Servitudes
How are easements terminated?
Abandonment: nonuse of easement and intent to relinquish it; Prescription: servient estate adversely possesses easement for SOL; Merger: servient estate acquires dominant (vice-versa)
What case discussed the state action doctrine related to racially restrictive covenants?
Shelley v. Kraemer
What is a nuisance?
A nontrespassory, substantial, and unreasonable interference of another’s interest in the use or enjoyment of land. (We are dealing with interference with the right to use)
What is eminent domain and what is a regulatory taking?
When the government explicitly buys a property and pays this is called eminent domain. Regulatory Taking is when the government regulates a property. The owner argues that his regulations amounts to taking and the government must pay.
What is the common plan exception to the writing requirement for covenants?
Where a developer has manifested a common plan to impose uniform restrictions on a subdivision, all lots are burdened and benefitted by restrictions even if they do not appear in every chain of title for every lot.
What are the elements required for a covenant burden to run? What about the benefit?
(1) Statute of Frauds (writing); (2) Notice; (3) Intent to bind successors; (4) Touch and Concerns land; (5) Horizontal and (6) vertical privity.
(1) Statute of Frauds (writing); (2) Intent to bind successors; (3) Touch and Concerns land; (4) Horizontal (sometimes) (5) vertical privity.
What is the Nahrstedt apporach to servitude enforceability?
CCR presumptively valid Unless it Violates public policy or Is arbitrary in that it bears no rational relationship to the preservation, operation or purpose of the affected land.
What three tests apply when analyzing the "unreasonable interference" portion of a nuisance?
Nuisance Per Se
Gravity of the Harm
Restatement Balancing Approach
What is rational basis review?
1. Legitimate public purpose
2. means chosen are rationally related to that purpose
3. law upheld if not irrational or arbitrary
What is the Euclidian zoning rule?
A zoning ordinance is valid unless its provisions are clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare
What was significant about Neponsit?
Before, a covenant to pay a sum of money is a personal affirmative covenant which usually did not touch and concern the land. Now, a covenant can affect the legal relations of the parties to the covenant, as owners of particular parcels of land and not merely as members of the community in general.
What is the restatement approach to servitude validity?
CCR presumptively valid Unless violates public policy in that:
Is arbitrary, spiteful, or capricious
Unreasonably burdens a fundamental constitutional right
Imposes an unreasonable restraint on alienation
Imposes an unreasonable restraint on trade or competition
Is unconscionable
What are the elements for the restatement balancing approach?
Gravity of Harm:
1. Suitability to locality's character
2. Social value attached to P's use
3. Character of harm involved
4. Extent of harm involved
5. Burden on avoiding harm for P
Utility of D's Conduct
1. suitability to locality's character
2. Impracticability of avoiding invasion
3. Social value attached to D's use
What are the four differing justice opinions from Kelo v. City of New London?
Stevens (Maj) : Public Purpose: A state can use eminent domain to redistribute property from private individuals to other private individuals as “public use” if it is rationally related to a conceivable public purpose.
Kennedy (CC):
No incidental or pretextual public benefits: When uses/transfers are suspicious, procedures employed are prone to abuse, or uses appear trivial/implausible, the court should presume an impermissible private purpose.
O'Connor (D): Harm v. Benefit: Only if existing use is affirmatively harmful to a neighboring property should the government take it. A public purpose is realized when harmful use is eliminated. Anything can be justified to be a “benefit.”
Thomas (D): Use by the public: The government can take property only if the government owns, or the public has a legal right to use the property as opposed to any public purpose or necessity whatsoever.
What is the FHA Disparate treatment burden shifting framework?
Establish prima facie case of discrimination: (1) Membership of protected class; (2) had qualifications to buy/rent; (3) Adverse action based on class membership; (4) different treatment/housing opportunity was available to other applicant not in the rpotectect class.
If satisfied, burden shifts to D to show adverse action was motivated for a legitimate non-discriminatory reason
If satisfied, P needs to show those reasons were pre-textual (excuse)
what are the elements for an equitable servitude and what is its typical remedy?
1. Statute of Frauds (writing) 2. Intent 3. Notice 4. Touch and Concern
Injunction as damages
What is horizontal and vertical privity?
Vertical Privity: Relationship between original party to the promise and successor. Title passes from titleholder to new owner
Horizontal privity: Relationship between original parties to promise
What are the possible damages for a nuisance?
Injunction and monetary damages.
Traditionally an injunction, but after Boomer, a P will be granted an injunction only if their harm exceeds the costs by D. (Using RS approach)
Can purchase an injunction which allows the nuisance to continue but the P be compensated with damages.
In del webb, a retirement community moved to the nuisance (cow farm) and they had to pay the cow farm's relocation fee.
What is the Penn central balancing test?
(1) Economic impact on Claimant, [Consider the denominator here] (2) Interference with distinct investment backed expectations, and (3) character of government action.
What is the scope of FHA?
Encompasses all properties except: Owner occupied buildings with fewer than 4 units and single family housing rented/sold by owner of three or fewer houses without use of a broker. Applies to municipalities, private parties and recipients of federal funds
What are the restatement elements for a covenant?
1.) Statute of frauds (writing) 2.) Intent 3.) Notice 4.) Not unreasonable
What are the elements for an easement by prescription?
(1) Actual use; (2) Open and notorious (visible); (3) Adverse/Hostile (nonpermissible); (4) Continuous; (5) For statutory period. [Same as AP, but no exclusivity]
Adverse Hostile Element
Objective (Majority): Use land as reasonable owner would w/o permission
Subjective (minority): must have good faith belief in their right to use the land
What is a nuisance per se?
Spite; severe harm; avoided without undue burden
What is an exaction and when is it a taking?
Exaction: government imposes requirement that a project developed provide certain public benefits to offset the impact of the project on the public.
An exaction is a taking if: There is not an essential nexus between the exaction and a legitimate state interest, OR The exaction is not roughly proportional to the impact of the project
What is a limit on zoning established by Mt. Laurel?
Zoning regulation must serve the general welfare of the entire state and are valid when they are served. Benefitting a municipality’s local economic situation is never a valid reason to exclude housing for an entire group. Cannot constructively prevent low and moderate income families from residing in a town. (Laurel- protects economically disadvantaged)