Property Flashcards
(118 cards)
1
Q
Fee Simple Absolute
A
largest estate recognized; can be sold, divided, devised, or inherited and has potentially infinite duration; presumed contrary intent
2
Q
Fee Simple Determinable
A
terminates upon happening of stated event and automatically reverts to grantor [for so long as, while, during, until]; can be conveyed but takes subject to condition; grantor has possibility of reverter
3
Q
Fee Simple Subject to Condition Subsequent
A
grantor reserves right to terminate estate upon happening of stated event [provided that, but if, upon condition that]; grantor retains right of entry
4
Q
Fee Simple Subject to Executory Interest
A
terminates upon happening of stated event and then passes to third party
***If purpose of condition is to penalize marriage or encourage divorce, will be struck down; if purpose to give support until marriage, valid
5
Q
Fee Tail
A
inheritability is limited to lineal heirs [heirs of body]; most jurisdictions have abolished and creates fee simple
6
Q
Life Estate
A
measured by life of person [life of grantee or pur autre vie – life of another]; grantor holds a reversion
7
Q
Waste
A
life tenant entitled to ordinary uses and profits of land but cannot do anything that injures interests of remaindermen/reversioner
8
Q
AFFIRMATIVE Waste
A
exploitation of natural resources by life tenant limited to situations when (1) necessary for repair or maintenance of land; (2) land suitable only for such use; (3) expressly or impliedly permitted by grantor;
9
Q
PERMISSIVE Waste
A
obligated to (1) preserve land and structures in reasonable state of repair, (2) pay interest on mortgages, (2) pay ordinary taxes on land, (4) pay special assessments for public improvements of short duration – life tenant fails to do so;
10
Q
AMELIORATIVE Waste
A
change that benefits property economically but can demolish existing buildings if (1) market value of future interests is not diminished, and either (2) remaindermen do not object OR (3) substantial and permanent change in neighborhood conditions deprived property in its current form reasonable productivity/usefulness
11
Q
Remainder
A
future interest in third person that can become possessory on natural expiration of preceding estate; must be expressly created
12
Q
Indefeasibly Vested
A
created in existing and ascertained person and not subject to condition precedent – right to immediate possession upon normal termination
13
Q
Subject to Open
A
created in class of persons that is certain to become possessory but subject to diminution
14
Q
Total Divestment
A
subject to condition subsequent
15
Q
Contingent Remainder
A
created in unborn or unascertained persons, or subject to condition precedent
16
Q
Executory Interests
A
future interests in third parties that either divest a transferee’s preceding freehold estate (shifting interests) or follow gap in possession or cut short grantor’s estate (springing)
17
Q
Destructibility
A
contingent remainder destroyed if it failed to vest before or upon termination of preceding freehold estate
18
Q
Rule in Shelley’s Case
A
if same instrument created life estate in A and gave remainder only to A’s heirs, remainder not recognized, and A took life estate and remainder
19
Q
Doctrine of Worthier Title
A
remainder in grantor’s heirs invalid and becomes reversion in grantor [rule of construction]
20
Q
Rule Against Perpetuities
A
no interest in property is valid unless it must vest, if at all, no later than 21 years after some life in being at the creation of interest [applies to: contingent remainders, executory interests, vested subject to open, options to purchase, rights of first refusal, and powers of appointment] LOOK FOR – executory interest following defeasible fee, age contingency beyond age 21 in open class, unborn widow or widower, administrative contingency
21
Q
Rule Against Restraints on Alienation
A
(1) disabling restrains, under which attempted transfers are ineffective; (2) forfeiture restraints, under which an attempted transfer forfeits interest; (3) promissory restraints, under which an attempted transfer breaches a covenant disabling restraint on any legal interest is VOID; all absolute restraints on fee simples are void
22
Q
Joint Tenancy
A
right of survivorship need 4-fold unities = time, title, interest, and possession must take identical interests at the same time, by the same instrument, with the same right to possession [joint tenancy may be severed – inter vivos conveyance; execution of mortgage in title theory state; contract to convey; testamentary disposition has no effect]
23
Q
Tenancy by Entirety
A
marital estate akin to joint tenancy – only death, divorce, mutual agreement, or execution by joint creditor of both husband and wife can sever tenancy by entirety
24
Q
Tenancy in Common
A
no right of survivorship; presumed
25
Co-Tenant Rights and Duties
each co-tenant has right to possess all portions of property but no right to exclusive possession of any part [ouster – another co-tenant claims right to exclusive possession]; co-tenant in possession has right to retain profits from her own use of property; need to share net rents from third parties and net profits gained from exploitation of land; may not encumber interests of other co-tenants; any co-tenant has right to judicial partition, either in kind (physical division of land) or by sale and division of proceeds; co-tenant who pays more than her pro rata share of necessary repairs is entitled to contribution from other co-tenants provided notified others of repairs; no right of contribution for cost of improvements unless partition
26
Leasehold
estate in land, under which tenant has present possessory interest in the leased premises and the landlord has a future interest (reversion)
27
Tenancy for Years
continues for fixed period of time; writing is required if more than 1 year; automatically ends at its termination date; landlord reserves right of entry allowing him to terminate lease if tenant breaches lease covenants (failure to pay rent); may also terminate if T surrenders and L accepts
28
Periodic Tenancy
continues for successive periods until terminated by proper notice of either party; can be created by (1) express agreement, (2) implication, or (3) operation of law); automatically renewed until proper notice of termination is given
29
Tenancy at Will
terminable at will of either L or T; must be created by express agreement that lease can be terminated at any time; periodic rent payments will be treated as periodic tenancy; reasonable time to quit required to terminate
30
Tenancy at Sufferance
T wrongfully remains in possession after expiration of lawful tenancy; lasts only until L takes steps to evict T – no notice required
31
Hold Over Doctrine
if T continues in possession after right has ended, L may (1) evict him or (2) bind him to new periodic tenancy [commercial tenants =
new year-to-year tenancy if original lease term was for one year or more, or periodic term based on frequency of rent payments if original term less than 1 year; residential tenants = new month-to-month tenancy and if L notifies T before lease expires of increased rent, T is held to acquiesces to those terms] [exceptions: (1) T remains in possession only for a few hrs; (2) delay not T’s fault; (3) seasonal lease]
32
T’s Duty to Repair
T cannot damage leased premises; rules governing waste [T liable for all ordinary repairs, excluding wear and tear]; if destroyed WITHOUT FAULT or either L or T, no waste involved – neither party has duty to restore premises but T has duty to continue paying rent; if RESIDENTIAL T covenants to repair, L usually remains obligated to repair under implied warranty of habitability; if NONRESIDENTIAL T’s covenant to repair is enforceable, and L may be awarded damages for breach based on property’s condition when lease terminates compared with its condition when lease commenced
33
T’s Illegal Purpose
L may terminate lease or obtain damages and injunctive relief
34
T’s Duty to Pay Rent
if lease terminates before time originally agreed upon, T must pay proportionate amount of agreed rent; L permitted to retain security deposit
35
L Remedies
if T on premises and fails to pay rent, L may bring suit for rent due or may evict T under state’s unlawful detainer statute; if T unjustifiably abandons property,
L has duty to mitigate damages by seeking to relet premises; if surrender not found, T liable for difference between promised rent and fair rental value of property; if surrender found, T is free from rent liability
36
L’s Duty to Deliver
L put T in actual possession of premises at beginning of leasehold term [breach if doesn’t evict hold-over tenant by beginning]
37
Quiet Enjoyment
neither L nor paramount title holder will interfere with T’s quiet enjoyment and possession of premises
38
ACTUAL EVICTION
L, paramount title holder, or hold-over T excludes T from entire leased premises (terminated obligation to pay rent);
39
PARTIAL EVICTION
T is physically excluded from only part of leased premises – by L relieves T of obligation to pay rent for entire premises, by third person is apportionment of rent;
40
CONSTRUCTIVE EVICTION
(1) L breached duty to T, (2) breach substantially and materially deprived T of use and enjoyment of premises, (3) T gave landlord notice and reasonable time to repair, (4) after such reasonable time, T vacated premises [may terminate lease & seek dmgs]
41
Implied Warranty of Habitability
residential leases – nonwaivable – in breach, T may (1) terminate lease, (2) make repairs and offset cost against future rent, (3) abate rent to an amount equal to fair rental value in view of defects, (4) remain in possession, pay full rent, and sue for damages
42
Retaliatory Eviction
L may not terminate lease or penalize T in retaliation for T’s exercise of her legal rights, including reporting housing codes
43
Discrimination (Property)
protected by Civil Rights Act of 1866 – bars racial/ethnic discrimination and Fair Housing Act, bars discrimination based on ethnicity, religion, national origin, sexual orientation, gender, and disability
44
Assignments
complete transfer of entire remaining term; assignee and L and in privity of estate and each is liable to other for covenants that run with land; original T also liable on original contractual obligation to pay rent – privity of K; if L assigns, he is liable on all covenants he made in the lease
45
Sublease
T retains part of remaining term; sublessee not personally liable to L for rent or for performance of any covenants in main less unless expressly assumes covenants
46
L’s Tort Liability
(1) latent defect – at time lease is entered into, L knows or should know of dangerous condition that T could not discover by reasonable inspection, L must disclose it; (2) common areas – reasonable care; (3) public use – may be liable to injuries of public if at time of lease he (a) knows or should know of dangerous condition, (b) has reason to believe T may admit public before repairing condition, and (c) fails to repair condition; (4) furnished short- term residence – liable for injuries resulting from ANY defect whether or not he knew of it; (5) negligent repairs by L; (6) L contracts to repair Modern Trend: general duty of reasonable care
47
Fixture
chattel that has been so affixed to land that it has ceased being personal property and has become part of realty – passes with ownership of land
48
Common Ownership
person who brings chattel to land owns both chattel and land; is a fixture if objective intention of party who made “annexation” was to make them part of realty [nature of article, manner of attachment, amount of damage upon removal, adaptation of item to use of realty]
49
Divided Ownership
chattel owned and brought to realty by someone other than landowner; (1) L-T: agreement between L and T is controlling; absent agreement, T deemed to lack intent to permanently improve property and may remove chattel if doesn’t substantially damage premises or destroy chattel – must be removed by end of lease term and T responsible for repairing damage caused by removal; (2) Life Tenant & Remaindermen – same as in L-T situation; (3) Licensee/Trespasser – licensees treated like tenants and trespassers lose annexations
50
Easements
right to use another’s tract of land for special purpose, but no right to possess/enjoy the land [affirmative – holder entitled to make affirmative use of servient tenement; negative – entitle holder to compel possessor of servient treatment to refrain from engaging in an activity on servient estate – light, air, lateral and subjacent support, and flow];
51
easement appurtenant
benefits holder in his physical use/enjoyment of another tract of land (must be 2 tracts of land) – passes with transfer of benefited land, regardless of whether mentioned in conveyance;
52
easement in gross
right to use servient tenement independent of possession of another tract of land
53
Express Easement
in writing signed by holder of servient tenement unless outside SOF
54
Express Reservation
grantor conveys title to land but reserves right to continue to use tract for special purpose
55
Easement Implications
(1) Implied from existing use: (a) prior to division of single tract, (b) an apparent and continuous use exists on servient part, (c) that is reasonably necessary for enjoyment of dominant part, and (d) court determines parties intended use to continue after division of land; (2) Without existing use: lots are sold in subdivision with reference to recorded plat/map OR holder of profit prendre has implied easement to pass over surface of land to use; (3) Necessity: landowner sells portion of tract and by his division deprives one lot of access to a public road or utility line – owner of servient parcel has right to locate the easement
56
Easement by Prescription
(1) open and notorious; (2) adverse; (3) continuous and uninterrupted; (4) for statutory period
57
Termination of Easements
(1) Stated conditions; (2) Merger; (3) Release [deed of release from owner of easement to owner of servient tenement]; (4) Abandonment [physical action plus intent to permanently deprive; (5) Estoppel [owner of servient estate changes position in reliance on representations made or conduct’; (6) Prescription [adverse, continuous interruption of use for prescriptive period; (7) Necessity: expire as soon as necessity ends; (8) Condemnation/destruction: extinguishes all easements and so does involuntary destruction – voluntary doesn’t
58
Licenses
privilege holders to go upon land of another – NOT an interest in land – privilege, revocable at will of licensor; Revocable License: (1) estoppel [licensee invests substantial amount of money/labor in reliance on license]; (2) license coupled with interest
59
Profits
entitle holder of benefit to take some resources (soil, timber, materials, fish) from servient estate; may be extinguished through surcharge (overly burdensome)
60
Real Covenants
written promise to do something on the land or promise not to do something on the land – run with land at law – all subsequent owners may enforce or be burdened by covenants
61
Burden to Run (Real Covenants)
(1) intent; (2) notice [subsequent purchaser for value must have had actual, inquiry, or record notice]; (3) horizontal privity [at time promisor entered into covenant with promisee, 2 must have shared some interest in land independent of covenant; (4) vertical privity [successor in interest to covenanting party must hold the entire durational interest held by covenantor at time made covenant]; (5) touch and concern [negative – restrict holder of servient estate in use of parcel; affirmative – require holder of servient estate to do something which increases obligations]
62
Benefit to Run (Real Covenants)
(1) intent; (2) vertical privity [benefits of covenant to run to assignees of original estate or any lesser estate – any succeeding possessory estate may enforce benefit]; (3) touch and concern [promised performance benefits covenantee and her successors in their use and enjoyment of benefited land]
63
Termination (Real Covenants)
Termination: (1) written release; (2) merger of benefited and burdened estates’ (3) condemnation of burdened property
64
Equitable Servitudes
regardless of whether runs with land at law, equity will enforce against assignees of burdened land who have notice of covenant
***If money damages are sought, use real covenant analysis; if injunction, consider whether it is an equitable servitude
65
Creation (Equitable Servitudes)
covenants contained in writing – exception = negative equitable servitudes: implied from common scheme for development of residential subdivision – scheme evidenced by (1) record plat, (2) general pattern of restrictions, (3) oral representations to early buyers; notice may be actual, inquiry (neighborhood appears to conform to common restrictions, or record (prior deed with covenant)
66
Benefit to Run (Equitable Servitude)
(1) original parties intended, (2) servitude touches and concerns benefited property ***No privity of estate required
67
Equitable Defenses to Enforcement (Equitable Servitude)
(1) unclean hands – person seeking enforcement is violating similar restriction on his own land; (2) benefited party acquiesced in violation of servitude by one burdened party; (3) estoppel – benefited party acted in such a way that a reasonable person would believe covenant was abandoned/waived; (4) laches - benefited party fails to bring suit against violator within reasonable time; (5) neighborhood has changed so significantly
68
Termination (Equitable Servitude)
Termination: (1) written release, (2) merger, (3) condemnation
69
Adverse Possession
Requirements: (1) actual entry giving exclusive possession that is (2) open and notorious, (3) adverse (hostile), and (4) continuous throughout statutory period
70
Land Sale Ks
must be in writing that contains signature of party to be charged and essential terms (parties, description of land, price)
71
Equitable Conversion
once K is signed, equity regards buyer as owner of real property; seller’s interest (right to proceeds of sale) is considered personal property [risk of loss: if property is destroyed (without fault of either( before closing, majority rule places risk on buyer]; if party to land sale K dies before K is completed, seller’s interest passes as personal property and buyer’s interest passes as real property
72
Marketable Title
title reasonably free from doubt (1) defects in chain of title: title acquired by adverse possession is unmarketable; when holder of future interest is unborn or unascertained it is impossible to convey marketable title; (2) encumbrances: mortgages, liens, restrictive covenants, easements, and significant encroachments render title unmarketable; (3) zoning restrictions: existing violation does render unmarketable; (4) time of marketability: if seller agreed to furnish title at date of closing, buyer cannot rescind prior to that date on grounds that seller’s title is not marketable (installment K – need not make title marketable until last installment) – once closing occurs, seller no longer liable on implied covenant – only liable for express promises made in the deed
73
Remedy (Unmarketable Title)
Buyer must notify seller that title is unmarketable and give reasonable time to cure defects; if seller fails to cure, buyer’s remedies include rescission, damages, specific performance with abatement, and quiet title suit [if closing occurs, seller’s liability ends]
74
Time of Performance (Conveyances)
presume time is not of essence; closing date not absolutely binding and can still tender performance within a reasonable time; time IS of essence if (1) K states so, (2) circumstances indicate that was parties’ intent, or (3) one party gives other notice that it is [if time is of essence, party failing to perform on date is in breach and may not enforce K]
75
Tender of Performance (Conveyances)
buyer’s obligation to pay and seller’s obligation to convey are concurrent conditions – need not tender performance if other has repudiated K or it is impossible
76
Remedies for Breach (Conveyances)
nonbreaching party entitled to damages (difference between K price and market value on date of breach, plus incidentals) or specific performance
77
Seller Liability for Defective Property
K of sale and deeds of real property carry no implied warranty of quality or fitness for purpose – most courts recognize these sale of new house by builder; person may sue builder for negligence in performing a building K; seller of existing buildings may be liable to purchaser for defects such as leaky roof, flooding basement, or termite infestation, on any of several different theories – (1) misrepresentation, (2) active concealment, (3) failure to disclose [(1) knows or has reason to know of defect; (2) defect is not apparent and seller knows that
buyer unlikely to recover upon ordinary inspection; (3) defect is serious and would probably cause buyer to reconsider the purchase if known]
78
Disclaimers of Liability (Conveyances)
general disclaimer in sales K is NOT sufficient to overcome seller’s liability for fraud, concealment, or failure to disclose – if identifies specific defects = upheld
79
Deeds
transfers title to an interest in real property – must be in writing, signed by grantor and reasonably identifies parties and land [inter vivos gift = (1) donative intent, (2) delivery, (3) acceptance]
80
Defective Deeds
void deed will be set aside but voidable deed will be set aside only if property has not passed to bona fide purchaser [void = forged, never delivered, issued to nonexistent grantee, were obtained by fraud in factum; voidable = executed by minors/incapacitated persons, obtained through fraud in inducement, duress, undue influence, mistake, breach of fiduciary]
81
Bona Fide Purchaser
(1) takes real property without notice (actual, inquiry or constructive) AND (2) pays valuable consideration; under the Shelter Rule a person who purchases from a BFB receives same status as BFP
82
Fraudulent Conveyance
made (1) with actual intent to hinder, delay, or defraud any creditor of grantor; or (2) without receiving reasonably equivalent value in exchange for transfer, and debtor was insolvent or became insolvent as result of transfer
83
Reformation (Deed)
will be reformed if does not represent parties’ agreement because of (1) mutual mistake, (2) scrivener’s error, (3) unilateral mistake caused by misrepresentation
84
Delivery (Deed)
grantor’s intention to make deed presently effective even if possession is postponed; may be satisfied by manual delivery, notarized acknowledgement by grantor and recordation
85
Acceptance (Deed)
required in order to complete conveyance – presume acceptance
86
General Warranty Deed
(1) covenant of seisin [has estate she purports to convey]; (2) covenant of right to convey [authority to make grant]; (3) covenant against encumbrances [against existence of physical/title encumbrances]; (4) covenant for quiet enjoyment [grantee won’t be disturbed in possession by third party’s lawful claim of title]; (5) covenant of warranty [agree to defend against reasonable claims of title by third party and compensate grantee for any loss sustained by claim of superior title]; (6) covenant for further assurances [promises to perform acts reasonably necessary to perfect title conveyed]
Breach: First three breached at time of conveyance; second three breached only upon disturbance of grantee’s possession if successive conveyances by general warranty deed and last grantee is evicted by lawful claim of title, he may sue anyone up the line
87
Special Warranty Deed
use of word “grant”; (1) grantor has not conveyed same estate or any interest to anyone other than grantee; (2) estate is free from encumbrances made by grantor
88
Quitclaim Deed
releases whatever interest grantor has; no covenants of title included/implied
89
Estoppel by Deed
if grantor purports to convey an estate in property that she does not then own, her subsequent acquisition of estate will automatically inure the benefit of the grantee; applies where conveyance was by warranty deed, or where deed purported to convey particular estate [BFP will prevail over original grantee; original can accept title or sue for damages]
90
Notice Statutes
subsequent BFP (person who pays value and has no notice of subsequent instrument) prevails over prior grantee who failed to record subsequent purchaser had no actual or constructive notice at time of conveyance
91
Race-Notice Statutes
subsequent BFP is protected only if she takes without notice AND records before prior grantee
92
Race Statutes
whoever records first wins; notice is irrelevant
93
Shelter Rule
person who takes from BFP will prevail against any interest transferor-BFP would have prevailed against
94
Wild Deeds
recorded deed that is not connected to chain of title
95
Inquiry Notice
whenever inquiry would have revealed; references in recorded instruments to unrecorded transactions, unrecorded instruments in chain of title, and possession unexplained by record put a purchaser on inquiry notice
96
Ademption
if property is specifically devised/bequeathed in testator’s will, but testator no longer owns it at time of death, gift fails; gift of land is always a specific devise
97
Exoneration
devisee of specific property is entitled to have land “exonerated” by payment of liens and mortgages from testator’s residuary estate
98
Lapse
occurs when beneficiary of a gift in will dies before testator; permit gift to pass to predeceasing beneficiary’s living descendants under certain circumstances [must be descendant to testator; does not apply if contrary will provision]
99
Abatement
if estate assets aren’t sufficient to pay all claims against estate and satisfy all devices and bequests, gifts are abated (reduced); abate in following order – (1) property passing by intestacy; (2) residuary estate; (3) general legacies; (4) specific devises and bequests
100
Mortgages
grantee of mortgaged property takes subject to the mortgage; if the grantee signs an assumption agreement, he becomes primarily liable to lender, while original mortgagor is secondarily liable as surety; if no assumption agreement is signed, grantee is not personally liable – if grantee does not pay, loan may be foreclosed, wiping out grantee’s investment
101
Lien Theory
mortgagee is considered holder of a SI only and mortgagor is deemed the owner of the land until foreclosure; mortgagee may NOT have possession before foreclosure
102
Title Theory
legal title is in the mortgagee until mortgage has been satisfied or foreclosed, and mortgagee is entitled to possession upon demand at any time
103
Intermediate Theory
legal title is in the mortgagor until default, and upon default, legal title is in the mortgagee – may demand possession when default occurs
104
Future Advance Mortgage
loan in which lender may provide future payments under original loan - lender secures mortgage on real property for entire amount of loan, including future advances
105
Foreclosure
almost all states require foreclosure by sale – property sold to satisfy debt in whole or in part; redemption in equity at any time prior to foreclosure sale, mortgagor may redeem property by paying amount due and if note/mortgage contains an acceleration clause, full balance of note or mortgage must be paid to redeem; statutory redemption allow mortgagor to redeem property for some fixed period after foreclosure sale has occurred
106
Priorities
usually determined by time it was placed on property – foreclosure doesn’t destroy any interests senior to interest being foreclosed; generally destroyed junior interests, but failure to include junior interest in foreclosure action results in preservation of that party’s interest
107
Modification of Priority
may be changed by (1) operation of recording statute if prior mortgagee fails to record; (2) subordination agreement between senior and junior mortgagee; (3) PMM; (4) modification of a senior mortgage; (5) granting of optional future advances by a mortgagee with notice of junior lien; (6) subrogation (senior mortgage refinanced with new mortgage)
108
Purchase Money Mortgage
mortgage given in exchange for funds used to purchase property – have priority over mortgages, liens, and other claims against mortgagor that arise prior to mortgagor’s acquisition of title
109
Proceeds (Foreclosure)
applied first to expenses of sale, attorneys fees, and court costs; then to principal and accrued interest on the foreclosed loan; next to any junior interests in order of their priority; and finally to mortgagor
110
Installment Land Ks
(1) equity of redemption; (2) restitution; (3) treat as mortgage; (4) waiver; (5) election of remedies
111
Assumption of Mortgage
agreement to continue making the mortgage payments to the lender; buyer is personally liable on the mortgage
112
Subject to Mortgage
buyer is NOT personally liable on the mortgage
113
Lateral/Subjacent Support
right to have land supported in natural state by adjoining land; landowner STRICTLY LIABLE if excavation causes adjacent land to subside; STRICTLY LIABLE for damage to land and buildings caused by excavation only if shown land would have collapsed in natural state – otherwise liable only if done negligently; underground occupant of land must support surface and buildings existing on date the subjacent estate was created – requires negligence
114
Water Rights
(1) WATERCOURSES – riparian doctrine: water belongs to those whom the land bordering the watercourse; natural flow: riparian owner’s use resulting in substantial or material diminution of water’s quality, quantity, or velocity is enjoinable; reasonable use: all riparians share right of reasonable use of water;
(2) GROUNDWATER – absolute ownership: owner overlying land can take all water she wishes; reasonable use: exporting is allowed only if it does not harm other owners who have rights in same aquifer; correlative rights – owners of
overlying land own underground water basin as joint tenants, each entitled to reasonable use; appropriative rights: priority of use is determinative; restatement: surface owner may pump groundwater unless it (1) unreasonably harms neighboring landowners; (2) exceeds the pumper’s reasonable share, or (3) directly and substantially affects surface waters;
(3) SURFACE WATERS: can use surface water within her boundaries for any purpose she desires; natural flow: owners cannot alter natural drainage patterns; common enemy: owner can take protective measures to get rid of water; reasonable use: balancing of utility of use against gravity of harm
115
Airspace
entitled to freedom from excessive noise Right to Exclude: possessor of real property has right to exclude others – remedies for (1) trespass; (2) private nuisance; (3) continuing trespass; (4) ejectment or unlawful detainer to remove trespasser
116
State Statutes (zoning)
State enacts statutes for protection of health, safety, morals, and welfare of citizens; nonconforming use: use that exists at time of passage of zoning act that doesn’t conform to statute cannot be eliminated at once – amortization is gradual elimination of such uses; can get a special use permit; variance is departure from literal restrictions of zoning ordinance granted by administrative action
117
Unconstitutional Takings
denial of all economic value is a taking; denial of nearly all economic value is a balancing test – (1) social goals of regulation, (2) diminution in value of property, (3) whether regulation substantially interferes with investment-backed expectations **gov required to compensate if a taking
118
Exactions
giving up land for public purpose – government must prove (1) gov demands are rationally connected to additional burden project will place on public facilities or rights (essential nexus); (2) rough proportionality – reasonably related in nature and extent to impact of proposed development
