intro. to planning law#4
TRANSCRIPT
-
8/8/2019 Intro. to Planning Law#4
1/29
Introduction to Land Use
Planning Law
Lecture # 4
-
8/8/2019 Intro. to Planning Law#4
2/29
Land Use & Planning Law includes aspects of:
Municipal law
Constitutional law Administrative law
Civil Rights
Remedies
Environmental
-
8/8/2019 Intro. to Planning Law#4
3/29
Introduction to Land Use Law
What is land use planning law?
A series of interconnected regulations which limit
the way in which real property can be developed
and utilized
What are its purposes?
Orderly development of local communities
Separate incompatible uses
-
8/8/2019 Intro. to Planning Law#4
4/29
Origins of Land Use Law
Nuisance Law
Non-tresspassory invasion in anothers interest inthe private use and enjoyment of land
General Rule: owner is at liberty to use hisproperty as he sees fit without objection orinterference from his neighbor
But owner will not be permitted to make anunreasonable use of his premises to thematerial annoyance of his neighbor.
-
8/8/2019 Intro. to Planning Law#4
5/29
Difference between a private nuisance
and a public nuisance is generally one of
degree. A private nuisance is oneaffecting a single individual or definite
small number of persons while a public
nuisance is one affecting the rightsenjoyed by citizens as part of the public.
-
8/8/2019 Intro. to Planning Law#4
6/29
Property Law Component - Overview
IntroductionBasic Concepts in the Legal System
Public Land, the Doctrine of Tenures and Title
Private Title to land
Estates and Interests in Land
Unregistered, Inchoate and Informal InterestsEquity andTrusts
Co-Ownership
Easements
Land Covenants
Profits a Prendre
Mortgages
Adverse Possession
Title to Land and Priority between conflicting interests in land
-
8/8/2019 Intro. to Planning Law#4
7/29
Common Law
Common Law is used in three senses -
1 Common Law system is one of the international legal families(Other legal families include Civil law, indigenous customarylaw, communist, religious systems)
2 Body of Rules built from court cases Legislation prevails over common law
Based on precedent
3 Common Law andEquity. Equity is discretionary and court
can make an order for the defendant to do something (specificperformance) or stop the defendant from doing something(injunction)
-
8/8/2019 Intro. to Planning Law#4
8/29
Subordinate Legislation
Regulations
Statutory Rules
By-laws
The power to make subordinate legislation isdelegated to a subordinate public body byParliament
It is subordinate to legislation
-
8/8/2019 Intro. to Planning Law#4
9/29
WHAT IS PROPERTY?
The third absolute right is that of property whichconsists in the free use, enjoyment, and disposal of allhis acquisitions, without any control or dimunition,save only by the laws of the land.. Blackstone
The word `property is used to denote legalrelations between persons with respect to a thing.ALI (RP)
Romanic ownership is a like a box which contains
rights to occupy, use, and alienate, whereas Anglo-American ownership is like a bundle of sticks relatingto a given thing with each stick a legal interestrelating to the thing (Merryman)
-
8/8/2019 Intro. to Planning Law#4
10/29
The Good News & the Bad
The good news is that you have already
learned a lot of property law.
The bad news is that it is more difficult to get
ones arms around the law of property than
the law of torts or the law of contracts.
-
8/8/2019 Intro. to Planning Law#4
11/29
Boundaries
One way to see this is to think about boundaries. Torts & Property
Intentional torts
Negligence
Strict liability
Tort claims as property.
Contracts & Property
Contracts pertaining to property
Contracts as property
Contract claims as property.
-
8/8/2019 Intro. to Planning Law#4
12/29
What is left if you take away everything thatcould be considered a contract or a tort?
Think of property as a different way of
conceptualizing the legal world that you havealready been exploring in contracts and torts.
Compare property with persons and
imagine a course on the law of persons.
All law is about persons.
Not all law is about property, but much of it is.
-
8/8/2019 Intro. to Planning Law#4
13/29
Traditional Property Classification
A. CLASSIFICATION BY CHARACTER OF PROPERTY
REAL vs PERSONAL PROPERTY
TANGIBLE vs INTANGIBLE
B. CLASSIFICATION BY SCOPE (EXTENT) OFINTEREST
COMPLETE vs LIMITED
C. TEMPORAL CLASSIFICATION
PRESENT vs FUTURE INTERESTS
D. CLASSIFICATION BY CHARACTER OF OWNER
PUBLIC vs. PRIVATE
CORPORATE vs. INDIVIDUAL
-
8/8/2019 Intro. to Planning Law#4
14/29
CLASSIFICATION BY CHARACTER OF
PROPERTY
REAL PROPERTY (LAND)
Usually includes things attached to the land, like crops,
minerals, buildings & monuments (fixtures).
PERSONAL PROPERTY (A/K/A MOVABLES ORCHATTELS OR CHOSES)
TANGIBLE
E.g. Plants, Animals & Minerals (once removed from
the land) E.g. Manufactured items
E.g. Collectibles
E.g. Artwork
-
8/8/2019 Intro. to Planning Law#4
15/29
INTANGIBLE PERSONAL PROPERTY
Money, stocks & bonds, bank accounts (often
represented by a certificate)
Intellectual property
Patents
Copyrights
Trademarks
Trade Secrets
Domain Names
Contracts
Insurance contracts
Purchase & Sales Agreements
Employment contracts
Options
Actionable legal rights (choses in action)
-
8/8/2019 Intro. to Planning Law#4
16/29
CLASSIFICATION BY SCOPE (EXTENT) OF
INTEREST
Single owner vs. concurrent or shared
ownership.
Legal title vs. beneficial or equitable
ownership (trust relation)
Freehold vs. non-freehold (tenancies).
Estates in land vs. Interests in land that are notestates (e.g. permissive rights to use).
In general, classification by particular interests
(sticks).
-
8/8/2019 Intro. to Planning Law#4
17/29
Temporal Classification Present interests v. Future interests
E.g. Person by will bequeaths residence to
surviving spouse for life and upon spouses death,
to children.
Unlimited duration vs. Limited Duration E.g. Owning a house vs. Leasing a house or
apartment.
E.g. Owning a car vs. Leasing
E.g. Time-limited License to manufacture or
reproduce something that is patented or
copyrighted.
-
8/8/2019 Intro. to Planning Law#4
18/29
Classification by Class of Owner Public vs. Private
Public lands
Creations in the public domain
Things that may not be privatized
Things that are owned privately
Collective vs. Individual Public
Federal
State
Local
Private collectives
corporations, partnerships, cooperatives, associations, families
-
8/8/2019 Intro. to Planning Law#4
19/29
Problem
Imagine that Airco owns a tract of land which it hasidentified as an ideal site for a wind farm.
It proposes to erect 100 wind turbine generators tocatch the prevailing wind from the west.
To Aircos east is Neighbor E who would also like tobuild a wind farm.
To Aircos west is Neighbor W who wants to preserve
the unobstructed view to the east. Can Airco, E or W find support from any of the
authors quoted for their respective positions?
-
8/8/2019 Intro. to Planning Law#4
20/29
Origins of Property?
Occupation
Ancient Law knows next to nothing of Individuals.
Are new claims based on occupation possible today?
Natural Law (Aquinas)
Is it inconsistent with the occupation theory?
Labor (Locke)
Is this alternative or elaboration?
Lockes limits?
Legal Construct (Bentham)
Sovereign government?
-
8/8/2019 Intro. to Planning Law#4
21/29
What does it mean to own property
There are different concepts of ownership think about whatit means to own property
Dual European heritage
Old feudal laws from England (Hierarchy of Ownership)
Torrens System from German system
-
8/8/2019 Intro. to Planning Law#4
22/29
Doctrine of Tenures
To understand how Property Law operates, it is
important to understand this archaic heritage
which was inherited at the time of European
Settlement
-
8/8/2019 Intro. to Planning Law#4
23/29
Feudalism
In the middle ages, English land law expressedthe social relations of feudalism
Tenures in land were organised in a hierarchy,with the Monarch at the top as the ultimate
owner down to Barons, Bishops and free landholders (free holders)
At the bottom of the pyramid were peasantland holders
This hierarchy imposed multiple land tenureswith respect to the same piece of land
Everyone was a tenant of the Monarch
-
8/8/2019 Intro. to Planning Law#4
24/29
Tenures, estates and interests in land in werefirst formed under this feudal structure
The idea that the Monarch is the ultimateowner of all land (which is where we getCrown Landfrom) and that all other privateinterests in land are held below the Monarchhas been retained
InMabo v Qld(1992) described this conceptof tenure as a skeletal principleof the
Common Law which is beyond the power ofthe courts to change
-
8/8/2019 Intro. to Planning Law#4
25/29
Colonial Land Administration
Feudal conception: British Crown sells land to private
European settlers
Two parallel systems of colonial land administration:
The Surveyor-General was responsible for surveying andparcelling Crown land and then selling it to European
settlers.Freehold (private) titles were created
Private titles were registered at the Land Titles Office under
the authority of the Registrar of Titles
-
8/8/2019 Intro. to Planning Law#4
26/29
What is Freehold? An overview of the
doctrine of Tenures
The meaning of freehold is derived from the Doctrineof Tenures
Difficult to understand freehold. Historicallyfreehold was a miscellaneous category any land
not held under some other type of tenure was deemedto be freehold
To understand freehold tenure completely, we need tounderstand what other types of tenure existed
Practically, any land that is not Crown Land isFreehold Land
-
8/8/2019 Intro. to Planning Law#4
27/29
Historical tenure in England.
Some examples Knights Service Lords were obliged to provide a fixed
number of armed horsemen for 40 days of the year in
exchange for their land tenure Spiritual Tenures land leased to (for example) a
monastery with an obligation to pray or provide a spiritualservice such as an obligation to sing mass every Friday!
This is part of the problemto understand the
concept offreeholdwe are confronted with centuriesof English History stretching back to 1066!
-
8/8/2019 Intro. to Planning Law#4
28/29
Ordinary Ownership Commonly termed freehold estate in fee simple
Most likely registered under the Torrens System (rarelygeneral law deeds conveyancing systemold law)
Further problem - thefreehold fee simple estate has never hada clear definition
Land held of the Crown in fee simple may be assured in feesimple without licence and without fine and the person takingthe assurance shall hold the land of the Crown in the samemanner as the land was held before the assurance took effect
A case for law reform long overdue?
-
8/8/2019 Intro. to Planning Law#4
29/29
Case for Review
Orinda Homeowners Committee v. Board of
Supervisors 11 Cal.App.3d 768 (1970)
Grant v. Mayor & Council of Baltimore 212
Md. 301 (1957)
Southern Burlington County NAACP v.
Township of Mount Laurel 67 N.J. 151 (1975)
Appeal 423 U.S. 808.