Dukeminier Property

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Remedies for a public nuisance

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• Criminal prosecution
• Injunctive relief
• Damages at law

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Remedies for a private nuisance

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• Injunctive relief
• Damages at law

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- Elements of private nuisance

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Substantial interference AND
Intentional AND unreasonable OR unintentional result of negligent, reckless, or abnormally dangers

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How to show intent for private nuisance

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For the purpose of causing it
Knows that it is resulting from his conductKnows that it is substantially certain to result from his conduct

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How to show unreasonableness

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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

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o Gravity factors

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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

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Utility factors

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Social value,Suitability to the locality in question,Impracticality of the defendant preventing the harm

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Downside to nuisance law

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retroactivity

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Elements of the Coming the the nuisance doctrine defense

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1 - def is there first; 2 – person claiming the nuisance moved to the def

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Exceptions to coming to the nuisance

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presence of the public greatly diminishes the success of the defense; or if it is natural growth

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Two basic traditional servitudes

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covenants and easements

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Definition of Easement

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an interest in the land; convey the right to use another person’s land

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Types of Easements

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Express,Implied, and by prescription

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Types of Implied Easements

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• Prior use
• Necessity
• Plat

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Types of Prescription Easements

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• Public
• Private

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Definiton of Covenant

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a formal agreement of legal validity

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Types of Covenants

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 Real covenants (enforceable at law)
 Equitable servitudes (enforceable at equity)

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Definition of - Profits a prendre

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rights to take off the land things that were thought of as “part” of the land (timber, minerals, wild game, fish)

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Definiton of Affirmative easement

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right granted by the servient owner to a neighbor to enter or perform an act on the servient land

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Definition of Negative Easement

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easement forbidding one landowner from doing something on his land that might harm a neighbor.

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traditional easements

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For light,Air flow,Support,Flow of artificial streams(movement to create an additional category – conservation easements)

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Definition of Easement Appurtenant

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benefitedandburdenedestate2 piecesofproperty(twohouses
whereonedependsonanotherfor accesstoapublicproperty),itis connectedtotheland and stays

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Definition of - Easement in gross

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[personal easement] or (right to allow a person to use the property to “watch the sun set”)

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How a grantor may, in deeding real property to one person, effectively reserve an interest in the property to another.

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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;

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Definition of Reservation

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a provision in a deed creating some new servitude which did not exist before as an independent interest

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Definition of Exception

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a provision in a deed that excludes from the grant some preexisting servitude on the land

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Definition of Regrant theory

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an easement “reserved” by the grantor was not a reservation at all, but a regrant of an easement by the grantee to the grantor

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Definition of License

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oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass

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When a license is not revocable and why it is special that they are revocable

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 License coupled with an interest
 License under the rules of estoppel
cuzeasementsare not revocable

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Definition of- Easement by prescription

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absoluteirrevocability,Actual use,openandnotoriouspeeaceable anduninterruptedbytitle owner,continuously,hostile, adverse,claim of right,statuto

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Definition of Quasi Easement

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where owner may make use of one part of his land for the benefit of another part

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Definition of- Mense conveyances

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Subsequent Conveyances

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Restatement on quasi easements

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the party benefiting from the easement should bear the cost
Assuming that there is no malfeasance by the owner of the burdened owner

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o Definition of Implied grant

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 The person gets more than what they thought when they were getting

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- Definition of the Bona fide purchaser (defense against express easements)

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 If express easement, not notified on the record or deed,

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How must one prevent prescription

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have to effectively interrupt the use

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Definition of Easement implied by a plat

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Developer conveys lots (plats) to homeowners each homeowner gets rights to use the streets, sidewalks, and other common areas

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Types of Easements in gross

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Personal – serves no purpose to the public
Commercial – facilitation of commerce (companies merging)

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Definition of- One Stock Doctrine

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Courts articulate that unanimity is required; no unilateral actions

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Majority Rule on extention of an easement to a non-dominant estate

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Can't Do It

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Minority Rule on extension of an easement to a non-dominant estate

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Can do it if certain factors present

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Minority Rule non-dominant estate factors

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Use,Increase in use,Increase in burden to servient estate,Conduct and timing of complaint

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When expansions of an easement are not permitted

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the change is not reasonably foreseeable at the time of establishment of the easement”

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What must there be to establish an abandonment

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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

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How a private party sells the gov’t a piece of land for their use

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supplement the sale with an affidavit saying that there was no coercion,grantor understandallrightsandthat thisisnotanexerciseof em dom. domain, etc.

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How to terminate an easement

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Ownermayreleasethegrantee,If thedurationoftheeasementis limited,andthetimeexpires,By estoppeliftheservientowner reasonablyreliesupona
statementorrepresentation by theeasementowner,Byabandonment,By condemnationbythegov’t,Byprescription

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Elements of burdened estate

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Intent,Horizontal privity of estate,Vertical privity of estate through strict title,Touch and concern in the land,Notice

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Elements of Benefited Estate

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Intent,Vertical privity of estate,Touch and concern in the land

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Definition of an estate in the land

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an interest in the land

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is mutual consent to the transfer required in privity of estate?

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yes

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What is horizontal privity of estate?

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looking to the original relationship between the original owners of the estate(s)

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What must be included in a burdened estate that has been transfered thru vertical privity

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the covenant is enforceable only against someone who has succeeded to the same estate as that of the original promisor

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What must be included in a benefited estate that has been transfered thru vertical privity

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must succeed to the original promisee’s estate or to a lesser interest carved out of that estate

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What do you not have to worry about with a Equitable servitude

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horizontal or vertical privity

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Equitable servitude-definition of

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o A covenant respecting the use of land enforceable against successor owners or possessors in equity regardless of its enforceability at law

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When a benefit touches and concerns the land

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when it makes it more valuable

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When A burden touches and concerns the land

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when it makes it less valuable

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Majority view of implied reciprocal servitude

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can't be retroactive

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Minority view of implied reciprocal servitude

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a plan can be planned continuously and arise later

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What restrictions are operative in a implied reciprocal servitude

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Any restrictions that existed in development when the lot was originally transferred

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Servitudes that invalid b/c they violate public policy include, but are not limited to:

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arbitrary,unconstitutional, unreasonable restraint on alienation,unreasonable restraint on trade or competition, unconscionable

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can onesided covenants be enforced?

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no

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what is underlying fed and state policy toward handicapped and group homes?

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not to deny housing and residential living to handicapped or group homes

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Difference b/w FHA and 14th amend.

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- FHA (Discriminatory Intent is not required) v. 14th Amendment (Discriminatory Intent is required)

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Zoning use of MFH

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apartment complexes (MFH) are used as buffers to roads and SFH are preferenced over MFH