Property 2`

Property structure built before the zoning law, but that specific use of the property becomes prohibited by a new zoning ordinance.

1. Uses are allowed to continue as of right, but destruction or abandonment terminates that right.

2. Amortization allows the use to continue for a set period of reasonable time & then require it to shut down.

Variances, special exceptions, and zoning amendments.

Gov grants a waiver of a certain zoning law to a particular person IF the property owner shows that she will suffer undue hardship otherwise (not just mere inconvenience) and that the grant of the variance will not result in harm to the public or seriously undercut the overall zoning plan (strict test).

Owner may obtain permission to engage in a use prohibited by zoning law if certain conditions are met, but conditions must be clearest stated (cannot be vague or broad). If conditions are vague/broad, the conditions won’t be enforced & use will be permitted.

It is an official change in a zoning district. CT’s will invalidate zoning amendments that single out a parcel of land (spot zoning) by establishing a use classification inconsistent w/ surrounding uses, creating an island of non-conforming use.

Zoning law will prevail.

The more restrictive

1. Dispersal strategy- require a set distance btwn to avoid a concentration of adult uses & preventing a red light district.

2. Concentration strategy- concentrate adult uses by limiting them to a certain area.

FHA applies to zoning laws. There is an FHA exemptions for a blanket limitation on occupancy, but the definition of family doesn’t constitute a limitation on occupancy. Group homes are protected under the FHA.

If a religious org is challenging land use, strict scrutiny is applied. If the regulation unreasonably limits or substantially burdens religious orgs, it will be struck down.

An intentional act that unreasonably and substantially interferes w/ another’s property right.

1. Traditional

2. Harm v Benefit

3. Alternative Restatement

A use is unreasonable if it crosses a poorly defined threshold in it’s interference of another’s property.

-more substantial = more unreasonable

-dirty, smelly, noisy uses = unreasonable

a use is unreasonable if the gravity of the harm outweighs the utility of the conduct. If the benefit of the activity outweighs the harm it is not unreasonable.

Servient- has the burden of serving the benefit.

It is tied up w/ another parcel of property & the benefit runs with the land. If the easement is ambiguous, it will be presumed to be appurtenant.

It is not tied up with a parcel of property. (There is no dominant estate; therefore, the benefit does not run with the land).

To engage in a positive use of the burdened property.

Burdened property from using it in a particular way. (In the US, easements are mostly affirmative exceptions: conservation and agricultural)

Most easements are created by grant or reservation in a deed or K. They must satisfy the Statute of frauds.

The conveying property owner holds back a property interest from the conveyance to himself or....

Maj- easement may not be reserved in a 3rd person and will be treated as a nullity or a reservation in the grantor.

Min-easements can be created by reservation in a third person.

1. Prescription

2. Estoppel

3. Implied by existing use

4. Implied by Necessity

Person attains by elements similar to adverse possession. The party uses the other person’s property in a way that is visible, non-permissive, and continuous for the statutory period of approx 10 yrs.

License may convert to easement by estoppel if the holder of the benefit reasonably relies on the continuation of the license by investing money or labor and it creates a legal change in position of the holder of the benefit. (Some CT’s refuse to recognize b/c SoF issues).

A use is unreasonable if the harm caused is serious & the financial burden of compensating wdln't make the continuation of the conduct not feasible

(my action is unreasonable if I can compensate u for the harm u suffered w/out going out of business myself)

At one time both parcels were owned by same person. When separated, one parcel visibly made use of the other continuously and the use is reasonably necessary.

There was common ownership and when the parcels became separated, one piece of land was landlocked. The easement must be strictly necessary.

A residential landowner cannot have monetary relief if he knowingly came to a neighborhood zoned for a specific use (agr or Indus) A person may receive an injunction to makes the nuisance move, but the victim will have to pay moving costs (public interest is benefitted).

benefit > harm then damages; benefit < harm then injunction.

*A ct should refuse injunctive relief when there is a large disparity in economic consequences of shutting nuisance down.

Concerned w/ interference of use and enjoyment of private property. Cases must show special damages-they suffered a specific injury different from the injury suffered by the general public.

Interference w/ rights of the public. They don’t require special damages and are usually brought by public officials.

Gives a party the right to physically enter and use someone else’s property.

Gives a party a revocable right to physically enter the property of another. (Can be created when easement doesn’t satisfy statute of frauds.

Gives a party to physically enter the property of another and remove resources from the land.

Is a promise binding on the present and subsequent owners of the property to force or prevent something.