Property - Other Topics

Question 1

Lateral Support - When is an excavator negligent if adjacent land falls in?

Answer 1

In general, excavator liable when negligent.

Strict liability applies if adjacent land owner can prove that improvements on their land did not contribute to the land collapse (i.e structures on the land).

Question 2

Systems for Allocating Water Rights

Answer 2

Riparian Doctrine (Applies in MA):

Water belongs to those who own the land bordering the water and have the right to reasonable use of the water. Can’t unreasonably interfere with others.

Prior Appropriation Doctrine:

Water belongs initially to the state, but right to divert it and use it can be acquire by individual. [First in time, first in right if use is beneficial/productive]

Question 3

Rule on Groundwater [Not confined to a channel]

Answer 3

The surface owner is entitled to make reasonable use of ground water, but use must not be wasteful.

Question 4

Surface Water

Answer 4

Common Enemy Rule: Surface water is considered a nemesis and give landowners right to combat the flow.

Many court, however, prohibit modification that unnecessarily harm others land.

Question 5

Two Possessor’s Right

Answer 5

Right to be free from

(1) Trespass - invasion of land by tangible physical object
(2) Nuisance - substantial and unreasonable interference with another’s use and enjoyment of land. [Does not need to be tangible].

Watch out for hypersensitive plaintiff.

Question 6

Types of Takings under Gov’t Eminent Domain Power (5th Amendment)

Answer 6

(1) Explict Takings: Acts of governmental condemnation.
(2) Implicit or regulatory taking: governmental regulation, although not intended to be a taking, has the same effect.

Remedies: Compensate owner or Terminate the regulation and pay damages for harm occurred.

Question 7

Limits on Gov’ts Zoning Powers

Answer 7

(1) Government may enacted statutes to reasonably control land use.
(2) Nonconforming use: a once lawful land use can not be eliminated all at once unless just compensation is paid. [Otherwise a taking]
(3) Unconstitutional exacation: Amendments that gov’t seeks in exchange for granting permission to building. [Exaction must be reasonable related in nature and scope to the impact of proposed development.

Question 8

What must a proponent show to get a zoning variance?

Answer 8

(1) Undue hardship

(2) Variance won’t decrease neighboring property value.