Misc. Real Property Topics

Question 1

What is lateral support?

Answer 1

If excavation causes collapse of bldgs on adjacent land: liability ONLY for negligence, UNLESS π can show that excavation would have caused collapse even on unimproved land (i.e. in its natural state), then S/L

Question 2

What are the 2 major systems for determining the allocation of water in watercourses (i.e. streams, rivers, and lakes)?

Answer 2

1) Riparian doctrine: the water belongs to ALL those who own the land bordering the watercourse (i.e. riparians) They SHARE the right of REASONABLE use of the water A riparian will be liable if his use UNREASONABLY interfers w/ others’ use Natural uses of the water (consumption, gardening, etc) PREVAIL over artifical uses (irrigation, manufacturing, etc) in scarcity situtations 2) Prior appropriation doctrine: right to divert can be ACQUIRED from state Riparian ownership doesn’t matter Priority is based on first in time, first in right An appropriative right CAN BE lost by abandonment

Question 3

What are are surface owner’s rights to ground (percolating) water?

Answer 3

The surface owner is entitled to make REASONABLE use of ground water Being WASTEFUL is never reasonable

Question 4

What is the common enemy rule?

Answer 4

Common enemy rule = landowner can change drainage/other improvements to combat the surface water flow (i.e. the common enemy) BUT…no unnecessary harm to another’s land (as modified in many jx)

Question 5

What are 2 key possessor rights?

Answer 5

1) Freedom from trespass: posessor can bring an EJECTMENT action for those who invade land with a physical object 2) Freedom from private nuisance: possessor is entitled to be free from substantial/unreasonable interference (no tangible invasion; e.g. odors or noise) BUT interference w/hypersensitive π is NOT nuisance

Question 6

What iseminent domain?

Answer 6

Is the gov’ts 5th Am pwr to take private property for PUBLIC use in exchange for JUST COMPENSATION Explicit takings = acts of gov’t condemnation Implicit/regulatory takings = a gov’t regulation that is so onerous as to WIPEOUT the economic benefit from the land Remedy = (i) compensate the owner; OR (ii) terminate the regulation and pay owner damages while reg was in effect

Question 7

What iszoning?

Answer 7

Pursuant to its police pwrs, the gov’t may enact statutes to reasonably cntrl land use Land owner can get around zoning law by seeking a VARIANCE (i.e. an administrative action) from zoning bd by… Proponent showing undue hardship; AND That the variance won’t decrease neighboring property values A ONCE lawful, existing use NOW deemed nonconforming by a new zoning ordinance CANNOT be eliminated all at once UNLESS just compensation is paid (otherwise an unconst. taking)

Question 8

What isan exaction?

Answer 8

Exactions are thos ammenities that the gov’t seeks in exchange for granting permission to build To be CONSTITUTIONAL, must be reasonably related BOTH in nature and scope to the impact of the proposed development