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Property rights
Bundle of sticks:
Right to exclude- essential stick in the bundle
Right to possess
Right to use
Right to destroy
Right to transfer/ alienate
Remedies
Injunction |
Treble Damages |
Punitive Damages |
Competing Justification for Property Rights
First Possession |
Labor/ investment |
Efficiency/ maximization of social welfare |
Distributive Justice |
Sovereign Authority |
Gifts and Inheritance |
Nuisance
A non trespassory interference with property rights |
(must be a substantial interference) |
Analysis |
What is the harm |
| |
What is the benefit |
| |
Suitability for location of activity |
| |
Fairness consideration |
| |
Can nuisance be abated |
Defense |
Who was there first |
| |
Is P being sensitive |
Remedies |
Injunction |
| |
Damages |
|
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Trespass
Unprivileged intentional intrusion on property possessed by another |
Criminal trespass- Asked to leave but do not |
License: permission to enter property possessed by another (revocable) |
Landlord Tenant Law
Types of tenancy: |
terms of year |
definite/ fixed period |
period tenancy |
indefinite in length |
tenancy at will |
terminated by either party at any time |
tenancy at sufferance |
Relationship between LL and tenant who wrongfully holds over after termination |
Flexibility in Zoning: Variance
exceptional |
undue hardship |
Zoning- taking of right
Factors |
type of project |
| |
location of project |
| |
ultimate cost |
| |
amount accomplished under conformity |
Improving Trespasser
Somebody builds on land and improves the value |
Exclusion
Minority Rule |
Cannot exclude unreasonably |
Majority Rule |
Right to refuse service to anyone unless they are protected by law. (This does not apply to common carriers and inn keepers) |
Trespass Defenses
Human Value |
Necessity |
Consent is effective even if procured by fraud |
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Prescriptive Easement - Elements
Open and notorious |
(acquiesce- owner knew but did nothing to stop) |
Adverse and hostile |
(open and notorious will be presumed to be adverse) |
Continuous |
- |
Sustained |
- |
Adverse Possession
Exclusive |
(depending on customs of that land) |
Open and Notorious |
(visible) |
Continuous |
(Can use tacking approach) |
Without owner permission |
- |
For a period of time set by the statute of limitations |
- |
Color of title |
(Faulty paperwork- should convey title but does not) **only in some jurisdictions |
Servitude
Appurtenant |
runs with the land |
In gross |
For an individual |
Express Easement |
by grant |
scope of easment |
language of deed |
| |
extrinsic evidence |
| |
burden on servient estate |
servient land |
burdened land |
dominant land |
benefited land |
Steps to solve a servitude problem
Is this appurtenant or in gross |
Benefit of each |
Look at language |
Easement by Estoppel
CAnnot revoke license if it is relied upon |
Easement by Implied Prior Use
2 parcels were at one time in common ownership |
1 parcel had derived benefit from the other parcel |
Use was apparent and continuous |
Continuation of use id "reasonably necessary" |
Real Covenant
Covenant in writing |
notice |
actual, inquiry, record |
intent for burden and benefit run with the land |
touch and concern the land |
privity |
vertical and horizontal |
- |
- |
Relief |
Money damages |
Equitable Servitude Approach
covenant in writing |
notice |
intent |
touch and concern land |
- |
- |
relief |
injunctive relief |
Implied Reciprocal Negative Servitude
Even if restrictions are not specified at the outset, they may be implied in the court of law |
Doctrine: |
Common owner subdivides property into a number of lots |
| |
Common owner has an intention to create a common plan or scheme of development for the property as a whole |
| |
Vast majority of subdivided lots contain restrictive covenants that reflect the general scheme |
| |
The property against which application of an implied covenant is sought was intended to be part of the general scheme of development AND |
| |
The purchasers of the lot in question had notice (actual, constructive, or inquiry) |
Restrictions to Covenants
Can enforce restrictions as long as its not unreasonable |
Restrictions/ covenants cannot be contrary to public policy |
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