Real Property - Misc.

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  1. Lateral Support
    • If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liabile only if negligent (multi-state).
    • Strict liability does not attach to the excavator's actions unless plaintiff shows that, b/c of D's actions, his improved land would have collapsed even in its natural state.
    • For strict liability to apply, P must show that the improvements on his land (shrubs, fountaing, structures) did not contribute to his land's collapse (very difficult showing).
    • VA has no strict liability here.
  2. Water Rights
    Riparian Doctrine
    • water belongs to those who own the land bordering the water course
    • these people are known as riparians
    • they share the right of reasonable use of the water
    • one riparian will be liable if his or her use unreasonably interferes w/ others' use
  3. Water Rights
    Prior Appropriation Doctrine
    • water belongs to state but the right ot divert it and use it can be acquired by individuals regardless of whether or not he 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 of the water, including use of agriculture is sufficient to create the appropriation right
  4. Water Rights
    • aka percolating water
    • water beneath the surface of the earth that is not confined to a known channel
    • the surface owner is entitled to make reasonable use but the use must NOT be wasteful
  5. Water Rights
    Surface Waters
    • come from rain, srpings or melting snow, and which have not yet reached a natural watercourse or basin
    • common enemy rules: surface water is considered a common enemy
    • a landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water. Many courts (including VA) have modified the common enemy rule to prohibit unnecessary harm to others' land
  6. Possessor's Rights
    • The possessor of land has the right to be free from trespass and nuisance
    • Trespass: invasion of land by tangible, physical object to remove - action for ejectment
    • Private nuisance: substantial and unreasonable interference w/ another's use and enjoyment of land. does NOT require tangible/physical invastion. So odors and noise could give rise to a nuisance but not a trespass.
    • Nuisance does not apply to the hypersensitive P or P's specialized use.
  7. Eminent Domain
    • Government's 5th Amendment power to take private property for public use in exchange for just compensation
    • Explicit takings: acts of governmental condemnation (eg, highway)
    • Implicit or regulatory takings: a governmental regulation that, although not intended to be a taking, has the same effect. Economic wipe out of interest.
    • Remedy: either 1) compensate owner or 2) terminate regulation and pay for damages occuring while in effect
  8. Zoning
    • pursuant to police powers, govt may enact statutes to reasonably control land use
    • Variance: principal means to achieve flexibility in zoning
    • proponent must show 1) undue harship and 2) won't work detrimenet to neighboring property values
    • Granted or denied by administrative action (zoning board)
    • Nonconforming use: once lawful , existing use now deemed nonconforming by a new zoning ordinance. It cannot be eliminated all at once unless just compensation is paid. Otherwise, it could be deemed an unconstitutional taking.
    • Unconstitutional exactions: amenities govt seeks in exchange for granting permission to build, must be reasonably related both in nature and scope to the impacet of the proposed development.
Card Set
Real Property - Misc.
Real Property - Misc.
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