Property II – Spring 2000, U of Iowa – Dean Hines

I.                   Easements

A.               Types of easements

1.                  Affirmative easement - right to go across property in manner that would normally be trespass.  Most common type.

2.                  Negative easement - right to keep a party from doing something on his land.  These are rare.

3.                  Appurtenant easement - an easement embedded in the land.  Most common.

4.                  Easement in gross - embedded in a party or type of party, utility company.  Not subdivideable.  These are rare.

5.                  Note - one easment can run “on top of” another.

B.                 Ways to create easements

1.                  Express - Written instrument

a)                  Such easement is enforceable even subsequent purchaser is unaware of it, provided that it has been recorded in deed (Willard).

b)                  Failure to expressly restrict an easement can result in an unrestricted easement, but he court can find that such easement has become overburdemsome (but in doing so, court will not specualte as to burden that future activities will create).  As unrestricted easement does not grant the dominant estate owner the right to use the easement to serve an adjacent parel that has not been granted the easement (Penn Bowling).

2.                  Implication - may be oral agreement

a)                  Quasi-easement:  Owner of land imposes permanent/obvious servitude one tenement in favor of another, then makes conveyance severing title between the tenements.  Grantee of dominant tenement has implied right to continue servitude if reasonably necessary for proper enjoyment of premises (CB 598)

b)                  necessity - does not mean “indispensible,” but rather reasonably necessary (CB 600).  

(1)               However, the standard of need is higher than in quasi-easement (Roy). 

(2)               “Apparent” does not necessarily mean visible to the naked eye, but whether modern person would be aware of easement’s prescence (Roamanchuck).

(3)               Many state’s won’t imply an easement by necessity, but will require common ownership in history.  In Ia., serviant estate owner must be compensated.

3.                  Prescription - adverse possession of right

a)                  Prescription existed before adverse possession under “Lost Grant” doctrine - an implied fiction that easement had been granted in past but record was lost.  U.S. did not adopt this theory.

b)                  The standard 5 elements of adverse possession apply, but they need not be of the same caliber as required for possession.  For example, shared use of driveway is not exclusive as to neighbor but does not bar prescription (Fischer)

c)                  Permissive use is not adverse use, so prescription negated.  Serviant estate possessor’s failure to stop use does not necessarily imply permission (Id.).   In Ia., burden of disproving permission is on dominant estate owner.

d)                  Easements by prescription cannot be claimed against the public.  Most states do not recognize adverse possession by “the public,” since AP is based on private ownership rights.  Exceptions:

(1)               Implied dedication - owner “chose” to allow public an easement.  Requires very strong case of implication.

(2)               Public trust doctrine - land owned by public then transferred to private hands was conveyed w/ reservation for public use.

e)                  Prescription can be “tacked” just like AP.

f)                    Owner of a prescriptive easement may have a secondary easement in so far as it is necessary for use/enjoyment of the primary easement (Farmer - owner of powerlines could enter to clear underbrush).

4.                  Strict necessity - eminent domain

5.                  Estoppel - e.g., D allows P to build road and then blocks it.  P has right to use road.

C.                 Destruction of easements

1.                  merger - dominant and servient estate come into same hands.  If severed again, easement remains dead (if both estates are in fee).

2.                  Easements can be terminated by adverse possession (but not if easement has not been located and opened, as value of easement is future right).

3.                  Abandonment - e.g., railroad picks up its materials and leaves.

D.                 Recording Acts

1.                  Common law rule was first in time, first in right.

2.                  Recording Acts change the common law result.  3 types:

a)                  Race Statute - title void against subsequent purchasers until registered.

b)                  Race-Notice statute - between two purchasers, the first one to register wins.

c)                  Notice statute - Title invalid against all but grantor until it is registered.

3.                  Recording acts can create a new title as a result of failing to comply.

E.                  Licenses

1.                  Lisences are not property interests.  Generally revocable at will (Heald - permission to use private road can be rescinded where dominant owner made no improvements)

2.                  If a party grants a license to to another party to cross its land, such license is not revocable at will if the licensed party has made improvements to the serviant property in question in reliance on continuity of the license and the licensor contempated such improvements.  (Shearer) 

3.                  Irrevocability occurs at point when licensee detrimentally relies on irrevocability at knowledge of licensor.

II.                 Real Covenents and Equitable Servitudes

A.                 Covenant at Law (actionable for damages)

1.                  Intended to run w/land

2.                  Touches and concerns land - integral to use/enjoyment

3.                  Vertical Privity - each party’s title can be traced back to the respective owners who orginally made the covenants.  Adverse possessor may not be able to meet this requirement.

4.                  Horizontal privity - original parties to covenant had some mutual or successive interest in land affected by the covenant (CB 647).  e.g., creation of easement w/covenant would satisfy horizontal privity.

B.                 Equitable Servitude (actionable for injunction)

1.                  Intended to run w/land

2.                  Touches and concerns land

3.                  Vertical Privity

4.                  Notice

a)                  description of restriction in recorded deed or other recorded instrument; or

b)                  reference in grantee’s deed to restriction set out in plat map or master deed.

C.                 Covenents/Servitudes affecting subdivisions

1.                  A restrictive convenant is not unreasonable if it covers only a small geographic area.

2.                  Affirmative covenants may run w/land now, but generally didn’t at common law. 

3.                  To be enforced, covenant must affect the legal relations fo the parties w/ respect to the land in question.  E.g., covenant effects relative economic burdens/benefits of landowners.

4.                  To be enforced, someone must own affected land to enforce covenenant running w/common ground (vertical privity).  In Neponsit, aggregate benefits were put into corporate entity (ask Dean Hines).

5.                  Recipricol negative easement - Developer set out general scheme for development, and places restrictive covenants on parceled out plots (intended to run w/land), but does not apply restriction to himself.  Once his own lot is conveyed, the easements attach by implication nonetheless if grantee has actual or contructive notice of restrictions(CB 675).

6.                  If a party purchases land and the deed refers to a recorded plat map, such party has right to rely on that map.  Thus, land designated as a park must remain a available as a park, even if community has not utilized it (Lalonde).

7.                  Covenants restricting homes in subdivision to residential use may be interpreted to allow group homes (Hill).  If convenent is very unambiguous, e.g., requiring blood or marriage relation, it might be struck down as against public policy anyway.

8.                  In Ia., beneficiaries of covenants must file their right every 21 years or lose ability to enforce.

D.                 Termination of covenants/servitudes

1.                  Express release

2.                  Merger

3.                  Abandonment

4.                  Acquiesence/Estoppel

5.                  Waiver

6.                  Changed Land

a)                  In El Di, change in community was important for overturning covenant (poss. of reverter) restricting alchohol sales.  Current development was in stark contrast to vision of original developers.

b)                  If zoning laws in conflict w/ covenant have been followed for a long time, convenant may be void.

c)                  Public policy may not endure convenant.  E.g., “brown bagging” should be discouraged if possible.

7.                  SIL ?

8.                  Amendment

a)                  Issues arise when majority of neighborhood assoc. is willing to do something that harms minority.  For instance, a single party might seek to get waiver of enforcement from assoc., but small number of neighbors will be adversly affected.  Generally, covenants will apply to all or none of the plots (e.g., Walton - party wanted to sub-divide, assoc. voted to allow it, but minority was able to prevent subdivision).

III.               Nuiscance

A.                 General

1.                  People have a right to enjoy property w/o unreasonable interference;  Only unreasonable  interference is subject to nuiscance action.

2.                  People must expect certain problems from choosing to live somewhere (i.e., out in the country).

3.                  Nuiscance action typically brought by party having no relevent agreement w/ another, but seeking to enjoin D’s land use anyway.  (CB 715)

4.                  Judge is responsible for balancing social usefulness of activity against harm to adjoining landowners (Id).  (e.g., William Aldred’s Case - operating pig sty is useful, but depriving neighbor of clean air/water is too harmful.)

5.                  To protect view, easement/covenent is needed.  No implied legal right to aesthetics.

6.                  A defendant making a reasonable use of its land does not commit a nuiscance where it interferes w/ P’s use, but neighbors prospective use would equally interfere with D’s use.  Whoever acts first wins. (Hendricks - D installed well, making it illegal for P to install septic tank that would have made well illegal).

7.                  Nuiscance is not dependant on lawfullness of activity.

8.                  Nuiccance/trespass are similar but may have diff’t statutes of limitations, so it is important to distinguish or assimlate the two.

9.                  Most states have a statute allowing solar energy access easements, in which landowner goes through public agency to get easement by condemnation.

10.              Review Restatement CB 716-18, Supp 21

B.                 Remedies

1.                  Damages (See Weinhold)

a)                  permanant - damage to land - one time allocation. 

(1)               May be preferred to injunction when damage done is relatively small to hardshiop of injunction (Boomer - factory allowed to continue polluting since shut down would be severe harm to D and to public interest).

(2)               However, awarding permanent damages over injuntion is form of inverse condemnation.

(3)               Court needed to set price because of unilateral or bilateral monopoly situation.

(4)               If P had opportunity to pay lower preventive costs, D must nontheless pay for higher resulting damages if P had no obligation to pay for prevention (Crest Chevrolet - preventive costs not reasonable to expect P to pay).

b)                  temporary - damage to land for particular period

c)                  special - suffered by persons (sickness, ect.).

2.                  Injunction

a)                  relative hardships must be examined

b)                  If a party should have absorbed the cost of preventing harm in the first place, it will have to bear the cost of remedy, even if substantially more expensive (Perkin - factory forced to install filter system to prevent pollution to adjoining area)

3.                  Summary of logical outcomes

a)                  Property rule

(1)               P wins Injunction

(2)               D wins - no nuiscance

b)                  Liability rule

(1)               P wins damages

(2)               D wins - P pays to abate

C.                 Whether activity is nuiscance

1.                  Priority - who was there first - when did activity begin

a)                  “Coming to the nuiscance” doctrine only a factor to be considered.  It is less likely to succeed as a defense against a public nuiscance suit (but plaintiff may have to abate costs of injunction to defendant)(Spur)

(1)               Public nuiscane, as opposed to private, is one which affects an aggregate of people.  A party only has right of standing to bring individual suit if it has a problem unique to other injured parties.  ??

2.                  Nature of neighborhood

3.                  Nature of harm

a)                  Reas. sensibilities test used as to how bad interference is.

b)                  Indefinite continuation of activity is permanent.

4.                  Rules regarding pooling of water

a)                  Common enemy (English common law) -everyone for himself.

b)                  Civil law - No disturbance of natural drainage patterns is allowed.

c)                  Modified Civil law (maj. rule) -  natural flow may be changed in ways that do not impose unreasonable harm on neighbors

d)                  Reas. use - party can do whatever it wants w/ flow so long as not to unreasonably disturb neighbor.

IV.              Eminent Domain & Inverse Condemnation

A.                 Power of Eminent Domain

1.                  5th Amendment requires just compensation for takings by fed. gov’t.  14th applies same rule to state/local gov’t.

2.                  Governments has discretion to decide what is in the public interest. 

a)                  Even a condemnation for the purpose of transferring land from one private owner to another may be in pulic interest (Berman, HHA).  But taking is uncontsitutional if sole purpose is to confer a private benefit on someone.

b)                  Government may take entire area as part of public interest scheme, even if certain parts/builidingsb in area do not contribute to problem being solved (Berman)

B.                 Valuation of takings

1.                  If the government condemns land, it does not have to pay the owner the added value arising from a revocable use of neighboring land that has been granted by the same government (Fuller).  If gov’t can take away added value, it generally does not have to pay for such value.

2.                  But if land just happens to be alongside gov’t property (e.g. lakeshore), gov’t must compensate for added value.

3.                  If condemation statute does not require a compensation for consequential damages (e.g. business loss), then condemnee is not entitled to such compensation (Mitchell - owner of unique corn field not entitled for business loss even though he couldn’t move same business elsewhere).

4.                  Calculations (Newberry)

a)                  Capitalization of income:  net income attributable to land / Avg. rate of return = value of capital in land

b)                  Undivided fee rule:  sum of all interests cannot exceed market value of fee (e.g. leasehold and landlord’s interest must be fraction of whole)

C.                 Inverse condemnation

1.                  When a gov’t project creates an intrusion that devalues private land, landowner must be compensated.  This is true even if the amount/frequency/timing of intrusion are uncertain (Phelps).

2.                  Fed gov’t has navigational servitude, and thus right to regulate water levels w/i high and low watermarks w/o liability to adjacent landowners.  But owners of  land adjacent to water upstream that is not w/i that servitude are entitled to compensation for inverse condemnation resulting from water level control that takes place in the navigable water.

3.                  An invasion of a landowner’s superadjacent airspace that creates problems on the ground requires compensation (Griggs)

4.                  If Gov’t activity substantially interferes w/ use and enjoyment of private land, owners are entitled to compensation even if activity does not involve direct prescence on land (Martin)  Gov’t generally can’t be sued for nuiscance.  Balancing test inappropriate where land is damaged.

5.                  If gov’t activity takes away an easement or other property interest, compensation must be made (keep undivided fee rule in mind).  But effective nullification of a covenant does not generally require compensation (McNeill).

6.                  A de facto taking may occur where the government delays official condemnation but “condemnation blight” destroys usefullness of property beforehand. (Clement)

a)                  market value is measured in terms of what  property was worth before condemnation was announced.

b)                  when gov’t project depresses value, that depression is removed from compensation value

c)                  compensation for defacto taking will include interest, reimbursement for taxes and maintanence.

D.                 “Regulatory Takings”

1.                  Character of gov’t regulation is a factor:

a)                  physical invasion is a per se taking (Loretto - forcing landlord to allow cable box to be installed on roof requires compensation)

(1)                Loss of right to exclude is thus per se taking usually (Kaiser-Aetna)

(2)               But an exception occurs where harm would be minimal and free speech is at issue.  If area is generally open to public, then owner cannot totally exlude parties asserting free speech rights but can regulate time, place, and manner of speech. (Pruneyard)

b)                  Economic impact only - depends on how much of an impact; just how much equals a taking  is uncertain

(1)               Dimunition in value analyzed.  Total dimunition is a taking (Lucas)

(2)               “investment backed expectations” are another factor.  Penn Central suggests that only actual amount invested is considered, not unrealized profit.

2.                  If a regulation takes away too much freedom to use/enjoy property, taking occurs.  Effect on landowner sovereignty is primary factor.  If entire estate is prevented from being used, taking occurs(Penn Coal - “support estate” considered by itself to have been totally taken). 

a)                  Holmes test from Penn Coal

(1)               Does regulation put too great a cost on landowner to bear public interst?  Should public help abate cost?

(2)               Is there an excessive dimunition in value?

b)                  Brandeis dissent:  separate “support estate” a fiction.  Denominator should be entire estate, including all of mining interest, with support estate as numerator.  (Adopted in Keystone)

3.                  superadjacent air rights are considered part of entire estate, rather than as separate item (Penn Central - this is true even though rights to build in airspace were separately transferrable).

4.                  Eminent domain is optional in some cases where regulation may be exercised instead.  If a nuiscance is being stopped, no compensation is required since use would have been illegal anyway.

5.                  If gov’t misbehaves in regulation, due process is violated (e.g. Bormann - illegal to grant agricultural zoning petition by coin flip)

6.                  Regulation essentially granting partly a right to conduct activity adversly affecting neighbor is per se taking where neighbor previously had right to sue for nuiscance, since such grant essentially give offending party an easement  over neighbors land (Bormann).

7.                  Regulation resulting is “special and peculiar” damage may be subject to compensation, even w/o physical invasion (e.g. Richards - fanning system in railroad tunnel resulted offensive ommissions of gas to adjoining property that was unique to regular damage associated w/ adjoining a railroad)

8.                  Condition of exaction/dedication for approval of development  is legal if there is a reasonable relationship (“essential nexus”) and a “rough proportionality” between the harm caused to the public by the proposed develpment and the benefit of the exaction/dedication. (Nolan - condition that owners grant lateral easement to make up for loss of view to public not reasonably related; Dolan - ct. must determine if increase in traffic resulting from building would be comparable to decrease in traffic resulting from dedication of bike path).

9.                  If regulatory action does not substantially advance a public purpose, it may constiute a taking even if economically feasible use of land is not completely diminished (Del Monte)

10.              Damages

a)                  Winner of regulatory takings suit is entitled to temporary damages if injunction is granted for time preceding injuntion in which use/enjoyment was depressed (First Church)  Does this apply to inverse condemnation as well?

b)                  P is entitled to jury trial on issues of takings damages.  Question is whether means used by gov’t are reasonably related to public interest ends (Del Monte).

V.                 Conventional Zoning

A.                  Zoning Models

1.                  cumulative - highest use can be done anywhere, other uses more restricted depending on zone (highest use can occur in low zone, but low use cannot occur in next-highest use zone)

2.                  Exlusive (more modern) - all uses other than that specifically zoned for are prohibited.

B.                 Power to Zone

1.                  Zoning allowed if appropriate to situation.  It is a legitimate use of the police power. (Village of Euclid) (underlying legitimacy of zoning is nuiscance law)

2.                  Statute may be somewhat overbroad to ensure effective enforcement..

3.                  Tests for validity of zoning law:

a)                  “Fairly debatable” standard (applies to ordinary regulation).

(1)               legitimate public good

(2)               reasonable means

b)                  Intermediate scrutiny (applies to quasi-suspect or discriminatory regulation)

(1)               important gov’t interest is at stake.

(2)               interest is substantially advanced

c)                  where fundamental right is at stake, and predominant intend is to restrict exercise of that right, strict scrutiny applies.  Gov’t must show that:

(1)               there is a compelling public interest at stake; and

(2)               no less restrictive way to advance that interest exists.

C.                 Legitimate Rationales

1.                  City may regulate adult entertainment to control the secondary effects of high concentrations of such establisments, i.e. crime (Buzetti).  Fundamental right can be impinged on so long as it is not totally barred from jurisdiction and remains exercisable somewhere, even if not advantageously from an economic standpoint.

2.                  If ordinance does not discriminate, but incidentally  has adverse effect on particular group, ordinance is not necessarly unconstitutional (Boerne)

3.                  If allowing certain types of living arrangements would substantially disturb outlying area, prohibtion of such arrangements is allowed (e.g. Village of Bel Terre - college roomates may not board in residential neighborhood).  But some state courts will not uphold laws that discriminate based on the relationships among tenants in a building (e.g. Dinolfo)

4.                  Law that discriminates based on particular characteristics is invalid if persons possesssing those charactertics cannot be distunguished from those who do not for purposes of serving the ends of the statute (e.g. Cleburne - requiring retarded persons to get permit to live together not legal if other groups did not need permit, given that state could show no specific reason for requiring special requirement for retarded persons)

D.                 Home Rule

1.                  If home rule is permitted, then local gov’t may set out stricter (but not laxer) regulations that the state so long as they do not conflict w/ state laws.  Requirement of legislative delegation is eliminated

2.                  State has power to expressly  pre-emt home rule in a given policy area. 

3.                  An ambiguous statute should be read as consistent w/ local regulation if possible.

4.                  Gov’t may regulate for aesthetics, but regulations must be so clearly expressed so as not to invite guessing on the part of regulators as to whether a particular project meets aesthetic standards (Anderson).

E.                  Zoning affecting individual interests

1.                  A city’s as-of-yet unenforceable plan for rezoning cannot give rise to a taking action until

a)                  rezoning actually takes place and is implemented; or

b)                  P can show concrete proof of damages

2.                  “Spot Zoning” will be valid only if if such zoning is

a)                  a valid exercise of the police power; and

b)                  there is a reas. basis for distinguishing spot-zoned land from surrounding land; and

c)                  permitted use would be consistent with comprehensive plan surrounding spot (e.g. Little - shooting range too out-of-character w/ agricultural area to be allowed)

3.                  Requirment for at-large referundum to approve re-zoning is consitituional so long as one-person one-vote is not violated (Eastlake).  If only narrow segment of community is given power to vote on rezoning, const. is violated.

4.                  Tr. Cts. will typically apply a fairly debatable standard to zoning cases that involve a large-scale zoning plan.

5.                  Rezoning that affects a limited # of interests is subject to a quasi-judicial standard of review. 

a)                  landowner is burdened w/ showing that proposed use consistent with comprehensive scheme.  If he does so, then

b)                  gov’t must provide express reasons (legit. purpose), findings of fact (substantial evidence) to support decision.

6.                  To gain a vested right to complete a given project, landowner must receive permit to build such project (Avco) and must have made a substantial investment in the project before zoning laws changed.

F.                  Variances

1.                  Gov’t is not justified in granting variance unless it can show that landowner would be subject to an unnecessary hardship w/o it.  Test for hardship (Jarrold):

a)                  No reasonable return if land is used as zoning requires; and

b)                  landowner faces unique circumstances re neighbors; and

c)                  use authorized by variance wouldn’t alter character of neighborhood.

2.                  Quasi-judicial standard of review applies to variance cases; gov’t must provide substantial evidence in record for app. ct. to review.

3.                  Variances are hard to get rid of.  they run with the land, but can be limited (St. Onge). 

4.                  “Contract Zoning” must relate to parcel that is receiving variance/rezoning (Id., city could force shop owner to sacrifice land rights elsewhere in town)

a)                  Bilateral contract zoning generally illegal (e.g., city cannot commit itself to particular zoning scheme for a definite period of time)

b)                  Unilateral (conditional)  contract zoning legal

G.                 Nonconforming Uses

1.                  Amortization - practice of giving time period for non-conforming uses to come to an end.

a)                  generally related to cost

b)                  Where no home rule exists, it is unclear whether local gov’t can amortize.

c)                  Reasonableness test used:  Amortization technique is presumed valid; owner must show that loss suffered outweighs public benefit (Vill. of Valatie).

(1)               a stricter test is used re structures as opposed to uses (CB 933)

2.                  Planned Unit Development (PUD) is not nonconforming use (Cheney)

a)                  If enabling act doesn’t prohibit PUD, local gov’t can use it.

b)                  Planning Commision, not Zoning Board of Appeals, is appropriate agency for approving PUD.

H.                 Exclusionary Zoning

1.                  Local gov’t cannot exlude, through zoning, low-income housing, unless the gov’t can show special circumstances that would merit exlusion (Mt. Laurel - keeping taxes down insufficient reason for exclusionary zoning).

2.                  Zoning power comes from state and must be used for general welfare of state/region, not just are w/i local gov’t jurisdiction (Id.)

3.                  Court has discretion to declare “builder’s remedy” (right of P to go ahead w/project), or to give city opportunity to adopt a fairer zoning plan that would apply to P.

4.                  State may not particpate in racially discriminatory housing practices (Shelly - Homeowners may convenent to avoid selling homes to members of particular races, but courts may not enforce such convenents).

5.                  Under the 14th amendment, if the gov’t inviduously discriminates on the basis of race in zoning plan, zoning is invalid.  This is true regardless of whether race is whole or partial motive.

a)                  but disparate impact, w/o intent to discriminate, has no weight in 14th amendment analysis (Arlington Heights I).

6.                  Under FHA, disparate impact, even w/o intent, will merit invalidation in some cases (Huntington).

a)                  If P can make primae facie case, then burden shifts to gov’t to defend zoning.  Intent not necessary for primae facie case.

b)                  Intermediate scrutiny applied.  gov’t interest doesn’t have to be high (just legitimate), but if less restrictive means is available, zoning is invalid. 

c)                  Post Hoc reasons for gov’t plan will not be considered (i.e., concern about sewage not mentioned in zoning denial will not be heard by court).