Lesson 15: Rights and Duties of Landowners Flashcards
right to the use and enjoyment
Two of the most basic rights that a landowner has are the right to the use and enjoyment of the property, and the right to exclusive possession.
The landowner has the right to prevent other people from entering the property, or otherwise interfering with his lawful use of the property.
trespass
A trespass is an unlawful entry onto another person’s property without permission or legal authority. A trespass violates the landowner’s (or, in the case of leased property, the tenant’s) right to exclusive possession. A trespass is a tort (an injury against a person or property), and the trespasser may be liable for any injury he causes to the owner or property.
Trespass may also be a criminal act.
continuing trespass
A trespass may be a one-time event, like kids sneaking into an abandoned property, or a continuing trespass, such as a motor home parked over a boundary line with the owner unwilling to move.
premises liability
As you’ve seen, a trespasser can be held liable to the landowner and required to pay damages.
However, there are also situations when a property owner may be liable to a trespasser for damages.
If 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 known as premises liability.
attractive nuisance
An attractive nuisance is a dangerous condition or structure on a property that is especially enticing to children, who may not fully appreciate the danger.
An unfenced swimming pool may be an attractive nuisance.
nuisance (private vs public)
A nuisance is any activity or conduct that interferes with a neighboring owner’s use and enjoyment of her property, or with the general welfare of the community.
Nuisances may be public or private.
A public nuisance affects an entire community or neighborhood. A private nuisance affects only one person or a few neighbors.
permanent nuisance
In some cases, the court won’t order abatement of the nuisance if abatement would be too expensive or cause unreasonable hardship.
Instead, the court may declare the problem a permanent nuisance.
The responsible party may be required to pay damages to the affected parties, even though the nuisance is allowed to continue.
claim of right
Under a claim of right, the possessor doesn’t necessarily think she owns the land.
color of title
Under color of title, the possessor has a good faith (bona fide) belief that she owns the land, even though she doesn’t.
tacking
However, the five-year requirement does not mean that the same adverse possessor must be in possession for a full five years. Instead, a series of adverse possessors can add their periods of possession together, to add up to five years, so long as their possession isn’t interrupted by the rightful owner.
This is referred to as tacking. The periods of possession are tacked together.
restrictive covenant
Another type of nonfinancial encumbrance is a restrictive covenant. The key difference between easements and restrictive covenants is that an easement gives someone else the right to use a landowner’s property, while a restrictive covenant limits how the landowner may use his own property.
profit à prendre
There is one other type of nonfinancial encumbrance, known as a profit (or profit à prendre).
A profit gives someone the right not only to enter a property, but to take something of value from it, such as timber or minerals.
appurtenant easements vs easements in gross
There are two categories of easements, appurtenant easements (which may be called easements appurtenant) and easements in gross. The main difference is that appurtenant easements are tied to ownership of a particular property, while easements in gross are not.
run with the land
Appurtenant easements run with the land. In other words, even if the dominant or servient tenement is transferred to another owner (sold, given away, or inherited), the easement remains in place.
The benefit or the burden of the easement is transferred to the new owner.
The easement rights can’t be sold separately from the land; whoever owns the dominant tenement will also own the easement.
