Real Property Outline for the California Bar Exam

  1. Possessory Interests: Estates In Land

    1. Present possessory interests.

      1. Fee Simple absolute – “To A” or “To A and his heirs”

      2. Defeasible fees – estates that can terminate upon event happening

        1. Fee simple determinable – terminates upon the happening of a stated event and automatically reverts to the grantor

          1. “To A so long as/until/while”

          2. Potential for indefinite duration

          3. Future interest – possibility of reverter to grantor

        2. Fee simple subject to a condition subsequent – grantor reserves right to terminate the estate upon happening of stated event

          1. Does not automatically terminate – grantor must take some action, has option

          2. “To A, but if X event happens, grantor reserves the right to reenter and retake”

          3. Future interest – right of entry/power of termination held by grantor

        3. Fee simple subject to executory interest – after event happens, estate passes to a 3rd party rather than reverting to grantor

          1. “To A, but if X event occurs, then to B”

            1. A has a fee simple subject to B’s shifting executory interest

          2. Future interest – executory interest (held by 3rd party)

      3. Life estate

        1. Life tenant entitled to all ordinary uses and profits from land – can rent property, sell, mortgage, grant easements give it away, but conveyances cannot extend beyond the LT

        2. Must pay taxes

        3. Life tenant must not commit waste – voluntary – overt conduct that causes drop in value (unless PURGE prior use (note – Open Mines Doc), reasonable repairs, grant, exploitation), permissive – neglect, or ameliorative – enhancement of prop (except if RMs consent OR perm change condition in n-hood)

        4. Life Estate Pur Autre Vie – measured by life of 3rd party (O conveys “To A for the life of B”)

          1. If LT conveys life estate to someone else, the 3rd party has a life estate PAV – when the original LT dies, the 3rd party must vacate (measuring life remains with the original LT not the new party)

          2. Must pay all taxes

    2. Future Interest

      1. In grantor

        1. Possibility of reverter – accompanies only FS determinable

        2. Right of entry – accompanies only FS subject to con subseq

        3. Reversion – usually life estate

      2. In Grantee or third party

        1. Remainder – created in 3rd person that is capable of coming possessory upon the expiration of a prior possessory estate created in the same conveyance (“To A for life, then to B”); never follows a Defeasible fee

          1. Vested – ascertainable taker and not subject to condition precedent

            1. Indefeasibly Vested Remainder – not subject to divestment – holder is certain to acquire w/no strings attached

              1. “To A for life, remainder to B” A and B are alive (even if B predeceases A, remainder goes to B’s heirs)

            2. Vested Remainder Subject to Complete Defeasance – right of possession could be cut short b/c of con sub

              1. O conveys “To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C” A is alive. B is 20.

            3. Vested Remainder Subject to Open – vested in group of takers @ least one of whom is qualified to take

              1. O coveys “To A for life, then to B’s children” A is alive, B has two children, C and D.

              2. RAP APPLIES

          2. Contingent – unborn/unascertainable taker OR subject to condition precedent

            1. “To A for life, then to B’s first child” A is alive, B has no children.

            2. RAP APPLIES

            3. Rule of Destructibilityat CL, a contingent remainder was destroyed if it failed to vest and was still contingent at the time the preceding estate ended 

            4. Rule in Shelley’s Case – at CL, if the same instrument created a life estate in A and gave the remainder only to A’s heirs, the remainder was not recognized, and A took the life estate and the remainder

            5. Doctrine of Worthier Title – applies when O who is alive, tries to create a future interest in his heirs, remainder is invalid – living person has no heirs

              1. Rule of Construction – grantor’s intent controls

        2. Class giftsRAP APPLIES

          1. When class closes, child born afterwards will not take

          2. If class member predeceases the will maker, that person will drop out of the class and the other members will take the share

        3. Executory interest – future interest created in a 3rd party which is not a remainder and which takes effect by either cutting short some interest of another person or in the grantor

          1. RAP APPLIES

          2. Shifting – cuts short s/o other than grantor

            1. O conveys: “To A, but if A uses the land for nonresidential purpose at any time during the next 20 yrs, then to B” – B has a shifting EI

          3. Springing – cuts short grantor

            1. O coveys “To A, if and when he marries.” A is unmarried. – O has a springing EI

    3. Validity

      1. Rule Against Perpetuities (RAP) – future interests are VOID if there is any possibility that the given interest may vest more than 21 years after the death of a measuring life

        1. Applies: to contingent remainders, executory interests, vested remainders subject to open

        2. Does NOT apply: to future interests in O, indefeasibly vested remainders, vested remainders subject to defeasance

        3. Bright Lines:

          1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates RAP

          2. Many shifting executory interests violate – an EI with no limit on the time within which it must vest violates

        4. Charity Exception

  2. Concurrent Estates

    1. Joint Tenancy(TTIP) – 2 or more own w/ ROS

      1. Undivided share w/ right to use and enjoy the whole

      2. Severance: (SPAMMS)

        1. Sale

        2. Partition; And

        3. Mortgage

          1. Lien Theory (Majority) – JT not severed

          2. Title Theory (Minority) – JT severed

        4. Murder

        5. Simultaneous Deaths

      3. Mere act of entering into contract for sale of share = severed.

        1. Equitable conversion = the day he signs the contract, severed

        2. BUT if JTs convey portion together, the JT is NOT terminated, but they also have a TIC w/3rd party for the conveyed portion

      4. Can transfer interest during lifetime even w/o knowledge of others.

    2. Tenancy by Entirety – marital interest b/n H & W w/ ROS

      1. Severance:

        1. Death

        2. Divorce

        3. Mutual Agreement (spouse acting unilaterally cannot severe)

        4. Execution by Joint Creditor (cred of only 1 spouse cannot)

      2. Not presumed b/c of marriage – must expressly state

    3. Tenancy in Common (possession) – 2 or more own w/ no ROS

    4. Incidents of co-ownership.

      1. Possession – each co-t entitled to possess and enjoy the whole

      2. Rent from co-T in exclusive possession (no unless ouster)

      3. Rent from 3p – co-T must provide fair share of rental income

      4. Adverse Possession (no unless ouster)

      5. Carrying costs – taxes and mortgage interest payments – each co-T responsible based on undivided share

      6. Contribution

        1. Repairs – repairing co-T has right to contribution for reasonable and necessary repairs provided notice given of need for repair.

        2. Improvement – no contribution during co-tenancy; at partition, improving co-T entitled to any increase in value, and liable for any decrease.

      7. Waste –must not commit

        1. Voluntary = overt acts

          1. Natural Resources: Exceptions = (i) repair or maintenance; (ii) Only suitable use; (iii) Prior Use/Implied or Express

        2. Permissive = neglect

          1. Must: (i) preserve land/structures; (ii) pay interest on mortgage and taxes; (iii) short duration special assessment (long duration divided w/ future interest holder)

        3. Ameliorative = alterations increase value

          1. UNLESS: market value not diminished; and either (i) remaindermen don’t object; or (ii) change in condition deprived land’s value

      8. Partition – JT or TIC can bring action

        1. Voluntary agreement

        2. Partition in kind

        3. Forced sale

  3. Landlord Tenant: Non-Freehold Estates.

    1. Nature of leasehold.

      1. Tenancy for years – fixed period w/stated termination date from start – terminates automatically, if term is greater than 1 yr, must be in writing

        1. Surrender – if T surrenders and L accepts – must in writing if 1 yr +

      2. Periodic tenancy. (Continues for successive intervals until proper notice of termination); Express or implied.

      3. Tenancy at will. (No fixed period; Terminates easily) – created by express agreement

      4. Tenancy at sufferance (T wrongfully holds over)

        1. Holdover Doctrine – LL may (i) evict, (ii) bind him to a new periodic tenancy – residential – month-to-month

          1. Commercial tenants may be held to a new year-to-year

          2. L may increase rent if he told T before holdover he would

    2. Tenant Duties

      1. Liability to 3p – T liable to injury to 3p T invited

      2. Pay rent

        1. T breaches/possession: L can evict thru courts or continue relationship and sue for rent due – NO SELF HELP

        2. T breaches/not in possession: (SIR)

          1. Surrender – treat as offer of surrender which L accepts (if unexpired term is > 1 yr, must be in writing)

          2. Ignore abandonment and hold T responsible for unpaid rent (minority)

          3. Relet premises on T’s behalf and hold T liable for deficiencies. (majority – L must try to re-let)

      3. Duty to maintain (no waste, repair, law of fixtures).

        1. Fixtures (Heating systems, furnace, special storm windows) = by virtue of the annexation of the chattel to reality with T’s objective intent to permanently improve premises.

          1. If removal does not substantially harm premises = ok to remove.

        2. Duty to repair:

          1. Lease silent = T must maintain and make ordinary repairs.

          2. Expressed in lease:

            1. Common law = T liable for ALL repairs even when premises destroyed by force of nature.

            2. Today = T may terminate lease if premises destroyed w/o his fault.

      4. Duty not to use for illegal purposes.

    3. Landlord Duties in general L has no duty to repair/maintain – not liable for latent defects

      1. Duty to deliver possession.

        1. English (maj.) rule: actual, physical possession – L breaches if old tenant still there

        2. American (min) rule: legal possession – L not req. to remove holdover T

      2. Implied Warranty of Habitability (residential only).

        1. Std – Fit for basic human habitation

          1. No heat – No plumbing – no running water

        2. T’s entitlements when warranty breached: (MR3)

          1. Move out and terminate lease

          2. Repair and deduct

          3. Reduce rent or w/hold until ct determines FRV

          4. Remain in possession, pay rent, seek $ damages

      3. Implied Covenant of Quiet Enjoyment (Both Commercial & Residential)

        1. Actual Eviction – breach by actual, wrongful eviction

        2. Partial Eviction – excludes from part of premises, T can stop paying rent for entire portion and remain on premises

        3. Constructive eviction: (SING)

          1. Substantial Interference – due to L’s actions/failures

          2. Notice – T must give notice and L fails to respond meaningfully

          3. Get out – T must vacate w/in reasonable time

    4. Assignments – transfer of entire interest

      1. By landlord

        1. Assignee and tenant in privity of estate, not privity of K; og L and T are in privity of K

        2. Assignee liable to T for all covs that run w/ land

      2. By tenant

        1. Assignee and L are in privity of estate;

        2. Assignee and L not in privity of K (unless T2 expressly assumes); og L and T are in privity of K.

        3. Original T liable for rent and all covs in lease.

    5. Subleases – transfer of part interest (less than entire)

      1. Sublessee and L are not in privity of estate or contract.

      2. Original L and T are in privity of estate and K.

      3. Sublessee cannot enforce L’s covs

      4. Original T liable for rent and can enforce L’s covs.

    6. Tort Liability.

      1. Landlord – caveat lessee; L under no duty to make premises safe except (CLAPS)

        1. Common areas under L’s control.

        2. Latent defects (which L knows of)

        3. Assumption of repairs (once L voluntarily makes repairs he must complete w/reasonable care, or else L is liable)

        4. Public use. (convention center, museum) – L should know b/c of nature of defect and length of lease that T will not repair

        5. Short term lease of furnished apartment.

      2. Tenant – Duty to warn of known dangers.

  4. Fixtures

    1. Become part of real property.

    2. Test: Intent (Degree of harm for removal).

      1. If harm substantial→ T has shown intention to install a fixture.

    3. Annexed chattel must be removed by end of lease term and T responsible for damages caused by removal

    4. Trade Fixtures – equipment installed for purposes of trade by a commercial tenant even if it would otherwise constitute a fixture is generally removable if it is not an integral part of the premises and the tenant pays for any damage caused by removal. Tenant had no intention to make the equipment permanent

  5. Easements – grant of non-possessory interest in land that allows s/o to use another’s land

    1. Affirmativeright to go onto and do something on servient land.

      1. Types:

        1. Appurtenant – 2 parcels – Servient estate (burden) and dominant estate (benefit)

        2. In Gross – confers on holder personal/pecuniary adv not related to use/enjoyment of land – no dominant tenement

      2. Creation: (PING)

        1. Prescription: (COAH) use that is continuous, open and notorious, actual, and hostile)

          1. Exclusivity NOT req. – both owner and adverse user may use easement

        2. Implication: prior use apparent and parties expected use would survive division b/c reasonably necess to dominant land’s use and enjoyment.

          1. No Prior Use – by subdivision of plat or profit a prendre

        3. Necessity: (land locked setting) implied by necess where Grantor conveys portion of land w/ no way out except over part of Grantors remaining land.

        4. Grant: writing signed by grantor (> 1 yr)

      3. Transferability

        1. Appurtenant – passes automatically w/the dominant tenement, regardless of whether it is mentioned in the conveyance

        2. Gross – NOT transferable unless it is for commercial purposes

    2. Negativeentitles holder to compel possessor of servient tenement to refrain from engaging in activity on servient estate.

      1. Light, Air, Support, Stream water (LASS); (CA) – scenic view.

      2. Creation: only by express writing signed by grantor

    3. Scope of Use – determined by terms of grant/conditions that created it.

    4. Termination of easements (END CRAMP)

      1. Estoppel, Necessity (ends when nec ends), Destruction of servient land, Condemnation by govtal eminent domain, Release by easement holder, Abandonment, Merger doctrine, Prescription by (COAH).

  6. Licenses – permission to go onto another’s land for delineated purpose

    1. Limited right to use land.

    2. Personal – cannot transfer – attempt to will result in revocation

    3. No writing req’d (not subject to SOF)

    4. Freely revocable unless estoppel (substantial money, labor, or both expended in reliance)

    5. Irrevocable licenses – estoppel or license coupled w/ an interest.

    6. Oral Easements create licenses

    7. Tickets

  7. Profits

    1. Right to go on land and take away resources.

    2. Writing req’d.

    3. Termination (END CRAMP) + surcharge – misuse that overly burdens

  8. Restrictive Covenants/Equitable Servitudes.

    1. Real Covenants – P seeking money damages remedy ONLY.

      1. Affirmative v. negative (restrictive) covenants

      2. A contractual limitation or promise regarding land

      3. Created by writing signed by grantor

      4. Burden of promise runs if (WITHN)

        1. Writing

        2. Intent(org parties intended cov would run)

        3. Touch and concern– must make the land itself more useful or valuable to the benefited party – HOA fees and Covenant Not to Compete = T and C land.

        4. Horizontal and Vertical Privity

          1. Horizontal – original promising parties shared some nexus interest in land independent of covenant (grantor/grantee)

          2. Vertical – successor in interest holds the entire interest held by the prior party at the time the agreement was made – took in fee simple – simply req. some non-hostile nexus, such as K, devise, descent (no AP)

        5. Notice (actual, record, inquiry)

      5. Benefit of promise will run if (WITV) – no HP req.

        1. Writing

        2. Intent

        3. Touch and concern

        4. Vertical privity

      6. NOTE – HOA fees and covenants not to compete run with the land

      7. Third Party Standing – owner in subdivision may not be able to enforce covenant against BFP b/c she was not party to the K b/n the neighbor-seller and new BFP will get standing only on ES theory

    2. Equitable Servitude – P seeking injunction – promise from writing upheld in equity if party had notice

      1. Created by writing signed by grantor (unless implied by general scheme doctrine)

      2. Burden Runs if:

        1. Writing

        2. Intent,

        3. Notice – actual and constructive

        4. Touch and concern

      3. Privity not req.

      4. Third party standing – any landowner in subdivision is entitled to enforce covenant

    3. Reciprocal Negative Servitudes (general scheme doctrine)

      1. Majority view – in a subdivision, residential restriction contained in prior deeds will bind subsequent grantees whose deeds contain no such restriction if: at start of subdividing, grantor had

        1. Intent (common building plan/scheme)

        2. Notice by unrestricted lot holder (actual, record, or inquiry).

      2. Minority view –does not bind subsequent grantees unless lots expressly restricted in writing.

      3. Equitable defense – changed conditions exception (must be so pervasive that entire area has changed, every parcel unusable, not just a few)

  9. Adverse Possession.

    1. Statute of limitations for ejectment.

    2. Requirements (COAH)

      1. Continuous – uninterrupted for the statutory period

      2. Open and notorious possession – sort of possession usual owner would make

      3. Hostile under claim of right or title. – no permission

      4. Actual and exclusive possession.

    3. Tacking – allowed as long as privity (i.e. blood, K , deed, will)

      1. Ouster = no tacking.

    4. Disability – SOL will not run against true owner afflicted by disability at inception of AP.

    5. No AP of govt. lands.

  10. Conveyancing

    1. Land sale contracts

      1. Statute of Frauds: writing, signed by party against whom enforcement is sought, describe the land, state some consideration

        1. Exception: Doctrine of Part Performance (if have 2 of 3, equity will decree specific performance of oral K)→ possession, remit all/part of purchase price, substantial improvements to premises.

      2. Risk of Loss – Equitable Conversion – once K signed, buyer becomes equitable owner; T/4, B bears risk of loss b/w K and closing if land destroyed by no fault of either party.

      3. Implied Promises in Every Land K:

        1. Seller promises to provide marketable title at closing (title free from reasonable doubt). No longer applies after closing.

          1. EX: adverse possession, encumbrances (servitudes, mortgages), zoning violations

        2. Seller promises not to make false statements of material fact. (including failure to disclose)

      4. No implied warranties of fitness or habitability – caveat emptor

        1. Exception: implied warranty of fitness and workmanlike construction for sale of new home by builder-vendor.

      5. Defects as of closing date.

        1. Buyer beware, except actively concealing, serious defect that seller known – buyer does not, implied warranty of fitness).

    2. Closing – Deed Controls(passes legal title from S to B)

      1. Deed must be lawfully executed and delivered (LEAD)

        1. Lawful Execution: in writing signed by grantor and contain description of land; And

          1. Note – description of land can include address, boundaries, rivers (each abutting owner owns ½ of stream bed)

        2. Delivery: Did grantor have present intent to be immediately bound (whether or not deed delivered)?

          1. Recipients express rejection defeats delivery.

          2. Recording = adequate delivery

      2. Covenants for title and 3 types of deeds

        1. Quitclaim: releases whatever interest original grantor has. No covs of title included or implied.

        2. General Warranty Deed: warrants against all defects in title including those due to grantor’s predecessors; 6 covenants (Seller’s Rights Against Wanda For Quiet Enjoyment)

          1. Seisin: grantor warrants he owns estate

          2. Right to convey: grantor promises he has authority to make grant.

          3. Against encumbrances: grantor promises no encumbrances on land.

          4. Warranty: grantor promises to defend grantee if any lawful claims of title asserted by others.

          5. Quiet enjoyment: grantor promises grantee will not be disturbed in possession by 3p’s lawful claim of title.

          6. Further assurances: grantor promises to perform any future acts reasonably necess to protect grantees title if later not perfect

        3. Statutory Special Warranty Deed: contains 2 promises grantor makes on own behalf:

          1. Grantor has not conveyed estate to anyone but grantee, and

          2. Estate is free from encumbrances made by grantor

    3. Recording

      1. BFP – purchaser for value + w/o notice that s/o else got there 1st

      2. Notice:

        1. Actual: literal knowledge of A’s existence prior to closing

        2. Inquiry: B on notice of whatever an examination of land would reveal.

        3. Record: B on notice of A’s deed if at time B takes, A’s deed properly recorded w/in chain of title.

      3. Rules

        1. Notice jxd: BFP prevails if no notice AT TIME OF CONVEYANCE (whether or not BFP records first)

        2. RaceNotice: BFP and first to record wins.

        3. Race: Whoever records first wins.

      4. Defects in chain of title:

        1. Shelter Rule: one who takes from BFP prevails against any entity transferor-BFP would have prevailed against. Allows BFP to transfer the land.

        2. Wild Deed: chain of title is missing a grantor. Deed is wild if missing from public records. Incapable of giving record notice.

        3. Estoppel by Deed: one who conveys realty in which he has no interest is estopped from denying validity of conveyance if he subsequently acquires that interest.

    4. Security Interests

      1. Mortgage – consists of a debt + a voluntary transfer of security interest in debtor’s land to secure the debt.

        1. Types

          1. Legal mortgage: must be in writing

          2. Equitable mortgage: deed to house is given to party for security purposes, rather than as transfer of property – creditor req. to f/c like mortgage – Factors: the existence of a debt or promise of payment, grantee’s promise to return the land if the debt is paid, fact that the amount advanced was much lower than the value of the prop, the degree of the grantor’s financial distress, the parties’ prior negotiations

        2. Parties rights

          1. Debtor/Mortgagor: until foreclosure (FC), debtor has title and right to possession.

          2. Creditor/Mortgagee: has a lien (right to look to land if default)

        3. Transfer of interest:

          1. Creditor/Mortgagee:

            1. Method: can transfer interest by (1) endorsing the note and delivery to transferee, or (2) executing separate document by assignment.

            2. Holder in Due Course: transferee eligible to become HDC if note is endorsed and delivered.

              1. Requirements

                1. Note is negotiable, made payable to named mortgagee

                2. Original note endorsed by named mortgagee

                3. OG note (not photocopy) must be delivered

                4. Transferee takes note in good faith, w/o notice of any illegality, and

                5. Transferee must pay more than nominal value for note.

              2. Effect – HDC takes note free of personal defenses raised against og mortgagee but NOT real defenses

                1. Personal defenses: lack of consid, fraud in inducement, unconscionability, waiver, estoppel

                2. Real defenses (MAD FIFI4): Material Alteration, Duress, Fraud In Factum (re instrument), Incapacity, Illegality, Infancy, Insolvency

          2. Debtor/Mortgagor

            1. If debtor sells land, mortgage stays if recorded properly

            2. Liability for debt:

              1. Buyer assumed mortgage: Buyer (grantee) primarily liable to lender and og mortgagor secondarily liable.

              2. Buyer takes subjectto mortgage: og mortgagor primarily and personally liable (B not liable)

      2. Foreclosuremust be thru proper judicial proceeding

        1. Land is sold and proceeds satisfy debt.

          1. Proceeds < debt: deficiency jdgmnt against debtor

          2. Proceeds > debt: junior liens payed off in order and remainder goes to debtor

        2. Effect of FC

          1. Junior interest: terminates interests junior to mortgage being foreclosed but won’t affect senior interests. Once FC of superior claim has occurred, juniors can’t look to land for satisfaction anymore – can’t f/c but can still sue

            1. Proceeds are used first to pay the principal and interest of the foreclosing mortgagee, any extra goes to juniors, does nothing to senior interests which remain on the land

          2. Necessary parties: those w/ interests subordinate to foreclosing party and the mortgagor are necessary parties, who must be joined (otherwise, their claim is preserved)

          3. FC sale buyer not personally liable for senior mortgages

        3. Priorities

          1. Creditor must record mortgage; once recorded, priority determined by first in time, first in right.

          2. Purchase money mortgage: mortgage given to secure a loan enabling debtor to acquire encumbered land.

            1. PMM has priority over non-PMM even if non-PMM recorded first.

          3. Redemption

            1. In equity: debtor has right to redeem anytime prior to FC sale. Must pay: all missed payments + costs & interest.

              1. Mortgagor cannot waive right to redeem (clogging equity of redemption prohibited)

              2. NOTE – junior lienholder can payoff senior mortgage (i.e. redeem) to protect its rights and extinguishment of its lien

            2. Statutory: gives debtor stat right to redeem for some fixed period after FC sale. Must pay: FC sale price. Effect: nullifies FC sale and owner restored to title.

  11. Support

    1. Lateral support

      1. Strict liability (land in natural state)

        1. Ownership of land includes right to have land supported in its natural state by adjoining land.

      2. Negligence (Improvements)

        1. If land has improvements, adjacent LO liable if excavated negligently.

        2. Adjacent LO strictly liable only if land would have collapsed in its natural state (i.e. improvements did not cause collapse)

    2. Subjacent support

      1. Strict liability (land and buildings at time of severance)

      2. Negligence (later improvements)

  12. Water Rights

    1. Watercourses (Streams, Rivers, Lakes)

      1. Riparian Doctrine: water belongs to those who own land bordering the watercourse.

        1. Reasonable use theory: all R’s share right of “reasonable use” of water (i.e. one owner’s use not enjoinable unless substantially w/ use of other R owners)

          1. Domestic/natural uses (domestic uses) prevail over commercial uses.

          2. Owners can take all the water they need for natural uses, but cannot take water for artificial uses (irrigation, manufacturing) unless there is enough water for the domestic need s of all owners

        2. Accretion – the increase of riparian land by the slow and imperceptible change in course of a river serving as a boundary – any resulting deposit of soil belongs to the owner of riparian land

      2. Prior Appropriation Doctrine: individuals acquire rights by actual use. Rights determined by priority of beneficial use – any productive use – Commercial use takes precedence.

    2. Underground water/percolating water (reasonable use)

    3. Surface water (Natural flow, common enemy) –

      1. Common Enemy Theory – may change drainage to combat flow

      2. Natural Flow Theory – landowner cannot alter the rate or manner of flow if such action would injure others above or below him

  13. Zoning – State may enact statutes to control use of land for protection of health, safety, morals, and welfare of citizens.

    1. Nonconforming use: a use that exists at time of passage of zoning act that does not conform to the statute cannot be eliminated at once.

    2. Variance: a departure from literal restrictions of zoning ordinance granted by adminis action.

      1. Proponent must show: Undue hardship + variance won’t work detriment to surrounding prop values.

  14. Unconstitutional Takings and Exactions

    1. Takings:

      1. Denial of all economic value of land = taking

      2. Denial of nearly all economic value – balancing test

        1. Balance social goals of regulation, diminution in value of prop, and owner’s reasonable expectations for use of prop.

    2. Exactions: those amenities govt seeks in exchange for granting permission to build. Such demands are unconstit unless govt proves:

      1. Essential Nexus – Govt. demands are rationally connected to an add’l burden the project will place on public facilities or rights, and

      2. Substantial Proportionality – The dedication is reasonably related in nature and extent to the impact of the proposed development.

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