What is the definition of a law
a set of rules and regulations that have been created by elected officials that govern social behavior and actions that come with consequences if broken
what are the 4 areas that create a law
- Norms of a Community (Values)
- Agreed upon By Authoritative Body (Jurisdiction)
- Affect Behavior (Subject Matter)
- Enforced Through Sanctions (Consequences)
What is the definition of the practice of law?
- Giving of Advice to Others
- Application of Legal principles to a specific complex set of facts
- In a context where the recipient is likely to act.
What is Police Power
The capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, welfare of their inhabitants. Bound by eminent domain
What is Eminent domain
- Taking of land with just compensation for public use.
2. The right of a government or its agent to expropriate private property for public use, with payment of compensation
Definition of Nuisance
Unreasonably interferes w/ the quiet enjoyment and or use of Property Rights
7 property rights
- Quiet Enjoyment
- Exclusive Possession
- Right to Alienate (Sell, transfer, lease)
- Air Rights
- Subsurface Rights
- Water Rights
- Development Rights
B. Elements of Nuisance (factors that are considered):
- Intentional Action or Condition Creating the Nuisance
2. Unreasonable
In elements of Nuisance, what defines it being unreasonable
a) Context – social context
b) Social Utility—value to society and is it needed?
c) Gravity of Harm – Hardship on the defendant
d) Zoning—context, geography, temporary.
e) Degree of Care
(1) Ease of Cure
(2) Ease of Avoidance
f) Precedent Types
(1) Factual
(2) Legal
What is a Restrictive Covenant
Private contract that runs with the land and restricts use
Elements needed for Restrictive Covenants
- Grantor & Grantee Agree the contract runs w/ the land
- Touching or Concerning Land (Specific properties)
- Privity of Estate - the persons making the agreement can prove a historical chain of ownership
Generally, restricts in some way the bundle of property rights of the land
How does one Terminate Restrictive Covenants
- Purpose has come to an end
- History of Non-Enforcement
- it could be against public policy or found illegal.
D. Restrictive covenants and zoning/land use permitting difference
Restrictive covenants are private and specific whereas zoning and permitting are restrictions based on the community’s health, safety, and welfare and are created with that purpose in mind. The more restrictive standard controls.
Most restrictive rule wins.
What is the Definition of an Easement
is when property rights are transfered or given up so other may use the affected area for a specific purpose
A right to cross or use someone else’s land for a specific purpose.
What is an Express Easement
a contractual easement such as a utility easement.
What is a Prescriptive/Implied Easement
– An easement created from an open, adverse, and continuous use over a statutory period. (Black’s Dictionary).
Factors of an perscriptive Easement
- Long term use- Utah is 20 yrs some areas it is 7yrs
- Open use that adverse (if done w/o owners permission) but not restricted or has nothing done about it
- Claim of Right/Lack of enforcemnet
- Without Consent
What are the different types of Permitting?
- As of use right- allows zoning ordinance
- Conditional Use- Have to meet a number of criteria Designated in zoning ordinance. Typically, church, school, day care
- Variances
What is a Variance
Permission granted on a case by case basis to allow development despite development standards.
What are the 6 elements to argue a Variance
(1) Necessary Hardship
(2) Cannot be caused by owners
(3) Unique physical attribute
(4) Needed
(5) Least intrusive
(6) Character
Definition of a Non-conforming use
Legal when established however new laws make the use inconsistent.
Elements to argue a non-conforming use
- Established - before it changed
- Discontinuance/abandonment:
a) Cessation (In utah one year is required)
b) Intent - Expansion - this is almost always not allowed
- Amortization - is the calculation of an owner’s return in order to justify a forced phase out. The return must be reasonable for the phase out to be legal
Definition of Accessory Uses-(Home Occupations is a type)
Of land that are found on the same parcel as the principal use but are subordinate and incidental. The term “accessory use” also applies to accessory structures.
Elements of to argue an Accessory Use
a) Customary - habitually associated community pattern
b) Incidental - reasonably related to the primary use
c) Subordinate- Smaller than the primary use.
