�t refuse to rent to non-married T couple on basis of L�s religion. Marital status is a protected form of discrimination.
- 1st Amendment: Can�t violate a generally applicable and religious-neutral law based on your religion.
- A relied to his detriment on B�s statement.
- Also applies when A makes representations about (or engages in conduct that tends to indicate) the location of a common boundary, and the other neighbor then changes her position in reliance on the representations or conduct.
Intestate: Gets nothing
Possessory Interests in Real Property
- Nonfreehold Estates (leaseholds)
- Tenancy for years (or until event) AKA "Term of Years"
- Time may be statutorily limited
- No notice of termination necessary
- Estate for a fixed duration, continues for succeeding periods until L or T give notice of termination.
- Automatic period renewal if no notice
- Notice equal to length of period, max 6 mos. In CA, 30 days after T gives notice in a month to month lease, lease ends, regardless of when during period notice was given.
- Death of L or T has no effect
Tenancy at will
- No fixed period, extends as long as L and T desire.
- If it can be terminated by one party, it can be terminated by either. Termination requires notice given either a statutorily fixed period of time in advance or period equal to one payment of rent, max 6 mos.
Tenancy at Sufferance (Holdovers)
- Tenant remains in possession after termination of tenancy.
- Leaving possessions behind not enough
- T�s holdover must be voluntary
- L options
- Eviction plus damages
- Treat T as trespasser; Damages = FRV
- Consent to creation of new tenancy (max one year; subject to same terms and conditions as original lease).
Once L chooses how to treat holdover tenant, that option cannot be changed. L actions (accepting rent checks) can be evidence of which option has been chosen.Obligations & Remedies
- Deliver possession (legal, not actual)
- SOF says in writing if > 1 yr
- Form fair unless LL has monopoly
- Maintain and repair (LL in best position, unless K says otherwise)
- Illegal lease: DC only. Substandard conditions at time of rental cannot be waived by T. L entitled to FRV given condition. ML: IWH covers. Quiet enjoyment � Includes dangers on premises, inability to enjoy use of premises, co-tenant disturbance if complex, wrongful eviction. Still applies to commercial leases. Latent defects which L knew or should have known or which T could not have noticed.
- "As is" applies only to circumstances which T did or should have inspected, LL duty to disclose conditions he did or should have known about.
- Assumption of repairs: T relying upon L to fix problems binds L to fix if L made promises in consideration of the lease.
Maintain common areas and areas for public use. Abate immoral conduct and other nuisances if they affect leased premises, no fraudulent misrepresentations re: condition of premises. Not liable for unforeseeable crimes, unless assumption of duty to patrol. ML: Implied Warranty of Habitability
- Does not apply to commercial leases, T damage. Does cover all of the above warranties for residential leases.
- Warranty is to deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation. Covers all latent defects.
- Can shift responsibility to repair, can�t do blanket waiver. Semi-waivable if � residential, � commercial.
- Based on code violation if code defines habitability
- L must be notified and given reasonable time for correction.
Torts Duty: Reasonable care not to subject others to a foreseeable unreasonable risk of harm. Nonwaivable duty, but no liability after disclosure or if fair consideration or requiring T to have insurance. Duty reduced if T agreed to maintain and repair. Tenant�s remedies
- Rescission (vacate � constructive eviction): Act or omission by L which renders the premises substantially unsuitable for the purpose for which they are leased or which substantially interferes with the beneficial enjoyment of the premises to the point where it constitutes a beach of the conevant of quiet enjoyment, and justifies T�s departure and relief from T�s obligation to pay further rent (odors, no heat, lewd purposes).
- Permanent or regularly recurring basis.
- L breaking a mutually dependent covenant.
- T must vacate within a reasonable time.
- If T vacates and problem doesn�t warrant constructive eviction, T liable for all rents�big problem. Otherwise, can collect for FRV of property as is during lease.
- Partial actual eviction can reduce rent, partial constructive eviction does not reduce rent (partial constructive only applies in NY residential leases).
- Damages (tort): Punitive damages if L manifesting personal ill will, willful and wanton or fraudulent, failure to repair facility essential to health and safety.
- Repair & offset.
- Rent abatement (FRV).
- Withhold rent only for IWH.
- Specific performance not available.
- Pay rent
- Rent due on last day of lease term, not pro-rated
- Rent control must provide L with just and reasonable return & provision for hardship relief. Rationally related to legitimate public purpose. L must renew T lease unless good cause. Must not be confiscatory, unduly reduce property value or forced occupancy.
- L has lien on T�s chattels for rent
- Prepaid rent may be retained if T terminates
- Relief from duty
- Frustration: Impossibility f purpose of performance. Use of premises is extremely difficult. Purpose often expressed in K, if not expressed, T assumes more risk.
Possible express promise to repair, but not violations of code, latent defects or IWH, only liable for routine maintenance (no waste). Landlord�s remedies
- No self help allowed.
- Withhold deposit � amount statutorily limited.
- 3 day notice for failure to pay rent, T can defend on violation of IWH, repair & offset, rent abatement.
- 30 day general notice.
- Retaliatory prohibited: Rebuttable presumption of retaliatory if w/in 180 days of complaint to housing authority.
- Must have good cause in public housing evictions.
- Acceleration clause
- Damages for holdover
- for Abandonment:
- Ignore (may violate mitigation)
- Sublease, T1 liable for past and deficit rents
- Accept surrender and re-lease (same or > rent than T1).
Subleases and Assignments: Can be prohibited by lease.
- Sublease exists when T1 grants an interest in the property less than his own interest, or reserves to himself a reversion. L can sue only T1 for rent.
- Residential: L can generally withhold consent for any reason whatsoever.
Assignment conveys the whole term, leaving no interest nor reversion in T1. L can sue T1 or T2 for rent. Third party beneficiary: T2 liable only for rent during his possession, unless T2 assumes responsibilities of T1, then L can collect T1�s back rent from T2. LL rejection of potential T2s:
- Residential: Unrestricted
- Commercial: Minority says good cause needed
- Present estates
- Fee Simple ("Absolute" if not defeasible): "To X and his heirs."
- Restraints on alienation generally void, but must prohibit selling, not just limiting use.
- Statement of purposes are ok ("To A for use as an animal shelter") and does not create defeasables.
Life Estate: "To X for life"
- pur autre vie: "for the life of W". Also created if X transfers his life estate interest to Y.
- BUT: "To A for 100 years if she should live that long" is a term of years.
- Nondevisable, noninheritable.
- Rule in Shelly�s Case (CL): Life estate in A with remainder to A�s heirs = fee simple in A.
Fee Tail: "To X and the heirs of his body"
- Special: If specifies X�s mate
- Nondevisable, noninheritable.
- ML: Creates fee simple conditional
- Determinable (possibility of reverter � is inheritable and devisable): "so long as", "unless & until"
- Automatically terminates upon occurrence of stated event.
- ML creates condition subsequent.
Subject to Executory Limitation
- Determinable, but grantor doesn�t get reversion, someone else has executory interest.
- Creates Executory Interest.
Condition Subsequent (right of reentry): "but if�then O has right to enter"
- Divested at grantors option if and when stated condition occurs.
- ML says restraint on alienation, could void.
"then�": Cannot cut short X�s estate. Creates vested/contingent remainder in W.Future
- O (& his heirs)
- Reversion: When O transfers vested estate of lesser quantum than he started with. If assigned, becomes a remainder.
- Right of Entry (condition subsequent)
- Possibility of Reverter (determinable)
- Remainders: Prior estate must expire naturally, created in the same conveyance as prior estate, never follows defeasable fee.
- Vested: Grantee(s) is born and ascertainable, not subject to condition precedent (string).
- Indefeasibly vested: Holder is certain to receive and retain permanent estate. Subject to complete defeasance: No condition precedent, but remainder can be cut short by condition subsequent. Remainder must be set off by commas and come before condition subsequent: "To A for life, remainder to B, but if�to C." Subject to open
- Class closes when the class can no longer increase or when any member of the class can demand possession. "To A for life, then B�s children." Class closes at death of A or B, any afterborn children are excluded.
Contingent: Grantee is not born, unascertainable, or conditional grant. O has reversion until vests.
- Alternative Contingent Remainder: Contingent remainder followed by executory limitation in third party. Destructibility (CL)
- Expiration of prior estate (reversion to O)
- ML: Estate reverts to O, subject to B�s springing executory interest.
RAP Rule in Shelly�s Case (CL): Life estate in A with remainder to A�s heirs = fee simple in A. Doctrine of Worthier Title: O � A, remainder to O�s heirs = O � A with reversion to O.
- Can be expressly waived in ML
- Springing: Divests O
- To A, if he graduates law school.
- Shifting: Divests X
Rule Against Perpetuities (RAP)
- Applies only to contingent remainders, vested but subject to open and executory interests.
- Conditions precedent to vesting must be certain to occur or not occur within 21 years of a measuring life.
- Gifts to an open class conditioned on that class living beyond 21 yrs are void.
- Most shifting executory interests are void under RAP.
- Measuring life must exist in conveyance
- A � B � C � D
- At creation: A is vested, B is vested, C is contingent, D is contingent
- After B dies, C�s entire class must vest within 21 years. Problem if B has after born children. D is ok only if C is alive at creation.
- To X (condition)
- X must be alive at death of all living at creation
- Condition must occur within 21 years of death of all measuring lives (grantor). Ok if interest retained is in grantor or his heirs.
- Applies when more than one person has ownership interest. Present holder cannot do anything to injure future interest holder�s rights. Can have all ordinary uses and profits from land.
- Permissive: Failure to maintain. No more, no less, only minimal repairs.
- Ameliorative: Cannot enhance property�s value, no improvements.
- Tenancy in common
- ML default.
- Separate & equal but undivided interests between 2+ people.
- Each has right to possess whole.
- No survivorship rights between tenants.
- CL default.
- Equal undivided interests between 2+ people
- Each has right to possess whole.
- Right to survivorship between tenants, avoids probate.
- Not divestible nor inheritable.
- Title must expressly say "joint tenancy" or "with right of survivorship" � otherwise tenancy in common
- Vests at same time through same title
- Can be created in a bank account, despite practical problems.
- Can be unilaterally converted (destroyed) to tenancy in common via conveyance to self or third party
- A�s creditor can seize during lifetime and terminate JT, but not after death of A (his interest disappears). Encumbrance has first priority on default, but if A takes out a loan and dies, B not liable.
- Uniform Simultaneous Death Act says each half of the property is distributed as if the respective party had died first. Murder of one JT by the other converts to tenancy in common. JT can only be expressly created.
- BUT: "To A and B for their joint lives, remainder to survivor and their heirs." This is a joint life estate with alternative contingent remainder.
Tenancy by the entirety:
- I: If H is HOH, only H�s creditors can seize. Unconstitutional.
- II: H&W each encumber their own interests, creditor becomes tenant, no partition available.
- III: Only joint parties can encumber.
- IV: Judgment creditors can attach right of survivorship.
- Joint tenancy + marriage (limited to 2 people)
- Cannot be conveyed individually (unilaterally) or partitioned.
- Divorce terminates into tenants in common.
- Eliminated in CA due to community property.
Rights & Duties
- Partition in kind: Divides physical estate
- Partition by sale: court orders sale of property; only when:
- Partition in kind impracticable or inequitable
- Interests of owners better served by sale
- From third party must be divided between the co-tenants pro rata of purchase %, if lessee has access to whole property.
- From co-tenant only if ouster
- Ousted co-tenant must demand "equal use and enjoyment of the premises" (demand to vacate or pay rent insufficient) and be refused.
Contribution for taxes, mortgage, but not repairs or improvements. Credit upon partition for voluntary overpayment of mortgage, net value added by improvements at time of sale. If one party takes part of the property and does something the other party doesn�t want done with it, only real remedy is partition if ouster. No waste.Termination
- by divorce
- Degree or skills are not divided as property. Only time dumber spouse gets $ is through division of community property (degree � $ � property, and higher alimony (degree � income). Irrelevant that dumb spouse worked so smart spouse could go to college.
- Marital Property: Divided in accordance with state�s existing division system.
- Elective Share: Surviving spouse receives life estate of percentage of decedents real and personal property (not life insurance proceeds or land in JT with 3rd party). ML imposes a sliding scale percentage per length of marriage. Reversion to issue.
- Community Property: Divides property commensurate with duration of marriage. Earnings and purchases from earnings during marriage are community. All else is separate property, including purchases from separate property. Commingling means party wanting separate property has to trace. Transmutation of property allows both parties to convert between community and separate. Post separation earnings are separate.
- Marital Property: Property acquired during marriage is divided equally. Exception for gifts, devise, inheritance, which is individual property. Same as community property for tax purposes.
Transfers of Land
- Generally represent seller, no commission unless written K.
- Seller pays costs, unless buyer backs out. Still collects if seller backs out.
- Writing, signed by D , specifically describe land, reciting consideration. Equitable exception for part performance of oral K (possession plus consideration or substantial improvements).
- Estoppel applies if unconscionable injury would result from denying enforcement if A is induced by B to change position in reliance on oral K.
- Implied warranty of:
- Quality if seller is builder/vendor of the new residential. Liability for latent (hidden) defects which manifest within a reasonable period (6 yrs) after purchase.
- Marketable title means that it is free from the risk of litigation. Unmarketable title allows buyer to back out of K. Unmarketable if:
- No good record title
- Trace back 60 years or so; therefore claimants should refile notice every 30-40 yrs.
- Grantee: Search backwards in time
- Grantor: Search forwards in time
- Adverse possession is ok, quiet title action is better (Conklin).
- Encumbrances, including easements, restrictive covenants that limit use or restrict market value. Lohmeyer & CA: Buyer waves all disclosed and recorded encumbrances (covenants, conditions, restrictions, easements) not objected to.
- Does not waive violations of zoning or liens, which are considered to be encumbrances. Frimberger is contra, saying violations are not encumbrances.
- No false statements of material fact. Affirmative duty of disclosure for seller and seller�s broker; no waiver.
- Must disclose items having material effect on market value which the seller knows about and which the buyer doesn�t know and cannot easily find out.
- Deaths: No duty to disclose deaths when:
- Died on premises more than 3 yrs ago
- AIDS deaths
- Duty maintained even in (a) and (b) if directly asked (nonfeasance ok, misfeasance not ok)
Insurance protects accuracy of the title records for title actually sold, against defects in public records chain of title and problems due to non-negligent errors in title search and forgeries. Insurance co. has no duty to disclose. Deed
- Lawfully executed: In writing, naming grantor & grantee, signed by grantor and with sufficient property description
- Forged deed is void to all, fraudulent deed is voidable against grantee, but BFPs prevail over grantor
- Grantee can fill in the blanks: Grantor�s permission assumed.
- Delivered: Present intent of grantor to part with legal control. Physical manual transfer not required.
- Oral conditional grants: Condition disappeared in common law, stays in modern law.
- Express condition that grant passes upon grantor�s death is a testimentary grant.
- General warranty deed warrants title against all title defects
- Present (breached, if ever, at time deed is delivered; statute of limitations begins running at time of transfer of title)
- Grantor has lawful fee simple
- Grantor has right to convey fee simple
- No private encumbrances
- Future (run with land to those with privity of estate; statute of limitations runs at time of breach)
- Grantor will forever warrant and defend grantee�s right to land
- Grantor guarantees quiet enjoyment (no paramount title)
- Grantor will execute any instrument necessary to perfect title
Special warranty deed: General warranty covenants, but only against grantor�s own acts only. Quitclaim deed
- Conveys whatever title grantor has, if any.
- Contains no present warranties.
- Passes on any future warranties under prior general warranty deed.
- Race: Whoever properly records first wins. Notice: BFP always wins. Race-Notice (CA): BFP wins if properly records before first purchaser Recordings must be completely linked to chain of title.
- Rescission, but buyer cannot rescind on basis of bad title until closing
- Specific performance (land is unique)
- Damages: Benefit of the bargain (market - contract); liquidated is ok
- Buyer equitably owns the land upon signing K, but no right to possession. Buyer has risk of loss, unless title unmarketable. Includes risk of loss from rezoning after K, unless seller knew that affected plans were central to K.
- One who conveys what he does not have is estopped from denying the conveyance when he later acquires the item but BFP�s prevail because early recording is hidden (title searcher can assume that no one sells land unless they own it).
Probate: Avoid by putting title in such a form that changing title at death is unnecessary. Saves cost and publicity.
- Joint tenancy
- Death beneficiary
- Inter vivos trust
- O � X to hold in trust and pay income to O for life, and on O�s death distribute property to O�s children. X can be O.
- Revocable: O retains power to revoke trust
- Irrevocable: O has no power to revoke trust
- Grant of a non-possessory property interest that entitles owner to use or enjoy another�s land. Affirmative if dominant landowner has right to go onto servient land for his benefit.
- Appurtenant: Benefits holder in use of servient land.
- Requires two affected parcels (dominant and servient)
- Passes with dominant tenement
- Negative: Owner can compel servient owner from doing something. Historically restricted to light, air, water, view, building support. Must be express. Other types are covenants.
Gross: Owner has personal or pecuniary gain not related to use or enjoyment of land. Examples: Billboards.
- Servient land is burdened, but no dominant tenement.
- Nontransferable, but assignable if commercial and not recreational (fear of overburdening servient land).
- Prior use
- Common grantor divides land
- Prior use at time of division (quasi-easement ok)
- Reasonable necessity
- May last forever
- Common grantor divides land
- Prior use (helpful but not necessary)
- Strict necessity at time of severance of common estate
- Terminated at end of necessity
- CA: Easement automatically created at time of common grant in favor of landlocked property regardless of cause.
ML: Sliding scale � more necessity = more likely party winsPrescription (adverse)
- Open and notorious use
- Adverse: Non-permissive
- Under a claim of right
- Continuous and uninterrupted
- Exclusive unless public usage
- Tacking is allowed
- Interrupted by owner protesting
- Through statute of limitations
- Does not apply to negative easements, easements by necessity, public lands
- Public easement in private land is possible (private road taken for public use)
- Limited to initial dominant tenement � does not extend to other parcels added to dominant tenement, regardless of no increased burdens.
- Existing dominant tenement can be subdivided and each tract access easement if subdivision is normal development of use of dominant tenement.
- Limited to original kind of use.
- Express agreement between involved parties
- Implied in act of dominant owner indicating intention never to use easement again
- Promise to do something or refrain from doing something related to land.
- Affirmative: Requires servient owner to do an affirmative act. Creates a burden in perpetuity regardless of use to which the land is put. Courts are wary of enforcing against successors because it is hard to meet the "touch and concern" test. Negative: Restricts the use of land. Always touch and concern the land, therefore usually run with the land. Expands the coverage of negative easements under English common law.
- Created, if at all, at the time a common grantor divides the land.
- Real covenants must be express. Equitable servitudes (creation through implication)
- Sanborn (Maj) Reciprocal negative servitude: All lots divided under a common scheme by common grantor have similar restrictions and similar right to sue.
- Requires notice (record, inquiry, constructive) to bind left-out post purchasers.
- Test: When does the scheme come into existence (express or implied scheme).
- Purchasers prior to scheme are not burdened but they can enforce benefit via implied reciprocal servitude.
Snow (Mass): Burden runs with the land even if the benefit is gross. Third party beneficiaries who are prior purchasers can sue if they benefit from common scheme and if their lot was intended to benefit from common scheme. California: Implies nothing. Express restriction must exist, and the only party who can sue is a party in privity with the original grantor. Recorded master plan ok.Enforcement
- Real: Money damages, destroys servitude
- Running of burden
- Intent between original parties
- Touch and concern benefitted and burdened land: Covenant�s performance affects legal interest in the land. Includes dues. Modern law does away with this question adds public policy test.
- Horizontal: Grantor/grantee relationship between two original parties (min: mutual interest).
- Vertical privity of burden between A and A1. Present unless adverse possessor.
- Notice upon acquisition of title: Actual, record or constructive.
- Running of benefit
- Intent between original parties
- Touch and concern benefitted land (burden not necessary): Covenant�s performance affects legal interest in the land. Includes dues. Modern law does away with this question adds public policy test.
- Vertical privity of benefit from B and B1. Present unless adverse possessor.
Equitable: Injunction or specific performance.
- Writing, or implied through general scheme from common grantor
- Touch and concern: Covenant�s performance affects legal interest in the land. Includes dues. Modern law does away with this question adds public policy test.
- Horizontal not required
- Vertical: Required to show running of benefit only.
- Merger of benefited and burdened land
- Abandonment, acquiescence in breaches, waiver and estoppel: Relative hardship to parties is examined
- Everyone with an interest in the covenants (reciprocal negative easements) must agree to change a covenant � hold out problem.
- Change in conditions
- Zoning changes has no effect
- Privilege to enter land of another for a specific purpose.
- Not transferable.
- Freely revokable unless
- Coupled with interest; or
Profit: A has right to enter on B�s land and remove something attached to that land. Shares all rules of easement.Nuisance
- p must have property interest that is affected or have bodily injury as result of nuisance
- Remedy is usually damages
- D � p : D is buying the right to continue an activity. Imposes a servitude on p �s land and precludes future recovery by p �s or their grantees.
- p � D : If p has to buy out D to stop an activity
- Coase theorem: Market will determine whether the activity will continue by allocating who can most efficiently remedy the problem. Assumes no transaction costs, no holdouts.
- Widespread in range or indiscriminate in effects
- Attorney general usually sues
- Private enforcement only if p is specially injured or if injury is of a different kind (not just greater extent) than the public
- Remedy is usually injunction. Balances to see who will be injured more by the injunction: D or public. Injunction denied only when continuation of nuisance is strictly necessary. If injunction is denied, damages is given.
- Per se: Nuisance would exist at all times and all locations, under any circumstances Per accidens: Nuisance by reason of location or by manner of construction, maintained or operated.
- Substantial interference with use of land and is either:
- Intentional and unreasonable
- R826: Nuisance if gravity of harm outweighs utility of nuisance.
- Extent of harm
- Character of harm
- Social value of use or enjoyment invaded
- Suitability of use to the locality
- Burden on p to avoid harm
- Social value
- Impracticability of D fixing
- Unintentional but negligent, reckless, or abnormally dangerous activity
- Trespass: Invasion of possession of land. No injury required. Physical invasion, even atomically, required.
- Nuisance: Invasion of interest in the use and enjoyment of land.
- Compliance with zoning ordinance is no defense to private nuisance, but is to a public nuisance, unless special injury is shown.
- First in time prevails, but D can be forced to be bought out by p in case of "proper and legitimate regard of the courts for the rights and interests of the public" (expanding city).
- Cost of abatement is not a defense, but parties will usually settle before they face an expensive injunction.
- Ordinance based on state police power delegated to municipalities, asserted for heath, safety, morals, general welfare.
- Considering circumstances of the locality
- Requires comprehensive plan or consistency doctrine
- Enforced via granting or withholding of permits.
- Must be authorized by and must conform to the state�s enabling act. Act and delegation must be specific, not broad and general.
- Permissible: Protect residential districts, Family values, Aesthetics
- Impermissible: Prevent population growth, Prevent development and progress, Prelude certain groups (unless directly promoting government objective)
- Cumulative/Euclidean: Lower level zones permit all uses, higher level zones (single family residence) permit only that zone. Higher but not lower uses are permitted in any district.
- Exclusive (trend): Only that use is permitted in that zone.
- Forms of Exclusionary Housing
- Limitations on numbers of people living in a home
- Limiting the number of unrelated people living in a home is fine, limiting number of related people in a home is not ok unless directly serving legitimate government interest.
- 1st Amendment freedom of association doesn�t hold much water.
- Rational basis applies (rational relationship to a legitimate state interest)
- Municipality may not exclude or limit categories of housing for the purpose of creating a better economy for the municipality.
- This rule is on shaky constitutional ground
- Goes against the general welfare of the region despite benefits to the municipality. Municipality must support its fair share of the region�s needs. Exclusive cities (Los Altos) meet this by subsidizing housing in low cost areas (Burlingame).
- Types of controls
- Minimum housing costs: Unconstitutional
- Minimum housing size: Must be related to number of residents in the dwelling for health and safety reasons.
- Minimum lot size: Permitted.
- Builder�s remedy: When city is unwilling to allow low-income housing when such housing is needed, builders may circumvent the cities through the judiciary.
- Group homes
- Zoning ordinances may be preempted by Constitutuion or statute
- Strict scrutiny: Race, national origin
- Intermediate scrutiny: Gender, mental retardation, illness
- CC&R�s may be void as against public policy
- Nuisance laws generally target specific problems with a group home including incompatible uses, such as a child molester rehab facility next to a day care center.
- Use in existence when the zoning ordinance is passed that is not permitted in the zone
- Immediate termination is unlawful, but limits on expansion or rebuilding are ok
- Amortization of nonconforming uses requires compensation
- Maj: Constitutional so long as reasonable
- Nature of use
- Amount of investment
- Number of improvements
- Public detriment
- Length of period for amortization
- Present characteristics of and foreseeable future prospects for development
- Beneficial effects upon community > losses to affected landowner
- Min: Unconstitutional as an unreasonable taking. Right to maintain nonconforming use runs with the land, but is terminated if abandoned, destroyed or enlarged.
- Special Exception: Use consistent with zoning ordinance that will have a large impact on surrounding community requires special zoning permits due to the problems that will accompany the use (traffic, etc.) Variance/Exception
- Inconsistent use
- Exceptional and undue hardships will result by denying the variance, without substantial detriment to the public and without substantially impairing the intent or purpose of zoning.
- Hardship: No effective use can be made of the property while conforming to the ordinance.
- Self-imposed hardships do not qualify.
- No right to have land zoned for most profitable use. But, denial of the variance which results in inutility of property may amount to a taking.
- Need for variance is unique to owner�s parcel
- Notice of present or future non-conformance at time of purchase
- Efforts owner has made to comply with ordinance
- Attempts to acquire additional land to comply, or sell land to neighbor at a fair and reasonable price
- Manner and extent of variance�s impact upon surrounding area and public welfare
- Making an exception or variance which is severely inconsistent with the zoning ordinance, and amounts to an inappropriate exercise of the zoning board�s power. Singles out a small parcel of land solely for the benefit of the owner, not the public, and not in accordance with a local plan.
- Fifth Amendment: "private property shall not be taken for public use, without just compensation."
- Compensation = fair market value of land (no compensation for business on the land)
- Requirements for government to be able to take
- Government objective must be legitimate
- Within police power
- For a public use (broad)
- If private interest is benefited, public benefit must be larger than private benefit.
- State delegation to zoning board for regulation of health, safety and welfare must not be overly broad. Ad hoc decision making such as spot zoning is suspicious.
- Regulatory taking must be substantially related to the end.
- Essential nexus (Nolan) between the increased burden on municipality and the monetary exaction.
- Rough porportionality (Dollan) between exaction and increased burden (administrative cost of rezoning) on municipality.
Does the government have to pay?
- Does the taking permanently destroy a discreet property interest?
- Physical invasion always a taking (Loredo).
- If regulation reduced FMV to $0, taking has occurred (Diminution in Value test - Lucas)
- If 100% of 10% of the land is taken, that may be considered a taking and owner must be compensated 10% (Lucas & Mahon).
Regulations which prevent harm or abate a nuisance do not require compensation unless private harm outweighs value to public:
- Nature of government�s interest, vs.
- Nature of private harm on discreet, identifiable property interest.