Nuisance Flashcards
What is a nuisance (in property law and generally)
A non-trespassory, interference in the use of enjoyment in a piece of land by another parcel of land
Common things that are nuisances
Noise, dust, smoke, fumes, airborne or waterborne contaminates, vermin, insects, and vibration ;)
What are the ways to categorize a nuisance?
1) intentional v. Unintentional
2) private v. Public
3) In fact v. Per se
Intentional v. Unintentional (nuisance)
Intentional: knows and intends the effects of the conduct
Unintentional: negligence, recklessness, or ultra hazardous
Private v. Public (nuisance)
Private: interference with use and enjoyment of land
Public: interference with right common to the public
In fact v. Per se (nuisance)
In fact: because of the facts and circumstances
Per se: as a matter of law
Three tests to remedy a nuisance
1) threshold test
2) balancing of equities
3) utilitarian
Threshold test is a — — — and …
Strict win-lose
Will grant an injunction if the nuisances harms the health or endangers safety
Balancing of equities is a — — — and . . .
Strict win lose
Balances the harm resultant form granting the injunction vs the harm caused by its denial
Utilitarian test is — — —- and . . .
Not win-lose
Seeks to find a fair solution by considering whether the utility of the actor’s conduct outweighs the gravity of the harm to the plaintiff
True or False: the only remedy under the threshold and balancing of the equities test is an injunction
True
What are some remedies possible under the Utilitarian test?
Granting an injunction
Payment of temporary or permanent damages to the plaintiff (permanent prohibits further suit) but allow the nuisance to continue
Grant an injunction but require plaintiff to pay damages
Coming to the nuisance entails . . .
What is its effect?
Party occupying land despite awareness of the nuisance (shocker). Nuisance was present first
It harms or even prohibits a claim of nuisance because plaintiff knew what they were getting into
What are lateral and subjacent support?
Lateral support is support the land from adjacent parcels.
Subjacent support is support form beneath the land
What is the rule of lateral support?
Duty on neighboring land to support subject parcel such as would have received under natural conditions. No right of support of structures on land