Land Torts Flashcards
What are the Land Torts?
- Public Nuisance.
- Private Nuisance.
- Trespass to Land.
- The Rule in Rylands v Fletcher.
What are the Elements of Private Nuisance?
- Indirect Interference.
- Recognised Damage.
- Continuity of Action.
- Unlawful Interference.
Always Remember: Private Nuisance is a Tort against the Land, not the Land Owner.
Regarding Private Nuisance, what constitutes Indirect Interference?
An Act on the Defendant’s Land that impinges upon the Claimant’s use or enjoyment of its Land.
Regarding Private Nuisance, what are the Recognised Types of Damage?
Physical Damage to Property:
- The Nuisance causes non-trivial physical damage to the Claimant’s Property.
Sensible Personal Discomfort (“SPD”):
- The Claimant’s senses are affected such that they cannot enjoy their Land.
- This must be reasonably Foreseeable and materially interfere with normal human comfort.
Regarding Private Nuisance, what are the Exceptions to the Continuity Requisite?
- The Act creates a State of Affairs that risks the escape of physically dangerous or damaging material.
- The Act is a single incident caused by an Underlying State of Affairs of which the Defendant has Actual or Constructive Knowledge.
Regarding Private Nuisance, what constitutes Unlawful Interference?
The Act constitutes an Unreasonable Use of the Defendant’s Land. Relevant considerations include:
- Time.
- Malice.
- Duration.
- Frequency.
- Lack of Care.
- Excessiveness.
- Locality’s Character (SPD Only).
Although things like Planning Permissions are relevant to a Locality’s Character, they are not necessarily determinative.
Regarding Private Nuisance, what is the Position on Claimants with Abnormal Sensitivity?
- If the standard of material interference with normal human comfort is met;
- Then the Claimant can sue for the full extent of its Loss as aggravted by its condition.
Who can Sue in Private Nuisance?
Anyone with a Legal (Proprietary) Interest in the Affected Land. This includes:
- The Title Owner.
- The Tenant in Possession.
- The Grantee of an Easement.
- The Licensee with Exclusive Possession.
Who can be Sued in Private Nuisance?
- Creator of the Nuisance.
- Owner of the Nuisance Land.
- Occupier of the Nuisance Land.
When may the Occupier of the Nuisance Land be held Liable?
Independent Contractors:
- The Occupier hires an Independent Contractor that will cause an inevitable Nuisance.
Natural Occurrence:
- The Occupier is aware, or ought to be, of a naturally-occuring Nuisance; and
- Fails to take reasonable steps to end it.
Adoption or Continuation:
- The Occupier is aware, or ought to be, of a Nuisance caused by another; and
- Fails to take reasonable steps to end it.
When may the Owner of the Nuisance Land be held Liable?
The Owner:
- Authorised the Nuisance by directly and actively participating therein; or
- By Leasing the Property under circumstances where Nuisance was a virtual certainty.
What are the Defences to Private Nuisance?
- Consent.
- Necessity.
- Act of God.
- Act of Third Party.
- Statutory Authority.
- 20 Years’ Prescription.
- Contributory Negligence.
Regarding Private Nuisance, when does the Defence of Consent apply?
The Claimant willingly accepts the Nuisance, or the risk thereof, by words or conduct.
Regarding Private Nuisance, when does the Defence of Necessity apply?
The Act is essential for the Public Good and there is no reasonable alternative.
Regarding Private Nuisance, when does the Third-Party-Act Defence apply?
The Nuisance was created by a Third Party for whom the Defendant is not responsible (barring Adoption or Continuation).
Regarding Private Nuisance, when does the Act-of-God Defence apply?
The Nuisance was created by an Act of God (barring Adoption or Continuation).
Regarding Private Nuisance, when does the Defence of Statutory Authority apply?
The Act is:
- Authorised by Statute;
- Exercised with all due care and skill; and
- Inevitably causes the Nuisance.
Regarding Private Nuisance, when does the Defence of 20 Years’ Prescription apply?
- The Act has been an actionable Nuisance for at least 20 Years; and
- No action has ever been taken.
The Period starts from when the Act becomes a Nuisance.
What are the Remedies for Private Nuisance?
- Damages.
- Injunction.
- Abatement.
Injunctions are the primary Remedy.
Regarding Private Nuisance, how are Damages awarded?
Physical Damage:
- Consequential Economic Loss; and
- The lesser of either Repair or Renewal Costs.
Sensible Personal Discomfort:
- The Defendant may argue that Damages should be awarded instead of an Injunciton.
- Relevant considerations include Public Benefits, Planning Permissions, and commecial impacts.
- If successful, the Court will award based on the consequent decrease in Property Value.
Regarding Private Nuisance, when may the Court only award a Partial Injunction?
When the Act has a Public Benefit.
Regarding Private Nuisance, what is Abatement?
- The Claimant’s entitlement to enter the Defendant’s Property and do what is reasonable and necessary to end the Nuisance.
- Notice is necessary, unless it is an emergency.
What are the Elements Public Nuisance?
Act or Omission:
- The Defendant performed, or failed to perform, a particular Act.
Continuity (or Lack Thereof):
- The Act or Omission was either continuous or singular.
Class:
- The Act or Omission affected a representative cross-section of a Class of Subjects in a similar manner, time, and place.
Material Disruption of Comfort and Convenience:
- The Act or Omission materially disrupted the comfort, convenience, or normal use of a public space; which
- Had a substantial and reasonably foreseeable impact on the Public’s ability to ordinarily enjoy or use it.
Regarding Public Nuisance, which Types of Damage are Recoverable?
- Personal Injury.
- Property Damage.
- Pure Economic Loss.
- Material Inconvenience.
- Consequential Economic Loss.
Who can Sue in Public Nuisance?
- Individuals.
- Local Authorities.
- The Attorney General.
When can an Individual Sue in Public Nuisance?
When it has suffered Special Damage, meaning it has suffered direct and substantial Damage:
- Over and above the rest of the Class; or
- In a different way to the rest of the Class.
Who can be Sued in Public Nuisance?
The Creater of the Nuisance or any other person responsible therefor.
What are the Defences for Public Nuisance?
- Necessity.
- Act of God.
- Act of Third Party.
- Statutory Authority.
- Contributory Negligence.
The main Defence is Statutory Authority.
What are the Remedies for Public Nuisance?
- Damages.
- Injunction.
Damages are unavailable if the Claim is brought by the Local Authority or the Attorney General.
What are the Elements of Trespass to Land?
Direct and Physical Interference:
- The Defendant directly and physically interfered with the Claimant’s Land.
- This includes causing Third Parties to enter or placing, throwing, or diverting objects onto the Land.
- Interference can be continuing if the object unlawfully placed, thrown, or diverted remains on the Land.
Intention to Interfere
- The Defendant’s Interference was a deliberate, intentional act.
Lack of Lawful Justification or Consent
- The Defendant’s Interference was unlawful, unnecessary, and without consent.
Regarding Trespass to Land, what constitutes the ‘Land’?
- The Ground.
- The Subsoil, down to the point where the notion of ownership is absurd.
- The Airspace, up to the point necessary for ordinary use and enjoyment of the Land.
Who can Sue in Trespass to Land?
Anyone with a Possessory Interest in the Land.
Who can be Sued in Trespass to Land?
The Trespasser.
What are the Defences for Trespass to Land?
- Consent.
- Necessity.
- Abatement.
- Lawful Authority.
Regarding Trespass to Land, what are the Two Types of Necessity?
- Public Necessity: Entry to prevent a Public Disaster (e.g., firefighting efforts).
- Private Necessity: Entry to protect Oneself or one’s Property from imminent harm.
What are the Remedies for Trespass to Land?
- Re-Entry.
- Damages.
- Injunctions.
- Mesne Profits.
- Recovery of Land.
Trespass is actionable per se.
Regarding Trespass to Land, what is the Remedy of Re-Entry?
The Claimant’s right to retake possession of their Land using reasonable force.
Regarding Trespass to Land, what is the Remedy of Mesne Profits?
- Compensation for the profits made or expenses saved by the Defendant while Trespassing.
- The Claimant must evidence the Defendant’s profits or the Land’s rental value, respectively.
Regarding Trespass to Land, what is the Remedy of Recovery of Land?
A Court Order to remove the Defendant from the Claimant’s Land.
What are the Elements of the Rule in Rylands v Fletcher?
Introduction of Object to the Defendant’s Land:
- The Defendant voluntarily brings an Object it controls onto its Land.
- This is called Accumulation.
Capacity for Damage upon Escape:
- The Object has an exceptionally high risk of causing damage if it Escapes.
- The Defendant has Actual or Constructive Knowledge of the Object’s destructive capacity if it Escapes.
Escape to the Claimant’s Land:
- The Object itself Escapes from the Defendant’s Land to the Claimant’s Land.
Foreseeable Harm to the Claimant’s Land:
- The Escaped Object causes Foreseeable Harm to the Claimant’s Land.
- Reasonable care to prevent Escape will not avoid Liability.
Unnatural Use of the Defendant Land:
- The Defendant’s use of its Land was extraordinary and unusual by contemporary standards, all things considered.
Who can Sue in the Rule in Rylands v Fletcher?
Anyone with a Possessory Interest in the Land.
Who can be Sued in the Rule in Rylands v Fletcher?
- Creator of the Nuisance.
- Owner of the Nuisance Land.
- Occupier of the Nuisance Land.
Regarding the Rule in Rylands v Fletcher, what are the Recognised Types of Damage?
- Property Damage.
- Consequential Economic Loss.
What are the Defences for the Rule in Rylands v Fletcher?
- Consent.
- Act of God.
- Common Benefit.
- Act of Third Party.
- Statutory Authority.
- Default of the Claimant.
Regarding the Rule in Rylands v Fletcher, what is the Act-of-God Defence?
The Escape was caused by a reasonably Unforeseeable natural event.
Regarding the Rule in Rylands v Fletcher, what is the Defence of Common Benefit?
If the Claimant derived a Common Benefit from Accumulation, it is deemed to have implicitly consented thereto.
Regarding the Rule in Rylands v Fletcher, what is the Third-Party-Act Defence?
The Escape was caused by an Unforeseeable act of a Third Party over whom the Defendant had no control.
Regarding the Rule in Rylands v Fletcher, what is the Defence of Default of the Claimant?
Escape was caused wholly by the Claimant.
What are the Remedies for the Rule in Rylands v Fletcher?
- Damages.
- Injunction.
Damages are the main Remedy.
