Pre Existing Use (Including Amortization) Variance Special Exception Distinguishing Characteristics Non conforming use gets to continue for some period of time Explicitly not allowed, but they give you a variance to allow the activity (e.g. spacing between houses) After ordinance is in place A use permitted by ordinance in a district in which it is not necessarily incompatible but might need to be watched (hospitals) Built into ordinances Highlights of Test - Grandfather in use even if not permitted under new zoning ordinance - Amortization: time to phase out the business Majority: Factor Test Minority: Per Se - Exceptional and undue hardship (exhaust all of your options) + Detrimental to public good - Personal injury doesn’t count - Consider area vs. use - Constitutionality (was there a specific grant of power to the city?) - Look to the language that gives the exception (vague v. specific) - No need for undue hardship Spot Zoning: Zoning changes, typically limited to small plots of land, which establish a use classification inconsistent with surrounding uses and create an island of nonconforming use within a larger zoned district, and which dramatically reduce the value for uses specified in the zoning ordinance of either the rezoned plot or abutting property Has the benefit of one that was singled out been detrimental to everyone else? Invalid where some or all of the following factors are present: Small parcel of land is singled out for special and privileged treatment The singling out is not in the public interest but only for the benefit of the landowner The action is not in accord with a comprehensive plan Present & Future Interests (System of Estates) See end of outline Concurrent Ownership Tenancy in Common: O: To A and B; presumed to be TIC unless there is explicit language that it is supposed to be a JT Multiple people own property, separate but undivided interest in the whole property When the property is sold, they get a cut according to their share Can have unequal shares Can sell your share existing
TIC “O: To A and B” JT “O: To A, B, C, D, as joint tenants, full rights of survivorship” Creation Default: Presumed to be TIC unless there is explicit language that it is supposed to be a JT Intent + 4 unities: time, possession, title, interest (if fail one of these at time of attempted formulation, then back to TIC) Death Goes to heirs Rights of survivorship: does not go to heirs, automatically passes to other JT’s Destruction Partition in kind, partition by sale, adverse possession (open & notorious, continuous, exclusive possession, claim of title, actual entry, adverse) Partition in kind, partition by sale Defeat one of the unities Death If you try to sell your share, it becomes a TIC Adverse possession Divided / Undivided Interest in property use Undivided interest in the whole property regardless of share Undivided interest in the whole property regardless of share Equal / Unequal Shares Can have unequal shares Equal shares Advantages / Disadvantages Have to go to probate court Death Interest to anybody Creditors can get to this property after you die No need to go to probate court Death Easier if kids are JT’s Straw man – shady business Creditors can’t get to this property after you die Relations Gone Sour Partition in Kind Partition by Sale Other Considerations Distinguishing Characteristic Split land based on person’s interest Sell land, divide money by share (when tenants can’t work it out) Use when partition in kind (Look at Delfino) Consider Delfino Minority Rule: sentiment with the land Preference / Advantages Still have land If there is sentiment with the land, then good Applies to life estate But hard to divide Can diminish value of land by split Easy A lot of courts go this way Gives you max value of land (fair market) MAJORITY Johnson v. Hendrickson: maximizes value of the land; aren’t concerned with emotional attachment of the land Examples