Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED. Chapter 4 Public Regulation and Encumbrances Zoning Legitimate police power of government to regulate the use of real property

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED. Building Codes Public laws that regulate methods and materials to be used in the construction of improvements Subdivision Codes/Regulations: a subordinate set of regulations that further regulate building and use

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED. Environmental Protection Laws Both federal and state laws Building codes and uses to regulate the environment and the preservation of the environment For example: The Clean Water Act and CERCLA

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED. Regulated Uses Underground Storage tanks Water Air Ground contamination Paint and remodeling

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED. Eminent Domain Power of the government to take private property for public use Contained in the US Constitution Due process and fair compensation are required

Takings n The “Takings” clause of the Fifth Amendment prohibits the government’s taking of property for a public purpose without just compensation to the owner.

n 1. Government must do the “takings” n 2. For a “public purpose” (This element has been modified to allow for private property being seized for use by developers— U.S. Sct. Court Case of Kelo v. City of New London on 6/23/05, dealing with Connecticut Water Front Home Owners Houses taken by the city for commercial development. ) n 3.“Just compensation” must be paid to owner. Once Upon A Time…..

2.2 Acres 8 million Twin Tower 600 Apt-Complex Downtown Miami--1998

Hmmmmmm…

Owner Expert Government Agent 2000 year old Tequesta Indian Rock Formation 38’ in diameter

State of Florida seizes land and makes several offers ranging from million (to make a park and preserve the site) Developer demands no less than 50 million!

Was it for a “Public Purpose”? Was this a Government Taking? What is “Just Compensation”? 26.7 Million

JUDGE JUDY READY TO RULE-- Kelo v. City of New London Case: Kelo v. City of New London ---- New London wanted to Take the waterfront homes from residents and give the property To a developer to make it into a commercial project which would Generate larger tax dollars, owners objected as such use was not For a “public purpose”. Pack Up and Move— Government can take Your property and give It to others who can Put it to better use!

Government Takings under the 5th Amendment can come in all shapes and forms--not necessarily a “physical taking of land” Regulations limiting size/height of buildings Regulations requiring bars to close early at night Regulations limiting billboards on the side of roadways.

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED. Taxation Government imposed Federal, State and local Gov’t can lien real property for nonpayment

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED. Private Encumbrances Voluntarily created by private parties Judgment liens Mechanic’s lien Mortgage Easement Restrictive covenants on use

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED Chapter 5 Easements and Licenses Easement A right of a nonowner to use real property for a specific purpose E.g. utility or ingress and egress

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED Easement Appurtenant Created to benefit a particular parcel; transfer automatically with transfer of ownership parcel that is benefitted In Gross Granting the owner of the easement the right to use the real property for a particular purpose Dominant vs. Servient

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED Implied Easement

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED Creation Express Implied Prescription Necessity

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED Express Grant In writing usually, by either a separate document or a deed Signed by the parties to be charged Statute of Frauds

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED Implied Grant An easement created b the conduct of the parties and not in a written agreement

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED Prescriptive Easement An easement created when a person uses real property for a period of time without the owner’s permission A legal taking for use

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED By Necessity Easement for access to a public street that is necessary for the use and enjoyment of the property benefited Usually requires fair compensation

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED Termination of Easements By agreement of the parties By operation of law Abandonment of use Merger of uses and ownership Foreclosure or by order of the court

Copyright 2008 Thomson Delmar Learning. ALL RIGHTS RESERVED License A privilege, not a right, to do an act on land possessed by another Created orally, written or by conduct of the parties

Scoreboard X O Group X Group 0