Adjoining landowners have reciprocal rights and obligations towards each other. Though these rights and obligations have existed at common law, the rights and obligations have been modified by various state laws and court decisions.
Generally, landowners are expected to use their property reasonably without unduly interfering with the rights of the owners of contiguous land. A landowner’s use of the property is treated as unlawful if he/she does anything on the property that appropriates or encroaches upon adjoining land or substantially deprives an adjoining owner of the reasonable enjoyment of his or her property.
Property owners have the right to make improvements and changes on their land so long as they do not infringe or alter the land of adjacent landowners. Landowners can grade or change the level of their land or build foundations or embankments as long as proper precautions are taken. If permitted by law, landowners may blast on their own property but will be liable for damages caused by the flying debris thrown onto adjoining land.
Prominent among the rights of landowners are the right to lateral support from an adjoining landowner. Lateral support is the right to have one’s land in its natural condition held in place from the sides by the neighboring land so that it will not fall away. Land is considered in its natural condition if it has no artificial structures or buildings on it. A landowner whose lateral support of land is taken away due to the activities carried out by an adjacent landowner can enforce the right to lateral support in court.
Therefore when an adjoining landowner excavates close to his or her boundary line, he/she has a duty to prevent injury arising from the removal of the lateral support of a neighbor’s property. Because the right to lateral support is considered an absolute property right, an adjoining landowner will be liable for damages to the natural condition of the land regardless of whether or not he or she acted negligently.
The right of a landowner who erects buildings or other structures is different. In such cases, since additional weight has been placed on the land, there is an increase in the burden on the lateral support. Therefore, the landowner can be awarded damages for injuries to the building caused by excavation only if his or her neighbor has been negligent. Local ordinances sometimes require that persons planning to excavate on their own property give notice to neighboring adjoining landowners so that neighbors may take preventive measures to protect their property. However, even in such cases, if the landowner who receive notice to take precautions does not take any precaution, the excavator of liability for negligence. If, however, the excavator does not notify neighboring landowners, courts have treated this failure as negligence, and the excavator will be responsible for damages even though the excavating itself was not done negligently.
The remedy for a landowner when evidence establishes that an adjoining landowner has removed the lateral support is to recover damages in the amount of either the cost of restoring the property to its value before its support was removed or the cost of restoring the land to its former condition, whichever is less. Another remedy by way of an injunction prohibiting further excavation may also be granted if it poses a clear danger to contiguous lands and if it will cause irreparable damage.
Apart from the right to lateral support, a landowner is also entitled to subjacent support. Subjacent support is the absolute right to have one’s land supported from beneath its surface. Therefore an adjoining landowner, who, during excavation, taps a subterranean stream, causing the soil of the neighbor’s land to subside, can be sued for deprivation of subjacent support. The right to sue for deprivation of subjacent support arises only when the land actually subsides, not when the excavation is made.
The construction of buildings on the surface of the land does not lessen a person’s right to subjacent support. If such buildings are damaged, the owners have appropriate remedy if they can show that the removal of the support was done negligently.
Moreover, even though no landowner has an absolute right to light and air from or passing over adjoining property or to a view over adjoining lands, zoning laws imposed by localities or restrictive covenants in deeds or easements entered into by the parties may, require that any construction undertaken by an individual not deprive an adjoining landowner of adequate air, light, and view. However, courts will not permit structures when it can be shown that the purpose of the structure is to block air, light, and view for the sole purpose of injuring a neighbor.
Similarly, in case of encroachments, an encroaching owner can be required to remove the eaves of a building that overhang an adjoining lot. If he or she refuses to do so, the owner of the contiguous lot may personally remove as much of the encroachment that deprives him or her of the complete enjoyment of his or her land. In case any expenses are incurred in the removal of the encroachment from the adjoining land, the person whose property was encroached upon can sue the owner to recover damages.
The person whose property has been encroached upon may sue the encroacher under either the theory of nuisance or the theory of trespass to obtain monetary damages, or instead, may seek an injunction against continuation of the encroachment or to force its removal.
A landowner also has the duty to take proper care and maintenance of trees and shrubs of the property. If a tree on the property of a landowner is decayed and if there is a chance of it falling and damaging the property of another, the landowner has a duty to eliminate the danger.
If a tree is on the boundary line of contiguous land, each owner has an interest identical with the portion standing on his or her land. Therefore each can sever intruding tree branches or roots at the boundary line of his or her property, whether or not any injuries have been sustained by the intrusion, but reasonable care must be exercised so as not to kill the entire tree.
