Real Property 11: Miscellaneous

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  1. What is the rule of 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 liable ONLY IF he acted NEGLIGENTLY.

    In order for STRICTLY LIABILITY to apply, plaintiff (adjacent landowner) must show that the improved land would have collapsed even in its natural state; that is, improvements on his land did not contribute AT ALL to his land's collapse. This is a very DAUNTING burden of proof.
  2. What are the TWO major systems for determining the allocation of water in watercourses?
    1. Riparian Doctrine: water belongs to those who own the land bordering the watercourse.

    2. 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 whether he is a riparian owner. 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 is sufficient to create the appropriation right.
  3. What rights does a riparian have?
    The right of reasonable use of the water.

    Thus, if one riparian's use UNREASONABLY interferes with another riparian's use, he will be liable.
  4. What is GROUNDWATER? Who has rights regarding use of groundwater? What are those rights?
    It is "percolating" water: water beneach the surface of the earth that is not confined to a known channel.

    The SURFACE OWNER is entitled to make REASONABLE USE of groundwater, so long as it is NOT wasteful.
  5. What are SURFACE WATERS?
    Those which come from rain, springs or melting snow, and which have not yet reached a natural watercourse or basin.
  6. What is the rule regarding treatment of SURFACE WATERS?
    Surface water is a common nemesis.

    A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water.

    However, some courts have prohibited unnecessary harm to others' land.
  7. What rights does a possessor of land enjoy?
    1. The right to be free from TRESPASS (invasion of land by physical object - removal by EJECTMENT action)

    2. The right to be free from NUISANCE (substantial and unreasonable interference with another's use and enjoyment of the land - does NOT require tangible physical invasion)
  8. May a hypersensitive possessor of land sue for nuisance?
    There is no nuisance whem the problem is the result of plaintiff's supersensitivity or specialized use.
  9. What is EMINENT DOMAIN?
    Government's Fifth Amendment power to take private property for public use in exchange for just compensation.
  10. What are the TWO types of eminent domain takings?
    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.
  11. What is the REMEDY for a REGULATORY TAKING?
    1. Compensate owner for the taking


    2. Terminate the regulationand pay the owner for damages that occurred while it was in effect
  12. What is the power of ZONING?
    Pursuant to its police powers, government may make statutes to REASONABLY control land use.
  13. What is a VARIANCE?
    The principal means to achieve flexibility in zoning. The proponent of a variance (who wants his property not to be subject to the zoning).
  14. What must the proponent of a VARIANCE show to succeed?
    1. Undue hardship


    2. That the variance won't decrease neighboring property values
    A 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.
  16. What is an EXACTION?
    Exactions are those amenities government seeks in exchange for granting permission to build.
  17. To be constiutional, an EXACTION must be...
    reasonaly related, both in nature and in scope, to the impact of the proposed development
Card Set:
Real Property 11: Miscellaneous
2011-07-12 23:00:50
NY Bar Exam Handout

MBE Real Property Part 11: Lateral Support, Water Rights, Possessor's Rights, Eminent Domain, and Zoning
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