Property
Class Notes
El Di, Inc. v. Town of
What
did El Di own at the beginning of the suit? El Di has a fee
simple determinable! There’s a reversion
in the restriction! Is there any “for so
long as” type language? There’s an
automatic reversion, so we would classify their property interest as a fee
simple determinable. So what happens to
the possibility of reverter? If it’s a fee
simple determinable, the original grantor (the Bethany Beach Improvement
Company) should automatically get the property back. The court doesn’t even mention the possibility
of reverter! They just skip over
it! When you’re talking about equitable
servitudes, the courts tend to not enforce forfeitures. It is said that “equity abhors a forfeiture”. The court
is more likely to use an injunction.
Some
conditions had changed. But were these
changes enough to relieve them of the condition to not serve alcoholic
beverages? Many of the lots in the
original development were unrestricted.
There was widespread tolerance of the practice of “brown-bagging”. You could BYOB. So should the covenant be declared
unenforceable? What’s the standard for
terminating a servitude on the basis of changed
conditions? “A court will not enforce a
restrictive covenant where a fundamental change has occurred in the intended
character of the neighborhood that renders the benefits underlying imposition
of the restrictions incapable of enjoyment.”
Was the benefit that the Christian Missionary Society sought to obtain
from these covenants no longer capable of enjoyment? What was the goal of the people who imposed
the restrictions? They were trying to
create a small family community. They
may also have been part of the temperance movement. But Bethany Beach has really changed: it
attracts thousands of tourists every summer.
Braunstein
suggests that when deciding this case, you need to consider exactly what the benefit
was. If the benefit is that fewer people
will drink alcohol, then maybe you need to consider the incremental benefit of
each individual place where you can’t drink.
Another issue is that El Di bought the property
with the restriction and they knew that restriction existed. You can argue that El Di
have freedom of contract, chose to buy the lot subject
to the restriction, and thus they should be bound by it. On the other hand, we have an overarching
principle that we want to increase the alienability (or, more to the point, productivity) of land. Thus, when a restriction on land is making it
less productive, we ought to get rid of it.
So
what is no longer enforced? Are all the
restrictions dead, or just the “no sale of alcohol” restriction? The court confines their decision to this
particular area. Some of the
restrictions were relaxed, but not the other restrictions. What is the significance of the fact that the
area was zoned for commercial purposes? If
the city comes in and rezones an area, that doesn’t wipe out restrictions. Zoning is hierarchical. The “best use of all” is single family
residences, and then it “goes down” from that.
All uses are permitted that are “above” the category that you’re talking
about. So in a commercially zoned lot, you
can have commercial, multi-family, and single family use. Zoning establishes a floor, and as long as you’re above
that floor, the restrictive covenants are okay.
In this case, the town council has declared as public policy that this
area is not a residential area anymore, but rather a commercial area.
Say
you have some land divided into a bunch of lots. Let’s say it fronts on a small two-lane road
in the country. The city gradually comes
to this area, and the subdivision finds itself part of a major city. The rural lane becomes a busy, four-lane
commercial street with shopping malls and things like that. There are changed
conditions. This is now a commercial
neighborhood. So the lot owners say that
they ought to be entitled to use their property for commercial purposes to,
contrary to existing restrictive covenants.
The problem here is that there’s going to be a domino effect. If the first line of lots goes commercial,
then the next line of lots will go commercial, then the next, then the next. Isn’t this what’s going to happen with
Bethany Beach? If one place can sell
alcohol, then it won’t be long until all the businesses can sell alcohol.
Take
High Street for example. If you turn
into Clintonville, it becomes all residential.
Typically, cases like the hypothetical above lose on the domino effect
argument. Just because a few homes can’t
enjoy peace and quiet doesn’t mean that none of them should be able to. Braunstein says that this case stands for the
proposition that you need not show
that nobody can realize the benefit
of the restriction. You only need to
show that there’s at least one group that can’t realize the benefit.
Private nuisance
What
is a nuisance? It’s an invasion of property
that isn’t a trespass. It’s a “nontrespass invasion of the property rights of another”. But why do we draw a distinction between trespass
and nuisance? What is the distinction between the two?
There are some annoyances that a landowner is expected to tolerate. But there are no trespasses that you’re expected to suffer. But you have to just deal with traffic and
noisy neighbors as long as they’re not unreasonable. To get to the level of nuisance, it must be
more annoying than merely somewhat annoying.
But trespass is a violation per se.
The laws with respect to nuisance deal with two neighbor’s correlative
rights. When there’s a complaint, which
neighbor is liable for injuring the other?
It’s frequently, perhaps almost always, both neighbors that are causing
the harm. One may insist on cleanliness
while the other insists on having a dog kennel that they never clean. It’s like the Odd Couple! If they were both slobs, it would be fine,
and if they were both neat, it would be fine, and if they weren’t both there, it would also be fine.
This
is a place where contracts and torts come together in property law. Nuisance is a tort, but it’s also a lot like a servitude. Nuisance
says that I have the right to restrict what you
can do on your own land. That’s the same as what a negative servitude
does. When you have a covenant, you
accomplish that restriction by contract.
When there’s no contract, but the use of your land is unreasonable, the
restriction can be imposed in tort.
The
rule of nuisance is that you can’t use
your land so as to unreasonably harm your neighbor. But that doesn’t really tell you
anything. It’s at best circular and
maybe just doesn’t mean anything at all.
It’s always a problem between two people, so it has to do with two
competing uses being made of the land.