Subjacent support refers to a property owner’s right to have his or her property’s surface land supported by the land underneath. Adjacent neighbors must uphold this right. Therefore, a property owner cannot legally disrupt his or her land in a manner that causes a neighbor’s land to cave in or sink (known as subsidence).
Case Law As It Relates to Subjacent Support
Case Review: Booska v. Patel (1994)
The case, Booska v. Patel (1994) 24 Cal.4th 1786., involved a dispute over subjacent support.
A property owner (Booska) shared a boundary line that had a tree with a neighbor (Patel). The tree’s roots encroached on Patel’s land. Consequently, Patel hired a contractor to sever the roots in order to clear his property. The tree subsequently died. Booska sued for negligence.
The Superior Court ruled in favor of Patel. It argued that the tree’s roots had encroached on Patel’s land, thereby giving Patel the right to get rid of them. Booska appealed. The Court of Appeals cited Civil Code, Section 3514, which states that one must not use his/her own rights as a reason to infringe upon the rights of others. The court contended that Patel did not have the absolute right to sever the encroaching roots, as it violated Booska’s right to subjacent support. Because Patel could have taken less intrusive measures, his actions were not reasonable. The court reversed the lower court’s ruling.
What to do if neighbor is excavating?
If a landowner’s neighbor has began excavating his or her property, a few measures can be taken to halt the procedure if the landowner fears that it will negatively affect their land.
An injunction can be filed in court which will prohibit any further excavation due to the fear of damage that will be caused to their property. A hearing can be requested at a local courthouse that will call for the injunction.
Local planning boards are another avenue that can be taken in order to prohibit excavation on a property. A local planning board can choose to not issue a permit for the excavation if they find that the construction will pose a threat to the well being of someone else’s property.
