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65 Cards in this Set

  • Front
  • Back
Remedies for a public nuisance
• Criminal prosecution
• Injunctive relief
• Damages at law
Remedies for a private nuisance
• Injunctive relief
• Damages at law
- Elements of private nuisance
Substantial interference AND
Intentional AND unreasonable OR unintentional result of negligent, reckless, or abnormally dangers
How to show intent for private nuisance
For the purpose of causing it
Knows that it is resulting from his conductKnows that it is substantially certain to result from his conduct
How to show unreasonableness
Level of interference that results from the conduct (must establish a threshold)2nd RS Sec 826 view – look at the gravity of the harm vs. util
o Gravity factors
Extent and character of the harm,Social value of the pi’s use,Suitability to thelocality in question,The burden on the plaintiff of avoiding the harm
Utility factors
Social value,Suitability to the locality in question,Impracticality of the defendant preventing the harm
Downside to nuisance law
retroactivity
Elements of the Coming the the nuisance doctrine defense
1 - def is there first; 2 – person claiming the nuisance moved to the def
Exceptions to coming to the nuisance
presence of the public greatly diminishes the success of the defense; or if it is natural growth
Two basic traditional servitudes
covenants and easements
Definition of Easement
an interest in the land; convey the right to use another person’s land
Types of Easements
Express,Implied, and by prescription
Types of Implied Easements
• Prior use
• Necessity
• Plat
Types of Prescription Easements
• Public
• Private
Definiton of Covenant
a formal agreement of legal validity
Types of Covenants
 Real covenants (enforceable at law)
 Equitable servitudes (enforceable at equity)
Definition of - Profits a prendre
rights to take off the land things that were thought of as “part” of the land (timber, minerals, wild game, fish)
Definiton of Affirmative easement
right granted by the servient owner to a neighbor to enter or perform an act on the servient land
Definition of Negative Easement
easement forbidding one landowner from doing something on his land that might harm a neighbor.
traditional easements
For light,Air flow,Support,Flow of artificial streams(movement to create an additional category – conservation easements)
Definition of Easement Appurtenant
benefitedandburdenedestate2 piecesofproperty(twohouses
whereonedependsonanotherfor accesstoapublicproperty),itis connectedtotheland and stays
Definition of - Easement in gross
[personal easement] or (right to allow a person to use the property to “watch the sun set”)
How a grantor may, in deeding real property to one person, effectively reserve an interest in the property to another.
one can reserve an interest in a property to a stranger to the title (b/c they are trying to grant the intent to the grantor;
Definition of Reservation
a provision in a deed creating some new servitude which did not exist before as an independent interest
Definition of Exception
a provision in a deed that excludes from the grant some preexisting servitude on the land
Definition of Regrant theory
an easement “reserved” by the grantor was not a reservation at all, but a regrant of an easement by the grantee to the grantor
Definition of License
oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass
When a license is not revocable and why it is special that they are revocable
 License coupled with an interest
 License under the rules of estoppel
cuzeasementsare not revocable
Definition of- Easement by prescription
absoluteirrevocability,Actual use,openandnotoriouspeeaceable anduninterruptedbytitle owner,continuously,hostile, adverse,claim of right,statuto
Definition of Quasi Easement
where owner may make use of one part of his land for the benefit of another part
Definition of- Mense conveyances
Subsequent Conveyances
Restatement on quasi easements
the party benefiting from the easement should bear the cost
Assuming that there is no malfeasance by the owner of the burdened owner
o Definition of Implied grant
 The person gets more than what they thought when they were getting
- Definition of the Bona fide purchaser (defense against express easements)
 If express easement, not notified on the record or deed,
How must one prevent prescription
have to effectively interrupt the use
Definition of Easement implied by a plat
Developer conveys lots (plats) to homeowners each homeowner gets rights to use the streets, sidewalks, and other common areas
Types of Easements in gross
Personal – serves no purpose to the public
Commercial – facilitation of commerce (companies merging)
Definition of- One Stock Doctrine
Courts articulate that unanimity is required; no unilateral actions
Majority Rule on extention of an easement to a non-dominant estate
Can't Do It
Minority Rule on extension of an easement to a non-dominant estate
Can do it if certain factors present
Minority Rule non-dominant estate factors
Use,Increase in use,Increase in burden to servient estate,Conduct and timing of complaint
When expansions of an easement are not permitted
the change is not reasonably foreseeable at the time of establishment of the easement”
What must there be to establish an abandonment
oNonuseANDActs by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement ORA purpose inconsistent with its future exercise
How a private party sells the gov’t a piece of land for their use
supplement the sale with an affidavit saying that there was no coercion,grantor understandallrightsandthat thisisnotanexerciseof em dom. domain, etc.
How to terminate an easement
Ownermayreleasethegrantee,If thedurationoftheeasementis limited,andthetimeexpires,By estoppeliftheservientowner reasonablyreliesupona
statementorrepresentation by theeasementowner,Byabandonment,By condemnationbythegov’t,Byprescription
Elements of burdened estate
Intent,Horizontal privity of estate,Vertical privity of estate through strict title,Touch and concern in the land,Notice
Elements of Benefited Estate
Intent,Vertical privity of estate,Touch and concern in the land
Definition of an estate in the land
an interest in the land
is mutual consent to the transfer required in privity of estate?
yes
What is horizontal privity of estate?
looking to the original relationship between the original owners of the estate(s)
What must be included in a burdened estate that has been transfered thru vertical privity
the covenant is enforceable only against someone who has succeeded to the same estate as that of the original promisor
What must be included in a benefited estate that has been transfered thru vertical privity
must succeed to the original promisee’s estate or to a lesser interest carved out of that estate
What do you not have to worry about with a Equitable servitude
horizontal or vertical privity
Equitable servitude-definition of
o A covenant respecting the use of land enforceable against successor owners or possessors in equity regardless of its enforceability at law
When a benefit touches and concerns the land
when it makes it more valuable
When A burden touches and concerns the land
when it makes it less valuable
Majority view of implied reciprocal servitude
can't be retroactive
Minority view of implied reciprocal servitude
a plan can be planned continuously and arise later
What restrictions are operative in a implied reciprocal servitude
Any restrictions that existed in development when the lot was originally transferred
Servitudes that invalid b/c they violate public policy include, but are not limited to:
arbitrary,unconstitutional, unreasonable restraint on alienation,unreasonable restraint on trade or competition, unconscionable
can onesided covenants be enforced?
no
what is underlying fed and state policy toward handicapped and group homes?
not to deny housing and residential living to handicapped or group homes
Difference b/w FHA and 14th amend.
- FHA (Discriminatory Intent is not required) v. 14th Amendment (Discriminatory Intent is required)
Zoning use of MFH
apartment complexes (MFH) are used as buffers to roads and SFH are preferenced over MFH