Ownership and
Control Over the
Use of Property
Right to Exclude (trespass:
land invaded by physical
object)
Nuisance Law: provides a
remedy for nonphysical
invasions to protect use and
enjoyment of land
Servitudes: agreements
between neighbors - land
owned by one person subject
to specified use by another
Zoning: systematic appraoch to
organizing incompatible land uses -
zoning boards restrict certain areas
to certain purposes
Eminent Domain
(Takings): power of government
to take title to property against
owner's will
Often seen as most important
property right
Courts have to protect - property
rights hollow if there's insufficient
means to protect
Not absolute - dominion over
property rights doesn't give dominion
over people on your property
Private v. Public
Remedies: Injunction, Damages
Coase: nuisance law forces
companies to take externality
(pollution) into account
Easement: a grant of interest in
land that entitles a person to use
land possessed by another (just
about use - right of way is a
common example)
Covenant: a right that arises from
a promise respecting use of land
by one landowner to another (like
not to do something, for example)
Euclidian Zoning: regulations on use,
height, area to regulate property. Districts
graded highest (single family homes) to lowest
(worst type of industry). Higher uses permitted
in areas zoned for lower uses, but not vice
versa (can have single family home in
apartment district; can't have commercial
business in residential district.
Flexible Zoning
Aesthetic Zoning: restrictions on
apperance on property - valid if related
to general welfare
Restrictions on Household
Composition: okay for safety reasons,
but keep in mind FHA and discrimination
Physical Takings: physical takings
allowed for public use/public
purpose - but always require
compensation
Regulatory Takings: occurs when
government regulates the use of
property in a way that impacts
owners, but may or may not
amount to a taking. Regulations
that go too far = takings; so has the
consequence of the regulation
amounted to a taking?
Involves two parcesl of land: dominant (derives
benefit) and servient (bears burden aka the land
used). Can get via purchase, implied,
presription, estoppel
Easement Appurtenant: benefits easement
owner in the use of land belonging to that owner
(property described in location terms - church
purposes - not specific church) (PREFERRED
BY COURTS)
Easement in Gross: benefits easement owner
personally rather than in connection with the
use of land (church example: want easement to
be with them specifically, not the land)
Real Covenant (Damages):
4 requirements: writing, intend that it run with
the land, touch and concern, privity of estate
Equitable Servitude (Injunction)
4 requirements: writing, intend that it run with
the land, touch and concern, NOTICE (not
privity)
Termination: terminate based on changes
inside or outside the land - remember changed
circumstances rule!
Variance: permits use of land in a way
expressly prohibited. Two Rules:
1. Necessary to avoid undue hardship
2. Doesn't impinge on public good or
intent/purpose of zoning plane
Special Exception: puse permitted by
ordinance that's not necessarily incompatible,
but may cause harm if not watched. Two
approaches:
1. Zoners use as discretionary device, only
approve if very general criteria met
2. Very detailed criteria, and if met, exception
granted
Categorical Rules:
1. Regulations that control nuisances or nuisance
like activity are not takings, gov. shouldn't have to
pay to regulate/protect people from nuisance.
2. Permanent physical occupation authorized by
government is always a taking (even if serves public
interest - but has to be occupation by a third party).
3. A regulation that denies owner of all economically
beneficial use is a taking (unless it was something
the government could regulate before)
Penn Central Test to Determine whether a
regulation is a taking
1. Economic impact of regulation
(interfererence with investment backed
expectations, dimunition in value)
2. Character of government action
(disproportionate affects, reciprocity of
advantage, is government abusing power?