Study On Support In American Property Law

In the American property law, the real estate law is one of the important contents, but the power system of support is an indispensable part of the real estate law. The system of support is, not only design to the protection of the landholder's right which plays the significant role in the protection of rights, moreover the study related to the real estate support benefit also is the civil law research, in particular improvement of our country reality of laws which cannot avoid. If processes improper, not only can cause between adjacent real estate people to conflict, also can give the society the addition of not harmonious factor. Although our country reality of laws already appeared and implemented, but it also had the imperfect place, this article is expected to profit from the power system of American support by the time, consummated our country reality of laws related content.This article altogether divides into four parts, has discussed the right of support's essence and characteristic, support's type, the right of support's relief as well as legislation consummation of correlation right of our country reality laws.The first part has explained the essence and the characteristic of the support. Firstly, inquired into the essence of support, the scholars have two different theories, including"the theory of natural easement"and"complete right to the supported land"."the theory of natural easement"believed, support is the right from adjacent land, in the category of support, there are two lands, namely, one provides the support and the other is which the land supports, which is similar to the easement, but not same with the easement, support is a right which has the natural easement nature, the land which is supported have the nature of the service nature."complete right to the supported land"believed, the right of the supported land should be understand as support, namely, the supported land has the right from the adjacent land, Secondly, the characteristic of the support is: One, the support in certain degree appears the relatively independent real right attribute. Second, in the American property law, support is type of dependency rights. Third, support is protected simultaneously by the property law and the tort law. The author believed, on one hand, the essence of the support must be the right which enjoys by the landholder, Based on this right, may resist behaviors from neighbor's specific excavation, namely, when the neighbor implemented the specific behavior leading to nuisance to the supported land, the person who enjoys the support may resort to the right of elimination nuisance, when damages occurred, he may resort to damage compensate sues to fight for his own rights. On the other hand, support has both economical attribute and moral attribute. It's no doubt that the economic agent should be the important attribute, however, the landholder or the owner often consider how to protect the land first, not how to realize the land value. Because the design of the support emphasis on protecting landholder's right, if it does not have the safe safeguard, many economic interests would be the castles in the air, realize with difficulty.The second part introduces the types of support in the American property law. Namely, in the US, support may divide into the different division according to the different standards. Lateral support and subjacent support are divided according to the space position of the land. Among them, the lateral support refers to the right of landholder who obtains the support from the neighboring land; this kind of support comes from the neighboring land and also belongs to the support from surface, which uses to protect the land not collapse because of the neighboring land work. The subjacent support refers to the surface owner who has the right from the underground land or the building upper formation enjoys the right from the lower level. The support of unimproved land and improved land is divided according to the land improvement condition."The support of unimproved land"refers to the support of the natural state, which hasn't changed because of the artificial reason."Support of the improved land"refers to the right which passing through the artificial improvement or the support to the land which is constructed by buildings.The third part elaborates the relief of the support. The article carries on the elaboration from two levels, namely, protection from the property law and the tort law. But in view of the fact that this article mainly discusses the support under the American property law background, although the real estate support benefit also receives protection from the tort law, in the article mainly elaborated the American property law about the protection of the support, supplementing with protection from tort law. When considering the protection from the property law, we discuss it from four levels, including the type of protection, the formation of right of request as the nuisance appear, the principle as infringing the support, exempt the responsibility matter. When considering the protection from the tort law, separately from the type of relief, the constitution of responsibility, the limitation of action on lawsuit of oblige, three stratification planes carries on the explanation.The fourth part elaborates legislation consummation of correlated rights in our country reality of laws. First comparing support with correlated rights in our country reality of laws. One is, comparing the American support with correlated rights in neighboring power of our country reality of laws from the theory stratification and the legislation stratification. Two is comparing support with the elimination of nuisance in our country. Second, puts forward the proposals to the consummation of our country reality of laws. Including three aspects: One of it,the consummation of our neighboring legislation. Firstly, the reality of laws must stipulate this situation, when a landlord is draining massive water in surface, causing the damages of the land natural coherency, if the neighbor excavates his own land carefully, does not need to undertake the responsibility of the consequences from collapse. Secondly, we should use the theory of subjacent support in solving the building bearing walls. The second of it is, using the rights of elimination of nuisance to the solution to the nuisance of support and also stating the types of elimination nuisance, the compensation standards, which are advantage for the unification of enforcement and the operation of the laws. The third of it is, when violating the support duty and creating the harms, stipulated the correlation of regulations in reality of laws, for example, the country reality of laws should be clear about the main body of the damage compensations and the scope.