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 is eminent 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 is zoning?

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…
  
  1. Proponent showing undue hardship; AND
  2. 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 is an 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