SOME BASIC RIGHTS AND DUTIES FROM LAND OWNERSHIP

First up, it's not just the neighborly thing to do - it's the law to support your neighbor:
Some Basic Rights And Duties From Land Ownership

By Brad Champion

This is the first of several short articles on your rights and duties as a land owner. Your rights as a land owner are fairly extensive, and one thing you absolutely have a right to is that your neighbor does not excavate his or her own land so as to cause your land to subside. This is your right to lateral support.

As Lincoln County grows so will the number of disputes between neighbors regarding land. As a quick introduction, this and other articles will review some of the basic rights and duties that arise from land ownership. But before we get into your right to support, what are the some of the basic rights and duties that come with your ownership of land?

Real property, as it is called, includes the ground you walk on and the air above it, as well as all that is below it and constructed on it. Some basic rights that come from one's ownership of land include the right to lateral and subjacent support, water rights attached to your real property, and the right to be free of a nuisance by a neighbor that interferes with the use or enjoyment of your land.

These rights also create duties. For example, just as you have a right to support, or to be free of a nuisance, you also have a duty to support your neighbor's land and to refrain from creating a nuisance.

So what exactly is lateral support? You have a right to have your land supported in its natural state. Natural state means there is nothing erected on the land, just the land as it lies unimproved by a structure. For example, suppose your back yard slopes downward to the end of your property. Suppose also that your back yard neighbor starts to dig at the property line to install bushes and plants. If his digging causes your land to collapse and fall away, you can demand that he stop immediately. That is the basic rule of lateral support.

The most common lateral support scenario involves land that is not in a natural state, which basically means land that has something built on it. In such case, you have no absolute right to have your land laterally supported by your neighbor so as to keep the structure from harm. For example, suppose your neighbor builds a retaining wall on the property line and causes your land to collapse causing damage the foundation of your home. Your neighbor has no absolute duty to support your house, only your land. To the extent he has caused your land to subside you can stop him.

But what about the damage to your home? The neighbor has a duty to tell you of his proposed plan so you can adopt measures for self-protection. The idea is that, while real property law does not require that a neighbor support your land with structures on it, to give this notice involves no expense to your neighbor and affords opportunity to the adjoining owner to protect his rights.

In fact, the rule is that your neighbor cannot dig in a negligent manner when you have a building erected on your land. For example, the North Carolina Supreme Court holds it is negligence to excavate by the side of a neighbor's wall, and especially to excavate deeper than the foundation of that wall, without giving the owner notice of such a project so that the land owner can underpin or shore up his wall, or relieve it of any extra weight on the floors. The Court also holds that, in a situation like this, the excavating party should dig out the soil in sections at a time so that the owner of the building has an opportunity to protect it and not expose the whole wall to pressure at once.

So your neighbor must exercise due care to anticipate and prevent injurious consequences to your land and structures on it when digging. This duty requires giving reasonable notice to an adjoining landowner of the intention to excavate, and includes giving sufficient information to allow you, the adjoining landowner, to take necessary measures to protect your property.

Subjacent support, quite unlike lateral support, deals with land that is divided horizontally. Two examples where subjacent support becomes an issue include instances where the state takes a portion of land under your own, in order to dig a tunnel, or where a mining company has rights to minerals beneath your land. The latter is not so common in North Carolina as it is in other states (mining states have complex subjacent support rules). Nonetheless, in both of these cases, the same principals applied to lateral support cases will apply here.

This is just a quick review of the right to support of real property. For more complex questions on the subject, contact an expert.

Next time nuisance: what happens when a cement plant moves in as a neighbor and sprays dust and makes noise that leaves your family home an unbearable place to be?

Brad Champion is an attorney with Knox Law Center. He can be reached at bchampion@knoxlawcenter.com. You are invited to our ribbon cutting ceremony for our new Denver office on July 31 at 11:00 a.m. We are across from Advance Auto and next to Avason Dental at Highways 16/73 intersection. We would like to meet you and say hello.