Real Property Torts

Question 1

Types of trespass:

Answer 1

1. Temporary (abateable)

2. Permanent (uninterrupted)

Question 2

Legal Damages for Trespass

Answer 2

1. General
   a. FMV Diminution
   OR
   b. Repair/Remove
2. Special
   a. Objective loss of use of land
   b. Subjective, personal annoyance and discomfort

Question 3

When Cost to Repair Exceeds FMV Diminution

Answer 3

Generally: The FMV Dimunition is the Ceiling to Recovery
However:
1. The character of the Real Property may sway for no ceiling (Business property - just diminution, personal home - may get cost of repair and removal)
2. The type of trespass may sway for no ceiling (Permanent trespass - ceiling, Temporary - Repair and removal)
3. The type of Defendant may sway for no ceiling (willful - no ceiling, inadvertent - ceiling)

Question 4

What Special Legal Damages are Available for Trespass?

Answer 4

1. Objective (loss of use of land)

2. Subjective (personal annoyance and discomfort)

Question 5

Elements of Ejectment:

Answer 5

1. Prove Plaintiff’s Right to Possesion

2. Defendant’s Wrongful Witholding or Remaining

Question 6

Remedies when suing for Ejectment

Answer 6

1. Recovery of property (Sheriff dispossess Defendant)

2. Mesne profits (forced rent)

Question 7

Maxims of Equitable Injunctions

Answer 7

1. Equity will not try title

2. Normal Injunction Rules Apply

Question 8

Balancing Property Interests in an Equitable Injunction

Answer 8

Traditionally the rights of a property owner are weighed highly

BUT

Good faith and de minimus trespass may be alright and
Restrictive covenants and Zoning can really tip the scale

Question 9

Nuisance per se is

Answer 9

Activity that by its nature interferes with plaintiff’s use and enjoyment of the property

Question 10

Nuisance per accidens

Answer 10

Activity that is not itself a nuisance, but the way it is done interferes with plaintiff’s use and enjoyment of the property

Question 11

A public nuisance

Answer 11

An interference with the public at large’s rights to health, safety, and welfare

Question 12

Standing for a private citizen to sue for a public nuisance requires

Answer 12

The plaintiff suffered a special injury besides the common health, safety and welfare (such as lost sales, etc.)

Question 13

Effect of a private nuisance suit on future public nuisance suits

Answer 13

Private nuisance suits are not res judicata (claim preclusion) for public nuisance suits (although the reverse is true)

Question 14

Public nuisance suits against criminal behavior

Answer 14

Generally there is an adequate remedy at law (the criminal law) but courts have enjoined non-criminal aspects of a criminal course of conduct (like an injunction against running a gambling house, or drugs, or prostitution or gang related activities).