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18 Cards in this Set
- Front
- Back
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A nuisance is:
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1. Substantial Interference
2. with protected use and enjoyment of property 3. that is either: intentional and unreasonable, negligent, or subject to strict liability |
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Nuisance protected right and unreasonable elements:
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CLEAN: Character of Neighborhood, Location of nuisance, Effect on enjoyment of life, health, property, Activities economic importance, Nature and frequency of nuisance
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Nuisance Remedies
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1. Permanent Injunction
a. Automatic in NY b. OR looks at totality 2. Indemnity (minor) PL pays DF 3. Purchased Injunction (trend) PL pays DF for right to pollute 4. Delayed Injunction - give DF time to fix 5. Injunction conditioned on payment of damages 6. Annual Damages 7. Can't be hypersensitive and who was there first |
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Trespass Advantages over Nuisance
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Don't have to prove harm or damages.
If industry is important is irrelevant |
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Old Look Tresspass
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Dimensional test must see
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New Look Tresspass
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Don't need to see
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Elements of Covenant
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1. Nature of Promise - touch and concern
2. Intent 3. Notice 4. Privity |
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Tests for Touch and Concern
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1. Epstein - anything goes just a promise
2. Bigelow - an appraisal, look at benfit and burden 3. Reichman / land utilization- is it the best use of land 4. Berger / Expectations - Normal reasonable person expects 5. Multi-Factor - affirmative nature and duration 6. Restatement - looks at how it evolved |
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How long in GA does a covenant last
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20 years
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Do affirmative covenants run with land
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In NY no, Neponsit dicta says yes
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Horizontal Privity Elements
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1. Tenural Privity - Present and future interest between buyer and seller
2. Mass Privity- can have easement 3. Grantor/ Grantee 4. Promise alone |
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Vertical Privity Elements
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Burdened side and benefited side
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Blackstone's element of custom
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Corfrai-
Certainty, Obligatory, not Repugnant, Free of dispute, Reasonable, Ancient, no Interruption |
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Ways to beat Zoning
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1. Violates fundamental right
2. Variance 3. Special Exception 4. Amendment |
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Types of Variances
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Dimensional
Use - higher burden of proof |
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Elements for a variance
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1 Unnecessary hardship
2 Hardship is Unique 3 Not contrary to public interest |
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Type of Amendments
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Map Amendment
Comprehensive Map Amendment Text Amendment |
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Standard Zoning Enabling Act views
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Unitary - zoning is the plan
Planning factor - if you have a plan then the better Planning mandate- must have a plan |
