Misc. Real Property Topics

Question 1

LATERAL SUPPORT

What is lateral support?

Answer 1

LATERAL SUPPORT RULE = If excavation causes collapse of bldgs on adjacent land that had been IMPROVED by the bldgs → liability will ONLY apply for negligence… UNLESS π can show that excavation WOULD HAVE CAUSED collapse of bldgs EVEN on UNIMPROVED land (i.e. in its natural state), if that is proven then then STRICT LIABILITY will attach

Question 2

WATER RIGHTS

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

Answer 2

1) The Riparian Doctrine = the water belongs to ALL those who own the land bordering the watercourse (i.e. the Riparians)

RIPARIANS SHARE the right of REASONABLE use of the water

A riparian will be liable if his use UNREASONABLY interfers w/ others’ use

WHEN THERE IS SCARCITY: Natural uses of the water (consumption, gardening, etc) PREVAIL over artifical uses (irrigation, manufacturing, etc)

2) Prior Appropriation Doctrine = the water initially belongs to the state BUT the right to divert it and use it can be ACQUIRED from state by ANY INDIVIDUAL and they do not have to be a Riparian

Rights are determined by Priority of Beneficial Use. The norm for allocation is first in time, first in right

Any productive or beneficial use of the water,
including use for agriculture, is sufficient to create the appropriation right

An appropriative right CAN BE lost by abandonment

Question 3

GROUNDWATER

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

COMMON ENEMY RULE

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)

Think…common enemy rule = surface water as the nemesis

Question 5

POSSESSOR’S RIGHTS

What are 2 key possessor rights?

Answer 5

1) Freedom from trespass:
possessor 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 required; e.g. odors or noise are okay)

BUT an interference w/hypersensitive π is NOT nuisance

ALSO an interference w/specialized use by π is NOT nuisance

Question 6

EMINENT DOMAIN

What iseminent domain?

Answer 6

Eminent Domain = 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 MUST BE EITHER:
(i) COMPENSATE the owner;
OR
(ii) TERMINATE the regulation and pay owner damages while the regulation was in effect

Question 7

ZONING

What iszoning?

Answer 7

Pursuant to its police pwrs, the gov’t may enact statutes to reasonably cntrl land use

THE VARIANCE:
Land owner can get around zoning law by seeking a VARIANCE (i.e. an administrative action) from zoning bd by… Proponent showing BOTH:
i) undue hardship; AND
ii) That the variance won’t decrease neighboring property values

NON-CONFORMING USE:
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 unconstitutional taking)

Question 8

EXACTION

What isan exaction?

Answer 8

Exactions = those amenities 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