Adjacent Owner Issues & Use Restrictions - Part 2 - Chapters 44-45 Flashcards
Identify what constitutes a nuisance per se
A nuisance per se is any activity specifically declared by statue to be a nuisance. If an activity is a statutory nuisance, it can be ordered stopped by a court without proof of its harmful or offensive effect. The list of nuisances per se is wide and diverse, including:
- fences of excessive height unnecessarily exceeding ten feet, called spite fences.
- the illegal sale of controlled substances
- fire hazards
- swimming pools which do not comply with statutory health and safety standards
Apply the balancing of the rights of neighboring property owners to determine whether a nuisance exists
Conversely, when an activity is not a nuisance per se, a BALANCING OF THE RIGHTS of neighboring property owners is applied to determine whether a nuisance exists. Every owner is entitled to use their property for any lawful purpose, however an owner is limited in their conduct since they’re permitted use may not unreasonably interfere with the right of others to use and enjoy their property.
An owners use of their property often creates some degree of inconvenience for the occupants of neighboring properties, however to constitute a nuisance, the inconvenience created by an owner’s use needs to be serious enough to be an improper interference with another’s use and enjoyment of their property.
Distinguish between a nuisance and trespass
Nuisance and trespass are closely related. The two categories overlap since both involve injury to or interference with the property rights of another. The distinction is based on whether a physical entry into another’s property occurs.
Trespass requires a physical entry on another’s property which can be direct or indirect. In contrast, a nuisance is an outside interference with an owners or tenants use and enjoyment of their property resulting from a condition or activity which physically remains outside the property.
Thus, trespass is based on an interference with the possession. A nuisance is an interference with the enjoyment of property since it affects the senses of the occupants.
Understand the different remedies available in the instance of a permanent or continuing nuisance
The type of money losses and owner can recover for property damage caused by a nuisance depends on whether the nuisance is permanent or continuing.
For PERMANENT NUISANCES, the owner may be entitled to money losses based on a diminished value of the owner’s property caused by the nuisance. Under the statue of limitations an action on a permanent nuisance is required to be brought within THREE years after the nuisance becomes permanent.
The primary remedy for a CONTINUING NUISANCES is the ABATEMENT TO REMOVE a nuisance or an INJUNCTION ORDERING TO STOP ordering the nuisance to be stopped. In addition to an injunction, other money losses which can be recovered by the owner are limited to:
- the Lost use of the property until the nuisance is abated, such as rental value
- the cost incurred to remedy the Damage Done by the nuisance to the owner’s real estate
- the cost of cleanup or repairs necessary to eliminate the nuisance
- any expenses incurred due to personal injury or emotional distress caused by the nuisance
Recovery for a continuing nuisance cannot include lost property value since the nuisance can be entirely eliminated. In the case of a continuing nuisance, a new cause of action accrues and the THREE YEAR statute of limitations begins to run anew each day the nuisance continues or when further damage is inflicted on the property.
continuing nuisance
A continuing nuisance is an ongoing nuisance that can be entirely eliminated by those adversely affected by the activity or condition. A continuing nuisance exist if the nuisance can be reduced or terminated at any time and at a reasonable expense.
nuisance
A nuisance is an action which is:
- injurious to health
- offensive to the senses
- obstructs the use and enjoyment of surrounding property.
Simply, a nuisance is any activity which interferes with an owner’s use and enjoyment of their property, including conditions which are unhealthy or offensive to the senses. A nuisance is broadly interpreted to encompass a wide variety of activities.
An activity becomes a nuisance based on either:
- a statutory provision identifying conduct that is a nuisance per se
- a balancing of the conflicting rights and interests of the neighboring property owners
nuisance per se
A nuisance per se is any activity specifically declared by Statute to be a nuisance. if an activity is a statutory nuisance, it can be ordered stopped by a court without proof of its harmful or offensive effect. The list of nuances per se is wide and diverse, including:
- fences of excessive height unnecessarily exceeding 10ft called Spite Fences
- the illegal sale of controlled substances
- fire hazards
- swimming pools with do not comply with statutory health and safety standards
permanent nuisance
A PERMANENT nuisance exists when the nuisance cannot be abated at a reasonable cost and by reasonable means.
public nuisance
A nuisance maybe a public nuisance, a private nuisance or both. A public nuisance is a nuisance which affects an entire segment of the public such as the neighborhood. Stopping a public nuisance is the responsibility of state or local government authorities.
Officials may seek to:
- abate or enjoin the nuisance
- recover money damages
- bring criminal misdemeanor charges against the offender responsible for the nuisance
A private property owner may not stop a public nuisance unless the public nuisance especially obstructs the owners use of their property making the interference a private nuisance as well.
The remedies for a public or private nuisance are:
- abatement, by suppression or termination of the interference
- an injunction and money losses in a civil action
Understand the agreed-boundary doctrine
Agreed boundary Doctrine is when owners of adjacent properties, uncertain over the true boundary, agree to establish the location of their common lot line and acquiesce to the boundary line for at least 5 years.
To establish a boundary line under the agreed boundary doctrine, the following facts need to exist:
- uncertainty as to the boundaries exact location
- an agreement between the owners to set the boundary line
- acquiescence to the boundary line for at least five years
- a substantial loss would be suffered due to a change in the location of the boundary line to the legally described location
The Agreed Boundary Doctrine was developed during a time when less advanced surveying techniques made it too difficult or expensive to locate the boundary line described in the deeds.
However surveying techniques have significantly improved. Now if a deed is clear and a competent surveyor is available, the true boundary line can easily be established to eliminate the uncertainty of the boundary’s location. Thus, the ancient agreed-boundary doctrine has been reduced to the status of a legal last resort.
The elements needed to establish a boundary line under the agreed-boundary doctrine
Under the Agreed Boundary Doctrine owners of adjacent properties uncertain over the true boundary, agree to establish the location of their common lot line. The location they set replaces the legal line provided either:
- a five-year statute of limitations has run
- a substantial loss would result from the boundary line being moved to the legally described location.
An agreement to mark a boundary line may be oral, written or result from the conduct of neighboring property owner.
Oral or written agreements on the boundaries location are called Express agreements since they are not implied.
Unlike the conveyance of Real Estate, owners do not have to put their boundary agreement in writing for it to be enforceable. With the setting of an agreed boundary neither owner is conveying real estate to the other. Instead, the owners are agreeing to what land constitutes as their own property.
agreed-boundary doctrine
Agreed Boundary Doctrine is when owners of adjacent properties UNCERTAIN OVER THE TRUE BOUNDARY agree to establish the location of the common lot line and acquiesce to the boundary line for at least 5 years.
lot line adjustment
A lot line adjustment is when adjacent property owners move an existing property line.
The agreed-boundary doctrine cannot be used to convey property, nor can it be used to make lot line adjustments to move an already existing line.
statute of limitations
The statute of limitations is a period of time establishing the deadline for filing a lawsuit to resolve a dispute. Owners need to acquiesce to the agreed boundary for a period of at least FIVE years. This five-year period is the statute of limitations for the recovery of Real Estate.
The statute of limitation requires the adjacent owners to resolve a dispute within the 5 year period. If disputes are not settled within this period, the claims are put to rest. Thus an owner who fails to object to a boundary dispute during the statute of limitations is presumed to have agreed to the boundary set by the adjacent property owner.
