Property Law 2009 Ocu

Front 1

Property

Back 1

bundle of rights defining social relations with respect to a thing

Front 2

First in Time, First in Right

Back 2

Principle of discovery – first to discover keeps it “finders keepers” - Right to have until one with a superior right shows up

Front 3

Bundle of Rights

Back 3

More than one kind of power over something in which you have property -- Right to transfer (sell or gift), exclude, use, modify, destroy, and possess

Front 4

Limitations of Rights

Back 4

i) Stability of title
ii) alienability
iii) Productive use
iv) Interest in providing habitable housing
v) Zoning laws, usage laws, covenants
vi) Attachment
vii) Necessity and emergency

Front 5

Acquisition by Capture

Back 5

If you catch it, you keep it – “first in time rule” applies -- dovetails with rights regards trespass (trespasser has no rights against O but everyone else)

Front 6

Externalities

Back 6

A burden or benefit of an activity that a person engaged in activity is not forced to consider (i.e. smoke factory) -- cost that everyone else has to pay for your use of your property (ex: outside expenses)

Front 7

Internalizing externalities

Back 7

if you pay for the harm – you internalize the externalities

Front 8

Lockean Labor Theory

Back 8

Property in ourselves and labor – fruits on one’s own labor is yours

Front 9

Accession

Back 9

Mixing your labor with the land or chattel converts into your property

Front 10

Utilitarian Theory

Back 10

Property ownership maximizes social welfare – “social peace theory” meaure public good in terms of cost-benefit analysis (ex: ownership causes problems with use of land)

Front 11

Tragedy of the Commons

Back 11

Idea that everyone has an equal right to the property – race to over-consume the land and less resources for everyone – exhaust the land resulting in no incentive to conserve

Front 12

Demsetz’s Argument

Back 12

Property rights arise where the gains of internalization of externialities outweigh the cost. (i.e. take on the effect instead of distributing to everyone)

Front 13

Coase Theorem

Back 13

Absent transaction costs parties will bargain to efficient outcomes regardless of the initial allocation of property rights as long as they are clear (if property rights are clear and there are no transaction costs, then parties can bargain regardless of who is first assigned a property right); limitation is that it does not work in real life because there are always transaction costs and free-riders

Front 14

Acqusition of Creation

Back 14

If you create something, it is yours to exploit

Front 15

confusion

Back 15

the comingling of separately owned fungible goods so that they cannot be distinguished

Front 16

Property in One’s own Person

Back 16

Every man has a property right in himself – Moore says you cannot sell yourself as proprety (with exceptions)

Front 17

Right to Include/Right to Exclude

Back 17

Right to exclude persons from your land in certain circumstances; property rights are not absolute; Necessity may overcome exclusion -- Steenberg

Front 18

Exceptions to right to exclude

Back 18

o Civil Rights forbidding discrimination
o Emergency situations
o Eminent domain
o Public and private necessity
o Easement for meter readers and the like
o Rent control
o Anti-eviction statutes
o Adverse possession
o Public accommodation laws – dining/other establishments

Front 19

Law of Finders

Back 19

Finder has rights above all others except the true owner

Front 20

Treasure trove

Back 20

Something of high value intentionally concealed in the distant past by an unknown owner for safekeeping in a secret location

Front 21

Trover

Back 21

allows an owner of chattel to recover damages

Front 22

Replevin

Back 22

permit an owner of a chttel to recover its possession

Front 23

Bailment

Back 23

Lawful possession of goods who is not the owner (jail example)

Front 24

Bailee

Back 24

Person holding property in trust for another party

Front 25

Lost

Back 25

accidentally and involuntarily parts with chattel and does not know where to find it

Front 26

Mislaid

Back 26

intentionally puts chattel in a certain place but forgets to retreive it

Front 27

Abandoned

Back 27

owner voluntarily and intentionally relinquishes title and possession

Front 28

Adverse Possession

Back 28

Statute of limitations for recovery of land; running of the SOL vests a new title -- Elements:
1) Actual entry giving exclusive possession
2) Possession that is open and notorious
3) Possession adverse and under a claim of right (hostile)
4) Continuous for statutory period (does not mean same person)

Front 29

Color of Title

Back 29

Claim based on a written instrument (not required in most American jurisdictions)

Front 30

Claim of Title

Back 30

Good faith, belief, and ownership

Front 31

Quiet Title

Back 31

Settle questions of title (Cause of action)

Front 32

Other ways to resolve boundary disputes

Back 32

Doctrine of agreed boundaries
o Doctrine of acquiescence
o Estoppel
o These doctrines intertwine – law is tricky

Front 33

Tacking

Back 33

Adding periods of time and possession to meet statute of limitations (General rule is that “privity” is required
 Succession of trespassers is not enough
 Some reasonable connection between successive occupants is enough)

Front 34

privity

Back 34

A close, direct, or successive relationship; having a mutual interest or right.

Front 35

Relate back -- Adverse possession

Back 35

Starts when at the time of first possession not when owner notices (Statute of limitations runs from this time)

Front 36

Gift

Back 36

Transfer of property that is intentional and voluntary
Elements:
1) Intention
2) Delivery – constructive vs. symbolic
3) Acceptance
Traditional Rule – if you can hand it over, you must

Front 37

Constructive Delivery

Back 37

Something that provides access to the gift (key to chastity belt)

Front 38

Symbolic delivery

Back 38

symbolizes the gift – title

Front 39

Gift Causa Mortis

Back 39

Made in anticipation of imminent death and where it plainly appears that it was the intention of the donor to make the gift and where the things intended to be given are not present or where present, are incapable of manual delivery from their size or weight

Front 40

Inter Vivos

Back 40

During life

Front 41

Alienability

Back 41

The character of property that makes it capable of sale or transfer

Front 42

Estate

Back 42

Interest in land that is measured by a period of time -- classification of estate includes: 1) freehold or non-freehold; 2) absolute or defeasible; and 3) legal or equitable

Front 43

Life Estate

Back 43

For life of person or tenant; may be transferable and always a future interest following

Front 44

Law of Waste

Back 44

Do not use property in a manner that interferes with each other’s rights -- 2 types affirmative (voluntary acts of current estate owner significantly reduce value of property) and permissive (failure of an estate owner to exercise reasonable care to protect the estate)

Front 45

Fee Tail

Back 45

Keep the land in the family; been mostly abolished -- primogeniture

Front 46

Intestate

Back 46

Person dies w/out will

Front 47

Heirs

Back 47

Persons who survive the decedent; no one is an heir of a living person (heir apparent)

Front 48

Issue

Back 48

Descendents; children and children’s children – direct bloodline (includes adoptive children in modern times)

Front 49

Collaterals

Back 49

All related by blood to the decedent (i.e. bros, sis, nephews, nieces, cousins, aunts, uncles, etc.)

Front 50

Escheat

Back 50

If a person died intestate without any heirs, the person’s real property reverts to the state

Front 51

Seisin

Back 51

An old feudal term for having both possession and title of real property. The word is found in some old deeds, meaning ownership in fee simple (full title to real property).

Front 52

Free-hold estate

Back 52

Fee simple, fee tail, and life estate. A freeholder has seisin

Front 54

Lease-holder estate

Back 54

Non freehold possessory estate – tenants do not have seisin

Front 55

Fee Simple (regular)

Back 55

Endure forever, ownership of property

Front 56

Fee Simple Absolute

Back 56

Cannot be divest or end if any event happens in the future; may run forever; same thing as fee simple (does not have a future interest unlike all others)

Front 57

Defeasible estates

Back 57

an estate that may come to its end before its maximum duration has run by reason of a happening of a future event, a fee simple determinable or a fee simple subject to condition subsequent; may last forever or may come to an end upon the happening of an event in the future

Front 58

Fee Simple Determinable (Defeasible estate)

Back 58

May last forever but may come to an end by reason of a happening of a specified event in the future; ends automatically; possibility of reverter -- durational language

Front 59

Fee Simple subject to condition subsequent (Defeasible estate)

Back 59

A fee simple that does not automatically terminate but may be divested or cut short at the transferor's election when a stated condition happens --Conditional language

Front 60

Future Interest

Back 60

Conferring rights to the enjoyment of property at a future time

Front 61

Reversion - transferor

Back 61

The interest left to the owner after carving out a vested lesser estate without providing for the fate of the property after the lesser estate expires

Front 62

Possibility of Reverter – transferor

Back 62

Future interest remaining in the transferor or his heirs when a fee simple determinable is created

Front 63

Right of re-entry – transferor

Back 63

When an owner transfers an estate subject to condition subsequent and retains the power to cut short or terminate the estate, the transferor has a right of reentry

Front 64

Remainder – transferee

Back 64

Future interest that waits politely until the termination of the prior estate

Front 65

Vested

Back 65

Having become a completed, consummated right for present or future enjoyment not contingent, unconditional; it is absolute. Unfortunately the word vested is used in 2 senses, first an interest may be vested in possession when there is a right to present enjoyment (example: when I own and occupy Blackacre). But an interest may be vested even when it does not carry a right to immediate possession, if it does confer a fixed right of taking possesion in the future. "A future interest is vested if it meets two requirements: first, that there be no condition precedent to the interest's becoming a present estate other than the natural expiration of those estates that are prior to it in possession; and second, that it be theoretically possible to identify who would get the right to possession if the interest should become a present estate at any time."

Front 66

Vested remainder – transferee

Back 66

Given to an ascertained person not subject to a condition precedent except the natural termination of the prior estate

Front 67

Indefeasibly vested

Back 67

The remainder is certain of becoming possessory in the future and cannot be divested

Front 68

Vested subject to divestment

Back 68

certain to become possessory unless some specified even occurs

Front 69

Vested subject to open

Back 69

A remainder created in a class of persons is vested if one member of the class is ascertained and there is no condition precedent, the remainder is vested subject to open or vested subject to partial divestment if later born children are entitled to share in the gift.

Front 70

Contingent remainder – transferee

Back 70

Unascertained person or it is made contingent upon some event occurring other than natural termination of the preceding estate. If condition is in the granting clause, it is a contingent remainder

Front 71

Consequences from being vested versus contingent

Back 71

"o Remainders cannot become possessory while contingent

Front 72

Executory Interest

Back 72

Future interest in a transferee that must in order to become possessory divest or cut short some interest in another transferee (shifting) or divest the transferor in the future (springing) in order to become a possessory estate

Front 73

Rule for classifying future interests after a life estate

Back 73

 If the first future interest created is a contingent remainder in fee simple, the 2d future interest in a transferee will also be a contingent remainder.
 If the first future interest created is a vested remainder in fee simple, the 2d future interest in a transferee will be a divesting executory interest

Front 74

Statute of Uses

Back 74

Converted use to a legal interest

Front 75

Fee Simple Subject to an Executory Limitation

Back 75

The estate created through the Statute of Uses

Front 76

Doctrine of Worthier Title

Back 76

Provides that where there is an inter vivos conveyance of land by a granter to a person with a limitation over the grantors own heirs either by way of remainder r executory interest no future interest in the heirs is created, rather the reversion is retained by the grantor (rule that favors alienability)

Front 77

Trust

Back 77

Allows people to arrange assets to maximize flexibility in property management as well as transferring wealth to future generations. Trustee retains legal title and has strict fiduciary duty to act on behalf of beneficiaries

Front 78

Uniform Simultaneous Death Act

Back 78

Treat property of each person as if they were the survivor

Front 79

Rule Against Perpetuities

Back 79

A power of executory interests threaten alienability of land – No interest is good unless it must vest not later than 21 years after some life in being at the creation of the interest -- ONLY APPLIES TO CONTINGENT INTERESTS; CONTINGENT REMAINDERS; CLASS-GIFTS; AND OPTION CONTRACTS

Front 80

Validating Life

Back 80

can be a validating life as long as in being at or before the interest in question was created -- life somehow casually connected with the vesting or termination of the interest

Front 81

Class Gifts

Back 81

All or nothing rule – to be vested class must be closed and all conditions present for every member

Front 82

Option Contract

Back 82

o Option that may or may not vest
o O sells Blackacre to A for $1000. The K provides, O or her assigns may repurchase Blackacre for $15K
o Problem?
o At common law, option is subject to Rule Against Perpetuities

Front 83

USRAP

Back 83

o If conveyance obeys the rule – leave it be
o If it does not, any interest that does not vest in 90 years is void

Front 84

Concurrent interest

Back 84

When multiple person have the right to posssess, use and enjoy an ittem of property -- 5 types (3 use now): 1) tenancy in common; 2) joint tenancy; 3) tenancy by the entirety -- don't use 4) coparency and 5) tenancy in partnership

Front 85

Coparency

Back 85

Primogenuture – similar to tenancy in common

Front 86

Tenancy in Partnership

Back 86

Superseded by the Uniform Partnership Act

Front 87

Tenancy in Common

Back 87

separate but undivided interests in the property; the interests of each is discernible and may be conveyed by deed or will

Front 88

Joint Tenants

Back 88

Each tenant is seised of property but regarded as single owner with the right of survivorship

Front 89

Survivorship

Back 89

When one joint tenant dies, their interest extinguishes

Front 90

Four Unities Essential to Joint Tenancy

Back 90

Time, Title, Interests, Possession -- if the four unities do not exist, a joint tenancy is not created, a tenancy in common is created. If they are later severed, it turns into a tenancy in common.

Front 91

Tenancy by the Entirety

Back 91

Like joint tenancy, but married people

Front 92

strawman

Back 92

fictitious third person used in some transactions as a temporary transferee to allow the principle parties to accomplish something that is otherwise impermissable

Front 93

Partition by Sale

Back 93

Joint tenants sell property

Front 94

Partition In Kind

Back 94

Joint tenants split property

Front 95

Mortgage

Back 95

A legal document by which the owner (i.e., the buyer) transfers to the lender an interest in real estate to secure the repayment of a debt

Front 96

Mortgage Lien Theory

Back 96

Mortgage is just a lien – debt secured by property so does not change who owns the property so therefore does not sever joint tenancy

Front 97

Mortgage Title Theory

Back 97

Mortgagee gets the title – so destroyed title (unity)

Front 98

Reciprocity of harms

Back 98

 A cannot use land to harm B’s interest
 But if A’s inability to use the land works a detriment, then B’s interest harms A
 Example – A and B are cotenants – land has a pond that can be used for fishing or irrigation but not both; A likes to farm and B likes to fish – who is harming whom? No way for a court to say that one is committing a nuisance against the other

Front 99

Ways to sever Joint Tenancy

Back 99

1) conveyance; 2) mortgage (title theory only); 3) leases (courts divided); 4) marriage; and 5) divorce

Front 100

Ouster

Back 100

the unlawful dispossession of a party lawfully entitled to possession of real property -- Majority rule says no ouster unless occupying co-tenant refuses to allow other tenant use and enjoyment of land. Minority rule on rent that rent liability if occupancy continues after a demand to vacate or pay rent -- when not done under a claim of absolute ownership, it can support an action for back rent. When done under a claim of such ownership, it can give rise to a claim of adverse possession if the other elements required are present

Front 101

Term of years

Back 101

Estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for beginning and end

Front 102

Periodic Tenancy

Back 102

Lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination

Front 103

Tenancy at will

Back 103

Tenancy of no fixed period that endures so long as both landlord and tenant desire

Front 104

Holdover

Back 104

Arises when a tenant remains in possession (holds over) after termination of the tenancy o Not a tenant because not there with permission
o Not a trespasser since original possession not wrongful
- 2 options for LL
o Evict

Front 105

Lease

Back 105

leases transfer a possessory interest in land and so it is a conveyance that creates property rights. But it is also the case that leases usually contain a number of promises so that makes it a K too (creating K rights)

Front 106

Delivery of possession

Back 106

English rule – in the absence of stipulations to the contrary, there is in every lease an implied covenant on the party of the landlord that the premises shall be open to entry by the tenant at the time fixed by the lease for the beginning of his term. - American rule – the LL is not bound to put the tenant into actual possession but is bound only to put him in legal possession so that no obstacle in the form of superior right of possession will be interposed to prevent the tenant from obtaining actual possession of the demised premises

Front 107

Quiet enjoyment

Back 107

Possession of land with the assurance that the possession will not be disturbed by a superior title -- Covenant of quiet enjoyment

Front 108

Constructive eviction

Back 108

Any act or omission of the LL or agent which renders premises substantially unsuitable for the purpose for which they were leased or seriously interferes with the beneficial enjoyment of the premises is a breach of the covenant of quiet enjoyment and constitutes a constructive eviction of the T

Front 109

Implied warranty of habitability

Back 109

LL leasing urban residential must maintain their premises in a condition that satisfies applicable housing codes and makes the premises safe and habitable -- nonwaivable by T and also termed covenant of habitability

Front 110

Statute of Frauds

Back 110

Serves evidentiary function and prevents fraud. Requirements: 1) signed by the party to be bound; 2) Describes the property; 3) State the price (or clear method of fixing price)

Front 111

Exceptions to the Statute of Frauds

Back 111

Part performance or Estoppel

Front 112

Marketable Title

Back 112

Title that is “not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person, one which such persons, guided by competent legal advice, would be willing to take and for which they would be willing to pay fair value.”

Front 113

Caveat emptor

Back 113

Buyer beware

Front 114

Merger doctrine

Back 114

when buyer accepts a deed, the buyer is deemed to be satisfied that all of the contractual obligations have been met

Front 115

Implied Warranty of Quality

Back 115

skillful construction -- free from defects, built in a sound and workmanlike manner

Front 116

Privity

Back 116

Legal relationship between parties, each having a legally recognized interest in the same property

Front 117

Deed

Back 117

Written instrument by which land is conveyed

Front 118

General Warranty deed

Back 118

Warrants title against all defects in title

Front 119

Special Warranty deed

Back 119

Warrants only against the grantor's own acts but not the acts of others

Front 120

Quitclaim deed

Back 120

Contains no warranties (caveat emptor)

Front 121

Delivery of deeds

Back 121

Placing of the deed in the grantee's hand or within the grantee's control

Front 122

Installment sales contract

Back 122

Idea that you can purchase a home and then pay the seller over the years like a mortgage -- after payments seller gives you the deed

Front 123

Tract index

Back 123

Index by the plot of land or location

Front 124

Grantor/grantee index

Back 124

Index by grantor/grantee of land

Front 125

Grantee/grantor index

Back 125

inverse of grantor/grantee

Front 126

Idem Sonans

Back 126

If an incorrectly spelled name is used that sounds substantially similar to the correct name, identify of the person is presumed

Front 127

Race Statute

Back 127

Statute that allows the first in time recording to the person who wins the race to record prevails – whether subsequent purchaser has actual knowledge of the prior purchaser’s claim is irrelevant whoever records first wins

Front 128

Notice Statute

Back 128

If a person had notice of a prior unrecorded instrument, the purchaser could not prevail over the prior grantee, for such would work a fraud on the prior grantee

Front 129

Race-Notice Statute

Back 129

"subsequent purchaser is protected against prior unrecorded instruments only if the subsequent purchaser Is without notice of the prior instrument and Records before the prior instrument is recorded

Front 130

Constructive notice

Back 130

Notice found through deed search

Front 131

Chain of title

Back 131

Recorded sequence of transactions by which title has passed to the present claimant

Front 132

Wild deed

Back 132

Recorded deed that is not in the chain of title, usually because the prior deed was not recorded

Front 133

Latent defect

Back 133

A defect that is not discoverable by reasonable inspection and for which a seller/lessor is generally liable if the flaw causes harm (hidden defect)

Front 134

Patent defect

Back 134

A defect that is apparent to a normally observant person especially a buyer on reasonable inspection (apparent defect)

Front 135

Actual Notice

Back 135

Notice given directly to or received by a party

Front 136

Record Notice

Back 136

Constructive notice

Front 137

Inquiry notice

Back 137

Notice attributable to a person which would lead a ordinarily prudent to investigate the matter further

Front 138

Marketable Title Act

Back 138

Limiting title searches to a reasonable period, typically last 30-40 years

Front 139

Title Insurance

Back 139

Insurance that protects the purchaser against defects in public records and flaws in title search

Front 140

Nuisance

Back 140

Interference (condition, activity or situation) with one's use or enjoyment of property

Front 141

Servitude

Back 141

Charge or burden on an estate for another's benefit

Front 142

Easement

Back 142

a right of some benefit or beneficial use out of, in, or over the land of another

Front 143

Servitude versus Easements

Back 143

A servitude relates to the servient estate or the burdened land, whereas an Easement refers to the dominant estate (not all servitudes are easements because they are not all attached to other land)

Front 144

Affirmative Easement

Back 144

Right to go onto someone's land and do some act

Front 145

Negative Easement

Back 145

Right to prevent owner of the servient land from doing something

Front 146

Easement appurtenant

Back 146

Easement created to benefit another tract of land, the use of the easement being incident to the ownership of that other tract (right belongs to owner of the dominant estate)

Front 147

Easement in gross

Back 147

Right to some person without regard to ownership of land (no dominant estate)

Front 148

License

Back 148

Permission revokable to commit some act that would otherwise be unlawful

Front 149

Implied easement

Back 149

Easement created by the operation of the law

Front 150

Easement by necessity

Back 150

Implied because of public policy or intent of the parties

Front 151

Easement by prescription

Back 151

Rights can be acquired by the passage of time

Front 152

Quasi-easement

Back 152

Implied by existing use at the time the tract is divided (something the parties would expect to contine)

Front 153

Public Trust Doctrine

Back 153

Principle that navigatable waters are preserved for the public use and the state is responsible for protecting the public's right to the use

Front 154

Expressio unius est exclusion alterius

Back 154

The express mention of one thing excludes all others

Front 155

seviant estate

Back 155

Burdened land by the right

Front 156

dominant estate

Back 156

Land benefeited by the right

Front 157

Termination of easement

Back 157

1) defeasible grant or easement otherwise expires under terms of the original grant; 2) Unity of title (merger); 3) By dominant owner -- release, abandonment, alteration of dominant estate that makes easement purpose impossible or end of neceesity; 4) By servient owner -- prescription; 5) Condemnation; 6) foreclosure by superior lien

Front 158

Condemn

Back 158

To take privately owned land for public use in exchange for just compensation by virtue of the power of Eminent Domain

Front 159

Unity of title

Back 159

Dominant and servient estates come into hands of one owner

Front 160

Covenant

Back 160

Formal agreement or promise

Front 161

Real covenant

Back 161

Covenant running with the land (covenant that because relates to the land, binds successor grantees indefinitely)

Front 162

Equitable servitude

Back 162

Private restriction on the use of land binding on the successors in interest that is enforceable in equity

Front 163

Running of burden

Back 163

Burden runs with the land. Restrictions: Intent; Privity of estate between promisor and promisee; Privity of estate between promisor and assignee; Covenant touches and concerns both burdened and benefited land

Front 164

Running of benefit

Back 164

Benefit runs with the land. Restrictions: Intent; Privity of estate between promisee and assignee (but may be lessor estate); Benefit touches and concerns benefited land

Front 165

Runs with the land

Back 165

Each subsequent owner of promisor's land is burdened by the covenant and each subsequent owner of promissee's land may enforce the covenant

Front 166

Touch and concern

Back 166

it enhances the enjoyment of one parcel of real property by burdening the enjoyment of another; Burden and benefit have to affect the use of land (or its value)

Front 167

Implied negative servitudes

Back 167

Must be evidence that developer had a reasonably uniform scheme at time of sales (cannot arise later). But some courts allow to be implied by restrictions in substantial number of deeds prior to the deed to the defendant

Front 168

negative covenants

Back 168

Promises to refrain from physical acts on burdened property touch and concern

Front 169

affirmative covenants

Back 169

Covanant that obligates a party to do some act

Front 170

Termination of covenants

Back 170

See termination of easements -- 1) defeasible grant or easement otherwise expires under terms of the original grant; 2) Unity of title (merger); 3) By dominant owner -- release, abandonment, alteration of dominant estate that makes easement purpose impossible or end of neceesity; 4) By servient owner -- prescription; 5) Condemnation; 6) foreclosure by superior lien

Front 171

Common Interest Communities

Back 171

"gated communities"

Front 172

Zoning

Back 172

Land use control

Front 173

Cumulative zoning scheme

Back 173

Successive gradiations of what is allowed

Front 174

Comprehensive Plan

Back 174

Locality zoning scheme -- must be authorized by statute -- statement of the local government's objective and standards for development

Front 175

Nonconforming use

Back 175

Use that is not within zoning

Front 176

Amortization periods

Back 176

Reasonable time for use to continue when rezoned -- must compensate owner

Front 177

Variance

Back 177

Authorized deviation from an ordinance that will not be contrary to public interest if enforcement of ordinance results in undue hardship (area or use variances)

Front 178

Special Exception

Back 178

Allowance in a zoning ordinance for special uses that are considered essential and are not fundamentally incompatible with the original zoning regulations

Front 179

Spot Zoning

Back 179

Zoning changes which establish a use classification inconsistent with surrounding uses and create island of nonconforming use within larger zoned district and which reduce value of uses specified in the zoning ordinance of either the rezoned plot or abutting property

Front 180

Zoning amendment

Back 180

Rezoning -- legislative act. Must be upheld unless the opponent proves that the classification is unsupported by rational basis related to promoting public health, safety, morals or general welfare or that the classification amounts to a Taking without Compensation

Front 181

Aesthetic regulation

Back 181

A regulation that zones a matter of taste

Front 182

Eminent Domain

Back 182

Power to force transfer of property from owners to the government

Front 183

Regulatory Taking

Back 183

When government regulation of private property "goes too far" and deprives the landowner of the value of his land through enactment of a statute, promulgation of a regulation, refusal to issue a permit, or declaration of land as a wetland, as endangered species habitat or as unsuitable for mining, such a taking also may be compensable

Front 184

Inverse condemnation

Back 184

Regulatory taking

Front 185

Physical Occupation

Back 185

Posession, control or use of real property. Always taking no matter how small

Front 186

Nuisance control regulations

Back 186

Regulation to control nuisance -- never a taking

Front 187

Diminution in value

Back 187

Value is lowered because of the regulation or variance

Front 188

Reciprocity of Advantage

Back 188

Burdened parties are simultaneously benefited by the regulation (implicit compensation)

Front 189

Balancing Test Factors

Back 189

Extent of diminution of value; Whether the regulation disrupts the reasonable investment-backed expectations; Character of gov’t action; Whether regulation is of a noxious use of property; Whether there is an average reciprocity of advantage; Whether the regulation destroys a recognized property right

Front 190

Transferable Development Rights

Back 190

Transfer what the statute was supposed to supply but taken off by statute (example selling off the rights to height restriction)

Front 191

Conceptual Severance

Back 191

Denominator problem -- dividing interests in the property

Front 192

Three Categorical Rules of Takings

Back 192

1.  Permanent physical occupation is a taking; 2.  Nuisance is not taking; 3. Denial of economical use is a taking

Front 193

Remedies for physical occupation or regulatory takings

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Just compensation

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Just compensation

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Market or fair value for a taking (not subjective value -- losses not included)