Term
| Real Estate Transactions - Duty to Disclose |
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Definition
Traditional - Caveat Emptor (let the buyer beware) there is no duty to disclose (Minority rule)
exceptions - conditions created by the seller or something that no reasonable buyer could discover
Majority Rule - there is a duty to disclose
Remedy - rescission of the contract |
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Term
| Real Estate Transactions - Fraudulent and Negligent Misrepresentation |
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Definition
actionable in all states
a. False representation
b. Knew of or should have known of falsity
c. Intent to induce
d. Reliance on that representation
e. Damage |
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Term
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Definition
i. Subject to equitable distribution on divorce
ii. Celebrity Status
1. Is marital property if the party without title has equitable claim to, interest in or contribution to its acquisition (Elkus v. Elkus)
iii. Degrees and Licenses
1. In some states
a. Courts rely on increased earning capacity and disregard tangibility (Elkus v. Elkus reasoning)
2. Not in others
a. Marital property is treated like conventional property. There must be exchange and transfer value, inheritability. (In Re Marriage of Graham). |
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Term
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Definition
1. There is a property interest in continued employment, so long as is agreed upon by contract or the rules of employment. (Board of Regents v. Roth)
a. If continued employment is not agreed to (fixed-term), you aren’t entitled to a hearing or reasons why employment is not renewed.
b. Property is created largely by rules and statutes, which make property something you have a legitimate claim of entitlement to. |
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Term
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Definition
i. General rule is that there is no property rights in human bodies
ii. Not once they are removed (Moore v. Regents), but the dissent suggests probably before they are removed. Court does not reach that issue, however.
1. You let them go when removed
2. Statutes calling for the disposal of removed tissue imply a limit on proprietary interests.
3. There is an interest in research, and the property complained of is an invention |
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Term
| Celebrity Status as Property |
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Definition
i. Right of publicity: Exclusive right to use your name and image for commercial purposes, including the right to prevent the commercial use of your name or image.
1. Can include name, likeness and identity, even if it is a robot that can be identified with Vanna White (Vanna White v. Samsung).
2. Transcends Death (CA Statute)
3. Unless creative content of appropriation outweighs any adverse effect on the market of the celebrity status (ETW v. Jireh) |
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Term
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Definition
Finder's Keeper's
1. When the owner no longer wants to possess it
2. If it is hidden, secreted, it isn’t abandoned because there is conduct consistent with a continued claim to the property (Bejamin v. Linder) |
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Term
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Definition
owner>finder>everyone else
1. Unintentional parting and does not know where it is.
a. Example: A man’s wallet falls out of his pocket as he is walking through the woods.
2. Lost Property Statutes can be limited to common law “lost property,” and not expanded to include all types of found property(Benjamin v. Linder Aviation)
3. Property is not considered lost unless there is an inference that it was left there unintentionally (Benjamin v. Linder Aviation). |
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Term
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Definition
owner>owner of premises where found>finder>everyone else
1. Owner leaves his property intentionally and overlooks or forgets where the property is.
a. Example: Owner sets his wallet on the counter at a coffee shop and then forgets to pick it up before leaving.
2. Given to the owner of premises before finder to make it possible for the owner to come back and find it. |
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Term
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Definition
Finder's Keeper
1. Hidden for such a length of time that the owner is probably dead or undiscoverable
2. Exception is the Ship Wreck Act, which is treasure trove belonging to the US when found in a wrecked ship |
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Term
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Definition
| property owner gets priority because it is considered the property itself. |
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Term
| Adverse Possession - Real property |
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Definition
i. Real Property (Adverse possessor must act like an average landowner). A trespasser is transferred all ownership rights and title in the land they wrongfully possess if they occupy the land against the true owner’s wishes for a long enough period of time.
1. Elements
2. Significant physical improvements or substantial activity or absolute exclusivity are not required to satisfy the elements. The possessor only need to use the land as an average owner would (Nome 2000 v. Fagerstrom)
3. Land owner can bring the claim to eject, with AP working as an affirmative defense, or adverse possessor can bring the claim to obtain title.
4. Most common case is between neighbors who don’t pay attention to exact location of their property lines. |
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Term
| Adverse Possession - Real property - Elements |
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Definition
a. Actual
b. Exclusive
c. Open and Notorious
d. Adverse (Hostile)
e. Continuous
f. Color of title (few states only)
g. Statutory period |
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Term
| Adverse Possession - Personal Property - Elements |
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Definition
a. Actual
b. Exclusive
c. Open and Notorious or Visible (Not all states)
d. Adverse (Hostile)
e. Continuous
f. Statutory period |
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Term
| Adverse Possession - Personal Property - Discovery Rule |
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Definition
begins at owner’s discovery or reasonably expected discovery of where property is
i. Benefit of the rule is dependent on whether:
i. Due diligence was used
ii. There were other effective methods than the one used
iii. Whether the prudent purchaser was put on constructive notice
ii. Burden of proof on the plaintiff to justify deferring the beginning of the period before defendant has to prove adverse possession |
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Term
| Adverse Possession - Personal Property - Demand and Return Rule |
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Definition
begins at demand for its return and defendant’s refusal (Guggenheim v. Lubell)
i. Before then, the possession is not wrongful.
ii. It is not prudent to impose a duty of diligence on owner before he has a reason to know where the missing chattel is to be found.
iii. Burden should not be placed on the wronged owner
iv. Laches defenses by possessor can still be valid, however (Guggenheim). |
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Term
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Definition
a. Will, inheritance.
b. It is not effective until the giver’s death |
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Term
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Definition
a. Elements:
a. Intent to make a present transfer
i. So others can’t lay claim to it
i. Giving a future interest (remainder) and maintaining a lifetime estate can still satisfy a present transfer (Gruen v. Gruen).
b. Delivery (actual or constructive)
i. To provide evidence that the gift was given
i. Painting was constructively given through letter (Gruen v. Gruen)
c. Acceptance
i. To protect people from having to accept unwanted gifts
b. Proponent of gift has the burden to prove these elements
c. A VALID GIFT IS IRREVOCALBE. |
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Term
| Contingent and Vested Interests in Property |
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Definition
1. Become vested interests once condition is met.
a. Contingent remainders have a condition precedent
2. Vested future interests are owned presently
a. Vested remainders subject to divestment have a condition subsequent
b. Vested remainders subject to open have a condition subsequent as well, but that condition does not devest but adds to future grantees (more siblings to share with)
3. Vested remainders subject to divestment and contingent remainders often depend on specific wording |
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Term
| Rule against perpetuities |
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Definition
2. Test.
a. There must be a contingent remainder or executory interest or vested remainder subject to open
b. What is the contingency that is to be satisfied?
c. Has the vesting been resolved (do we know who has the interest?)?
d. If not, will this occur within 21 years of a measuring life (someone alive at the time of the contract)?
a. If there is any logical possibility that it could take more than 21 years after the last surviving person alive at the time of the conveyance, it violates the rule |
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Term
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Definition
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Term
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Definition
1. Possible future interest of reverter to grantor
a. When condition is met, reversion is automatic
b. However, adverse possession clock ticks at condition
Possible revertor |
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Term
| Fee simple subject to condition subsequent |
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Definition
1. Future interest of "right of entry" for grantor
a. When condition occurs, owner must assert right of entry, not automatic.
b. There is usually “right of entry” language in the conveyance
c. Adverse possession clock ticks at assertion/entry
"Right of Entry" |
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Term
| Fee simple subject to executory limitation |
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Definition
1. Future executory interest to third party
a. Works the same as fee simple determinable |
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Term
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Definition
| Future interest of reversion to grantor and remainder in third party |
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Term
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Definition
| Future interest of reversion in grantor and a remainder in third party |
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Term
| Term of years - Leasehold |
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Definition
a. No notice required to terminate
b. Inheritable and alienable
c. Ends automatically and reverts
d. If it continues, it becomes either periodic or at will, with most courts preferring periodic |
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Term
| Periodic Tenancy - Leasehold |
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Definition
a. Notice must more than one term ahead of time
b. Inheritable and alienable
c. If the periods are annual, some states have a maximum notice requirements of 1 or 2 months |
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Term
| Tenancy at Will - Leasehold |
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Definition
a. No fixed period
b. Not transferable and terminates at death
c. Ends with notice |
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Term
| Tenancy at sufferance - Leasehold |
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Definition
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Term
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Definition
for less then the amount of time of the entire lease
a. Landlord can only go after lessee because there is no privity of estate with the sublessee |
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Term
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Definition
for remainder of term
a. Landlord can go after lessee (privity of contract) or sublessee (privity of estate)
b. It is still an assignment even if called a sublease by contract but is for the remainder of the term (Ernst v. Conditt)
c. Common law rule of construction – If the instrument purports to transfer for the remainder of lease term it is an assignment, regardless of intention
d. Modern rule of construction – The intention of the parties controls
i. Rogers, the original lessee, did not have an express or implied intention to maintain a right of reversion or right to reenter (Ernst v. Conditt) |
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Term
| Abandonment or surrender - Landlord and Tenant |
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Definition
1. Can be determined from subjective intent of tenant (Berg v. Wiley)
2. Remedies for Landlord:
a. Treat it as an offer to terminate and accept it
b. Treat it as the same and reject it. Relet it, but hold tenant liable in case of breach
c. Sue immediately for damages based on anticipatory breach, getting expectancy damages.
d. Wait out the lease term and sue for its entirety (Only some states)
3. Duty to Mitigate
a. Some states (The new majority rule): |
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Term
| Duty to Mitigate - Abandonment or surrender - Landlord and Tenant |
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Definition
a. Some states (The new majority rule):
a. Landlord burdened show he used due diligence in attempting to re-let the premises in order to bring action against a defaulting tenant (different burden than contracts) (Sommer v. Kridel)
i. Leases are more like contracts now, fairness requires it, and it discourages waste (Sommer v. Kridel)
ii. Landlord does not then necessarily lose an opportunity to fill a vacancy elsewhere (Sommer v. Kridel)
b. In some states, the Landlord cannot contract himself out of this duty to mitigate, but in others a contract can compel the tenant to mitigate for themselves in trying to get out of a lease.
c. The best option to get around mitigation is to put in an accelerated rent clause, requiring the remainder of rest to be due immediately on default.
b. Other states (traditional common law rule):
a. The landlord has no duty to mitigate (Stonehenge Square Limited Partnership v. Movie Merchants)
i. Prevents flood of litigation who question due diligence, this has been the law and people have relied on it, unfair to require a non-breacher to mitigate, tenants should mitigate their own damages (Stonehenge)
c. Many states will use the common law for commercial leases but the majority rule for residential leases
a. This may be because it is more difficult to find tenants for commercial leases, which may have unique spaces, constrained by zoning requirements. |
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Term
| Wrongful Detainer - Remedies - Landlord and Tenant |
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Definition
a. Common law self-help
a. Landlord is entitled to possession due to:
i. Breach of lease, or
ii. End of lease and reentry clause, and
iii. Peaceable means
i. Cannot be forcible, which is not limited to threats of violence (Berg v. Wiley)
i. If the tenant’s absence and self-restraint are the only things preventing violence, it is forcible.
ii. Changing of locks can be forcible
b. Judicial Remedies by statute
a. Might be the only form of peaceable means if remedies are in fact provided
b. Fast-track procedure for eviction
i. It is difficult for landlords to collect back rent, however |
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Term
| Wrongful Detainer - Retaliatory eviction - Affirmative defense - Landlord and Tenant |
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Definition
a. Retaliatory Eviction
a. It must be in response to a health code complaint
i. Statutes provide for and encourage a tenant to report health code violations (Building Monitoring Systems v. Paxton)
ii. Courts reluctant to provide the same for warranty of habitability complaints absent statute
b. Does not jeopardize the right to evict; tenant must prove retaliation (Paxton)
c. If retaliatory, landlord may only bring successful action after:
i. Defendant shows his actions aren’t retaliatory (Approach 1), or
ii. The health code violation has been remedied and reasonable time has been given to tenant (Approach 2)
i. Burden on defendant to show reasonable time has been given to the tenant in some states (Paxton, Approach 2b) |
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Term
| Right to evict - Landlord and Tenant |
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Definition
1. At the end of lease term, except:
a. Where there is rent control
b. For discrimination, or
c. Retaliation |
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Term
| Right to refuse subleasing and assignment |
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Definition
1. If not generally refused, consent cannot be unreasonably and arbitrarily withheld, and must be on commercially reasonable grounds (Kendal v. Pestana) (minority rule)
a. Commercially reasonable reasons:
a. Financial responsibility of the proposed assignee
b. Suitability of the property for the proposed use
c. Legality of the proposed use
d. Nature of the occupancy
e. Need for alteration
b. Leases have become seen as more of a contract than conveyance, so a refusal used as leverage to position oneself for more money than he bargained for is not commercially reasonable. (Kendal v. Pestana)
2. More absolute (majority rule) |
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Term
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Definition
a. Each has a separate interest which can be sold by either tenant and passed on in a will
b. Shares can be unequal, but on sale, proceeds are proportionate to the share
c. Each tenant has the right to possess the entire property.
d. Each tenant can sell, transfer, divide or will there interest without permission.
e. Law prefers tenancy in common because in the event of confusion, you are in for a rude surprise to find out you can’t pass on your share when you thought you could (Kipp v. Chips Estate).
a. Even if called a joint tenancy, if the document unambiguously describes a tenancy in common, that is what it is (Kipp v. Chips Estate).
b. A deed is unambiguous if it fairly admits one interpretation
i. Intent of the parties is only considered if there is true ambiguity. |
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Term
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Definition
a. Four unities
a. Time – acquired at the same time
b. Title – one document
c. Interest – equal shares
d. Possession – right to possess entire property
e. If any is severed, the joint tenancy is severed.
b. Right of survivorshipA’s interest goes to B when A dies
c. If one of the two tenants sells any part of the share, it becomes a tenancy in common. None of the unities can be disrupted.
d. If A leases to C and dies during tenancy, the tenancy is over and reverts to B.
a. B has no reason to know about A’s secret leases, and C should have investigated who owned the property
e. A joint tenancy can be preserved when the two owners agree to sell off part of the property. |
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Term
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Definition
a. Available only to married couples and cannot be severed unilaterally; conveyances must be done together.
b. The four unities are also required |
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Term
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Definition
a. Arguments for:
a. In kind partition impracticable or impossible
b. Nonconforming use of the property by a tenant
b. Generally, partition by sale is only available when in kind would be physically impracticable AND partition by sale best serves the interests of the parties. |
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Term
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Definition
a. Law presumes this best serves the interests of the parties (Delfino v. Vealencis)
a. To prevent people forced out of their homes.
b. They may place a higher subjective value on the land than market value
b. Especially preferable when:
a. Physically practicable
i. When possession is clearly split (Delfino)
b. Best interests of the parties
i. Must be weighed against each other and in favor of those with a homestead (Delfino)
ii. Objective – what the court thinks, not the parties |
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Term
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Definition
| Are generally revocable at any time. It is permission to enter land. A license runs with the person, not the land, because it is not an interest in land |
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Term
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Definition
benefits one parcel of land (that of the dominant tenement) and burdens another (that of the servient tenement).
1. Transferred when ownership of dominant tenement shifts. |
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Term
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Definition
benefits a person (who may live far off) or something other than a neighboring land.
1. Transferable unless stated otherwise
2. Should have limiting language, such as “right of way” in the granting clause, or it may be interpreted as a grant in fee simple (Urbaitis v. Commonwealth Edison)
3. Easements may revert back to the possessor if abandoned (not used for their intended purpose, such as a railroad easement now used to run electrical wires (Urbaitis v. Commonwealth Edison). |
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Term
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Definition
| Responsibility of the servient estate |
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Term
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Definition
a. Easement is given in a conveyance as an interest in land.
b. It generally provides the limits and scope as to what the easement can be used for. |
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Term
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Definition
a. Some states:
a. The right of revocation of the license is subject to the qualification that the licensee has exercised the privilege and erected improvements or made substantial expenditures in reliance on the license (Holbrook v. Taylor)
b. The use of the roadway for construction, to get to their home, and maintaining the roadway, all with consent of the servient tenant make a license irrevocable through easement by estoppel (Holbrook v. Taylor).
b. Other states:
a. Licenses aren’t subject to the statute of frauds for the very purpose that they are revocable. If licenses could in fact create a permanent interest in land, they would be subject to the statute of frauds and violate it. (Kitchen v. Kitchen)
i. If you run your irrigation through a neighbor’s property with his permission and then piss him off, you’re screwed (Kitchen v. Kitchen)
ii. This prevents rude surprises for property buyers. |
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Term
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Definition
a. The adverse possession of easements
b. Elements:
a. Actual – unlike adverse possession, path can deviate to an extent. There must be substantial identity.
i. This can be determined by the vulnerability of the road given the environment
b. Open and Notorious
c. Exclusive
d. Adverse – Difficult for beach goers to establish for a 20 year period. There will likely be permission at some point.
e. Continuous – there needs to be a substantial interruption to prevent use to break it.
i. Often enough where as the defendant’s efforts increased, so did the public’s efforts to assert its rights, removing barricades. It does not matter that some were turned away (Concerned Citizens v. Holden Beach Enterprises).
f. Statutory Period |
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Term
| Easement implied from prior use |
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Definition
a. Elements
a. Common Grantor
i. Dominant and servient tracts once existed as one parcel
ii. Satisfied when the easement existed when a developer divided and sold the land (Russakoff v. Scruggs).
b. Quasi Easement (as if there was an easement)
i. Must have existed when there was only one parcel
ii. Can be established in the deeds passing title after severance (Russakoff v. Scruggs).
c. Apparent, continuous and reasonably necessary
i. Apparent - In order that the buyer is put on notice of an easement
i. Building docks, piers, sprinkler systems make a lake easement apparent (Russakoff)
ii. Lack of notice to servient buyer, even though reasonably apparent, may destroy easement (Russakoff)
ii. Continuous - So that an easement still exists and is not recreated later to servient’s surprise
iii. Necessary – Helpful or adds to enjoyment of the property, intended for it to be continued as an easement
i. Can be a reasonable expectation that comes with buying property (Russakoff). |
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Term
| Easement implied by necessity |
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Definition
a. Exists where an owner 1. sells a landlocked parcel to another and 2. The landlocked grantee cannot otherwise access the road.
b. When you landlock yourself from the road, you cannot seek an easement by necessity through a third party neighbor (Schwab v. Timmons)
a. Otherwise, hidden easements would be sanctioned by the court. |
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Term
| Real restrictive covenants - Elements |
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Definition
i. Elements
1. Intent
a. Original parties must intend to bind their successors, not just themselves.
2. Touch and concern the land
a. Must concern A and B in their capacity as landowners, affecting legal rights of the parties
3. Privity of Estate between both parties |
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Term
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Definition
a. Horizontal Privity
b. VerticalPrivity
c. For enforcement
a. The benefited party must show vertical privity to the original owner, horizontal privity in the original covenant, and vertical privity between the original promisor and the current burdened party.
b. There is no vertical privity when the land is purchased from the promisor, even one day before that promisor sells an adjacent parcel with a covenant (Runyon v. Paley) |
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Term
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Definition
| There must be horizontal privity between the original parties of the covenant, with both having mutual interest in the maintenance of land. Grantee/Grantor, Landlord/Tenant, NOT neighbors |
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Term
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Definition
| a. There must be a relationship from original party to their successors of entire estate, generally only fee simple. |
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Term
| Abandonment of Real Covenants |
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Definition
1. When conditions have substantially changed that there is no longer substantial benefit to the dominant estate.
a. Public policy considerations may weigh in as well
2. Justified by the idea that it was implied by the original parties that the covenant would stop if there was no longer a benefit
3. covenant prohibiting the sale of liquor with the purpose of maintaining a residential church community becomes unenforceable where the community has transformed into a touristy beach town and brown-bagging has become a common practice (El Di v. Bethany Beach)
a. It is further unenforceable when non-enforcement results in better public policysuch as more ability to monitor consumption. (El Di v. Bethany Beach) |
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Term
| Abandonment of Real Covenants - Other Ways |
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Definition
1. Estoppel
a. When told to do something in violation of a covenant and reasonable reliance upon it or when you are violating the covenant yourself and try to enforce it
2. General abandonment
a. There is wide-spread non-compliance for a long period of time
3. Statute of Limitations
a. People wait too long to try to enforce it
4. Parcels (dominant and servient) merge
5. Release
a. All parties benefiting agree to release the burdened party
6. Restricted Duration
a. There is a time limit on the covenant |
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Term
| Equitable Servitudes - Elements |
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Definition
i. Elements
1. Intent
a. Original parties must intend to bind their successors, not just a personal agreement
a. If the original parties did not intend to benefit you or your property, whether by not being a party to the covenant, not being mentioned or your property not mentioned, even implicitly, then this element is lacking (Runyon v. Paley).
2. Touch and Concern
a. Must concern A and B in their capacity as landowners
3. Notice
a. Actual or constructive notice of the restriction upon purchase, often available through public records.
MUST BE REASONABLE |
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Term
| Reasonableness of Equitable Servitudes |
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Definition
2. California Civil Code requires that CC&Rs in common interest development be reasonable to be enforceable
a. Elements
a. Benefits to the development must outweigh harmful effects
b. Must be a rational relationship between rule and goal
i. A no dogs or cats policy, while allowing birds and fish is reasonable for health, noise and sanitation concerns (Nahrstedt v. Lakeside Village)
c. Cannot violate public policy
b. Reasonableness is considered for the community as a whole, not applied to a particular owner (Nahrstedt v. Lakeside Village)
c. Unclear whether a housing tract is a “common interest development.”
3. In states that don’t have such a statute, CC&Rs made later by an association have to be reasonable, but the original CC&Rs by the developer don’t have to be. |
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Term
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Definition
| There must be ownership or a right of possession in the first place |
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Term
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Definition
i. There must be actual damage, even for injunctive relief
1. Steps to prevent the “injury” do not count as injury (Intel v. Hamidi)
2. Does not include unwanted use of an electronic communication system when the communication does not damage the system or impair its functioning (Intel v. Hamidi)
3. Must slow down the server or threaten to do (by others replicating the complained of act (Intel v. Hamidi)
ii. It must affect the possessory interest in the property
iii. Must the harm be to the property itself or a possessory interest (Intel v. Hamidi) |
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Term
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Definition
i. Action protects the right of exclusion and right to exclusive possession
ii. Remedy of ejection (Nome 2000 v. Fagerstrom)
1. Barred by statute of limitations when the elements of adverse possession are met |
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Term
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Definition
Non-trespassory invasion of property rights, when the harm or risk is greater than ought to be required to bear under the circumstances without compensation.
vi. Factors considered generally:
1. Location (rural or suburban or urban?)
2. Character and extent of defendant’s activity. Factors:
a. The social value
b. The suitability of the conduct to the character of the locality
c. The impracticability of preventing or avoiding the invasion
a. Barring one from building a home that would block solar access will not hinder development
3. Plaintiffs harm. Factors:
a. Extent
b. Character
c. Social value of enjoyment invaded.
a. Access to sunlight can carry social value once rejected, as a source of energy (Prah v. Maretti)
d. Suitability of the enjoyment invaded to the character of the locality
4. Priority (who was there first – no absolute priority)
5. Relative social value
vii. Remedies
1. Injunction
2. Damages
3. Purchased Injunction: P must pay D the cost of the injunction for him, such as shutting down. |
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Term
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Definition
1. Except for an owner of a house renting out rooms, unless she advertises
2. No discrimination based on race, color, religion, sex, familial status, or national origin, or disability without reasonable accommodation.
a. Technically bans sex discrimination even in subletting, but not enforced due to intent considerations.
3. Familial status is interpreted as having children under the age of 18 |
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Term
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Definition
(state statutes)
1. Is refusing housing to people because they are single, divorced, married or widowed (all applicable states)
2. Is not refusing to rent to unmarried couples (Mister v. ARK Partnership, some states)
a. Fornication statute in place at the time of the act made such action a crime
b. Law will not protect the same thing it intends to prohibit, but it might take a middle of the road in not prohibiting and not protecting (Mister v. ARK Partnership)
3. Includes refusing to rent to unmarried couples (other states) |
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Term
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Definition
i. Police power of the state delegates its power to zone to provide for the general welfare to municipalities through Zoning Enabling Statutes
ii. Municipalities then enact zoning ordinance |
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Term
| Architectural Boards - Zoning Ordinances |
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Definition
a. Most courts have upheld them
b. Have been upheld on the ground that they are related to the general welfare of the community, which the statute provides as a goal, because aesthetics affect property value, especially where an ultramodern and hideous house proposal would destroy the character of a traditional neighborhood of colonial, provincial and tudor houses. (State ex rel. Stoyanoff v. Berkeley)
c. Counterargument: general welfare requires that minimum standards be met, not aesthetic ones, and the enforcement by architecture boards is arbitrary and based on personal taste, rejecting buildings on the grounds that they are ugly. |
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Term
| Excluding the poor and moderate income - Zoning Ordinances |
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Definition
| a developing municipality must make it realistically possible for an appropriate variety and choice of housing available that is appropriate and the fair share of the present and prospective regional need |
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Term
| Planning Commissions - Zoning Ordinances |
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Definition
1. Administrative agencies that interpret the ordinances in decisions of whether to approve or disapprove buildings.
2. Their purpose is to ensure that landowner’s land will be objectively judged and measured
3. They cannot use their own discretion to disapprove when minimum requirements are met.
a. “Marginal Growth Development,” when growth development is not a minimum requirement for a building, is outside of the Planning Commission’s authority |
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Term
| Expansion of Non-conforming Uses - Zoning Ordinances |
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Definition
a. They cannot be extended or intensified so as to cause substantial change to the nonconforming use.
a. However, a substantial change may be justified on the grounds that it was necessitated by legal obligation in the interest of the community.
b. Substantial change factors
i. Extent to which the challenged use reflects the nature and purpose of the original nonconforming use
ii. Whether the use is just a different manner of use or different use all together
iii. Whether the new use will have a substantially different impact on the neighborhood. |
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Term
| Amortization of Non-conforming Uses - Zoning Ordinances |
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Definition
a. A time limit for a prior non-conforming use to convert, sell, etc. to conform to the ordinance.
b. Struck down in some states as an unconstitutional taking
c. Upheld in the majority of states as long as the amortization clauses are reasonably long.
d. Periods are longer for nonconforming buildings than nonconforming uses.
e. Courts universally find that if a use of a property is amortized, even if amortization is constitutional, and that property is sold, the new owner can only have the nonconforming use for the rest of the amortization period. No tacking on.
f. Amortization provisions originally came into place because prior non-conforming uses often flourished because it would create a local monopoly, such as one adult bookstore left in a town. |
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Term
| Variances - Zoning Ordinances |
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Definition
1. Allows one to violate the ordinance. Contrasts with an exception or spot zoning, which is built into the ordinance.
2. Lot and building variances are common; use variances less so.
3. Can be given by an entity separate from the Zoning Board, such as a Board of Adjustment. Authority for granting variances is laid out by statute, in a statute similar to the zoning enabling ordinance.
4. Are allowed or required in order to replace the rigid rules often found in zoning ordinances as standards. |
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Term
| Lot Variances - Zoning Ordinances |
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Definition
a. Undue hardship due to the shape and size of one’s lot
Test is whether the unique property is the primary reason for nonconformity
b. The benefit of the variance would outweigh the detriment and advance the purposes of the zoning ordinance
c. No detriment to the public good |
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Term
| Public Use - Eminent Domain |
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Definition
| Does not have to be used by the public More like Public benefit urban renewal to eliminate an oligopoly better use |
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Term
| Compensation - Eminent Domain |
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Definition
1. One line of cases measures compensation by the fair market value of the property, while another measures compensation by the owner’s loss. In most cases, these numbers will be the same, intuitively.
2. When attorney’s are required to place their client’s held money into IOLTA accounts, going to public interest foundations that provide legal services to the indigent, when they could not gain interest on the accounts elsewhere, they suffer a per se taking, but they are not entitled to any compensation because their net loss is zero |
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Term
| Penn Central - Eminent Domain |
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Definition
a. Compensation is dependant on whether:
a. It interferes with a primary investment backed expectation of use of the property
i. Owner’s aren’t entitled to their most beneficial use of their property.
b. The character of the government regulation or action
i. There is an ends/means analysis
c. The regulation singles out one or a small group of property owners |
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Term
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Definition
| a. Occurs when a regulation renders a property “valueless” or sacrifices all economically beneficial use of the land. b. Just compensation is required, regardless of the legitimacy of the public purpose behind it c. As long as there is no nuisance, meaning that the owner had no right to do what he complains of to begin with, he is entitled to compensation. a. Nuisance here is determined by: i. Degree of harm to public lands, resources or adjacent property ii. Social value of the proposed activity iii. Ease in which the harm can be avoided d. A plaintiff who purchases two lots for the purpose of developing houses must be compensated for them if a Beachfront Management Act prohibits him from building occupiable improvements on them (Lucas v. South Carolina Coastal Council). One who buys the property after the regulation goes into place can still have a valid claim, but the compensation given will be based on property value given the new regulation, as the property buyer should have been on constructive notice. |
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Term
| c. Native American Right of Occupation |
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Definition
i. Indians hold a right of occupation to the lands they are on, but the United States holds title to those lands.
ii. Only the United States can transfer title of those lands
1. The lands sold to settlers that were not even yet acquired from the Indians have good title, but they are subject to the Indians’ right of occupancy
2. A plaintiff cannot eject the defendant from land he purchased from the Indians because only the US can sell those lands (Johnson v. M’Intosh).
iii. Only the United States can purchase those lands from the Indians
iv. UNCLEAR: Whether the US can take away the Indian’s right of occupancy or whether they must purchase it |
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Term
| Breach of Implied Warranty of Habitability |
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Definition
a. Old rule left landlord no duty to repair or maintain the premises (leasehold was seen as conveyance)
b. Leasehold now treated as a contract
c. Can be triggered in three ways:
i. When the problem occurs
ii. When the tenant notifies the landlord
iii. When a reasonable amount of time expires for the landlord to fix it.
d. Can be used as a defense because it relates directly to the right of possession (Green v. Superior Court)
i. Tenants do not have long-term interests in apartments typically, tenant-landlord asymmetry, tenant inspection and repair is typically difficult or impossible
e. Repair and deduct remedy under statute is not the tenant’s only remedy for warranty breaches because its remedy is only adequate for minor habitability problems (Green v. Superior Court)
i. Other remedies:
i. Termination of tenancy (with required notice)
ii. Withholding rent
iii. Abating/reducing rent
iv. Suing for damages (recovering rent already paid or cost of finding a new apartment
v. Specific performance/injunctive relief
ii. Remedies in rent reduction will be measured often by the reduction in fair market value of the leased premises |
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