Real Property#6, Cross Over Issues, Trespass, Nuisance, Eminent Domain, Zoning

Front 1

Trespass to land

Back 1

Intentional, voluntart act causing physical entry onto the land of another without permission. Entry is by D;s self, 3rd party or object.

Front 2

Public nuisance

Back 2

Unreasonable conduct which cuases unreasonable interference with P's right to use & enjoy public land.

Front 3

Private nuisance

Back 3

Conduct by D which causes substantial & unreasonable interference with P's use & enjoyment of his property.

Front 4

Private nuisance--nature of conduct

Back 4

Either intentional and unreasonable (balancing test) or negligent, reckless or unusually hazardous, but the act need not be intentional or neg. to constitute a nuisant. Objective test--conduct must be offensive to a person of average sensibilities. Reasonable test--conduct v. gravity of harm.

Front 5

Private nuisance--recoverable damages

Back 5

All harm resulting proximately from the nuisance both personal & property

Front 6

Public Nuisance

Back 6

Conduct by D which creates unreasonable, substantial interference with the health, safety &/or convenience of the public.

Front 7

Inverse condemnation

Back 7

Action brought by property ovwner for compensation from a gov, entity that has taken the owner's property rights.

Front 8

Private nuisance--3 types of interference which may be basis of claim

Back 8

1. Land itself--polution, ground shaking causing buidling damage
2. Health--pollution, noxious odors
3. Peace of mind--funeral palor, leper colony, explosives factory

Front 9

Private nuisance--balancing test used to determine whether D's use is unreasonable

Back 9

Utility of D's conduct v the severity of P's injury

Front 10

Remedies for private nuisance

Back 10

Temporary--past & present damages & perhaps injunction (if continuing). Permanent--past, present & future damages

Front 11

Remedies for trepass

Back 11

Remedies for past trepass & injunction against future

Front 12

Eminent Domain

Back 12

Power of government
1. to seize private prop
2. for public use
3. upon payment of just compenstion

Front 13

Just compensation is

Back 13

FMV--$ must reflect the most profitable possible use--regardliess of use intended--FMV does not included consequential damages

Front 14

Taking

Back 14

any interruption in the ordinary use + enjoyment of property. need only be partial + temp to qualify

Front 15

Must the gov keep the prop

Back 15

No, land can go to private corp, e,g, for urban renewal project. Test is that the taking is advantageous to the public

Front 16

Zoning

Back 16

means of land regulation via the enactment of statutes designed to protect the health, safety, morals or welfare of the public

Front 17

When does zoning ordinance rise to the level of a taking?
3 tests

Back 17

1. reasonable return
2. balancing
3. prevention of harm

Front 18

Reasonable return text--when zoning is a taking

Back 18

Most common. If the zoning reguilation is so burdensome that the landowner can't recover a reasonable return on his investment in the property--i.e. the zoning reg makes the land economically worthless

Front 19

Balancing test--when zoning is a taking

Back 19

court weighs the private hardship created against the public benefit it creates. If the private hardship is greater, there is a taking requiring just compensation

Front 20

Prevention of harm test--when zoning is a taking

Back 20

a zoning reg designed to prevent harm to public cannot be a taking, because it is considered a noncompensable exercise of police ower. If it is designed to benefit the public, it is a taking requiring compensation. Often difficult distinction.

Front 21

Non-conforming use

Back 21

use that violates a zoning ordinance, but it existed before the reg, Landowner can continue use until his investment is amortized his investment as long as it doesn't endanger health or safety. He has no Con right to expand further or rebuild if prop destroyed.

Front 22

Variance

Back 22

Admin. action to allow prop owner to avoid zoning restriction

Front 23

What is standard for determining whether a zoning variance should be granted?

Back 23

1. unreasonable economically for land to be used for zoned purpose
2. unique circumstances of property owner not shared with general neighborhood condition makes the zoning unreasonable
3. essential character of the neighborhood will not change if the variance is granted.

Front 24

Euclidean zoning

Back 24

most common type in which a city is separated into use districts--residential, commercian or industrial

Front 25

Spot zoning

Back 25

single parcel (or few) of land is used in a way inconsistent w/ neighborhood. Illegal unless as part of a comprehensive plan for the general welfare

Front 26

floating zone

Back 26

zoning ordinance establishes a zone w/in a particular use w/o specifying use