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65 Cards in this Set
- Front
- Back
Remedies for a public nuisance
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• Criminal prosecution
• Injunctive relief • Damages at law |
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Remedies for a private nuisance
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• Injunctive relief
• Damages at law |
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- Elements of private nuisance
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Substantial interference AND
Intentional AND unreasonable OR unintentional result of negligent, reckless, or abnormally dangers |
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How to show intent for private nuisance
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For the purpose of causing it
Knows that it is resulting from his conductKnows that it is substantially certain to result from his conduct |
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How to show unreasonableness
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Level of interference that results from the conduct (must establish a threshold)2nd RS Sec 826 view – look at the gravity of the harm vs. util
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o Gravity factors
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Extent and character of the harm,Social value of the pi’s use,Suitability to thelocality in question,The burden on the plaintiff of avoiding the harm
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Utility factors
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Social value,Suitability to the locality in question,Impracticality of the defendant preventing the harm
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Downside to nuisance law
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retroactivity
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Elements of the Coming the the nuisance doctrine defense
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1 - def is there first; 2 – person claiming the nuisance moved to the def
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Exceptions to coming to the nuisance
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presence of the public greatly diminishes the success of the defense; or if it is natural growth
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Two basic traditional servitudes
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covenants and easements
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Definition of Easement
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an interest in the land; convey the right to use another person’s land
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Types of Easements
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Express,Implied, and by prescription
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Types of Implied Easements
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• Prior use
• Necessity • Plat |
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Types of Prescription Easements
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• Public
• Private |
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Definiton of Covenant
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a formal agreement of legal validity
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Types of Covenants
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Real covenants (enforceable at law)
Equitable servitudes (enforceable at equity) |
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Definition of - Profits a prendre
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rights to take off the land things that were thought of as “part” of the land (timber, minerals, wild game, fish)
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Definiton of Affirmative easement
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right granted by the servient owner to a neighbor to enter or perform an act on the servient land
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Definition of Negative Easement
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easement forbidding one landowner from doing something on his land that might harm a neighbor.
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traditional easements
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For light,Air flow,Support,Flow of artificial streams(movement to create an additional category – conservation easements)
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Definition of Easement Appurtenant
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benefitedandburdenedestate2 piecesofproperty(twohouses
whereonedependsonanotherfor accesstoapublicproperty),itis connectedtotheland and stays |
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Definition of - Easement in gross
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[personal easement] or (right to allow a person to use the property to “watch the sun set”)
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How a grantor may, in deeding real property to one person, effectively reserve an interest in the property to another.
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one can reserve an interest in a property to a stranger to the title (b/c they are trying to grant the intent to the grantor;
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Definition of Reservation
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a provision in a deed creating some new servitude which did not exist before as an independent interest
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Definition of Exception
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a provision in a deed that excludes from the grant some preexisting servitude on the land
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Definition of Regrant theory
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an easement “reserved” by the grantor was not a reservation at all, but a regrant of an easement by the grantee to the grantor
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Definition of License
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oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass
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When a license is not revocable and why it is special that they are revocable
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License coupled with an interest
License under the rules of estoppel cuzeasementsare not revocable |
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Definition of- Easement by prescription
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absoluteirrevocability,Actual use,openandnotoriouspeeaceable anduninterruptedbytitle owner,continuously,hostile, adverse,claim of right,statuto
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Definition of Quasi Easement
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where owner may make use of one part of his land for the benefit of another part
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Definition of- Mense conveyances
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Subsequent Conveyances
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Restatement on quasi easements
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the party benefiting from the easement should bear the cost
Assuming that there is no malfeasance by the owner of the burdened owner |
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o Definition of Implied grant
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The person gets more than what they thought when they were getting
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- Definition of the Bona fide purchaser (defense against express easements)
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If express easement, not notified on the record or deed,
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How must one prevent prescription
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have to effectively interrupt the use
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Definition of Easement implied by a plat
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Developer conveys lots (plats) to homeowners each homeowner gets rights to use the streets, sidewalks, and other common areas
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Types of Easements in gross
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Personal – serves no purpose to the public
Commercial – facilitation of commerce (companies merging) |
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Definition of- One Stock Doctrine
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Courts articulate that unanimity is required; no unilateral actions
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Majority Rule on extention of an easement to a non-dominant estate
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Can't Do It
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Minority Rule on extension of an easement to a non-dominant estate
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Can do it if certain factors present
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Minority Rule non-dominant estate factors
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Use,Increase in use,Increase in burden to servient estate,Conduct and timing of complaint
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When expansions of an easement are not permitted
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the change is not reasonably foreseeable at the time of establishment of the easement”
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What must there be to establish an abandonment
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oNonuseANDActs by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement ORA purpose inconsistent with its future exercise
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How a private party sells the gov’t a piece of land for their use
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supplement the sale with an affidavit saying that there was no coercion,grantor understandallrightsandthat thisisnotanexerciseof em dom. domain, etc.
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How to terminate an easement
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Ownermayreleasethegrantee,If thedurationoftheeasementis limited,andthetimeexpires,By estoppeliftheservientowner reasonablyreliesupona
statementorrepresentation by theeasementowner,Byabandonment,By condemnationbythegov’t,Byprescription |
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Elements of burdened estate
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Intent,Horizontal privity of estate,Vertical privity of estate through strict title,Touch and concern in the land,Notice
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Elements of Benefited Estate
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Intent,Vertical privity of estate,Touch and concern in the land
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Definition of an estate in the land
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an interest in the land
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is mutual consent to the transfer required in privity of estate?
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yes
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What is horizontal privity of estate?
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looking to the original relationship between the original owners of the estate(s)
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What must be included in a burdened estate that has been transfered thru vertical privity
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the covenant is enforceable only against someone who has succeeded to the same estate as that of the original promisor
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What must be included in a benefited estate that has been transfered thru vertical privity
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must succeed to the original promisee’s estate or to a lesser interest carved out of that estate
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What do you not have to worry about with a Equitable servitude
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horizontal or vertical privity
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Equitable servitude-definition of
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o A covenant respecting the use of land enforceable against successor owners or possessors in equity regardless of its enforceability at law
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When a benefit touches and concerns the land
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when it makes it more valuable
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When A burden touches and concerns the land
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when it makes it less valuable
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Majority view of implied reciprocal servitude
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can't be retroactive
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Minority view of implied reciprocal servitude
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a plan can be planned continuously and arise later
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What restrictions are operative in a implied reciprocal servitude
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Any restrictions that existed in development when the lot was originally transferred
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Servitudes that invalid b/c they violate public policy include, but are not limited to:
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arbitrary,unconstitutional, unreasonable restraint on alienation,unreasonable restraint on trade or competition, unconscionable
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can onesided covenants be enforced?
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no
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what is underlying fed and state policy toward handicapped and group homes?
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not to deny housing and residential living to handicapped or group homes
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Difference b/w FHA and 14th amend.
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- FHA (Discriminatory Intent is not required) v. 14th Amendment (Discriminatory Intent is required)
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Zoning use of MFH
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apartment complexes (MFH) are used as buffers to roads and SFH are preferenced over MFH
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