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93 Cards in this Set

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A remedy imposed by the court ordering a party to cease the conduct of a specific activity
Nuisance Per Accidens:
An action, occupation or building that becomes a nuisance due to its location or method of operation
Nuisance Per Se:
An action, occupation or building that is a nuisance at any time & under any condition
Private Nuisance:
An unlawful use of property interfering w/ the enjoyment of the private rights of an individual or a small number of persons
Balancing Test:
Court's balancing of an individual's constitutional rights against the state's right to protect its citizens
A defense to liability for unlawful activity where the conduct is unavoidable & is justified by preventing the injury to life or health
An unlawful use of property that interferes w/ the lawful use of another's property
Proximate Cause:
Something that causes a result in the natural sequence of events w/o which an injury would not have been sustained
Temporary Damages:
Monetary compensation awarded by the court to a party for injuries sustained as the result of another party's occasional wrongful actions
"Coming to the Nuisance":
A claim may be weakened when a P moves to the D's established locale
Compensatory Damages:
Measure of damages necessary to compensate victim for actual injuries suffered
Quasi-Dominant Tenement:
Property whose owners benefit from the use of another's property
Quasi-Servient Tenement:
Property that is burdened in some aspect for the benefit of a dominant estate
The taking of private property for public use so long as just compensation is paid therefor
Dominant Estate:
Property whose owners benefit from the use of another's property
Servient Estate:
Property that is burdened in some aspect for the benefit of a dominant estate
Capable of being transferred or conveyed
A burden attached to real property that either benefits or burdens the owner's right to utilize that property
The right of a party to pass over the property of another
A Gov. action that substantially deprives an owner of the use & enjoyment of his or her property, requires compensation
A written promise to do, or to refrain from doing, a particular activity
Divers Mesne Conveyance:
A conveyance falling b/w the original owner & the present owner in the chain of title
Owner in Fee:
An owner of an absolute & unlimited interest in property
Title Abstract:
Summary of the history of a title to property
Judicial Sale:
A sale of property by a sheriff pursuant to a judgment
Privity of Estate:
Common or successive relation to the same right in property
"Run w/ the Land":
Covenants that are binding on successor in interest to the property to which they are attached
Changed Conditions:
A defense to a claim of ameliorative waste, based on the theory that a change in the surrounding area warranted the alterations to the property
Perfect Title:
Total right of possession & disposition over particular property
Covenants, Conditions, & Restrictions (CC&Rs):
That residents of a condo development agree to abide by when they take ownership of a unit in that development
Declaratory Relief:
A judgment of the court established the rights of the parties
Business Judgment Rule:
Doctrine relieving corporate directors &/or officers from liability for decisions honestly & rationally made in the corporation's best interests
Blanket Prohibition:
A prohibition that is absolute
Arbitration & Capricious Standard:
Standard imposed in reviewing the decision of an agency or court when the decision may have been made in disregard of the facts or law
Euclidean Zoning:
A zoning scheme whereby zoning districts are established based on the uses permitted pursuant to local ordinance
Just Compensation:
The right guaranteed by the 5th Amendment of a person, when his property is taken for public use by the state, to receive adequate compensation in order to restore him to the position he enjoyed prior to the appropriation
Kohler Act:
Legislation passed in 1921 that prohibited the mining of coal that would cause the caving in, collapse, or subsidence of a number of specific structures or public facilities
Regulatory Taking:
A governmental action that substantially deprives an owner of the use & enjoyment of his property, whereby the application of a law or regulation deprives the owner of economically viable use of his property, requiring compensation
Sic Utere Tuo Alienum Non Laedas:
One should use one's own property in such a way as not to injure the property of another
Liable when his conduct is unreasonable under the circumstances of the particular case
Liable when his conduct is negligent, reckless, or ultra hazardous
Elements of Unreasonable Interference:
(1) Unreasonably interfered w/ P's use or enjoyment of a protected possessory right
(2) Substantially interfered
(3) W/ P's use or enjoyment of a protected possessory right
RST Elements:
(1) The gravity of the harm caused outweighs the utility of actor's conduct, or
(2) if the harm caused by the conduct is serious & the financial burden of compensating for this & similar harm to others would make the continuation of the conduct not feasible
Lateral Support:
Refers to that provided to 1 piece of land by the parcels of land surrounding it
-Imposes duty of neighboring land to provide support would need & receive under natural conditions
-Liability is absolute
Subjacent Support:
Refers to support from underneath as opposed to the sides
-Same duty as Lateral
-Duty arises when 1 person owns surface rights & another owns some kind of subsurface rights (mineral interests)
Private Nuisance:
Affects a single individual or a definite small # of persons in the use & enjoyment of their private rights tot he land not common to the public
-Only owners of interest in land can bring suit
Public Nuisance:
Affects the rights enjoyed by citizens as a part of the public
-Nuisance must affect a considerable # of people or an entire community or neighborhood
-Must be a danger to health
-Can only be by Affected people shown by special injury
Special Injury:
Injury of damage of a kind different from that suffered by other members of the public
Danger to Health:
Any condition or place in populous areas which constitute a breeding place for flies, rodents, mosquitos, & other insects which are capable of carrying & transmitting disease-causing organisms to any person or persons
4 Rules to Resolve Nuisance:
(1) Abate the activity in question by granting P injunctive relief
(2) Let the activity continue if the D pays damages
(3) Let the activity continue by denying all relief
(4) Abate the activity if the P pays damages
Types of Private Land Controls:
(1) A is given rt. to enter upon B's land
(2) Profit
(3) Homeowners Assign Restrictions
(4) A is given the rt. to require B to do something to B's land
(5) Pay Monthly Dues
2 Types of Easements:
1. Affirmative Easements
2. Negative Easements
1. Affirmative Easements:
Allows someone to do something, a specific purpose, to the servient parcel (part of the land that someone comes onto)
2. Negative Easements:
A restriction on the servient parcel
-Allows someone to servient another from doing something w/ servient parcel
-Generally limited to: light, air, bldg support, artificial stream flow
Implied Easements:
Implied from prior use when the use was in place at a time a single parcel of land was divided into 2 parcels
-If reasonable parties would have found an easement had they discussed the issue
Implied Easement Elements:
(1) Unity of Ownership
(2) The use was in place before the parcel was served
(3) The use was visible or apparent
(4) The easement is necessary for the enjoyment of the dominant estate (necessity)
"Right of Way"
-Usually used in landlocked property cases
Necessity Elements:
(1) Unity of ownership
(2) Necessity for egress & ingress existed at the time of severance
(3) The easement is strictly necessary (For effective use) for egress & ingress to the landlocked parcel
Been adversely doing it continuously & long enough to create an easement
-Similar to adverse possession
-Negative Easements CANNOT be prescribed
Prescription Elements:
(1) Actual Use
(2) Open & Notorious
(3) Hostile
(4) Continuous & Uninterrupted
(5) Exclusive
(6) For the Statutory Proscribed Period
Scope of Easement:
The extent of use an easement holder may make on the servient estate
Scope of Easement Elements:
(1) Location
(2) Intensity of Use
(3) No Benefit
(4) Improvements, Maintenance, & Repair
(1) Location:
The easement must be located & described in the grant any use outside of what is expressly provided is trespass
-Implied easements are limited to the prior uses
-CANNOT be changed or moved unless both parties consent
(2) Intensity of Use:
The easement holder can use the easement for w/e he is authorized to so long as he does not overburden the servient estate
(3) No Benefit:
On non-dominant party allowed
(4) Improvements, Maintenance, & Repair:
Easement holder has the right to repair so long as they do not unreasonably interfere w/ the servient estate
-Easement holder also has a duty to repair any damages it has caused to the servient estate
Easement Termination:
(1) Property is Destroyed
(2) Set Term Expires
(3) Properly Revoked (Breach in Original Agreement)
(4) Use of Easement Abandoned
(5) Use of Easement Forfeited
(6) Original Necessity No Longer Exists
(7) Merger of the Dominant/Servient Parcels
Real Covenant Elements:
(1) Intent to bind successors
(2) Touch & concern the land
(3) Privity of estate
Horizontal Privity:
Refers to the necessary relationship b/w the original parties to the covenant to run w/ the land
-Created only when there is an interest in land transferred
Vertical Privity:
Refers to the relationship b/w an original party & those subsequent purchasers tracing their interest in the benefited or burdened property back to the original parties
-Original covenant must convey ENTIRE interest to subsequent purchaser
-Required possessory interest
Equitable Servitude Elements:
(1) Intent to bind successors
(2) Touch & concern land
(3) Notice
Termination of Covenants/Servitudes:
-By terms of covenant
-Unclean Hands
-Changed Conditions
Zoning Police Power:
Founded on the right of the state to protect its citizens, to provide for their health, safety, & welfare & progress & to insure the good of society
Foundation of Modern City Planning:
(1) Separation of Uses
(2) Protection of the Single-Family Home
(3) Low-Rise Development
(4) Medium-Density of Population
Euclidean Zoning:
Districts are graded from "Highest" (Single-Family residences) to "Lowest" (Worst Kind of Industry)
-Uses permitted in each district are cumulative
-Higher uses are permitted in areas zoned for lower uses but not vice versa
Structure of Zoning Authority:
a. Enabling Legislation
b. The Comprehensive Plan
a. Enabling Legislation:
Standard state zoning enabling act empowers municipalities to regulate & restrict the height, # of stories, & size of bldgs & other structures, the % of lot that may be occupied, the size of yds, courts, & other open spaces, the density of population, & the location & use of bldgs, structures & land for trade, industry, residence, or other purposes
-Must be in accordance w/ a comprehensive plan
b. The Comprehensive Plan:
A statement of the local gov's objectives & standards for development based on surveys & studies of the city's present situation & future needs
The Nonconforming Use:
If a business existed prior to the enacting of an ordinance that construes the business nonconforming, the city cannot force the business to move
The ability of the general zoning ordinance to make adjustments to grant relief from the zoning ordinance b/c of practical difficulty or UNNECESSARY HARDSHIP
-Most are done by a board of adjustment
Unnecessary Hardship:
-Must not be self-created
-No variance can result in substantial detriment to public health, safety or welfare
-No variance can result in a substantial departure from the comprehensive plan
Special Exceptions:
Allows a board of adjustment to permit certain uses if special conditions are met
-Certain uses can coexist w/ other uses if specific conditions are met
-NOT based on hardship, therefore, NOT a variance
Having agreement or in line w/ something
"It would be consonant w/ the interest of my client..."
Zoning Amendments:
Local zoning boards, like municipalities, have NO inherent authority to regulate the use of private property
-Power to regulate must be delegated w/ specific guidelines & restrictions so that the authority will retain & will NOT be left to the purely arbitrary discretion of the administrator
Spot Zoning:
A label applied to certain zoning amendments invalidated as legislative acts unsupported by any rational basis related to promoting public welfare
-Applies to zoning changes
Zoning Tests:
a. Rational Basis Test
b. Substantial Evidence Test
c. Strict Scrutiny Test
a. Rational Basis Test:
As a legislative act, a zoning or re-zoning classification must be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare, or that the classification amts. to the taking w/o compensations
-Applies regardless of the size of the tract of land involved
b. Substantial Evidence Test:
You must have substantial evidence to support the decision to re-zone
-Midway b/w rational & strict
c. Strict Scrutiny Test:
Strike down re-zoning classification request unless there is a compelling governmental interest to support based upon substantial evidence
Public Use:
Government cannot take private land & give it to private individuals, the use must be public or for the public's benefit
Where the government limits uses in order to obtain permits
"Rough Proportionality" Test:
No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication [exaction] is related both in nature & extent to the impact of the proposed development
Exaction Elements:
(2) The nature & scope of the condition must be roughly proportional to the impact of the proposed development