Rights and Responsibilities in Public and Private Property Ownership

Question 1

What is the test for Nuisance?

Answer 1

Substantial and Unreasonable interference

• Substantial = Threshold
• Unreasonable = Harm > Utility of conduct
• • Harm factors =
• –Extent of harm
• –Character of harm
• –Social value of use harmed
• –Suitability of use to locality
• –Burden of avoiding harm
• • Utility factors =
• –Social value of conduct
• –Suitability of conduct to locality
• –Impracticability of preventing the invasion

Question 2

What is Negligence?

Answer 2

-Negligence focuses on whether defendant’s conduct was reasonable

Question 3

What is Nuisance?

Answer 3

• Private: substantial and unreasonable interference with use and enjoyment of property
• Public: unreasonable interference with a right common to the general public (health, safety, etc.)

Question 4

What is Trespass?

Answer 4

-Trespass is intrusion into another’s property

Question 5

What are the defenses to Trespass?

Answer 5

• Consent
• Necessity
• Public policy

Question 6

State v. Shack

Answer 6

• Farmer trying to keep medical and legal workers off his property so they can’t aid his migrant workers
• Court holds that property right of exclusion doesn’t include exclusion of specific people
• Court is concerned with migrant workers rights and ability to access the outside world

Question 7

What are the diffused water rules?

Answer 7

• Common enemy rule (absolute freedom to direct water off the property)
• Civil law doctrine (strict liability for directing flow to a neighbor’s land)
• Reasonable use test (like the nuisance test)

Question 8

What is a landlord’s liability for nuisance?

Answer 8

• Possessor knows or has reason to know of the activity, and

- Consents to the activity or fails to exercise reasonable care to prevent nuisance