Real Property: Other Flashcards
Lateral Support
If land is improved by buildings and an adjacent landowner’s excavation causes the improved land to cave in, the excavator will be liable only in he is negligent
Strict liability does not attach unless P shows because of D’s actions P’s improved land would have collapsed even in an unadorned state
Water Rights: Riparian Doctrine
Water belongs to those who own the land bordering the water course (riparians) who share the right of reasonable use of water
One riparian will be liable for use if it unreasonably interferes with others’ use
Water Rights: Prior Appropriation Doctrine
Water belongs initially to the state, but the right to divert and use it can be acquired by an individual, regardless of riparian status
Rights are determined by priority of beneficial use – first in time, first in right for productive or beneficial use of the water (including agriculture)
Water Rights: Groundwater / Percolating Water
Water beneath the surface of the earth that is not confined to a known channel
Surface owner is entitled to make reasonable use of groundwater, but is must not be wasteful
Water Rights: Surface Waters
Water that comes from rain, springs or melting snow, and have not yet reached a natural watercourse or basin
Landowner may change drainage or make any other changes on his land to combat the flow of surface water – many courts limit this to prohibit unnecessary harm to others’ land
Possessor’s Rights
(1) Free from trespass: invasion of land by physical object. To remove trespasser, bring an ejectment action.
(2) Free from nuisance: substantial unreasonable interference with another’s land use (no physical requirement, odors and noise can suffice). Irrelevant if P’s use of land is hypersentsitive.
Eminent Domain
Definition: Government’s Fifth Amendment power to take private property for public use in exchange for just compensation. Can be (a) explicit (govt act of condemnation) or (b) implicit/regulatory (same effect as taking)
Remedy: government must either (1) compensate the owner or (2) terminate the regulation and pay owner for damages while reg was in effect
Zoning: Definition
Government uses police powers to enact statutes to reasonably control land use
Zoning: Variance
To get a variance, proponent must show:
(1) Undue hardship, and
(2) Granting the variance won’t work to harm neighboring property values
Granted or denied by administrative action, typically a zoning board
Zoning: Nonconforming 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 it’s an unconstitutional taking)
Zoning: Unconstitutional Exaction
Exactions are those amenities government seeks in exchange for granting permission to build
To be constitutional, exactions must be reasonably related in nature and scope to the impact of the proposed development
