Land Rights Flashcards
Land Rights
Owner has right to exclusive:
- Possession
- Use
- Enjoyment
Right to exclude:
Owners v. Possessors
Actual v. Constructive Possession
Owners have the right to exclude non-owners and physical objects intruding on their property
This right may usually be waived
Possessors have the right to exclude everyone except the record title holder; may even be able to exclude owner (through lease agreement, adverse possession)
- Actual possession: physical control over property and intent to exercise such control
- Constructive possession: power and intent to exercise control (directly or through another person)
Ejectment
- Possessor recovers right to (blank)
- Must only prove (blank)
- Recovers right to present possession
- Must only prove you have a better right to possession than the person in present possession
Definition of Trespass
What rights are protected by trespass law?
Intentional physical interference with an owner’s possessory interest
Only present possessory rights covered by trespass law
Only volitional entry is required, no further intent required
Types of Trespass
- Surface Intursion
• Vegetation and trees: Right to engage in self-help to remove intrusion up to the boundary line, but cannot permanently destroy property unless it presents a threat to structure on property
- Trim trees, don’t insecticide roses
- Owner of encroaching tree may be liable for damage to neighboring property
• Animals
- Livestock and wild animals – Absolute liability
- Pets – owner not liable for entry, may be liable for resulting damage
- Rationale: Person keeping an animal is expected to prevent escape by “fencing-in”
Superadjacent Intrusions
• Examples
- Tree branches overhanding property (right to cut back limbs but not destroy tree)
- Firing a bullet through air
- Roof (structural encroachment)
• Aviation
• Public over-flight easement, so cannot constitute a trespass
• May present an unconstitutional taking issue
Example: US v. Causby - noise of planes was so loud and constant that it was impossible to use property for normal living
• Pollution / microscopic or invisible particles
- Strong trend to extend liability for invasion by invisible particles to trespass law although traditionally regulated only by nuisance law
- Substantial increase in legal liability = nuisance based on reasonableness; trespass is absolute… so most courts have created limiting doctrines
Trespass: Subadjacent Intrusions
CL
Modern View
Pollution of a well
- Traditional CL: not a criminal physical invasion to cross property line underground
- Modern View: Now prohibited by statute
- Any structure that intrudes onto neighboring property constitutes trespass, even beneath ground
- Pollution of a well = trespass
Trespass: Encroachment
Definition
Relative Hardship Doctrine
Refusal
- Definition: Trespass by objects - Any structure intruding onto neighboring property
- Relative hardship doctrine: most courts deny injunctive relief if the expenditure has been substantial and invasion minimal (at least when encroaching in good faith)
- If removal is refused, court may either force sale or allow owner to keep the structure (perhaps with a forced purchase to avoid unjust enrichment)
Trespass: Remedies
When can owner recieve:
Nominal, Compensatory, Punative, Permanent
o Nominal damages: without proof of harm to property
o Compensatory damages: to remedy actual harm as result of trespass
o Punitive damages: if malicious
o Permanent damages: diminution in fair market value (e.g. encroachment over property line in good faith)
Trespass Remedies:
Injunction v. Ejectment
Court has equitable discretion in determining remedies
Injunction: to stop future wrongful act and remove current intruding structures
Ejectment: to stop current wrongful act
5 Limits on right to exclude
- Overflights by ordinary air traffic
- Consent
- Legal right
- Legal privilege
- Doctrine of necessity
