Insurer Can’t Deny Property Coverage Because of Nearby Excavation

June 3, 2009

  • June 4, 2009 at 3:30 am
    Ah-em.. says:
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    Commonly available information regarding this subject – Here is a direct quote from one such resource:

    Lateral Support
    A landowner has a legally enforceable 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 can enforce the right to lateral support in court. A lawsuit for the removal of lateral support accrues when the damage occurs, not when the excavation is done.
    An adjoining landowner who excavates close to his or her boundary line 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.
    When, however, a landowner has erected buildings on the land, his or her right to recover for deprivation of the lateral support is different. Since additional weight has been placed on the land, thus increasing the burden on the lateral support, the landowner can be awarded damages for injuries to the building caused by excavation only if his or her neighbor has been negligent. Sometimes local ordinances 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. The failure of landowners who receive notice to take precautions does not necessarily absolve 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.
    When evidence establishes that an adjoining landowner has removed the lateral support of a neighbor’s land, the neighbor will 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. An injunction prohibiting further excavation may be granted if it poses a clear danger to contiguous lands and if it will cause irreparable damage.
    Subjacent Support
    A landowner is entitled to subjacent support, the absolute right to have one’s land supported from beneath its surface. If one person owns the surface of the land while another owns the subjacent surface, the owner of the surface is entitled to have it remain in its natural condition without subsidence caused by the subsurface owner’s withdrawal of subjacent materials. An adjoining landowner who, during excavation, taps a subterranean stream, causing the soil of the neighbor’s land to subside, will be liable for any injuries that result. The surface owner’s right to sue the subsurface owner for deprivation of subjacent support arises 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. It does, however, change the circumstances under which that person may recover for the removal of subsurface support. If such buildings are damaged, their owner must show that the removal of the support was done negligently.

    The courts deemed the neighbor negligent and the supports faulty – whats the big deal?



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