class 10 & 11 Flashcards
permanent damages
item is permanently out of possession of the P and no ability to regain possession
option 1: take action to regain possession- temporary damages would apply until item is returned
option 2: take action for permanent damages- P will never get the item back
self-help
allows someone who has legal title to an item of personal property to themselves/take it from the one wrongfully withholding it, so long as the taking does not result in commission of a crime or breach of the peace
cannot engage in criminal or other unlawful conduct in the process
valuation-
FMV at the time of the tort: the cost of replacement at the time of the tort; the cost of replacement at the time of the tort; the FMV is specific to the particular P; fluctuating value rule- NY rule, get to pick the higher value ; household goods- jury decides, somewhere between new and used (includes clothes); sentimental value
Plus any consequential damages; consequential/special; caused, foreseeable, certain; usually does not include emotional distress
temporary damages valuation
diminution of value or cost of repair (court will give you whatever the lower number is) plus reasonable loss of use (reasonable rate + reasonable time)
conversion damages if item cannot be recovered
FMV of the item at the time of the conversion plus reasonable LOU until a reasonable time for replacement
plus consequential damages or punitive damage
conversion damages if the item can be recovered but permanently damaged
cost of repair Is the default so long as it is reasonable compared to diminution of FMV diminution in value is the post-tort value compared to the post repair value (the court will pick whichever is lower if both can be proved) plus reasonable LOU until a reasonable time for replacement
plus consequential damages or punitive damage
conversion damages if the item is recovered and not damaged
the difference between the value of the property at the time of conversion, and the value at the time of return- diminution of FMV
until a reasonable time for replacement
plus consequential damages or punitive damage
measurement of damages for conversion
P must present evidence to support the fair market value of the personal property or evidence of loss of use value, not just replacement value. Specific evidence is required of the FMV, such as condition, how old,
measure of damages for trespass to chattels
cost of repair OR diminution in value caused by the trespass to chattels (usually the smaller amount)
NOT the total FMV of the property
actual harm must be proved- actual harm must be proven for trespass to cattle’s. if not proven, then trespass to chattels fails
the value of the car at the time you damage it is 8k. repairs will cost 2.5k and take 2 weeks. The value after the repairs is 7k. what damages recovery
3.5k
8k is not the post tort value and cannot technically calculate diminution in value.
get paid cost of repairs and lowering in value to place the P back in the pre-tort position of having an 8k car. loss in value is a consequential damage
personal property tort remedies approach
what is the tort
Is the harm permanent, temporary, or can it become temporary?
what is the applicable base valuation? (permanent or temporary)
is there loss of use?
are there any other consequential damages that can be proven?
could there be punitive damages?
fluctuating value
when the value at discovery of the conversion is higher or value at time of the tort- get to pick the higher one
trespass to land
actual harm is presumed because it is an interference with the right to exclude others. punitive damages can be awarded in trespass to land cases even if compensatory damages are not awarded
temporary trespass to land
means the harm has stopped or repaired or the court deems it temporary
permanent trespass to land
not repairable
ex: building a fence that encroaches onto another persons property, or continuously dumping waste on someones land, ongoing contamination
removal remedies
temporary trespass;
self help, ejectment and injunction
ejectment
removes the trespasser and restores exclusive possession of real property to the P by ordering the D to leave. The P need only show title or a right of possession that is superior to that of the D possession
frequently used when there is not a dispute about title or right to possession, but a person is wrongfully occupying it, such as an ongoing trespass. P may also recover for damages such as loss of use, any damage done to the property or possibly rental value
a sheriff removes so it has to be something that the sheriff can get off the land- small structure and people
ejectment & improvements on the property by the trespasser
common law: landowner can eject ppl from the land and keep any improvements made to the land and get reasonable rental value for the time of the trespass
modern trend: innocent improvements equitable unjust enrichment but landowner can still get reasonable rent. if made by a willful trespasser- no unjust enrichment
permanent injunction for trespass to land
an injunction may remove or prevent a trespass. must meet the test for a permanent injunction.
irreparable injury or inadequate remedy at law is usually presumed because real property is considered unique so there will not be an adequate remedy at law unless a one time repair cost can fix the harm.
Balancing hardships:
if the trespass is willful = NO balancing needed- granted
unintentional still gets heavily favored to the landowner because of the property right
temporary trespass to land damages valuation
diminution of value or cost of repair + loss rental value + consequential damages + punitive damages if intentional
other considerations: FMV (pre/post tort) v. Cost of repair COR = increased value of real property = deduction from award (avoid P getting a windfall)
personal reason exception
permanent trespass to land damages valuation
diminution of value + loss of use + consequential +. punitive if intentional
personal reason exception
is used when the P wants higher cost of repair value instead of a lower diminution of the property value
P needs to prove they are actually going to get the thing done and not pocket the cash
court will award the higher COR value if the P can prove they will actually do the repairs or the property will be personally occupies
Test:
1. credible personal reason + bona fide desire to make the repairs,
2. reasonable relationship between the cost of repair and the harm and
3. reasonable relationship between the cost of repair and the value of the property after the repair.
4 remedial options for removed property
FMV of land pre-post removal or COR
FMV of item taken
quasi contract/ unjust enrichment
statutory penalty (treble)
