Ch 15.1 Flashcards
A trespass may involve ____, a nuisance may ____, and an encroachment may be ____.
Choose from the following: A trespass A nuisance An encroachment Either
Nuisance
Trespass
Either
____ is an unlawful entry onto another person’s property without permission or legal authority.
Trespass
T/F: trespass is a tort
True
Any violation of a landowner’s exclusive right to possession is a ___ and can also uncle the physical invasion of someone else’s property by a(n) _____
Trespass
Object
A motor home parked over a boundary line with the owner unwilling to move is an example of a ____
Continuing trespass
T/F: A landowner does not need to post a “No Trespassing” sign or erect a fence in order to be protected against trespassers
True
T/F: A judge or jury is more likely to find a trespasser liable for her acts if she ignored a sign or fence
True
T/F: Signs and fences also can affect whether a trespasser is subject to criminal prosecution.
True
T/F: There must be physical damage to the property in order for the trespasser to be liable to the landowner.
False
Why is trespass always a tort?
because the violation of the right to exclusive possession is, in itself, the harm
the act itself is wrong and may be the basis for a lawsuit even if there is no ____ damage
Per se
T/F: trespass is actionable per de
True
___: A landowner in California may be liable for injuries suffered by a person on his property, whether the injured person was there legitimately or was trespassing
Premise liability
T/F: Premises liability protects trespassers
True
A landowner in California may be liable for injuries suffered by a person on his property, whether the injured person was there legitimately or was trespassing.
A(n) ____ nuisance is a dangerous object or condition that may be particularly attractive to children
Attractive
A nuisance = any activity or conduct that substantially interferes with an owner’s ___ and ___ of her property.
Use
Enjoyment
T/F: A nuisance may be public or private
True
What are two types of PRIVATE nuisances?
1) Nuisance per se
2) Nuisance in fact (Intentional or Unintentional
What are the three typical situations of a public nuisance?
1) interferes with ___ & ___
2) Breaks a law/statute/____
3) conduct is of a ____ nature or has produced a permanent or long-lasting effect
Health and safety
Ordinance
Continuing
True/False: Both unintentional and intentional nuisances fall under the category of nuisance per se
False
They fall under Nuisance “in fact”
What is the standard an intentional private nuisance is held to?
Unreasonableness: causes substantial interference with use and enjoyment
What is the standard an unintentional private nuisance is held to?
Strict liability standard: Negligent, reckless, or ultrahazardous
What are attributes of “public rights” (those infringeable by a public nuisance)?
collective rights of all members of general public: public peace, safety, comfort and convenience (not individual)
What must an INDIVIDUAL suffer in order to file suit for a public nuisance?
must have suffered a different KIND of harm from general public (not greater degree of harm) and it must be significant
What are the elements of a “private nuisance”?
1) the use of one’s property encroaches upon
2) another’s interest in the
3) private use and enjoyment of their land.
What is the duty of Lateral & Subjacent Support?
Duty to support the natural part of the land with respect to your neighbors next to you (lateral) or neighbors with rights to subsurface land (subjacent). Liability is absolute in negligence
When are permanent damages more appropriate than an injunction
When the injury resulting from the nuisance are significantly LESS than the economic benefit derived from the party causing the harm (balancing the equities )
What is the biggest difference between a public and private nuisance?
Generally degree: private nuisance affects a single individual or a definite small number of persons in the enjoyment of private rights not common to the public. A public nuisance is one affecting the rights enjoyed by a considerable number of people or an entire community or neighborhood
What are the four ways to resolve a nuisance claim?
- Grant an injunction (Morgan, Estancias)
- Allow activity to continue if D pays damages (Boomer),
- Stop activity if P pays damages (Spur),
- Nothing
When is the injury a “nuisance per se”?
Physical injury or property damage occured
Nuisance per se
a nuisance in and of itself, at all times, under all circumstances, and regardless of the surrounding land uses.
T/F: A nuisance per se always involves a violation of a statute or ordinance
True
An improvement on once parcel of real estate which extends onto real estate owned by another
Encroachment
An easement granted to a neighbor allowing them to maintain an improvement encroaching on another owner’s property.
Equitable easement
Any activity specifically declared by statute to be a nuisance, such as construction of fences of excessive height or the illegal sale of controlled substances.
Nuisance per se
A determination of whether a nuisance exists when an activity is not classified as a nuisance per se.
Balancing of rights
A type of easement granting one property owner the right to traverse a portion of another’s land to access the property.
Easement for Ingress and Egress
Certain types of __ trespasses are crimes under the state Penal Code.
For these acts, a trespasser may also face prosecution, in addition to being sued by the landowner.
Willful
It is a criminal act, for example, to willfully enter land without written permission if the land is under cultivation, fenced, or if adequate “No Trespassing” signs are posted (a sign on each road or trail that enters the land, plus ___ signs for each mile of boundary).
3
T/F: there are also situations when a property owner may be liable to a trespasser for damages.
True
When someone enters a person’s land and is injured by conditions on the property that result from the landowner’s negligence, the landowner may be liable.
This is an example of ___
Premises liability
T/F: in CA, if someone is injured on another’s property due to the owner’s negligence, the landlord is liable if the injured person was on the property legitimately AND the landlord may also be held liable if the person was a trespasser
True
Under the theory of ____ negligence, the landowner and a willful trespasser may share in the liability
Comparative
An unfenced swimming pool may be a(n) ____ nuisance.
attractive
