Land

Question 1

what is dispossession

Answer 1

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

Question 2

what is direct interference?

Answer 2

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

Question 3

if there is direct interference what might a C do?

Answer 3

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

Question 4

what is indirect interference

Answer 4

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

Question 5

what can C do if there is indirect interference?

Answer 5

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

Question 6

what is the tort of private nuisance?

Answer 6

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

Question 7

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

Answer 7

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

Question 8

what are the 3 types of interferences within private nuisance?

Answer 8

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

Question 9

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

Answer 9

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

Question 10

what does unlawful mean

Answer 10

must be substantial and unreasonable to be actionable

Question 11

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

Answer 11

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

Question 12

what is abnormal sensitivity?

Answer 12

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

Question 13

who can sue in private nuisance?

Answer 13

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

Question 14

why does this conflict with ECHR?

Answer 14

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

Question 15

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

Answer 15

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

Question 16

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

Answer 16

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

Question 17

what are the damages for nuisance?

Answer 17

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

Question 18

what losses are recoverable in in a tort against land?

Answer 18

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

Question 19

how is causation assessed for private nuisance

Answer 19

but for test, intervening acts

Question 20

how is remoteness assessed for private nuisance

Answer 20

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

Question 21

what are effective defences available for D

Answer 21

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)

Question 22

what are ineffective defences available to D

Answer 22

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

Question 23

what are the 3 types of injunction?

Answer 23

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

Question 24

what type of remedy is an injunction?

Answer 24

equitable and discretionary

Question 25

how are damages assessed?

Answer 25

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

Question 26

what is abatement?

Answer 26

self help- involves removal of interference by victim

Question 27

what is the rule in Rylands v Fletcher

Answer 27

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)

Question 28

what are the elements for the Rylands v Fletcher tort?

Answer 28

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

Question 29

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

Answer 29

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

Question 30

expand on it escapes

Answer 30

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

Question 31

expand on which represents a non-natural use of land

Answer 31

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

Question 32

expand on foreseeable damage

Answer 32

remoteness principle from negligence same as wagon mound

Question 33

what are the defence available to D

Answer 33

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

Question 34

what is public nuisance?

Answer 34

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

Question 35

what are the elements of tort of public nuisance?

Answer 35

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

Question 36

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

Answer 36

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

Question 37

what sort of harm must be suffered?

Answer 37

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)

Question 38

what is trespass to land?

Answer 38

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

Question 39

what is implied permission to be on land

Answer 39

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

Question 40

what are the different types of trespass to land

Answer 40

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

Question 41

what is land?

Answer 41

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

Question 42

what is required for the tort of trespass to land?

Answer 42

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

Question 43

who can sue under trespass to land?

Answer 43

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

Question 44

how is causation assessed in trespass to land

Answer 44

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

Question 45

how is remoteness tested in trespass to land

Answer 45

direct consequences test Re Polemis instead of wagon mound

Question 46

what are the remedies for trespass to land

Answer 46

injunction to prevent future trespasses and damages to compensation past interference

Question 47

what are the defences for trespass to land?

Answer 47

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