Land Torts Flashcards
What is the definition of Private Nusiance?
Unlawful interference with a person’s use or enjoyment of land
- Unlawful: unreasonable and substantial
- Interference: indirect (encroachment, damage, quiet enjoyment)
- continuous
- recoverable damage
Who can sue in private nuisance (and Rylands v Fletcher)?
C must have the right to exclusive possession of land
(owner/occupier OR tenant OR licensee with exclusive possession)
NOT children / guest
Who is liable in private nuisance?
And Rylands v Fletcher / Public Nuisance
Creator or Occupier
When may an occupier be liable for a nuisance / escape they did not create?
Created by:
* Employee in course of employment
* Contractor if nature of work causes an inevitable nuisance
* visitor / trespasser / predecessor if occupier adopts or continues it
* natural occurence if occupier adopts or continues it
When will an occupier be deemed to have adopted or continued a nuisance / escape created by 3rd party or natural occurence?
Applies to private nuisance, rylands v fletcher and public nuisance
Adopt: make use
Continue: knows AND fails to take reasonable steps
When will a landlord be liable for a nuisance / escape?
GR: LL is not liable
EXCEPTION: LL will be liable if:
* authorised nuisance (e.g. leasing land for purpose (race track))
* Nuisance existed at start of letting and LL knew or ought to have known of it
* covenant to repair AND fails to make repairs which give rise to nuisance (tenant also liable)
What must a claimant show to sue in private nuisance?
- Indirect interference (encroachment, direct physical injury or quiet enjoyment)
- Recognised damage (property, SPD, consequential losses)
- Continuous
- Unlawful (substantial and unreasonable)
No claim for personal injury
What factors will the court consider to determine whether an interference is unlawful in private nuisance?
- Duration and frequency
- Far removed from normal behaviour and impacts C
- Character of neighbourhood (not relevant to property damage)
- Malice (automatically unlawful)
- Impacts a normal user ignoring abnormal sensitivity
Does planning permission alter character of neighbourhood in private nuisance?
No can still be unlawful despite planning permission
6 defences
What are effective defences in private nuisance?
- Prescription: Actionable for 20 years
- Statutory Authority
- Contributory Negligence
- Consent
- Act of God + no adoption or continuance
- Necessity: imminent danger to life, no negligence and D’s actions reasonable
3
What are ineffective defences in private nuisance?
- C came to nuisance (i.e. C knew before bought) UNLESS C changes use AFTER D comenced activity (i.e. C went ahead with change knowing thats how D used their land)
- others contibuted to nuisance
- Planning permission
What damages will be awared for personal discomfort in private nuisance?
Loss of amenity value (difference between land without nuisance and with nuisance)
When may a quia timet injunction be awarded (i.e. injunction awarded before D commits tort)
- Damage is almost certain
- Action is imminent
- D will not stop otherwise
When may damages in lieu of an injunction be awarded in private nuisance?
- Harm is small
- Harm is capable of financial quantification (not SPD)
- Damages are adequate
- Injunction would be oppressive to D
When can C exercise right of abatement?
C can remove interference provided:
1. Prior notice to D (unless can remove without entering land)
2. Returns branches to D once removed
What is the rule in Rylands v Fletcher
Isolated escape of something dangerous in the course of a non-natural use of land
What types of loss are recoverable under rylands v fletcher?
Property Damage and consequential losses
(not SPD or personal injury)
What requirements must be satisfied to claim under Rylands v Fletcher?
- D voluntarily brings something onto land
- Exceptionally high risk of causing danger if it escapes
- It escapes from D’s land to area outside D’s control
- Escape causes foreseeable type of harm
- Non-natural use of land (extraordinary and unusual)
What is the definition of Public Nuisance?
An act or omission that materially affects the reasonable comfort and convenience of a class
Who can sue under public nuisance
Individual (if suffered direct and subsantial damage above that of class)
Local Authority
AG
who is liable in public nuisance?
Creator or owner/occupier
What must C show under public nuisance?
- Act or omission
- One off or continous
- Representative cross section of public suffered common injury (same time and same location)
- Matierally affects reasonable comfort and convenience and reasonably foreseeable
What types of loss are recoverable under public nuisance
Everything including personal injury and PEL
What is the definition of trespass to land?
Intentional direct interference with C’s possession of land
When can a squatter sue in trespass to land?
Anyone except those with better rights (not against legal owner or prior squatters)
What type of loss must be suffered under trespass to land?
Actionable per se (no tangible loss required)
What must C show to claim tresspass to land?
- Direct and physical interference (no permission or damages property or object on land)
- D must intend the direct action but need not intend to trespass (e.g. intend to throw ball)
