Also known as: lateral support · subadjacent support · subjacent support · lateral and subjacent support · right of support · support rights
Written by attorneys — see sources below.
A property right entitling the owner of land to the naturally necessary support of adjacent land against lateral subsidence and of underlying land against subjacent subsidence. One who withdraws such support is subject to liability for resulting harm to the land and any artificial additions on it.
Logan Lane owns a hillside home next to a commercial site where Linden Logistics begins deep excavation. As the digging proceeds, engineers warn that continued work will remove naturally necessary lateral support and cause the home's foundation to subside. Logan seeks an interlocutory injunction to halt the excavation before structural collapse occurs.
Lillian Locke owns surface land above mineral rights held by Lotus Pharmaceuticals. When the company removes supporting strata of coal, the surface begins to subside and cracks appear in Lillian's residence. She sues for damages caused by the withdrawal of subjacent support.
Landon Long owns the surface estate while Lakewood Manufacturing owns the support estate beneath it. When Lakewood extracts coal in a manner that removes lateral support, Landon's land subsides. He claims the removal constitutes a taking of his property rights.
Lena Lawson owns homes above coal seams that Pennsylvania Coal Co. plans to mine. The company has reserved the right to remove all coal, but state law requires pillars to remain for support. Lena sues to prevent subsidence that would damage her properties.
Lola Langley owns a unit in a hillside condominium. The homeowners association elects a less expensive method of slope stabilization that negligently withdraws lateral support from her unit. The unit begins to shift, and Lola sues the association for resulting harm.
Gertrude M. Lamden owns a condominium unit in one of three buildings comprising the La Jolla Shores Clubdominium condominium development in La Jolla, California. The development was built in 1971. Lamden and her husband bought unit 375 in 1973. Until 1977 the Lamdens used their unit only as a rental. From 1977 until 1988 they lived in the unit. Since 1988 the unit has again been used only as a rental. The development is governed by defendant La Jolla Shores Clubdominium Homeowners Association, an unincorporated community association. In the late 1980's the Association hired a contractor to renovate exterior siding on all three buildings. The contractor replaced the siding on the southern exposure of Building Three and removed damaged drywall and framing. Where the contractor encountered termites a termite extermination company provided spot-treatment and replaced damaged material. Lamden remodeled the interior of her condominium in 1990. At that time the Association's manager arranged for a termite extermination company to spot-treat areas where Lamden had encountered termites. The following year both Lamden and the Association obtained termite inspection reports recommending fumigation but the Association's Board decided against that approach. The Board based its decision not to fumigate on concerns about the cost of fumigation, logistical problems with temporarily relocating residents, concern that fumigation residue could affect residents' health and safety, awareness that upcoming walkway renovations would include replacement of damaged areas, pet moving expenses, anticipated breakage by the termite company, lost rental income and the likelihood that termite infestation would recur even if primary treatment were utilized. In 1991 and 1992 the Association engaged a company to repair water intrusion damage to four units in Building Three. The company removed siding in the balcony area, repaired and waterproofed the decks, and repaired joints between the decks and the walls of the units. Where termite infestation or damage became apparent during this project spot-treatment was applied and damaged material removed. In 1993 and 1994 the Association commissioned major renovation of the Development's walkway system. The $1.6 million walkway project was monitored by a structural engineer and an on-site architect. In 1994 Lamden brought this action for damages, an injunction and declaratory relief. She purported to state numerous causes of action based on the Association's refusal to fumigate for termites naming as defendants individual members of the Board as well as the Association. Her amended complaint included claims sounding in breach of contract, breach of fiduciary duty, and negligence. At trial Lamden waived any damages claims and dismissed with prejudice the individual defendants. Presently she seeks only an injunction and declaratory relief. After both sides had presented evidence and argument the trial court found there was no question from all the evidence that Mrs. Lamden's unit has had a serious problem with termites. The evidence was overwhelming that termites had been a problem over the past several years. The trial court found that the Board did have a rational basis for their decision to reject fumigation and do what they did. Ultimately the court gave judgment for the Association applying what it called a business judgment test. Lamden appealed. Citing Frances T. v. Village Green Owners Assn. the Court of Appeal agreed with Lamden that the trial court had applied the wrong standard of care in assessing the Association's actions. Accordingly the Court of Appeal reversed the judgment of the trial court. We granted the Association's petition for review.
View caseLiability arises when a person withdraws the naturally necessary lateral support of land in another's possession. The Restatement imposes strict liability for subsidence of land that was naturally dependent on the withdrawn support and negligence liability for harm to artificial additions.
The duty protects land in its natural state under a strict-liability standard. Negligence is required before liability extends to harm suffered by artificial additions such as buildings or retaining walls.
A court may grant preliminary relief when the plaintiff faces a serious threat of irreparable structural harm that cannot be adequately remedied by later money damages. Engineers' warnings of catastrophic foundation failure satisfy this standard.
An employer who knows or should know that the work is likely to withdraw lateral support remains subject to the same liability as if it had performed the work itself.
…it has paid for. If in any case its representatives have been so short sighted as to acquire only surface rights without the right of support, we see no more authority for supplying the latter without compensation than there was for taking the right of way in the first place and refusing to pay for it because the public wanted it…