The previous section focused on the right to possession of property. This section focuses on the privilege of use of property—the extent to which the law allows an owner or possessor of property to use the property and how an owner or possessor of property may grant privileges of use to others. The fact that person A’s privilege of using his property inevitably conflicts with person B’s privilege of using his, if their properties are located near each other, has led throughout the West to extensive limitations on the privilege of use, first in the area of private law and, increasingly, in the area of public law.
Nuisance law and continental parallels
At English common law the basic limitations on the privilege of use of property were incorporated in the law of nuisance, the action that a landowner could bring if his privilege of using his land was being interfered with. Historically, nuisance law seems to have been deeply conservative; existing land uses were protected against more recent ones. A hierarchy of land uses favoured residential uses over agricultural and agricultural over industrial. (Commercial uses were sometimes placed after residential, sometimes after agricultural.) The maxim “Sic utere tuo ut alienum non laedas” (“Use your own thing so as not to harm that of another”) expressed this conservative tendency, though it hardly offered a precise solvent for difficult cases.
Nuisance law is still used in the contemporary Anglo-American system as a means of resolving land-use disputes. The hierarchy of land uses is still employed, tacitly if not expressly; the maxim is still occasionally quoted, and at least in close cases the land use that is prior in time will prevail over subsequent ones. What has changed about nuisance law is the fact that the element of judicial discretion in resolving the basically unresolvable conflict between two equally privileged land uses is more frankly recognized.
Nuisance is defined as the substantial interference with the plaintiff’s use of his land by the unreasonable conduct of the defendant. Each of the qualifying words in the definition can lead to an exercise of judicial discretion. One may ask, for example, whether the harm caused by the defendant’s activity is substantial. A judgment is called for—aided, of course, by precedent, but always unique to the given case. Hazards to health, offenses to the sense of smell or hearing, and demonstrated economic loss are frequently found to be substantial harms. For example, secondhand cigarette smoke may constitute a nuisance. Offenses to the sense of sight and injuries to peculiarly sensitive activities (such as operating a pig farm in a residential area) are much less likely to be found substantial.
The second stage in determining that a nuisance exists requires a finding that the defendant’s activity was unreasonable. Unreasonable conduct is a relative matter. It may be unreasonable to engage in heavy manufacturing in a residential area and perfectly reasonable to do so in an industrial area. The care with which the defendant conducts his activities is of relevance, but it is not decisive.
Once a nuisance has been found, there still must be, in most jurisdictions, a “balancing of the equities” to determine whether the defendant will be enjoined from his activities or whether the plaintiff will have to content himself with money damages. In recent cases, economic considerations have come to the fore in making this determination. Thus, in a celebrated New York case, the court refused to enjoin the operations of a cement plant that represented a $45 million investment and a large number of jobs for a small community but instead awarded money damages to the nearby residents calculated on the basis of the reduction in the capital value of their houses that would result from the continued presence of the smoke-emitting plant ( Boomer v. Atlantic Cement Co. [1970]).
The adoption by modern civil law of the Roman conception of ownership and of substantial parts of the Roman scheme of actions has meant that modern civil law also lacks a unified protection of the privilege of use like that of the Anglo-American nuisance law. In France this lack has been addressed by the development of the concept of abus de droit (“abuse of right”). The concept has been extensively used in situations where the defendant has employed his land in a given way in order to interfere with his neighbour’s land use. The paradigm case came from Colmar, France, in the middle of the 19th century, when the defendant built a large and totally unnecessary chimney on the roof of his house in order to block the light to his neighbour’s windows. From there the concept has developed so that it may be used in situations where the motives of the defendant are not so obviously malicious as they were in the Colmar case, but it has never involved the French judiciary as much in land-use questions as has the Anglo-American. German law, on the other hand, has developed a concept similar to that of Anglo-American nuisance law, based on the general requirement in the code that one act in good faith and on a specific provision dealing with smoke and noise.
Private land-use control: servitudes
Both Roman law and English common law recognized that an owner of land could voluntarily part with a right or privilege with regard to his land so that a neighbour might use the land in a way that would otherwise be actionable. The classic case is the right-of-way, whereby an owner agrees to allow a neighbour to cross his land in order to allow the neighbour to reach his own land. What distinguishes the right-of-way and similar interests from the myriad types of enforceable agreements not to sue is that the right-of-way is a real right; that is, if it is properly created, the right-of-way will remain in effect even when the owner of the burdened land has transferred the land to another.
Today the category of use rights is broader in Anglo-American systems than it is in the civil law. The developments, however, were not entirely independent of each other. The similarity in the two bodies of law will become even more noticeable if, as has been proposed, American law comes to abandon its traditional distinctions between easements, profits, real covenants, and equitable servitudes and adopts instead, like the civil law, a general category of servitudes.
Easements and profits
An easement in Anglo-American law is a privilege to do something on the land of another or to do something on one’s own land that would otherwise be actionable by one’s neighbours (known as an affirmative easement). Exceptionally, it is the right to prevent a landowner from doing something on his land that he would otherwise be privileged to do (known as a negative easement). Examples of affirmative easements include rights-of-way, the privilege of using land for pasture, the privilege of using a wall between two properties as a party (common) wall, the privilege of flooding land, and the privilege of maintaining a nuisance on one’s own land (for example, a garbage dump or an airport). Examples of negative easements are more restricted. It is sometimes said that there are only four such easements: two being the right to prevent one’s neighbour from obstructing the light and the air that normally come to one’s property, the third being the right to prevent him from undermining the support for a building, and the fourth being the right to prevent him from changing the course of an artificial stream.
Easements may be created by grant, by implication, or by prescription. Normally, the owner of the burdened land will grant the easement expressly. Recordation may be necessary in order to have the grant bind third parties (see below Registration and recordation). Where the owner has divided land in such a way that the conveyee has no convenient means of access except across the land retained by the conveyor, the conveyor will be presumed to have given the conveyee a right-of-way across the retained land (easement by implication). The same will often be presumed where the conveyor has left himself totally landlocked (requiring an easement by necessity). (In a few jurisdictions statutes compel the same result.) Implication will also be found where there were pipes or paths on the undivided parcel that suggest that the parties to the transaction that divided the parcel intended to subject one parcel to an easement in favour of another. Finally, the continuous and uncontested use of an easement for the period of prescription (normally, the statute of limitations for ejectment actions) can give rise to an easement by prescription.
Real covenants
The common law recognized that under certain circumstances a promise could be made to “run with the land,” so that the owner of the estate burdened by the promise would have a duty to perform it, potentially in perpetuity. The promise could be either negative (a promise not to do something, such as not using the land for commercial purposes) or affirmative (a promise to do something, such as maintaining a fence or paying an assessment to a homeowners association). The conditions under which such covenants would run with the land were, and perhaps still are, complicated. In many jurisdictions the precise contents of the doctrine are not clearly defined. This is because the enforcement of covenants by means of injunction, the equitable servitude discussed in the next section, has largely taken over, as a practical matter, for covenants that run with the land at law.
Equitable servitudes
The equitable servitude is an invention of the English equity courts in the 19th century. This device allows the enforcement of restrictions on land use that neither fall within the traditional types of negative easements nor meet the traditional requirements of covenants that run with the land; such promises are enforceable against the successors in title to the land owned by the original promisors. What is required is that the content of the promise “touch and concern the land,” a requirement that allows the court to make a policy determination that a particular class of promises should be permitted to burden the land and that the person against whom enforcement is sought took title to the burdened land with notice of the promise. This notice will typically arise from the fact that the instrument in which the promise was made is on the public record, but it has been held that a uniform scheme of development of parcels of land that were once under common ownership is enough to put the purchaser of one of the parcels on notice to inquire whether a promise to develop in this way was made.
The equitable servitude has been of great importance in land development in Anglo-American jurisdictions. By use of this device land can be developed according to a uniform scheme (residences only, residences of a certain size, even residences with a required style of architecture). The use of the equitable servitude as a device for private land-use control is one of the reasons why public regulation of land use is a relatively recent phenomenon in the United States.
Civil law
A generally restrictive attitude toward servitudes is manifest in the modern civil law. In French law it is not possible to create a servitude that benefits a person rather than a tenement or piece of land—i.e., a servitude must have both a dominant and servient tenement. There can be no servitude requiring the owner of the servient tenement to do something. Within these limits French law allows a servitude to be created for any purpose. The German law is broader. It recognizes the possibility that servitudes may be created to benefit a person rather than a particular piece of land, although the benefit may last no longer than the lifetime of the beneficiary. As in French law there does not seem to be any way in German law to compel the owner of the servient tenement to do something. Thus, there is no category in civil law corresponding to the Anglo-American affirmative real covenant, and the category of equitable servitudes is unnecessary because the general category of servitudes is broader.
In French law the methods of creating servitudes are remarkably similar to the methods of creating easements in Anglo-American law. German law makes less use of prescription and implication of servitudes than does Anglo-American law, probably because of its reliance on the Grundbuch. Both the French and German systems recognize a right-of-way of necessity. The parcels need not originally have been in common ownership, but the landowner seeking a way of necessity must compensate the owner of the servient tenement.
Servitude law is not used in civil-law countries as extensively as it is used in Anglo-American. This is probably because civil-law jurisdictions developed public controls on land use earlier than did most Anglo-American jurisdictions.
Public regulation of land use
Urban planning was known in the ancient world, and particular regulations of land use have been designed to ensure the health, safety, or sensibilities of neighbours wherever human beings live in reasonably close proximity. The amount, however, of such regulation increased dramatically in the 20th century. As a result, zoning and planning law has become a topic of general concern to the legal profession.
Zoning and planning law is also an area in which the basic distinction between Anglo-American and civil law is not particularly useful. Although the concept of public nuisance does not seem to exist in civil law and the constitutional protection given to “property” in the United States has given rise to a somewhat unusual set of limitations on the power of government to regulate land use, the overall picture of public control of land use in the West is more notable for its similarities than for its differences.
Public nuisance
In Anglo-American law the concept of public nuisance serves as a bridge between the private law of nuisance and the avowedly public law of zoning and eminent domain. The concept of public nuisance is closest to that of private nuisance in situations in which a public officer, acting on behalf of the community, brings suit to abate a nuisance that differs from a private nuisance only in that it affects a large number of people. The concept of public nuisance is farther removed from that of private nuisance when legislative bodies declare that certain kinds of land use are public nuisances as a matter of law. Traditional legislatively declared public nuisances include the maintenance of houses of prostitution or illegal gambling establishments and illegal sales or consumption of alcoholic beverages.
The direct link between public nuisance and zoning and planning law is provided by the fact that in many Anglo-American jurisdictions, violations of zoning law are automatically deemed public nuisances. Thus, constructing a building without obtaining the requisite public approval is perfunctorily a public nuisance, although it may be abated by the public prosecutor.
Civil law lacks the concept of public nuisance. Civil law, of course, has a large number of prohibited land uses like those described above, and civil law prohibits the construction of buildings without obtaining the requisite permits.
Direct regulation
Zoning and planning
In the 19th century urban areas expanded rapidly throughout the West. Industrialization introduced many new types of land uses, which were frequently annoying, dangerous, or injurious to the health of those engaged in more traditional residential, commercial, and agricultural activities. The invention and rapid spread of the automobile created problems of traffic control far exceeding anything that the horse-and-buggy era had produced. Fire and police protection in urban areas, the provision of such public services as trash collection, and the provision of water, gas, and electricity were rendered difficult, if not impossible, by the chaotic growth of many areas.
Throughout the West the response to these problems was to regulate development. By and large, existing structures and land uses were allowed to remain, but new structures and new land uses were subjected to increasingly stringent regulation. The fact that only new structures and uses are subject to regulation is characteristic of all modern Western forms of land-use control, whether it is deemed constitutionally impermissible to require landowners to change existing uses or is simply politically inexpedient to do so.
In virtually all jurisdictions the key regulatory device is the requirement that new construction or substantial rehabilitation of old structures not be undertaken until official permission (such as a building permit) has been obtained. The landowner seeking the permit will present to the authorities a set of plans for the proposed construction. These plans are examined to determine if they meet two conceptually distinct sets of requirements. The first set of requirements is the building code. This code requires that all buildings or all buildings of a certain type (e.g., multiple residences) conform to regulations concerning the types of materials used, fire safety, and the use of water and electricity within the building. Particularly for buildings designed for human habitation, there are normally additional requirements concerning such matters as the amount of space per occupant, lighting, ventilation, plumbing, or electrical service. Some jurisdictions have a housing code in addition to the building code. The housing code frequently operates retroactively—i.e., it sets out minimum requirements for any building in which human beings reside, whether or not it is newly constructed.
The second set of requirements is the zoning code, in a more restricted sense. The zoning code lays out a series of requirements for construction and land use within particular areas (zones) of the jurisdiction. Zones may be either inclusive or exclusive. If the zones are inclusive, a hierarchy of land uses is created, usually ranging from the least to the most offensive uses. The typical pattern in urban areas begins with the establishment of residential uses and extends to commercial uses and finally to industrial uses. The characteristic of inclusive zoning is that in any given zone the use designated for that zone will be permitted and also any use conceived as being higher—i.e., less offensive. In exclusive zoning, which is less common, only the designated use is permitted in the given zone.
Modern zoning is characterized by a multiplication of districts. Districts will be designated not only for particular types of uses but also for height and density control. The broad types of uses mentioned above may be elaborately subdivided. Residential districts, for example, may be further subdivided into residential districts for single-family detached houses, for single-family row houses, for two-family houses, for more than two-family houses, and for apartment buildings of given types. Height may be limited by stories or by measurement; open space may be required by setback limitations or by limitations on the amount of the site that may be covered by the building; density may be controlled by limiting the ratio of floor area in the building to the area of the site.
The establishment of a comprehensive zoning code requires a considerable amount of planning. A full-scale plan, sometimes called a master plan, requires an accurate inventory of the population and of the land-use patterns existing in the area, economic and demographic predictions of what the future is likely to bring, a thorough understanding of the infrastructure that these future changes will require, and considerable imagination in determining what uses should be encouraged and what uses discouraged and where. Such an elaborate plan is normally not legally required before an initial zoning map is drawn. On the other hand, some planning is required, not only as a practical matter but also as a means of fulfilling the universal requirement that the zoning meet some minimum standard of rationality.
The typical statutory scheme vests a given local governmental body with the power to adopt a zoning plan for the region under its control. Public hearings and publication of the proposed plan for comment are frequently required. Property owners aggrieved by the plan are normally given an opportunity to obtain some kind of review of the decisions of the local governmental body. In the Anglo-American jurisdictions this review is normally had in the regular court system, although administrative review may have to be pursued before recourse to the courts is had. In the civil-law jurisdictions review is normally had in separate administrative courts. Both systems tend to give local governmental bodies considerable discretion in making their determinations.
Environmental and historical controls
Both environmental regulation and regulation designed to achieve preservation of historic buildings and districts have greatly increased in many developed countries, particularly since World War II. Broadly speaking, environmental regulations fall into two types: (1) those that limit, frequently by some scientific measure, the amount of a given toxin or pollutant that may be emitted into the air or into the water supply and (2) those that attempt to preserve natural areas in their natural form. Examples of the first type of regulation are the federal clean-air and air- quality acts in the United States. Examples of the second type of regulation are the state wetlands-preservation acts in the United States and the scenic-designation districts in Europe.
Historical preservation regulation normally places tight controls on changes in the exterior appearance of buildings. It may leave the building owner with the option of reconfiguring the interior of the building in such a way that he can continue to earn a return on the building, or it may require the preservation of the interior of the building as well. In some areas, if compliance with regulations prevents the building from being profitable, the government may be required to pay the building owner compensation or purchase the building from the owner.
Eminent domain
The concept of eminent domain dates back to at least the early 17th century. It states that the sovereign may take private property for public use, but only upon the payment of just compensation. Many instances of the use of the eminent domain power are universal throughout the West and uncontroversial. Governmental bodies everywhere take pieces of land from private owners in order to construct public roads, build government buildings, or install public services, such as electric wires or water, gas, and sewer pipes.
As noted above, either as a legal or as a political matter, land-use regulation normally operates only prospectively. For this reason major changes in the type of land use existing in a given area or in the quality and quantity of the buildings are most often accomplished by use of the eminent domain power. Urban renewal projects are a familiar example. Here a governmental body condemns an entire area, frequently one containing a number of substandard buildings and inappropriately mixed land uses, and then razes the area. The governmental body may then either develop the area itself or sell the parcels to private developers on the condition that they develop them according to a plan devised by the governmental body.
Another use of the condemnation power occurs when a governmental body condemns the development rights in a given parcel of property. This may be done because there are doubts about the body’s authority to proceed by way of regulation, because there are political objections to its doing so, or because the body wants to achieve greater flexibility. The current land use may continue as long as the owner wants to continue it, but no further development can take place without permission of the governmental body.
In 2005 a considerable increase in the scope of the eminent domain power resulted from Kelo v. City of New London, in which the U.S. Supreme Court ruled that private land in New London, Conn., could be condemned by the city and transferred to a private development company. The decision prompted a number of states and municipalities to enact private-property-protection laws.
Whatever interest the governmental body takes, it is required to pay just compensation for the acquisition or use of land. Just compensation is normally defined as the fair market value of the land or interest taken. While there is considerable variation in just-compensation law and even more variation in what is actually awarded, the fair-market-value standard rarely gives the landowner full compensation for the economic loss that he suffers as a result of the taking. Just compensation rarely includes such items as loss of goodwill, moving costs, or counsel fees. Where the landowner retains land in the area and the value of that land is increased because of the public improvement, the increase in value is frequently deducted from the compensation the landowner receives. Thus, even in a situation where the government’s obligation to pay compensation is conceded, the person whose land is condemned pays for the privilege of being a citizen of the community in which the land lies.
Constitutional limitations on government regulation of property
The notion that some losses by a private owner as a result of government action must be borne by him as part of the cost of living in a community is key to understanding how various jurisdictions determine when a governmental unit must proceed by using the eminent domain power and when it may proceed by way of regulation. Clearly, all government regulations affecting the use of land can have an adverse economic impact on the owner of the land, yet no Western legal system requires that all such economic losses be compensated. Some economic losses must be compensated; some need not be compensated. The question, increasingly debated as regulation of land use becomes more pervasive, is how to draw the line between those that must be compensated and those that need not be.
Every Western jurisdiction requires that, where the government takes property permanently for some public use, some compensation be paid. But few, if any, Western jurisdictions require that compensation be paid when the government enacts a regulation concerning the prospective use of the land, even if the enactment of that regulation substantially decreases the market value of the land. Where and how the line is drawn between these extremes varies considerably from jurisdiction to jurisdiction.
The United States probably has the most developed law on this topic because the enforcement of the provisions of the U.S. Constitution that protect property interests from governmental interference has long been committed to the courts. In the United States two competing and overlapping theories are employed to distinguish “takings,” which must be compensated, from “regulations,” for which compensation need not be paid: (1) Where a governmental body invades the possessory interest of the landowner, compensation must be paid. There are exceptions to this principle, as, for example, in cases where the invasion of the possessory interest is for a short period and justifiable on grounds of protecting public health or safety or where it is unintentional, but the fact that a governmental body has invaded a landowner’s possessory interest is a good predictor that a court will require that compensation be paid. (2) Where the government has not invaded a possessory interest of the landowner but has regulated his use of his property in such a way that no viable use of the property remains, compensation will frequently be required. This principle is considerably more controversial than the first, but it has been followed often enough that it too is a good predictor of judicial decisions.
The problem with the second principle is that it is dependent on the particular configuration of the property interests in question. Thus, a regulation that requires that mining operations be conducted in such a way as not to cause subsidence of the surface of the land would not deprive the owner of the entire tract of land of all use because he could continue to use the surface, nor would it deprive the owner of a deep mine of all possible use, since he could conduct his operations in such a way as to avoid the subsidence, but it would deprive the person who owned only a mine close to the surface of all use, since he could not mine without causing subsidence of the surface. (These are basically the facts of Pennsylvania Coal Co. v. Mahon [1922].)
By and large the French legal system requires compensation only in those situations where the government has permanently deprived a landowner of the possession of his property. The concept of “regulatory taking” does not exist in French law. German law, however, because of the constitutional protection given to property since World War II, has developed a considerable jurisprudence on the topic. By and large the German developments have run a course parallel to those in the United States.