Property ownership gives an owner important rights of possession, exclusion, transfer, and use, but ownership does not mean unlimited freedom to use land however the owner wishes. Land use may be restricted by private promises, obligations arising from neighboring property rights, rules imposed by homeowner associations or condominium regimes, and public regulation.
These controls can arise through several different sources:
- Contract.
- Servitudes.
- Neighbor rights.
- Homeowner associations.
- Zoning.
- Environmental regulation.
- Eminent domain.
- Constitutional takings law.
A single parcel may be subject to several forms of control at the same time. A homeowner may be bound by a recorded covenant prohibiting commercial activity, HOA rules regulating exterior construction, local zoning ordinances limiting use and setbacks, and nuisance law restricting activities that substantially interfere with neighboring land.
A useful analytical framework distinguishes three broad categories:
- Private contractual controls (Real covenants and equitable servitudes).
- Neighbor-based tort controls (Nuisance law).
- Public regulatory controls (Zoning, eminent domain, and constitutional takings).
The central lesson is that ownership includes substantial freedom, but that freedom exists within a network of private and public legal limitations.
Private Controls
I. Real Covenants
A real covenant is a promise concerning land that may bind successors to the original parties.
The traditional remedy for breach of a real covenant is damages.
This remedy distinction is important because students must often determine whether a land-use promise is enforceable as a real covenant or as an equitable servitude. Although modern law may treat the doctrines more flexibly, the traditional distinction remains useful:
- Real covenant → damages.
- Equitable servitude → injunction.
A real-covenant analysis should also distinguish between the burden of the covenant and the benefit of the covenant.
- The burden asks whether a successor to the original promisor is bound by the promise.
- The benefit asks whether a successor to the original promisee may enforce the promise.
These are separate questions. A student should not assume that because the benefit runs, the burden necessarily runs as well.
II. Burden of a Real Covenant
Traditional doctrine commonly requires several elements before the burden of a real covenant will run to a successor.
Those requirements generally include:
- Writing
- Intent
- Touch and concern
- Horizontal privity
- Vertical privity
- Notice
Modern statutes and modern approaches may alter, simplify, or replace some of these traditional requirements. Nevertheless, the traditional framework remains important because it explains how many examination questions are organized.
The best method is to analyze each element separately rather than stating only that “the covenant runs with the land.”
III. Writing
Because a real covenant affects rights associated with land, the burden generally must be contained in a writing satisfying the Statute of Frauds.
The writing provides evidence that the original parties deliberately created an obligation affecting the property. It also helps successors determine what restrictions or obligations may accompany ownership.
The relevant writing may appear in a deed, declaration, recorded covenant, subdivision document, or another written instrument affecting the land.
The important point is that a real-covenant burden traditionally does not arise merely from an informal understanding between neighbors. The restriction ordinarily must be reflected in a legally sufficient written instrument.
Common Trap
Do not confuse a written covenant with a personal promise merely because both appear in a document. The remaining elements still matter. A writing alone does not establish that the promise binds successors.
IV. Intent
The original parties must intend the covenant to bind successors.
Intent is often shown through language indicating that the promise is not limited to the original parties. Examples may include phrases such as:
- “Heirs and assigns.”
- “Runs with the land.”
- “Binding upon successors.”
These phrases are helpful evidence of intent, but formal words are not always essential. Intent may also appear from the structure, purpose, and context of the written restriction.
For example, a covenant limiting a parcel to residential use may naturally suggest an intention to regulate the property beyond the original owner's period of ownership. A promise closely tied to long-term land development may similarly indicate an intent that future owners remain bound.
Exam Tip
When a covenant contains language referring to successors, assigns, or a promise that runs with the land, identify the intent element immediately. Then continue through the remaining requirements rather than treating intent language as conclusive.
V. Touch and Concern
Traditional real-covenant doctrine generally requires the promise to touch and concern the land.
A covenant touches and concerns land when it relates to the parties' rights or obligations as landowners rather than merely creating a personal obligation unrelated to ownership.
Examples likely to satisfy this requirement include:
- A residential-use restriction.
- A building-height restriction.
- A maintenance obligation.
- An assessment for common property.
- A promise concerning drainage.
Each of these obligations affects the use, value, condition, or enjoyment of land. By contrast, a purely personal promise may not touch and concern the land if it does not meaningfully relate to ownership or use of the parcel.
Modern law increasingly questions or replaces the traditional touch-and-concern inquiry. Nevertheless, when applying the traditional doctrine, the student should ask whether the promise has a meaningful connection to the land itself.
Touch and Concern Hypothetical
Developer sells Lot 1 to Buyer. The deed requires Buyer and all successors to maintain a drainage channel running along the rear boundary of the property.
The maintenance obligation concerns the physical condition and use of the land and is therefore the type of promise likely to satisfy traditional touch-and-concern analysis.
Suppose instead that Buyer promises Developer to send Developer a birthday card every year.
Even if the promise appears in the same written agreement, it is personal rather than related to the parties' rights as landowners.
VI. Horizontal Privity
Traditional burden analysis often requires horizontal privity between the original covenanting parties at the time the covenant was created.
Horizontal privity concerns the relationship between those original parties. Qualifying relationships may include:
- Grantor and grantee.
- Landlord and tenant.
- Parties participating in a simultaneous land transaction.
This requirement is technical and has often been criticized because it may prevent enforcement even where the parties clearly intended a land-use restriction to continue. For exam purposes, however, the concept should be kept distinct from vertical privity.
Horizontal privity asks: What was the relationship between the original covenanting parties?
Vertical privity asks: What is the relationship between an original party and a later successor?
VII. Vertical Privity
Vertical privity concerns the relationship between an original party and a successor.
For the burden of a traditional real covenant, the successor generally must hold the same estate or a sufficiently complete successor interest. The concept is designed to connect the successor's ownership to the interest previously held by the original covenanting party.
Traditional doctrine may apply somewhat different or more flexible rules when determining whether the benefit of a covenant runs. The framework therefore emphasizes that burden and benefit should be analyzed separately.
Common Trap
Do not use horizontal and vertical privity interchangeably. Horizontal privity concerns the original parties. Vertical privity concerns succession from an original party to a later owner.
VIII. Notice
A successor generally must have notice of the covenant before being bound where recording principles apply.
Actual Notice
The successor actually knows of the covenant.
Record Notice
The covenant is properly recorded, placing later purchasers on constructive notice.
Inquiry Notice
Facts or circumstances would cause a reasonable purchaser to investigate further.
This analysis should be connected with the general recording principles governing land transactions. A covenant is not examined in isolation from the public recording system. When land-use restrictions are properly recorded, successors may be charged with notice even if they did not personally negotiate or sign the original covenant.
Exam Tip
When a problem involves a successor who says, “I never agreed to this restriction,” ask whether the successor had actual, record, or inquiry notice. Personal negotiation is not always required for a land-use restriction to bind later owners.
IX. Benefit of a Real Covenant
The benefit of a real covenant concerns whether a successor to the original promisee may enforce the covenant. Traditional benefit requirements may be more flexible than the requirements governing the burden.
The distinction matters because a real-covenant question often contains two chains of ownership: one involving the land that is burdened and another involving the land that receives the benefit.
Students should identify:
- Who originally made the promise?
- Who originally received the promise?
- Who now owns the burdened land?
- Who now claims the right to enforce?
A complete analysis separates the running of the burden from the running of the benefit.
X. Equitable Servitudes
An equitable servitude is a land-use promise enforceable in equity, traditionally through an injunction.
Traditional requirements generally include: Writing, Intent, Touch and concern, and Notice.
Privity requirements are substantially relaxed compared with the traditional requirements governing real covenants. This difference makes equitable servitudes particularly important when a claimant seeks to stop a prohibited use rather than recover money damages.
The classic comparison is therefore:
- Real covenant → damages.
- Equitable servitude → injunction.
Modern law may treat these concepts more flexibly, but the distinction remains highly useful for organizing an exam answer.
Equitable Servitude Hypothetical
"A recorded restriction provides that lots in a residential subdivision may be used only for single-family residences. A later owner announces plans to operate a large commercial business from one lot."
A neighboring owner may seek an injunction preventing the prohibited use. That remedy directs attention toward equitable-servitude analysis.
If the claimant instead seeks compensation for loss caused by a breach, real-covenant principles may become more important.
Common Trap
Do not assume that “covenant” and “equitable servitude” are unrelated promises. The same underlying restriction may potentially be analyzed under different doctrines depending on the remedy sought and the applicable requirements.
XI. Common Schemes and Reciprocal Restrictions
Residential developments may create additional questions when some lots contain express restrictions but others do not.
Under a common-scheme or reciprocal-restriction theory, restrictions may sometimes be implied when:
- A common owner subdivides land.
- A general plan of restrictions exists.
- The purchaser has proper notice.
The doctrine recognizes that a developer may create a neighborhood according to a general restrictive plan even though individual instruments are not perfectly uniform.
Students should look for facts indicating a common development pattern, including: A recorded plat, repeated covenants, a subdivision map, uniform residential development, sales representations, or a consistent neighborhood pattern. These facts may support an inference that the land was sold pursuant to a general plan.
Common Scheme Hypothetical
"Developer divides a tract into forty residential lots. Thirty-eight deeds contain substantially identical residential-use restrictions. Promotional materials describe the development as a uniformly residential neighborhood. Two deeds accidentally omit the restriction."
A purchaser of one of the unrestricted lots may still face a common-scheme argument if the required elements, including proper notice, are satisfied. The important issue is not merely whether a restriction appears in a particular deed, but whether the development was created according to a broader plan of reciprocal land-use obligations.
XII. Common-Interest Communities
Modern residential developments are frequently governed by extensive private systems of regulation.
Common-interest communities may operate through: Declarations, Covenants, conditions, and restrictions (CC&Rs), Homeowner-association bylaws, Condominium documents, Assessment obligations, Architectural restrictions, and Rules governing shared property.
Owners may be bound by properly recorded restrictions even though they did not personally negotiate those terms. This feature is central to common-interest ownership. A person who purchases into a planned community may acquire both property rights and obligations arising from an existing regulatory structure.
Courts frequently consider factors such as:
- Reasonableness
- Notice
- Statutory authority
- Procedural fairness
- Public policy
The precise legal framework may vary, but students should recognize that private associations can exercise significant control over land use through recorded community documents.
Exam Tip
A common-interest-community problem may contain several separate issues. Ask whether the restriction was properly created, whether the owner had notice, whether the association has authority to enforce it, and whether enforcement raises questions of reasonableness or procedural fairness.
Neighbor Rights (Nuisance)
XIII. Private Nuisance
Private nuisance is a substantial and unreasonable interference with another person's use and enjoyment of land.
Potential nuisances include: Noise, Smoke, Odor, Vibration, Pollution, Flooding, Bright lights, Industrial operations, or Repeated disturbances.
Private nuisance does not require the defendant to physically enter the plaintiff's property (unlike trespass). The doctrine focuses on interference with the plaintiff's ability to use and enjoy their land.
1. Is the interference substantial?
2. Is the interference unreasonable?
XIV. Substantial Interference
The interference should be significant to an ordinary person rather than based solely on unusual sensitivity. This requirement helps distinguish legally cognizable land-use interference from purely personal reactions.
Suppose a neighbor operates an ordinary household washing machine. The adjacent owner conducts extremely delicate scientific experiments that are disrupted by minimal vibration. The unusual sensitivity of the plaintiff's activity does not automatically convert ordinary residential conduct into a nuisance. The interference must ordinarily be significant from the standpoint of normal use and enjoyment.
The same principle applies to sound, odor, light, and other alleged disturbances. A minor annoyance ordinarily is not enough.
Common Trap
Do not evaluate substantiality only from the particular plaintiff's perspective. Ask whether the interference would be significant to an ordinary person using the property in a normal manner.
XV. Unreasonable Interference
Even substantial interference must also be unreasonable.
Courts may evaluate several considerations, including:
- Gravity of the harm.
- Social utility of the conduct.
- Location.
- Duration & Frequency.
- Ability to avoid the harm.
- Cost of prevention.
- Character of the neighborhood.
Nuisance law therefore often requires balancing competing land uses. An industrial activity may be more expected in an industrial area than in a quiet residential neighborhood. A single temporary disturbance may be treated differently from a repeated event occurring every night. A highly valuable activity may still create liability if the harm imposed on neighbors is sufficiently severe.
Possible outcomes include: Damages, Injunction, Conditional injunction, or No liability. The remedy may reflect the balance between the seriousness of the interference and the utility of the challenged activity.
Balancing Hypothetical
"Factory operates machinery that produces significant vibration every night. Nearby residents experience cracked walls, interrupted sleep, and repeated disturbance. The factory provides substantial economic activity but could reduce much of the vibration through costly improvements."
A nuisance analysis would consider the gravity and duration of the harm, the social utility of the factory, the industrial or residential character of the neighborhood, the feasibility and cost of prevention, and the frequency of the interference. The answer is not determined simply by asking whether the factory's activity is useful or whether the neighbors are inconvenienced. The doctrine requires evaluation of both sides.
XVI. Coming to the Nuisance
A plaintiff is not automatically barred merely because the plaintiff moved near an existing activity. The timing of the plaintiff's arrival may be relevant, but it generally is not an absolute defense.
This rule reflects the nature of nuisance law as a doctrine balancing competing land uses rather than simply rewarding the party who arrived first. For example, a business operating before residential development expands into the area may argue that new residents knowingly moved near an existing activity. That fact may be relevant to reasonableness, expectations, or remedy. It does not necessarily eliminate nuisance liability.
Common Trap
“Coming to the nuisance” is not ordinarily a complete answer. Treat it as a relevant factor rather than an automatic bar.
XVII. Public Nuisance
A public nuisance affects rights common to the public. Examples may involve interference with: A public road, Public water, Public health, Public safety, or Community environmental rights.
The distinction from private nuisance is based on the nature of the right affected. Private nuisance concerns interference with an individual's use and enjoyment of land. Public nuisance concerns interference with rights held collectively by the public.
A private plaintiff ordinarily must show special harm different in kind from the injury suffered by the general public in order to maintain an individual action based on a public nuisance.
Exam Tip
When an alleged nuisance affects everyone in the community, ask whether the claim is public nuisance and whether an individual plaintiff suffered a special injury different in kind from the general public's harm.
Public Regulation
XVIII. Zoning
Zoning is an exercise of state or local police power used to control land use. Common zoning classifications include: Residential, Commercial, Industrial, Agricultural, and Mixed use.
Zoning ordinances may regulate much more than broad categories of use. They may control: Use, Height, Density, Setbacks, Lot size, Parking, and Building form. Zoning therefore affects both what may be done on property and how structures may be designed or situated.
Unlike covenants and servitudes, zoning restrictions arise through governmental regulation rather than private agreement. That distinction is important because a particular land use may comply with private restrictions yet violate zoning, or comply with zoning while violating private covenants.
XIX. Nonconforming Uses
A nonconforming use is generally a lawful use that existed before a zoning change and is permitted to continue even though the new zoning rules would prohibit that use if newly established.
The doctrine balances two competing concerns. Government may seek eventual conformity with current zoning policy. At the same time, an owner may have an established interest in a use that was lawful when it began.
Government may therefore regulate issues such as: Expansion, Abandonment, Reconstruction after destruction, Transfer, and Amortization.
A zoning problem involving an old business in a newly residential district should therefore raise the possibility of a lawful nonconforming use.
Nonconforming Use Hypothetical
"A repair shop lawfully operates in an area zoned for commercial use. The municipality later rezones the area for residential use."
The shop may qualify as a nonconforming use because it lawfully existed before the zoning change. The municipality may nevertheless impose lawful restrictions concerning expansion, abandonment, rebuilding after destruction, or other matters relating to eventual conformity.
XX. Variances
A variance permits deviation from zoning restrictions because literal application of the ordinance would impose a particular hardship.
Two major categories are area variances and use variances.
Area Variance
Concerns dimensional or physical requirements such as setbacks, height, or lot coverage. Generally requires a lesser showing of hardship. (e.g., an unusually shaped parcel making a setback difficult).
Use Variance
Permits a land use that the zoning rules otherwise prohibit in the district. Because it is a more substantial departure, it generally requires a stronger showing, often described as unnecessary hardship.
XXI. Special Exceptions and Conditional Uses
A special exception or conditional use differs fundamentally from a variance.
A variance grants relief from the zoning ordinance. A special exception involves a use that the ordinance itself permits when stated conditions are met.
Special exception: The ordinance authorizes the use if specified criteria are satisfied.
This distinction is frequently tested because both mechanisms may allow an owner to pursue a land use that is not automatically permitted as of right.
Common Trap
Do not say that every zoning approval outside the ordinary rules is a variance. First determine whether the ordinance itself authorizes the use subject to conditions. If so, the issue may concern a special exception rather than variance relief.
XXII. The Takings Clause
Government has broad authority to regulate and acquire property, but constitutional limits require compensation in certain circumstances. The basic principle is that government may take private property for public use if it pays just compensation.
Takings may arise in several forms:
- Physical takings.
- Regulatory takings.
- Land-use exactions.
Each category requires a different analytical approach.
XXIII. Physical Takings
A permanent physical occupation or appropriation generally constitutes a taking.
Examples include: Government seizure, Mandatory permanent occupation, or Authorized physical invasion. Even a small permanent occupation may trigger categorical treatment.
The central concern is that the government has required or authorized a physical occupation of private property rather than merely regulating how the owner may use it.
Physical Taking Hypothetical
"Government requires an owner to allow a permanent piece of public equipment (like a cable box) to occupy a defined portion of private property."
Even if the occupied area is small, the permanent physical occupation points toward treatment as a physical taking requiring compensation.
Exam Tip
When government action involves a permanent physical presence, analyze physical-taking principles before moving to regulatory balancing.
XXIV. Regulatory Takings
Government regulation may sometimes constitute a taking even without a physical occupation. The central idea is that regulation can become so burdensome that constitutional compensation principles are implicated. Regulatory takings analysis can be divided into total economic deprivation and partial regulatory restrictions.
XXV. Total Economic Deprivation
A regulation eliminating all economically beneficial use of property may constitute a categorical taking.
An important qualification applies when the prohibited use was already barred by background principles of property or nuisance law. This means that an owner generally cannot demand compensation merely because government formally prohibits a use that the owner had no lawful property right to undertake in the first place.
The key questions are therefore:
- Has the regulation eliminated all economically beneficial use?
- Is the prohibited use independently barred by background principles of property or nuisance law?
Common Trap
A severe reduction in value is not automatically the same as total economic deprivation. The total-deprivation category focuses on elimination of all economically beneficial use.
XXVI. Partial Regulatory Takings
When regulation does not eliminate all economically beneficial use, courts may apply a multifactor balancing approach (Penn Central).
Relevant considerations include:
- Economic impact of the regulation.
- Interference with reasonable investment-backed expectations.
- Character of the governmental action.
There is no simple percentage rule. A substantial loss in value may be important, but the percentage of value lost does not by itself determine whether a taking occurred. The analysis requires consideration of the overall effect and context of the regulation.
The investment-backed-expectations factor asks how the regulation affected reasonable expectations associated with the property. The character of the governmental action directs attention to the nature of the government's interference rather than examining financial impact alone.
Exam Tip
When some economically beneficial use remains, avoid categorical language. Identify the problem as a partial regulatory taking and work through the multifactor analysis.
XXVII. Exactions
Government may condition development approval on a landowner providing land, money, improvements, or another concession. These conditions are commonly called exactions.
Constitutional limits require a meaningful connection between the government's demand and the effects of the proposed development. Students should know two central concepts:
Essential Nexus
Asks whether the demanded condition relates to a legitimate concern associated with the development that would justify denying the permit.
Rough Proportionality
Asks whether the extent of the condition bears an appropriate relationship to the development's impact.
The central principle is that government cannot use its permitting power to obtain unrelated concessions from property owners.
Exactions Hypothetical
"Developer seeks approval for a small residential project. Government conditions approval on Developer giving the government property for an unrelated project that bears no meaningful connection to the impacts of the proposed development."
The condition raises an exactions problem because the required concession lacks the necessary relationship (essential nexus) to the development's effects.
Common Trap
Do not analyze every land-use permit condition as an ordinary regulatory taking. When government says, in substance, “You may build only if you give us this property, money, or improvement,” consider exactions, including essential nexus and rough proportionality.
XXVIII. Eminent Domain
Eminent domain is the government's power formally to condemn private property for public use.
Public use is interpreted broadly and may include a broader public purpose. When government validly condemns property, it must provide just compensation.
Just compensation generally means fair market value rather than the owner's sentimental, emotional, or purely personal valuation of the property. This distinction may create difficult practical consequences. Property may have deep personal significance to an owner, but compensation ordinarily focuses on objective market value rather than subjective attachment.
Eminent domain should be distinguished from regulatory takings. In eminent domain, government affirmatively condemns or acquires property. In regulatory-taking cases, government may leave title with the owner but regulate the property so substantially that compensation principles become relevant.
Analysis & Methods
XXIX. Comparing Private and Public Land-Use Controls
One property can be regulated simultaneously by private agreements, neighbor rights, and public law.
Consider a homeowner who wants to build a large commercial structure on a residential lot:
- A recorded covenant may restrict the parcel to residential use. That raises questions involving real covenants or equitable servitudes.
- HOA documents may contain architectural rules, assessment obligations, or community restrictions.
- Neighbors may argue that the proposed activity will create substantial and unreasonable noise, light, pollution, or other interference constituting a private nuisance.
- Zoning may prohibit commercial use in the district.
- If the owner seeks relief from zoning, the issue may involve a variance or special exception.
- If government regulation or a development condition is sufficiently burdensome, takings or exactions principles may be implicated.
Exam Tip
When several restrictions appear in one fact pattern, do not choose only one doctrine. Analyze each source independently: Private promise, Neighbor interference, and Government regulation. A land use may violate one source of law even if it complies with another.
XXX. Integrated Hypothetical
"Developer creates Oak Ridge, a fifty-lot residential subdivision. Recorded declarations state that each lot must be used for residential purposes and that all owners must pay assessments for maintenance of common roads and landscaping. Most deeds repeat the residential-use restriction. Several deeds omit it, but the subdivision map, advertising materials, neighborhood design, and recorded declarations consistently describe Oak Ridge as a residential development."
"Owner purchases one of the lots whose individual deed does not repeat the restriction. Owner had access to the recorded declaration and observed that the subdivision consisted entirely of residences. Owner later announces plans to build a large entertainment venue on the lot."
Several legal issues arise:
- Neighboring owners may argue that the recorded residential restriction binds Owner as an equitable servitude or real covenant.
- Because Owner's individual deed omitted the restriction, neighbors may raise a common-scheme theory. The common ownership, repeated restrictions, map, uniform development, and sales representations support a general plan.
- Neighbors may bring a private nuisance claim if the entertainment venue produces substantial and unreasonable noise, bright lights, vibration, or traffic disturbances.
- Local zoning may independently classify the area as residential. Owner may seek a use variance or a special exception if the ordinance authorizes it.
- If local government conditions approval on dedicating land unrelated to the project's effects, it raises an exactions issue.
XXXI. Exam Method for Covenants and Servitudes
A useful real-covenant analysis proceeds in a fixed order.
- Identify the promise.
- Determine whether the claimant seeks to enforce the burden, the benefit, or both.
- Analyze the traditional burden requirements (Writing, Intent, Touch and concern, Horizontal privity, Vertical privity, Notice).
- Identify the requested remedy (Damages = Real Covenant, Injunction = Equitable Servitude).
When the development contains inconsistent deed language, consider whether a common scheme or reciprocal restrictions may apply.
XXXII. Exam Method for Nuisance
First, determine whether the alleged interference affects a private landowner's use and enjoyment or a right common to the public.
For private nuisance, ask: Is it substantial? Is it unreasonable?
- Evaluate substantiality from the perspective of ordinary use rather than unusual sensitivity.
- For unreasonableness, consider gravity of harm, social utility, location, duration, and avoidability.
- If the plaintiff moved near the activity after it began, discuss coming to the nuisance as a relevant factor, not an absolute defense.
For public nuisance, determine whether a private claimant suffered special harm different in kind from the general public injury.
XXXIII. Exam Method for Zoning and Takings
For zoning, identify the governing restriction and the owner's requested relief.
- Dimensional rule relief = Area variance.
- Prohibited use relief = Use variance.
- Ordinance authorizes use conditionally = Special exception.
- Existing lawful use before change = Nonconforming use.
For takings, classify the government action first:
- Physical occupation? Analyze physical-taking principles.
- Elimination of all economic use? Analyze total regulatory deprivation.
- Significant but partial regulatory burden? Apply the multifactor balancing approach.
- Conditioned on a concession? Analyze essential nexus and rough proportionality (exactions).
- Formal condemnation? Analyze eminent domain (public use, just compensation).
Common Trap
Do not treat all government restrictions as takings. Zoning is a normal exercise of governmental police power. A takings question arises only when the burden crosses the relevant constitutional threshold.
Chapter Summary
Property ownership is shaped by both private and public restrictions on land use.
A real covenant is a promise concerning land that may bind successors, traditionally with damages as the remedy. Traditional requirements for the burden to run commonly include writing, intent, touch and concern, horizontal privity, vertical privity, and notice.
An equitable servitude is a land-use promise traditionally enforceable through injunction. Its traditional requirements generally include writing, intent, touch and concern, and notice, with substantially relaxed privity requirements compared with real covenants.
A common scheme or reciprocal restriction may bind lots within a residential development even when some deeds omit an express restriction, particularly where a common owner created a general plan and purchasers had proper notice.
Private nuisance is a substantial and unreasonable interference with another person's use and enjoyment of land. The interference must be significant to an ordinary person. Unreasonableness depends on balancing gravity of harm against social utility and other factors. Public nuisance affects rights common to the public; a private plaintiff needs special harm to sue.
Zoning is an exercise of governmental police power. A lawful use existing before a zoning change may continue as a nonconforming use. A variance grants relief from zoning requirements due to hardship (area vs. use). A special exception allows a use already authorized by the ordinance if conditions are met.
The Takings Clause permits government to take private property for public use if just compensation is paid. This includes physical takings and regulatory takings (total economic deprivation or partial regulatory burdens analyzed via balancing). Exactions require an essential nexus and rough proportionality.
A strong Property analysis identifies the source of the restriction first (private promise, neighbor interference, or government regulation) and then applies the doctrine governing that particular form of land-use control.
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