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Tort Law > Land > Flashcards

Land Flashcards

1
Q

what is dispossession

A

D could actually move on to long themselves and take possession of it so they have dispossessed the C who was originally on the land e.g. squatters break in and live there

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2
Q

what is direct interference?

A

D interferes with Cs possession of the land e.g, using a path without permission where there is no right of way

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3
Q

if there is direct interference what might a C do?

A

bring a claim for an injunction or seek a declaration of their rights e.g. that they are the owner of the driveway, could also seek compensation for any damage caused

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4
Q

what is indirect interference

A

possession is interfered with by things done elsewhere not on that land i.e. on neighbouring land e.g. neighbours cause toxic fumes killing plants on Cs land

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5
Q

what can C do if there is indirect interference?

A

Bring actino to stop interference e.g. injunction or declaration of rights and can seek compensation for damage caused

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6
Q

what is the tort of private nuisance?

A

Winfield and Jolowicz on tort- an unlawful interference with a persons use or enjoyment of land or some right over or in connection with it

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7
Q

what needs to be shown for a claim of private nuisance?

A

that there is an interference with the Cs use and enjoyment of land or some rights they enjoy over it, and that the interference is unlawful

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8
Q

what are the 3 types of interferences within private nuisance?

A

nuisance by encroachment on a neighbours land, nuisance by direct physical injury to a neighbours land, and nuisance by interference with a neighbours quiet enjoyment of their land

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9
Q

expand on nuisance by interference with a neighbours qiuet enjoyment of his land

A

aka interference with personal comfort or loss amenity- usualy slow to find actionable nuances based on personal disocmfort than actual damage to property or encroachment

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10
Q

what does unlawful mean

A

must be substantial and unreasonable to be actionable

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11
Q

what are the relevant factors in judging whether an interference is substantial and unreasonable and therefore unlawful?

A

duration and frequency, excessiveness of conduct (objective)/extent of harm (subjective), character of the neighbourhood, public benefit, malice

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12
Q

what is abnormal sensitivity?

A

courts consider the impact on normal user of neighbouring land so ignore any abnormal sensitivity of the C BUT can claim if it is unreasonable to normal user but is just a greater effect on C so sensitivity relevant to remedies NOT liability

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13
Q

who can sue in private nuisance?

A

only someone with right to exclusive possession and must have propietary interest in the land

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14
Q

why does this conflict with ECHR?

A

article 8 says that everyone should have the right to respect for their private and family life and this applies to all citizens so this is a possible conflict

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15
Q

who can be liable in private nuisance? i.e. who are the 3 potential defendants

A

creator, current occupier, landlord (usually not liable, but there are 3 exceptions)

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16
Q

what are the 3 situations where a landlord can be liable ratehr than the tenant?

A

if they expressly or impliedly authorised the nuisance, the nuisance existed at the start of the letting and the landlord knew or ought reasonably to have known of it, the landlord has promised to repair the premises and fails to make the repairs giving rise to nuisance

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17
Q

what are the damages for nuisance?

A

C must prove they have suffered damage- no claim for personal injury (claim in neg for this) unless the loss flowed from personal discomfort caused by the nuisance

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18
Q

what losses are recoverable in in a tort against land?

A

physical harm to land itself (incl plants) and any buildings, interference with quiet enjoyment of land

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19
Q

how is causation assessed for private nuisance

A

but for test, intervening acts

20
Q

how is remoteness assessed for private nuisance

A

foreseeability Wagon Mound- there must be a reasonably foreseeable risk of the kind of damage that occurred at the time the act was done

21
Q

what are effective defences available for D

A

prescription (D can show there is a continuing nuisance for at least 20 years), statutory authority, contributory negligence, consent , act of God or nature, necessity (imminent danger to life AND Ds actions where reasonable in all the circumstances)

22
Q

what are ineffective defences available to D

A

claimant ‘came to the nuisance’, public benefit, contributory reactions of others, planning permission

23
Q

what are the 3 types of injunction?

A

prohibitory- forbids the defendant from persisting in wrongful act

mandatory injunction- courts order defendant to take positive action to rectify consequences of what they have done

quia timet- in anticipation of the committing of the tort by the D to prevent C suffering damage and must show they are almost certain to incur damage without the injunction AND damage is imminent AND D will not stop in course of conduct without court order

24
Q

what type of remedy is an injunction?

A

equitable and discretionary

25
Q

how are damages assessed?

A

awarded for any loss C has already suffered by date of trial- court has limited power to award damages for future loss

physical damage=usually cost of repair not loss in value

personal discomfort- lost of amenity value of land

26
Q

what is abatement?

A

self help- involves removal of interference by victim

27
Q

what is the rule in Rylands v Fletcher

A

when there is an escape of something dangerous in the course of a non-natural use of land- strict liability of occupier of the land irrespective of fault- no need to prove the occupier failed to take reasonable care or that they were an unreasonable user of land (rules on who can sue/be sued same as for private nuisance)

28
Q

what are the elements for the Rylands v Fletcher tort?

A

the D brings onto their land for their own purposes, something likely to do mischief, if it escapes, which represents a non-natural use of land, it causes foreseeable damage of relevant type

29
Q

expand on the D brings onto their land for their own purposes something likely to do mischief

A

doesn’t need to be dangerous in itself but be capable of causing damager if it escapes- D did something which they recognised or ought reasonably to have recognised as giving rise to exceptionally high risk of danger or mischief if there was an escape however unlikely a mistake might’ve been

30
Q

expand on it escapes

A

requirement that the substance or item causing damage must actually move from Ds privacy out of their control

31
Q

expand on which represents a non-natural use of land

A

the rule only applies when the thing that caused damage by its escape is not naturally on Ds land i.e. needs to be bought and put there by D

32
Q

expand on foreseeable damage

A

remoteness principle from negligence same as wagon mound

33
Q

what are the defence available to D

A

escape caused by the unforeseeable act of a stranger, escape caused by an act of God which could not have been reasonably foreseen, statutory authority, consent, contributory negligence

34
Q

what is public nuisance?

A

crime defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the general public.

35
Q

what are the elements of tort of public nuisance?

A

unreasonable conduct that materially affects the reasonable comfort and convenience of a class of His majestys subjects AND the c has suffered particular harm

36
Q

how many people must be affected for the tort of public nuisance?

A

representative cross section i.e. not everyone in the group/class affected

37
Q

what sort of harm must be suffered?

A

particular damage over and above that suffered by public at large - can include property damage and loss of profit AND can include personal injury (unlike private nuisance)

38
Q

what is trespass to land?

A

intentional direct interference with the claimants possession of land- it is actionable without need to prove tangible loss

39
Q

what is implied permission to be on land

A

a person entry onto another land may be lawful even if no express permission has been given

40
Q

what are the different types of trespass to land

A

entering upon the Cs land, acting in excess of ones permission to be on Cs land, bringing anything into direct contact with the land damaging the land

41
Q

what is land?

A

includes surface of land, anything built on it and subsoil beneath it and only stops when physical features render the concept of the state belonging to anyone so absurd as not to be worth arguing about

42
Q

what is required for the tort of trespass to land?

A

direct interference- must flow immediately without any intervention from actions of D

Intentional interference- must be an intentional act- they don’t need to know they are trespassing or intend the consequences to have required intention for trespass

43
Q

who can sue under trespass to land?

A

C must be in possession of the land and have the right to immediately occupy and exclude others but dont need to own the land

44
Q

how is causation assessed in trespass to land

A

must show that Ds tort caused damage- but for and intervening acts

45
Q

how is remoteness tested in trespass to land

A

direct consequences test Re Polemis instead of wagon mound

46
Q

what are the remedies for trespass to land

A

injunction to prevent future trespasses and damages to compensation past interference

47
Q

what are the defences for trespass to land?

A

justification/consent- D commits trespass to land only if they have no justification for being there, would be justified if had owners permission or were permitted by law to do so

Tort Law (8 decks)

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