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Property rightsBundle of sticks:
Right to exclude- essential stick in the bundle
Right to possess
Right to use
Right to destroy
Right to transfer/ alienate RemediesInjunction | Treble Damages | Punitive Damages |
Competing Justification for Property RightsFirst Possession | Labor/ investment | Efficiency/ maximization of social welfare | Distributive Justice | Sovereign Authority | Gifts and Inheritance |
NuisanceA 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 |
| | TrespassUnprivileged 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 LawTypes 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: Varianceexceptional | undue hardship |
Zoning- taking of rightFactors | type of project | | | location of project | | | ultimate cost | | | amount accomplished under conformity |
Improving TrespasserSomebody builds on land and improves the value |
ExclusionMinority 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 DefensesHuman Value | Necessity | Consent is effective even if procured by fraud |
| | Prescriptive Easement - ElementsOpen 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 PossessionExclusive | (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 |
ServitudeAppurtenant | 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 problemIs this appurtenant or in gross | Benefit of each | Look at language |
Easement by EstoppelCAnnot revoke license if it is relied upon |
Easement by Implied Prior Use2 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 CovenantCovenant 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 Approachcovenant in writing | notice | intent | touch and concern land | - | - | relief | injunctive relief |
Implied Reciprocal Negative ServitudeEven 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 CovenantsCan enforce restrictions as long as its not unreasonable | Restrictions/ covenants cannot be contrary to public policy |
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