Property II Final
Terms in this set (29)
one affecting the rights enjoyed by citizens as part of the greater community. It must affect a large number of people, such as an entire neighborhood or community. The government can bring the action or someone who suffers a special injury.
affecting one person or a small group of people in regard to the enjoyment of private rights, not common to the public.
nuisance per se
always and everywhere a nuisance
nuisance in fact
not always wrong
a use is unreasonable if it crosses a poorly defined threshold in its interference with the use of another's property. The more substantial the interference, the more likely it is to be considered unreasonable under this approach. Uses that are dirty, smelly, or noisy do not rise to the threshold of unreasonable.
Basic Restatement Approach
a use of property is unreasonable if the harm of the use outweighs the benefit of the use.
Alternative Restatement Approach
a use is unreasonable if the harm caused by the conduct is serious and the financial burden of compensating the victims would not cease operations of the "wrongdoer."
Coming to the Nuisance Doctrine
a legal doctrine that say if the plaintiff came to the area with knowledge of the activity now alleged to be a nuisance, then the defendant can assert this doctrine as a defense. (not an absolute bar to a nuisance claim)
allows non-owners to collect resources from the land such as coal, water, or timber. This is irrevocable, but can be limited in time.
benefits a certain piece of property and runs with a certain piece of land.
in gross easement
does not benefit a certain piece of property, but rather, the benefit is held by a particular individual or entity. It does not run with the land.
easement by prescription
a non-express easement that is formed when you cross someone else's land without their permission for the statutory period.
an easement that is in writing, was intended by both parties, and had actual, constructive, or inquiry notice to the servient estate.
easement by estoppel
a non-express easement that is created when the conduct of the owner of land leads another to reasonably believe that he or she has an interest in the land. Then a detrimental change occurs.
easement implied by existing use
a non-express easement that is implied because of a use a property that exists at the time of the severance of the property.
a scenario where you own both pieces of land, then divided it and forgot to write in an easement for yourself
where the person claiming the benefit of the implied easement was not the owner of the entire parcel and rather is a person who acquired the benefited parcel of land
a relatively easy standard to meet. Allows inconvenience.
does not allow for mere inconvenience. It is used in the majority of courts for easements by necessity. Used in some courts for easements implied by existing use.
easements by necessity
a non-express easement that arises only when a division of land causes land to be landlocked.
between the original covenanters
between successive owners who are still subject to the covenant
strict vertical privity
required that the grantor did not retain any future interest in the land
relaxed vertical privity
adopted by many courts, would allow privity even if the grantor retained future interest in the land.
burden touch and concern
an obligation touches and concerns the servient estate if it affects the use and enjoyment of the land
benefit touch and concern
an obligation touches and concerns a dominant estate if it improves enjoyment of that land or increases the market value.
doctrine of implied reciprocal negative servitudes
implies that when an owner sells a number of parcels with evidence of intent to create a common plan or scheme of development then (1) covenants made to the seller benefit all parcels within the plan; and (2) all parcels within the plan are bound by covenants.
common interest developments
dwellings that are joined by servitudes providing them with shared obligations to contribute fees to an owners association that maintains the common elements, enforces the covenants, and enacts rules for the community.
promises that are enforceable as real covenants or equitable servitudes may lose their enforceability if circumstances have changed so much that it is not longer possible to achieve the original purpose of the covenant. This is a strict test.
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