California Bundle of Rights and Lateral/Subjacent Support

At common law, the word property refers to a bundle of legal rights that are attached to the ownership of physical property. These rights include the right to use, possess, transfer, encumber, and enjoy a property.

Use: The right to use is a right that allows an owner of property the ability to control the use of the property.

Possession: The right of possession allows an owner the ability to live on the property and to exclude others from accessing it. Trespassing on private property violates an owner's right of possession. This right may be sold (for rent) or given away.

Transfer: The right to transfer allows an owner of property the right to dispose of the property in anyway as permitted by law, including by gift, sale, or trade.

Encumber: The right to encumber property gives a person the right to refinance on the property or obtain a loan for the property.

Enjoyment: The right of enjoyment (quiet enjoyment) gives the owner the ability to peacefully enjoy the property he/she owns or occupies.

Real property includes the land, and anything permanently attached to it, or appurtenant to it.

Lateral support is a landowner's right to have his/her land in its natural condition supported from the sides so that it will not fall away. A land in its natural condition means that it is free from buildings or improvements upon the land.

Adjoining landowners may not excavate their land to such an extent that it will cause a weakened foundation, slippage, collapse or a landslide. Adjoining landowners that excavate into the soil must construct a retaining wall or take other protective measures that may prevent a collapse.

Adjacent property owners of downhill property may not excavate or cut into a hillside doing so would cause a possible landslide on the uphill portions of the land.

Subjacent support is the right of a property owner to have their land supported from beneath its surface. The owner of the land has a duty to retain the natural condition of the land and may not alter it to such an extent that it may weaken the subjacent support of the adjoining property. A person who excavates by removing minerals, oils or gas owes the surface owner subjacent support. The surface owner may sue when the land subsides.

Subsurface rights are rights to natural resources (mineral, oil, gas) beneath the surface. Oil and gas are migratory minerals and may not be owned until they are taken from beneath the ground.

Do you have questions regarding your land? If so, please contact Aziz Legal by phone at (408) 203-4627 or email us at abid@azizlegal.com.

This article is merely informational and is not intended to be used as legal advice. Use of any information from this article is for general information only and does not represent personal legal or tax advice, either express or implied. Readers are encouraged to consult Aziz Legal, or another attorney, for any specific legal matters.