Lateral and Subjacent Support: Safeguarding the Integrity of Property Foundations

The principles of encroachment and easements are typically well understood by property owners, unlike the legal domain concerning the rights to lateral and subjacent support associated with adjoining properties. This discussion aims to illuminate the legal underpinnings of a dispute involving neighbor excavations causing harm and offer practical considerations in this context.

Foundational Legal Framework:

Under California Civil Code §832, “each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land…”

Owners of coterminous or adjoining properties share common or coincident boundaries. The concept of lateral support pertains to property contiguous at the horizontal plane. It encompasses the entitlement of land to remain naturally supported by its adjacent landholdings, safeguarded against any form of ground movement, such as slipping, cave-ins, or landslides. Subjacent support refers to vertically adjacent properties. It denotes the right for surface land to be buttressed by the earth beneath it, fortifying it against subsidence.

Lateral Support Explained:

Legally, property owners have the inherent right to expect lateral and subjacent support from contiguous lands. This entitlement accommodates neighboring owners’ right to conduct excavations for development or enhancement purposes. Despite this right to excavation, California real estate and construction law imposes conditions to ensure balance and safety:

• Property owners intending to excavate must furnish neighboring owners with reasonable notice outlining the extent and commencement of the proposed excavation (per California Civil Code §832(1)).

• Precautions and expertise must be employed to preserve the natural state of the adjoining land, irrespective of any construction on it. While buildings are not the excavator’s responsibility, ensuring the support of the natural land is mandatory, and liability for damage to buildings arises only under specific legal circumstances.

• Should the proposed excavation surpass the depth of neighboring buildings’ foundations and pose a risk, a 30-day notice is required to allow for protective measures. The excavator must facilitate access to their land for such preparations, although this term may be disregarded upon agreement.

• When excavation surpasses a depth of 9 feet from the curb at the property line, and adjacent structures have comparably deep foundations, liability for any resultant damage, barring minor cosmetic fissures, falls upon the excavator.

Although the right to lateral support is inherently linked to the property’s natural state, liability for damage extends to situations where construction exists, shifting the burden of proof regarding causation onto the excavating party. While California Civil Code §832 particularly addresses coterminous lands, the right to lateral support is not geographically limited and extends to properties beyond immediate boundaries. Liability is negligence-based, aligning with tortious principles.

Subjacent Support Detailed

Mirroring lateral support statutes, common law ensures the right for surface property to be unaltered in its natural plane, free from subsidence due to activities by the subsurface owner. Where subsidence is shown as caused by the defendant, liability is absolute, with negligent behavior being a non-factor; damages correlate directly with the extent of harm caused without consideration of the excavating party’s intentions. Nevertheless, while legislative language in California Civil Code §832 is primarily directed at lateral support issues, rights to subjacent support also emerge in the latest jurisprudential developments.

Recourse and Reparation

Claims pertaining to both lateral and subjacent support become actionable upon the actual occurrence of subsidence, not merely excavation. Thus, litigation ensues post-damage, with separate claims possible for distinct subsidence events. Damaged parties ranging from property owners to lessees have standing to pursue claims, even if the excavation occurred under prior ownership. Both excavating parties and contractors may incur joint liability; however, successor owners without fault are generally exempt unless fraudulent transfer intent exists. Proactive measures are advisable to mitigate prospective excavation-related damages. Landowners anticipating harm may petition for injunctive relief by demonstrating potential for irreparable damage, although courts might elect monetary reparation aligned with any devaluation experienced due to excavation activities. If you have been damaged as a result of a neighbor’s excavation or construction work on the adjacent plot, you have plenty of rights that you need to enforce.

When In Doubt

Call Kintzele Law Group for a free consultation by emailing us at contact@klawpc.com or calling (213) 348-9586.