Real Property Flashcards
(119 cards)
1
Q
Adverse possession
A
- Actual possession (physical occupation)
- Open and notorious (visible use)
- Hostile (no consent)
- Continuous for the statutory period (seasonal use ok if type of property permits that. Tacking allowed if privity)
- Exclusive (true owner excluded)
2
Q
Land sale contract merger rule
A
Land sale K governs agreement until closing, then deed governs under merger doctrine.
- Any obligation in K is discharged at closing unless the obligation is repeated in the deed.
3
Q
Land sale K requirements
A
Governed by K law and SOF applies. SOF requirements:
- K must be in writing,
- Identify parties,
- Signed by party to be bound,
- Describes land sufficiently,
- States consideration (purchase price)
4
Q
SOF part performance exceptions
A
PIP
- Possession by purchaser
- Substantial improvement
- Payment for all or part
5
Q
Marketable title
A
Implied promise in every land sale K that title is free from:
- from defects or claims that would make it unacceptable to a reasonable buyer,
- any threats of litigation or disputes about ownership.
6
Q
Marketable title - Seller’s duties
A
- Seller not required to deliver marketable title until the day of closing
- If encumbrances not cured by closing, buyer can sue seller for breach of the implied covenant
- If buyer does not discovery encumbrance until after closing, buyer must sue for breach of deed warranty (not breach of K bc K merged with deed)
7
Q
Equitable conversion
A
Once K is signed, buyer is deemed the owner. If property is destroyed (at no fault of either party) prior to closing, the risk of that loss is imposed on buyer
8
Q
Remedy for breach of land sale K
A
Damages (difference between market price and K price) or specific performance (preferred remedy since land is unique)
9
Q
Mortgage
A
- Conveys property interest in real prop as security for loan.
- Must be in writing and satisfy SOF
(think 2 parties)
10
Q
Deed of trust
A
seller of land gives/loans money to buyer and buyer in exchange executes a promissory note (doc) that promises to pay seller back. Deed of trust is what secures that, and when executed, buyer gives title to prop to trustee. It involves 3 parties: seller, trustee, and buyer. If buyer pays everything back, trustee gives title back to property. If not, trustee on seller’s order, can sell property and give proceeds to owner. Takeaway: always involves 3 parties.
11
Q
Rights of parties (lien theory v title theory)
A
- Lien theory (majority): mortgagor is owner until foreclosure. Mortgagee cannot take possession prior to foreclosure. Mortgages are transferable.
- Title theory (minority): Mortgagee is owner, and mortgagor has the right to regain ownership upon satisfaction of obligation
12
Q
Foreclosure
A
If borrower fails to repay loan, then lender can foreclose (take back property in satisfaction of debt).
- mortgagee must foreclose by judicial proceeding
13
Q
Foreclosure approach
A
(1) State rule
(2) Identify what the security interests are aka who has the right to foreclose (e.g., mortgage, deed of trust)
(3) Who gets paid first after a judicial proceeding, aka who has priority? First in time, first in right rule applies with exceptions of PMM’s and recording acts.
(4) Then distribute proceeds.
- First, costs associated with sale,
- Second, PMM or secured senior interest,
- Third, secured junior interest
- Fourth, unsecured interests
*Note: senior interests are not destroyed, goes to land
14
Q
Priority of loans
A
After land is sold, proceeds are used to satisfy debts secured by the property. Priority of interests:
- The first mortgage (senior) generally gets priority over later mortgages (junior) (first in time, first in right).
15
Q
Exception to priority of loans
A
- PMM may take priority over non-PMM
- If state recording act applies
16
Q
Deficiency judgment
A
Occurs when property is worth less than the amount owed on loan(s). Lender can sue debtor personally for the deficiency difference only if:
(1) There was a judicial foreclosure;
(2) The loan was not a PMM.
17
Q
Redemption
A
After default on obligation, but prior foreclosure sale, mortgagor may retain the property by paying the full amount of the loan obligation.
18
Q
Deeds requirements
A
(1) Identify property and parties,
(2) In writing and signed by grantor
(3) Include words of present intent to transfer (“grant”)
(4) Be properly delivered and accepted
19
Q
Deed - delivery requirement
A
- Transfer/delivery of deed from grantor to grantee: creates a presumption of intent to transfer
- Transfer from 3P agent to grantee with condition: not delivered if grantor reserves right to take deed back
- Transfer from 3P agent to grantee with no right to take back: intent to presently transfer determined by the facts
20
Q
Testamentary transfers
A
No present intent to transfer bc transfers only on death, must satisfy wills requirements
21
Q
3 types of deeds
A
- Quitclaim: no covenants of title
- General warranty deed: warrants against all defects, contains 6 covenants
- Special warranty: contains some covenants, only warrants against defects arising during time grantor had title
22
Q
General warranty present covenants (breached at time of sale, if at all)
A
- Seisin: G owns what he purports to own
- Right to convey: G has power to make conveyance
- No encumbrances: no mortgages, liens, easements or use restrictions on land (breached even if purchaser had notice)
23
Q
General warranty: Future covenants (breached, if at all, when grantee is disturbed in possession)
A
- Title: promises to defend against any lawful claims
- Quiet enjoyment: grantee will not be disturbed by 3P’s lawful claims of title
- Further assurances: G will take reasonably necessary acts to perfect title
24
Q
Defenses to breaches of covenants
A
- Unclean hands
- Laches
- Waiver
25
Recording acts strategy
- Apply common law rule "first in time, first in right" first
- Then all recording acts (race, notice, race-notice)
26
Pure race statute
Person who records first wins
27
Pure notice statute
Person who purchases land without notice of a prior interest wins
28
Race-notice statute
Person who purchases land without notice of the prior interest AND records first wins.
29
Recording acts protect
- BFPs: purchasers who take for value and without notice of prior interest
- Mortgagees
*and no one else (do NOT protect devisees, heirs, etc bc they dont take for value)
30
3 types of notice
- Actual (buyer had actual knowledge of prior interest)
- Inquiry: reasonable investigation would've disclosed prior claims
- Recorded (constructive): grantees are on notice of any interest properly recorded in the chain of title
*Exception: wild deeds (not within chain of title bc recorded weirdly, do not provide constructive notice)
31
Shelter doctrine
Grantors who are protected by the recording act protect (or “shelter”) their grantees who would otherwise be unprotected.
Example: A sells land to B. B does not record his interest. A then sells the same land to C, who has no notice of B's ownership. C records her interest on Monday. B records his interest on Tuesday. C later sells the land to D. D is sheltered under C's BFP status.
32
Fee simple absolute
Absolute ownership of potentially infinite duration, default
"To A" "To A and his heirs"
33
Fee tail
Allows owner of land to ensure land remains in family
"To A and the heirs of his body"
34
Fee simple defeasible
Allows a prop to be held or conveyed to another but the property is subject to a limitation. 3 types
- Fee simple determinable
- Fee simple subject to condition subsequent
- Fee subject to an executory interest
35
Fee simple determinable
Automatically terminates if stated event occurs. Prop automatically reverts to grantor
- Possibility of reverter is the future interest held by grantor
- Created by words of duration "so long as" "during" "while" "until" "unless"
36
Fee simple subject to condition subsequent
Has potential to terminate an estate if stated event occurs but termination is NOT automatic.
- Right of reentry is the future interest the grantor retains
- Created by "right of reentry" and includes conditional language "but if" "provided that" "upon condition that"
37
Fee simple subject to an executory interest
- Automatically terminates a preceding estate if stated event occurs, estate passes to a 3P rather than reverting back to the grantor.
- Executory interest is the future interest 3P holds (subject to RAP)
"To A but if X occurs, to B"
38
Life estate
Interest that lasts for lifetime of a person (life tenant).
- Life estate pur autre vie is a life estate that ends at lifetime of identified 3P
- Defeasible: can be defeasible like fee simple such that life estate ends before life tenant dies
- Conveyable: life estate holder may convey interest, but can't greater than his own lifetime or pur autre vie lifetime
"To A for life" "To A for life of B"
39
Future interest: Possibility of reverter follows
Fee simple determinable
40
Future interest: Right of reentry follows
Fee simple subject to condition subsequent
41
Future interest: Reversion
When holder of estate transfers to another something less than entire estate
42
Future interest: Remainder
Becomes possessory upon expiration of a prior possessory estate created by same instrument. (NEVER follows a defeasible fee)
43
Vested remainder
- Ascertained person AND
- Not subject to a condition precedent
44
Contingent remainder
- Unascertained person (i.e., unborn), AND/OR
- subject to condition precedent
45
2 types of executory
- Shifting: follows defeasible fee and cuts short the prior interest (shifts from one holder to next)
- Springing: becomes possessory at some point in future WITHOUT cutting short a prior interest (springs from one holder to another)
46
Restraint on alienation
A grantor can place a restraint on the grantee’s ability to freely transfer only if it’s reasonable. Absolute restraints on alienation are unreasonable and thus, not allowed.
**Unreasonable restraints will be stricken from conveyance.
47
RAP
Interest must vest no later than 21 years after life in being at creation of the interest. Applies to:
- Contingent remainders
- Executory interests
- Class interests
48
Joint tenancy with right of survivorship attributes
When 2 or more people hold a single unified interest in a prop with right of survivorship.
- Must contain express survivorship language
- Automatic right of survivorship (when one JT dies, remaining JT(s) automatically absorb dead JT's interest)
- Equal right to occupy
- Equal shares
49
Creation of joint tenancy
JT requires the four unities (PITT):
- Possession (same right to possession)
- Interest (identical interests)
- Time (interest created at same time)
- Title (parties take in same title)
50
Severance of a joint tenancy
Conveyance (sale or inter vivos transfer) made by 1 JT will sever JT.
- Severance w/ two JT's: remaining JT will hold prop with new owner as TIC
- Severance w/ three or more JT's: new owner will take his portion as a TIC to remaining JT's, but JT's have a JT with each other only
51
Joint tenancy and wills
JT CANNOT be devised by wills
*any attempt is void bc decedent's interest is extinguished at death since his interest automatically transfers to surviving JT
52
JT and mortgages
One JT may not encumber the interest of the other JT(s). Effect of one JT obtaining a mortgage is dependent on whether the jx adopts the lien theory or title theory approach.
- Lien (majority): execution of mortgage by one JT does NOT sever JT
- Title (minority): does sever to that JT's share
**For both: JT severed if mortgage is foreclosed and prop is sold
53
Tenancy in common attributes
Concurrent estate where two or more own a property with no right of survivorship.
- Equal right to occupy
- Nonequal shares ok
- Can sell, will or gift
- No right of survivorship
54
Tenancy by entirety
Similar to JT but between spouses
- Not recognized in CP states
- Neither tenant can unilaterally convey or encumber or break right of surv.
- May only be severed by divorce, mutual agreement, death
55
Co-tenancy general rules: Possession
- Each co-tenant has right to possess the whole property, but no co-tenant has the right to exclusively possess any part of the property.
56
Co-tenancy general rules: Possession and ouster
- Ouster: A cotenant who is being denied access can bring a court action to regain access to the property.
- AP: If one cotenant ousted the other, he can make a claim for adverse possession if he meets the requirements.
57
Co-tenancy general rules: No duty to pay rent
No duty to pay rent for co-tenants own use of the property
58
Co-tenancy general rules: own losses
Co-tenant solely responsible for his own losses from his use of the property and may not seek contribution.
59
Co-tenancy general rules: payments made
- Taxes and mortgage interest payments: co-tenants are responsible for their proportionate share.
- Payments in excess of share: overpaying co-tenant can seek contribution unless he is the only one in physical possession of the property, and the value of his use is equal or outweighs the overpayment.
- Improvements /repairs: co-tenants have no right to reimbursement for improvements or repairs, even when necessary. However, majority view allows co-tenant to seek contribution for necessary repairs by filing an action for accounting and compel other co-tenant to pay.
*BUT NOTE (say this in exam): When a third party is occupying the property, a cotenant who collects rent from the third party can subtract expenses for necessary repairs from the rent received before sharing the rent with other co-tenants.
60
Co-tenant general rules: payments received
- Must share third party rents
- Must share profits from exploitation of land (e.g., mining)
61
Co-tenant general rules: general duty
General duty of fair dealing between all co-tenants
62
Partition (only for JT or TIC)
Prop. is divided or ordered sold and the proceeds distributed through:
- voluntary agreement or
- judicial action if in best interest of all parties
63
Encumbrance
A co-tenant may encumber his OWN share of the property with a loan or judgment lien but may not encumber co-tenant’s share.
64
Types of tenancies (L and T)
- Tenancy for years
- Periodic tenancy
- Tenancy at will
- Tenancy at sufferance
65
Tenancy for years
Refers to an express agreement of a lease for a fixed period of time.
- can be for ANY fixed time period (2 months, 1 year, etc.)
- SOF writing required for terms greater than 1 year
- Automatic termination: no notice is required bc terminates at end of period
66
Periodic tenancy
Repetitive, ongoing estate measured by set periods that automatically renew (i.e., month-to-month).
- Can be created by implication if lease includes start date but no end date.
- Written notice required to terminate. (if lease is one year or longer, 6 months notice is required. otherwise, notice must be in accordance with length of time period, e.g., if it's month to month, then needs to be given ahead of one month)
- A holdover tenant is one whose lease has terminated but who remains in the premises and tenders rent, which the landlord accepts. A holdover tenant is considered to have a periodic tenancy for the same term as the time period of the previously expired lease
67
Tenancy at will
Tenancy for no fixed period of time, which can be terminated at any time by either party and parties must expressly agree to it.
- Created by express agreement or by implication where the tenant takes possession with permission, but there is no specified start date or time period identified for paying rent
68
Tenancy at sufferance
Created when a tenant wrongfully holds over past the expiration of a valid lease.
- Landlord election: L has option to evict the tenant or hold him over to another term as a tenant with a periodic tenancy.
69
Common areas of dispute in L-T
- T's duty to pay rent (T's defenses)
- Possession of premises
- Condition of rental premises
- Implied covenant of quiet enjoyment
- Implied warranty of habitability
- L's other duties
70
T's duty to pay rent
T has the duty to pay rent in the amount agreed to. T may have the following defenses available for nonpayment/withholding of rent:
- Failure to deliver possession
- Breach of covenant of quiet enjoyment
- Constructive eviction
- Destruction of premises (no fault of L or T)
- Potential K defenses (frustration of purpose)
- Surrender of premises by T, that L accepts
71
L-T issues: Possesion of premises
- Holdover tenant: L can't engage in self-help
- Eviction: L may typically terminate a lease for a material breach. L must evict through the courts or continue the rental relationship, give notice, and sue for damages.
72
L-T issues: Possession (Abandonment)
If T UNJUSTIFIABLY abandons the premises (treated as offer to surrender rights under lease), L may
- Accept the surrender and terminate the lease, or
- Re-let on behalf of the tenant (T must be notified); or
- Leave the premises vacant and sue for rent as it becomes due.
**L has a duty to mitigate, to try and re-lease the property to mitigate the damages
***Determine whether abandonment was justifiable (e.g., did L breach any of his duties?)
73
L-T issues: L's duties for condition of rental premises
- Maintain all common areas
- Fix latent defects of which L knows
- Repair damages non-negligently in res. leases unless T caused damages
- Take action against other T's nuisance like behavior
74
L-T issues: Implied covenant of quiet enjoyment
Implied in every residential and commercial lease. L warrants that he (or agent) will not interfere with T’s use and enjoyment of the property (does not include acts of strangers but L does have a duty to take action against other tenants’ nuisance-like behavior and to control common areas). Did it get breached? Then ask, did any of the below occur (breach can also occur in below ways):
*Constructive eviction is when the premises are in such disrepair that they are virtually uninhabitable (treated as eviction). Requirements:
- Virtually uninhabitable bc sub. interference w/ prop
- Notice
- L doesn't respond
- T timely moves out
*Actual eviction: T excluded from entire premises due to a holdover tenant or superior title holder.
*Partial eviction: Landlord makes it physically impossible for the tenant to occupy all or some portion of the premises. T may withhold the entire rent and does not have to move out.
T can withhold rent (as seen above)
75
L-T issues: Implied warranty of habitability
Applies to res. leases only and requires L must maintain prop such that it is reasonably suitable for residence.
- T must give notice to L and
- Reasonable opportunity to repair. If L fails to make repairs, T may:
- Stay in prop and deduct rent until repair occurs,
- Stay in prop, pay for repairs, deduct the cost from rent, OR
- Terminate lease and move out.
**Failing to comply with housing codes is a breach, esp violations re: health and safety
76
Retaliatory eviction
BARRED. T may not be evicted, have lease terminate bc T asserted prop unhabitable
77
3 Types of waste
- Voluntary: T engages in conduct (int. or neg.) that causes a value dec. in prop.
- Permissive: T neglects prop, falls into disrepair
- Ameliorative: T improves prop (must restore to original condition)
78
Fixtures (tested with waste)
Items that were once moveable chattel but that have become so attached to prop they are deemed fixtures and considered part of the real estate. Following factors are considered to determine if something is a fixture (and whether it should remain or be removed):
- Method of attachment
- Adaptability
- Removal
- Intention of owners at time of fixture
- Agreement
79
Assignment and sublease general rule
An interest in a lease is transferable unless the parties agree otherwise. Prohibitions against assignments/subleases are enforceable.
- If lease prohibits A, T can still sublease
- If T violates prohibition, L can terminate lease
- Waiver: if L accepts payment from new T, waives right to enforce prohibition
- Consent: L can only withhold consent on a commercially reasonable ground
80
Assignment rule
Transfer of the entire interest remaining on the lease term.
- New T liable (privity of estate)
- Old T liable unless novation (privity of K)
81
Sublease rule
Transfer of anything less than the entire interest remaining on the lease term
- New T NOT liable (no privity of estate)
- Old T liable (privity AND K)
82
Easement general def
The right to use the land of another. Easements are nonpossessory property interests.
83
Easements can be affirmative or negative
- Affirmative: entitle the holder to do something on another’s land (e.g., driveway)
- Negative: prevent the landowner from doing something on his own land. These are not common (e.g., owner cannot develop land in a way that blocks neighbor’s view).
84
2 types of easements
- Appurtenant easement (attached to the land)
- In gross (attaches to a specific person)
85
2 types of easements created by appurtenant easement
- Dominant estate (benefits from easement and is the holder)
- Servient (burdened by easement providing benefit)
86
Creation of easements - 5 ways
- Express creation
- Creation by implication from prior use
- Easement by necessity
- Easement by prescription
- Easement by estoppel
87
Express creation of easement
- SOF requirements apply
- Reservation in grantor is a type of express easement where grantor passes title but reserves right to continue land use for some purpose
88
Easement: creation by implication from prior use (OSUE)
- Originally 1 parcel w/ common ownership
- Severed
- Use existed prior to severance
- Easement reasonably necessary to dominant land's use and enjoyment of prop
89
Easement by necessity (CE)
- Common ownership of D & S existed at some point
- Easement strictly necessary (e.g., landlocked parcel)
**Prior use NOT required
90
Easement by prescription
- Actual use adverse to S parcel (need NOT be exclusive)
- Open, notorious, visible use of prop
- Hostile use (w/o owner's consent)
- Continuous use for stat. period (tacking allowed)
*E.g., neighbor cutting hole in man's prop to retrieve her dog for 10 years
91
Easement by estoppel
S parcel allows use of the property such that
- it is reasonable that the user will substantially change his position
- in reliance on the belief that the permission will not be revoked.
92
Scope of easements
- Present and future needs: easement intends to meet both present and future needs of the dominant parcel due to normal, foreseeable development of the dominant estate (e.g., an easement may be widened to accommodate wider cars).
- Excessive use: increased use that unreasonably interferes with use of S estate not ok
- Remedy for excessive use = damages and/or injunction but easement will not terminate
93
Maintenance and repair of easements
D owner has an implied right to repair and maintain the easement (S not required) UNLESS
- both estates make use of the easement, then the court will apportion the repair costs between them based on their use.
94
Transfer of easements
- Servient: easement runs to new owner EXCEPT if owner is BFP (not inquiry notice can destroy BFP status)
- Dominant: depends on whether easement is appurtenant (run automatically) or in gross (commercial easements in gross transferable)
95
Termination of easements (END CRAMP)
- Estoppel
- Necessity (ends when easement ends)
- Destruction of servient land (not willful)
- Condemnation of S estate by eminent domain
- Release in writing by easement holder
- Abandonment by action (conduct show that E holder will never use again)
- Merger: easement terminated when title to both D and S estate vest in 1 person
- Prescription
96
EASEMENT APPROACH
(1) Identify type of easement (affirmative or negative, appurtenant or in gross)
(2) If appurtenant, identify the parcels (D & S)
(3) Identify how easement was created
(4) Discuss any issues that are raised by facts (scope, maintenance/repair, transfer or termination)
97
Real covenants definition (promises)
Written promises between 2 parties about how land is to be used. Requirements diff. dep. if benefit or burden of cov. running w the land.
*Remedy for breach is MONEY DAMAGES
98
Real covenant: Burden to run with the land requirements
(WITCH VaN)
- Writing between original owners (look @ deed, must satisfy SOF)
- Intent that promise apply to successors
- Touches & Concerns land (affects both parties as owner of land, promise increases use or enjoyment of benefited parcel)
- Horizontal privity between OG parties (just being neighbors IS NOT sufficient, needs to have some interest in land apart from covenant itself like buyer seller)
- Vertical privity (successor takes entire interest)
- Notice is required (actual, record or inquiry) GO THRU EACH ONE
*H and V should be easy to establish on exam
99
Real covenant: Benefit to run with the land requirements
(WITCV)
- Writing required between OG parties
- Intent for promise to apply to successors
- Touch & Concern land
- Vertical privity (successor takes entire interest)
*NO H. privity or notice required
100
ALL covenants are presumed to be valid unless
Illegal or against public policy or unconstitutional
101
Termination/modification of real covenants allowed:
(DREAM CC)
- Destruction
- Release
- Estoppel
- Abandonment
- Merger
- Condemnation
- Changed conditions (covenant impossible to accomplish)
102
Equitable servitudes definition
(Also called restrictive covenants) are RESTRICTIONS on how a land may be used. Equitable servitudes similar to real covenants but have no privity requirements.
*Remedy for breach is INJUNCTION
103
Equitable servitude will run with and and bind successors if
(WITCN)
- Writing (unless implied as below)
- Intent
- T&C (promise benefits D parcel and burdens S parcel)
- Notice (can be any of the 3)
104
Implied reciprocal servitude (general common scheme doctrine)
Court can imply a reciprocal equitable servitude if the original owner intended a “common plan or scheme” and the purchaser has notice of the scheme. The remedy is an injunction.
Requirements:
- There's a common plan or scheme (general pattern of restrictions, recorded plot of land, or oral rep. to buyers);
- Notice (can be any 3);
**NO writing required
*Basically you're figuring out whether buyer had notice of common plan or scheme
105
Termination/modification of equitable servitudes same as RC
DREAM CC
- Destruction
- Release
- Estoppel
- Abandonment
- Merger
-Changed conditions
106
Profit
Entitles right holder to enter S estate and remove soil or a product of land itself.
- Profit is similar to an easement (mining minerals, drilling for oil)
- May be appurtenant or in gross and is created and terminated like easement
107
License
Privilege, not an interest in the land, to use licensor's land for specific purpose (automatically terminates at death of licensor).
**NOTE ORAL AGREEMENTS produce a license, not an easement. But is possible oral license created an easement by estoppel w/ detrimental reliance
108
Water rights: Drainage of surface rights
- Using surface water: owner may use all he wants
- Getting rid of surface water has 3 approaches
(1) Common enemy: owner may cast water on neighbor's land
(2) Natural flow theory: owner has strict liability for interfering w natural flow
(3) Reasonable use doctrine allows owner to act reasonably
109
Water rights: Riparian rights (waterfront streams and lakes that abut property)
- Reasonable use theory: each riparian owner may use as much water as he reasonably needs (courts consider purpose and extent of the use).
- Prior appropriation doctrine: An owner (need not be riparian) must obtain a permit to use the water and priority of use is determined by permit date.
110
Right to lateral and subjacent support general def
A landowner has the right to have his land supported in its natural state by the adjoining land. There are two bases for a right to lateral support cause of action: Strict liability and Negligence.
111
Right to lateral support: SL and negligence
- Strict liability theory: when adjoining land is in its natural state (i.e., undeveloped), a landowner who excavates on his own land is strictly liable for any damage to the adjoining land caused by the excavation. If the adjoining land has been improved (i.e., not in its natural state), the excavating landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state, regardless of the improvement. A landowner is strictly liable if his excavation causes adjacent land to subside while in its natural state.
- Negligence theory: excavating landowner may still be liable for adjoining landowner’s damages if she was negligent in her excavation (do proper negligence analysis and don’t forget defenses)
112
Subjacent support
Arises when something is removed from below the surface of the land. The owner of the surface land has a right to have the surface subside, which includes the buildings as well as the natural state.
113
If land collapses (subsides)
Talk about negligence if it may not have collapsed in natural state
114
Zoning purpose
10A allows states to regulate the use and development of land through zoning for the protection of the health, safety, comfort, morals and general welfare of its citizens.
115
Zoning standard
Zoning regulations must be reasonable, not arbitrary, and have a substantial relation to the public benefits above.
116
2 Types of zoning ordinances: Cumulative
Creates a hierarchy of uses of land; land zoned for a particular use may be used for the stated purpose or for any higher use (e.g., a house could be built in an industrial zone, but a factory could not be built in a residential zone).
117
2 types of zoning ordinances: Noncumulative
Land may only be used for the purpose for which it is zoned.
118
Variance general rule
a property owner can seek a variance (waiver) from a zoning regulation if he can show (1) complying with the ordinance would result in unnecessary hardship because of the land’s unique characteristics (NOT financial issues of owner) and (2) it will not cause harm to neighboring area.
119
Nonconforming use
Use of property that was allowed under zoning regulations at the time the use was established but is no longer permitted under the new zoning laws. Some statutes allow nonconforming uses to continue.
*BUT, if structure is destroyed, new building must comply with new zoning regulations.
