15.2 Flashcards
T/F: It’s possible for an activity to be perfectly legal and yet be considered a nuisance
True
Interference with an owner’s right to possession =
Interference with an owner’s use and enjoyment of the land =
Trespass
Nuisance
T/F: Unless it also interferes with the owner’s use and enjoyment of the land, a trespass probably won’t be considered a nuisance.
True
Elements of Negligence 1. 2. 3. 4.
- Duty: duty to exercise reasonable care
- Breach of Duty: failure to prevent against reasonably foreseeable harm
- Causation: must be both actual and proximate
- Legally Recognizable Harm: scientific uncertainty
Comparative negligence
- used by a majority of states
- As long as the P is less negligent than the D, then the P can recover from the D the % of the damages attributed to the D’s negligence
Under what theory are most nuisance actions brought to trial?
Intentional tort
Interference with an owner’s use and enjoyment of a property, with no physical invasion is a___, but not a ___
Nuisance
Trespass
If a neighbor diverts runoff water onto a nearby property, that would involve a physical invasion of the property, so it’s a ____; it would also interfere with the owner’s use and enjoyment of the flooded property, so it’s also a ___.
Trespass
Nuisance
T/F: Nuisance per se can considered to be so bad that they can automatically be the basis for a lawsuit even if there’s no prof of injury or harm
True
T/F: Buildings used for illegal purposes = ex of nuisance per se
True
T/F:Fire hazards, sidewalk obstructions, and hazardous weeds = ex of nuisance per se
True
A landowner who is subject to substantial interference with the use and enjoyment of her property may sue for ___ of the nuisance.
abatement
___ refers to stopping, reducing, or removing the nuisance.
Abatement
Sometimes a court won’t order abatement of the nuisance if abatement would be too expensive or cause unreasonable hardship, but instead declare the problem a _____ nuisance
Permanent
T/F: Re: permanent nuisance, The responsible party may be required to pay damages to the affected parties, even though the nuisance is allowed to continue.
True
T/F: a landowner may be able to remove or destroy the nuisance, even though it’s on someone else’s proper
True
When is Self-help abatement allowed
only if it can be done without committing a breach of the peace or causing an unnecessary injury
If a neighbor removes or destroys a nuisance in an unreasonable manner, the neighbor might be liable to the landowner for ____.
Negligence
A(n) ___ is an object or structure that extends over a property line onto a neighbor’s property, or overhangs a neighbor’s airspace, without the neighbor’s permission
encroachment
The most common case of an encroachment is ___ extending over a boundary.
Tree branches
T/F: A court may classify an encroachment as either a trespass or a nuisance, or both
True
an encroachment that physically rests on the neighbor’s land (such as Marvin’s shed) violates the right of_____, and therefore is a ____
exclusive possession
trespass
An encroachment that extends into a neighbor’s airspace, such as a tree branch, is likely to be considered an ___ with the neighbor’s use and enjoyment of her property, and therefore is a ____
Interference
nuisance
T/F: An encroachment will always interfere with the property owner’s rights in some way
True
T/F: To successfully sue over an encroachment, the landowner needs to show that the encroachment was intentional, or that it is dangerous or has caused an injury
False
Does NOT need to show it was intentional, dangerous or caused injury
to successfully sue for an encroachment, The landowner needs to show only that the encroaching structure or object extends over the legal___, without any legal right and without the owner’s consent.
boundary line
if removing the encroachment is impractical or too expensive, the court may allow it to stay but order the payment of____ damages
compensatory
In determining remedies for encroachment, the court will balance the equities in light of the parties’ relative ____
Hardships
Factors the court may consider include whether the encroachment: 1) 2) 3) 4)
1) was intentional or unintentional,
2) would be expensive or difficult to remove,
3) would cause real harm by being allowed to continue, and
4) affects the landowner’s use and enjoyment of her property.
T/F: The adverse possessor’s use of the property must be open, not hidden or secret.
True
All of the following are requirement for adverse possession, except:
a. Actual, open, and notorious possession
b. Continuous and uninterrupted possession
c. Hostile possession
d. Tacking
D. All of these are among the requirements for adverse possession, except tacking. Although an adverse possessor may use tacking to fulfill the statutory time requirement, tacking is not itself a requirement
____ Must be adverse to the owner’s interests and in disregard of his rights.
Hostile possession
A property owner may defeat a possible claim of adverse possession by
giving the possessor permission to be there
5 Types of Easements
- Express easement (only one with express agreement)
- Implied easement by prior existing use
- Easement by necessity
- Prescriptive easement
- Easement by estoppel
utilitarian idea that it is better for land to be used even though it infringes on the rights of the owner.
Prescriptive Easement: policy
T/F: A brief return of land owner will disrupt the trespassers claim of adverse possession
True
T/F: the same adverse possessor must be in possession for a full five years
False
a series of adverse possessors can add their periods of possession together, to add up to five years, so long as their possession isn’t interrupted by the rightful owner.
^ tacking
a series of adverse possessors can add their periods of possession together, to add up to five years, so long as their possession isn’t interrupted by the rightful owner.
Tacking
T/F: In some cases, an adverse possessor’s use may be considered to be continuous even if he uses the property only periodically
True
as long as that’s how the property would customarily be used.
T/F: If both the property owner and tne adverse predecessor have been paying property tax bills, adverse procession may still be possible
True
T/F: If both the owner and the adverse possessor are assessed (billed) for the taxes, it doesn’t matter which one pays first. If only the owner is assessed, the adverse possessor must be the first one to pay in order to satisfy the tax requirement.
True
how can an adverse possessor be assessed for taxes on a property when he doesn’t have a valid deed to it?
anyone can have his name added to the assessment roll for a particular property.
All that person needs to do is submit a request to the assessor’s office with a sworn statement declaring that he has possession of the property and wants to be assessed the taxes for purposes of a future adverse possession claim.
T/F: Title to government-owned property may never be acquired through adverse possession
True
T/F: The tax assessor’s records would have to show that the Alvarezes’ property tax assessments for the five years were based on the mistakenly enlarged property, not based on the original property lines delineated by the legal description that is part of the recorded deed.
Trie
If someone built a fence on another’s property and kept it up for 5 years, but didn’t pay property taxes on that land, they cannot claim adverse possession, BUT they May be able to claim a ____
Prescriptive easement
T/F: In the case of the fence, If The fence owner cannot obtain a prescriptive easement, the court may order them to take down the fence Or pay the property owners for an easement
True
