Torts relating to land Flashcards
What is private nuisance?
This is any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimants land or their use or enjoyment of that land
Who can sue? Need a posessionary or proprietary interest in land
Who can be sued?
1) Creator of nuisance
2) occupier of the land:
- For nuisances created by themselves
- potentially for nuisances created by contractors invited onto their land, if reasonably foreseeable consequence of task requested
-if adopting/continuing a nuisance created by a trespassed
3) owner of land- but landlord usually not liable for a tenant’s nuisance unless he created or authorised it, which could include leasing the property when it was highly probable that this would result in that nuisance being created.
What must be proven for a claim in private nuisance?
1) indirect interference (sounds/smells, fumes vibrations)
2) Recognised damage: must be reasonably foreseeable, physical damage to property or sensible personal discomfort or consequential economic loss
3) continuous act
4) unlawful interference: Looking at
1) time and duration
2) locality
3) abnormal sensitivity
4) malice
5) lack of care
6) excessive behaviour
7) public benefit
What are the defences for private nuisance?
1) prescription
2) statutory authority
3) consent
4) act of third party
5) act of god
6) contributory negligence
What are the remedies for private nuisance
1) damages
2) injunction
3) abatement
What is public nuisance?
Who can sue?
1) individual- only if suffered special damage
2) local authority
3) attorney general
Who can be sued?
The person creating the nuisance
What are the elements of a public nuisance?
1) act or omission
2) can be a one off event
3) class of his majesty subjects must be affected by the nuisance
4) must be shown damage to a reasonable comfort and convenience.
What are the defences for public nuisance
1) statutory authority
2) consent
3) act of third party
4) act of god
5) contributory negligence
What remedies are there for public nuisance?
1) damages
2) injunction
What is Rylands v Fletcher rule?
This rule protects against interference due to an isolated escape from the defendants land.
If a person brings something onto their land, they must be liable for all damage if they escape.
Who can sue and who can be sued is the same as private nuisance.
However, can only claim for property damage and consequential economic loss
What are the elements for proving a claim under Rylands vs fletcher
1) Person brings onto their land and accumulated it there
2) for own purposes something likely to do mischief
3) escape
4)causes foreseeable harm
5) non-natural use of land
What are the defences under Ryland v Fletcher
1) statutory authority
2) consent
3) act of third party
4) act of god
5) contributory negligence
6) common benefit
7) act or default of claimant
What remedies are available under Ryland v Fletcher
1) damages
2) injunction
3) abatement
What is trespass to land
Moving on to the final land-based tort, trespass to land (TTL) where the interference with the claimant’s land must be direct and intentional.
As can be seen from the slide, there are some preliminaries to consider before looking at the elements. Firstly, who can sue in TTL. The answer is, anyone with a legal interest in the land affected i.e. they must own the land or be in possession of it. In situations where a trespasser possesses demised land, the claimant would be the tenant or licensee in possession, rather than the landowner.
Very importantly, unlike the other land-based torts, TTL is actionable per se meaning it does not require any actual damage.
There are just two elements that the claimant needs to prove in order to succeed with TTL – (1) direct and physical interference and (2) intention.
Examples of direct and physical interference include entering the claimant’s land, remaining on the claimant’s land when permission has been revoked, doing something that is not permitted on the claimant’s land and placing objects of the claimant’s land without permission.
In relation to intention, the defendant must intend the direct action that results in the trespass but need not intend to trespass. For example, if you voluntarily hit a cricket ball and it accidently goes into the next door neighbour’s garden. The intention can be implied – refer to the case of League Against Cruel Sports v Scott.
There are three defences: (1) permission (consent) (where the defendant has express or implied permission to enter or remain on the land). (2) Legal authority – for example, under statute the police have authority to enter premises and carry out searches. And (3) Necessity (where the trespass was necessary to protect either a public or private interest).
Finally there are five remedies available to the claimant if they are successful – damages, injunctions (the primary remedies), re-entry (which is a self-help remedy and only reasonable force can be used to re-enter), recovery of land (a court order for the defendant to be removed) and mesne profits (where defendants have made a profit or saved expenditure whilst wrongfully occupying the land).
Note that trespass to land includes interference with the airspace above the claimant’s land and the interference into the airspace does not need to interfere with any normal activity conducted on the claimant’s property to be TTL. However, under the Civil Aviation Act 1982, an aircraft flown at a reasonable height above someone’s property does not constitute a trespass to land.
Not only can the interference be with the airspace above the claimant’s land, but also with the ground under the claimant’s land. Case law says there has to be some stopping point, where one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anyone as absurd, but this would be very very very deep! In a case where the defendant interfered with land 2,900ft below ground, this amounted to TTL.
