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27 Cards in this Set
- Front
- Back
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Nuisance |
1. unreasonable 2. substantial 3. interference with use and enjoyment of land |
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Private Nuisance |
interference with one person's land --no restriction one who can bring the action determined based on Fairness and efficiency who did it? how can it best be resolved? |
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Public Nuisance |
must be brought by public action unless private party has a different or worse injury than the others |
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Reasonable? (nuisance) |
1. customary 2.the time of day 3.the length of time it is done--when it began 4.the possibility of doing it some other way without nuisance 5. zoning 6. value to society 7. value to parties |
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Substantial? (nuisance) |
1. financial loss 2. physical damage 3. harm or anguish 4. cost to remedy 5. duration of harm **MEASURED ACCORDING TO ORDINARY PERSON STANDARD |
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Hawaii Housing Authority v. Midkiff |
public purpose is enough --whether the legislature could have believed this would have accomplished the objective |
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Easement can be created |
best by grant or reservation but can also be implied (map or prior use), created by necessity or prescription |
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Easements: Issues to discuss |
1. transferability 2. use type (fee or license or easement) |
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Public Policy for Easements |
1. use all of the land in best nature -do not waste it "full utilization of land" 2. balancing interests -who needs it most 3. intentions of parties need to be carried out 4. discrimination and anti-trust regulations 5. Freedom to K, Freedom to use your own land |
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ARGUMENTS FOR AND AGAINST EASEMENT CREATED BY NECESSITY |
For: It was necessary for the full use and enjoyment of the entire property Against: The necessity had ended Did not give notice abandonment estoppel if you don't insist on asserting easement |
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Easement by prescription |
Open and notorious adverse (in some jurisdictions) DOES NOT HAVE TO BE EXCLUSIVE continuous and actual If paid for--cant be prescription |
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Termination of Easements |
1. necessity ends 2. estoppel 3. abandonment (more than just not using it) 4. misuse or overuse 5. transfer of servient estate without purchaser notice 6. release 7. merger of estates |
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Succession in interests |
1. notice (actual or constructive) 2. intentions |
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Easement by Necessity |
1. original unity of d.e. and s.e. 2. use is necessary to use and enjoyment of d.e. some jurisdictions say it must be absolutely necessary, some say it must be reasonably necessary (more than just inconvenient) |
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Easement by implication |
1. the consideration paid 2. the extent of thenecessity 3. how the parties treated the property after the transfer 3. reasonableexpectations and fairness, 4. who prepared the transfer document 5. thecircumstances of size, shape and location of the land. The scopeof an easement by implication (or extent of the use) is generally based on prior use and what is reasonably foreseeable regardingincreased use. Change in degree of use maybe allowed, but change in the type of use generally is not. |
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Ways of Terminating an easement |
Express terms misuse abandonment release |
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way of extinguishing easement |
transfer of servient estate in some jurisdictions necessity ends merger of estates estoppel third party (bank foreclosure) adverse possession (maintain exclusivity without permission) |
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Easements in gross transfer |
commercial: rebuttable presumption of assignability non-commercial: OLD RULE-presumption of non-assignability NEW RULE: presumption of assignability |
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Easement appurtenant transfer: dominant estate |
usually automatic succession non-assignability usually viewed as impermissible restraint on alienation |
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easement appurtenant transfer: servant estate |
NOTICE-- actual or constructed (recorded deed) INTENT |
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Rights and obligations of parties in an easement |
1. intent 2. the language of the document 3. width length and location--if not--look to intent and reasonable expectations 4. language of entire document and surrounding circumstances |
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Courts have looked at: |
1. whether easement is granted or reserved (more strict with reservation) 2. amount of consideration 3. prior use of land 4. subsequent behavior of parties (was the use tolerated) |
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WHEN AGREEMENT DOES NOT FIX LENGTH, WIDTH and Location it is a ________________ |
right of way that only allows for what is reasonably necessary to carry out purpose |
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Increase in use |
Normal increase is permitted (unless language says otherwise) CHANGE IN TYPE OF USE IS NOT |
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Changes in location |
dominant: some jurisdictions say no unilateral change, some say servient can if it is substantially similar to other location servient: not permitted |
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REPAIR and Improvement
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Servient estate: only obligation is not to interfere with use and enjoyment of other property (by way of easement)
dominant: duty to repair right to improve in order for land to fulfill purpose |
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Lease or license |
1. Duration 2. Use specification 3. Location 4. $ 5. Intent 6. Wording |
