Real Property - Miscellaneous Issues

Front 1

Lateral support

Back 1

If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liable only if _negligent_.

However, strict liability will attach if P shows that, because of D's actions, P's improved land would have collapsed even in its natural, unimproved state--aka the improvements (shrubs, fountain, structures, etc.) did not contribute to his land's collapse. <-- Very hard burden to meet.

NB: VA does not ever have strict liability, only negligence.

Front 2

Riparian doctrine

Back 2

For streams, rivers, and lakes, this doctrine says that the water belongs to those who own the land bordering the water course. These people are known as riparians, who share the right of reasonable use of the water. Thus, one riparian will be liable if her use unreasonably interferes with others' use.

Cf. prior appropriation doctrine

Front 3

Prior appropriation doctrine

Back 3

For streams, rivers, and lakes, this doctrine says that the water belongs to the state, initially, but the right to divert it and use it can be acquired by an individual, regardless of whether or not she happens to be a riparian owner.

Rights are determined by priority of beneficial use: First in time, first in right. Any productive or beneficial use, including for agriculture, is sufficient to create the appropriation right.

Cf. riparian doctrine

Front 4

Groundwater (aka percolating water)

Back 4

Water beneath the surface of the earth that is not confined to a known channel.

Surface owner is entitled to make reasonable use of it. However, the use must NOT be wasteful.

Front 5

Surface waters

Back 5

Water that comes from rain, springs, or melting snow and have have not yet reached a natural watercourse or basin.

See also: common enemy rule

Front 6

Common enemy rule

Back 6

Surface water is considered an enemy to be eradicated, so a landowner may change drainage or make any changes/improvements on her land to combat the flow of surface water.

Many courts have modified this rule to prohibit unnecessary harm to others' land.

Front 7

Trespass

Back 7

Invasion of land by tangible, physical object (or a person). To remove a trespasser, bring an ejectment action.

Front 8

Private nuisance

Back 8

Substantial and unreasonable interference with another's use and enjoyment of land.

Does NOT require tangible, physical invasion of land; odors and noise can give rise to nuisance, but cannot constitute a trespass.

Front 9

Unreasonable interference in nuisance context

Back 9

The benefit of D's action is outweighed by the harm to P's property.

Front 10

Substantial interference in a nuisance context

Back 10

Must interfere with the normal person's use and enjoyment of the land--i.e., if you're hypersensitive to some small nuisance, you will lose.

Front 11

Eminent domain

Back 11

Government's 5th Amendment power to take private property for public use in exchange for just compensation.

Front 12

Types of takings under eminent domain (2)

Back 12

1. Explicit takings: Acts of governmental condemnation.

2. Implicit or regulatory takings: a governmental regulation that, although not intended to be a taking, has the same effect. The economic effect of the regulation must be that your property loses virtually ALL of its value.

Front 13

Remedy for a regulatory taking

Back 13

Government must either (i) compensate the owner, or (ii) terminate the regulation and pay owner for damages that occurred while it was in effect.

Front 14

Variance

Back 14

A means to achieve flexibility in zoning: basically, an exception to a zoning ordinance for a specific building.

Proponent must show (i) undue hardship, and (ii) that the variance won't decrease neighboring land values.

Variances are granted or denied by administrative actions from a zoning board.

Front 15

Nonconforming use

Back 15

A once lawful, existing use now deemed nonconforming by a new zoning ordinance. It cannot be required to be eliminated immediately unless just compensation is paid--otherwise it would be an unconstitutional taking!

Front 16

Unconstitutional exactions

Back 16

Exactions are amenities government seeks in exchange for granting permission to build.

To pass constitutional scrutiny, they must be reasonably related in nature and scope to the impact of the proposed developments.