Liability in Private Nuisance and the Rule in Rylands v Fletcher - Essay Example

? Presented to of School or In Partial Fulfillment of the Requirement for of By of Individual submitting report Spring, 2011 There are 10 questions, each question you can answer around 450 words or you can use unrestricted distribution as needed. 1? ANSWER ALL PARTS. (a) Compare and contrast liability in private nuisance and the rule in Rylands v Fletcher. The rule in this case is the most often quoted example of strict liability. The traditional distinction between nuisance and trespass hinges on the nature of the intrusion. If there is a physical entry on the land of another, the case is a potential trespass. However cases involving fumes, smoke, light or other non-trespassory conducted are governed by nuisance principles (29.02) (b) To what extent, if at all, do occupiers need to protect trespassers from danger? Basically it states that an occupier of land who brings onto it anything likely to do damage if it escapes, and keep that thing on the land, will be liable for any damage caused by an escape (3.0). (c) Explain the various methods by which an easement may be acquired. The law recognizes five basic categories of affirmative easements: (1) express easements; (2) easements implied from prior existing use; (3) easements by necessity; (4) prescriptive easements; and (5) irrevocable licenses or “easements by estoppels.” Certain negative easements are also recognized (32.01). (d) What is the significance of the DEED in land law transactions? Give examples of situations where it is required. The deed is the basic document used to transfer an estate or other interest in land during the owner’s lifetime. One who transfers title by deed is a grantor; one who receives title is a grantee. The general warranty is a type of deed. It contains six specific covenants of title that warrant against any defect in the grantor’s title. For example, the covenant against encumbrance’s warrants that there are no mortgages, easements, liens or other encumbrances on the property at the time the deed is delivered. 2? The Foxshire Trust, a charity which aims to conserve the heritage of the county of Foxshire, owns the Foxhill Estate comprising a stately home and many acres of land. The Estate is open to the public upon payment of a ?10 admission charge made at a kiosk at the car park entrance. Above the kiosk is a sign which reads, ‘THE FOXSHIRE ESTATE DOES NOT ACCEPT ANY LIABILITY FOR LOSS OR DAMAGE SUSTAINED ON THESE PREMISES.’ Recently, the following incidents have occurred. Answer the question which follows each incident. All parts carry equal marks. (i) Adam, a boy of 14, visited the estate with his parents. Adam’s parents left him to explore on his own while they went for a coffee in the cafe. Adam decided to climb one of the very old and large cedar trees. A rotten branch broke under his weight and he fell to the ground and broke his arm. The Foxshire Trust had recently hired Lopitoff Ltd, a firm of professional tree surgeons, to remove any ‘dangerous branches.’ They had failed to spot that the branch in question was rotten. Could Adam sue Foxshire Trust for the injury he has sustained? Yes. Liability as in the rule in Rylands v Fletcher Case. The rule states an occupier of land who brings onto it anything likely to do damage if it escapes (3.0) (ii) The estate gardeners frequently light large bonfires, on a patch of ground near the edge of the estate, to get rid of garden waste. Bettie, who owns a house in the nearby village of Foxhill, is fed up with the smoke which blows across and deposits smuts on her laundry on the washing line. Her daughter, Carol, claims that the smoke has exacerbated her asthma. A number of other villagers have complained about the smoke. What action, if any, could Bettie and Carol and the other villagers take against the Foxshire Trust? (iii) The Foxshire Trust is very committed to green causes and owns a small organic farm on the estate (Home Farm) and employs a farm manager to run it. Denise, a neighbouring farmer, planted genetically modified maize on an adjoining field. Fearing contamination of the organic crops the manager of Home Farm set fire to Denise’s crops before they pollinated. Can the farm manager’s actions be justified in tort law? Under the Restatement, Second of Torts approach, adopted in about one-third of the states, interference is unreasonable if the gravity of the harm outweighs the utility of the defendants’ conduct. (29.4.A). Acts for the purpose of causing the harm or knows that the harm is resulting or substantially certain to result from the conduct of Home Farm overstepped boundaries (iv) There is a large ornamental lake on the estate. Recently it rained for forty days and forty nights. The pond overflowed and flooded neighboring land owned by Felicity. Is the Trust Estate liable in respect of the damage caused to Felicity’s land? Liability arises from interference with the interest of an owner or l other land occupant in the use and enjoyment of land (29.05.E.). 3? Ali and Bena wanted to buy a house. They had a ‘wish-list’ of desirable features. First, they wanted an old-fashioned, ‘retro-style’ kitchen with freestanding cooker and freestanding cupboards – they hated fitted kitchens. Second, since Bena was a keen but inexperienced gardener, they wanted a well-kept garden with established flower-beds and, preferably, fruit trees. Third, since Ali enjoyed fishing, they wanted land with a river or stream running through it. They searched for a long time before finding the perfect property, which belonged to Chiara. Its kitchen had not been updated since the 1950s, and the freestanding cooker and cupboards were practically museum pieces. The garden was immaculate, with a particularly fine bed of roses and two mature apple trees. Third, and best of all, a stream well-stocked with fish ran along the southern boundary of the property. “We’ll take it,” Ali and Bena declared, offering the asking price. Contracts were quickly drawn up and exchanged. On completion date, Chiara emigrated to Australia, and Ali and Bena moved into their dream home. But the dream turned out to be a nightmare: the kitchen was a bare shell, with no equipment or furnishings at all; the roses and apple trees had been uprooted and taken away; and the bed of the stream was dry. On enquiry, Ali and Bena found that Chiara had sold the kitchen interior to a museum, and given the roses and apple trees to a friend. A neighbour, Dermot, had installed a new irrigation system for his market garden which abstracted all the water from the stream that ran past both their properties. Ali and Bena believed that their contract to purchase the property included everything on the land, including the water in the stream. Advise them on all of the following: (a) Are they right? Technically, a buyer is purchasing the title to the land, not the land itself. (b) Is there anything they can do? If the contract is silent on the issue, the law fills the gap with an implied covenant that the seller must deliver marketable title (20.06.B). (c) Could they have avoided this disappointment? . Accordingly, the prudent buyer will negotiate an express contract condition that specifies the quality of title the seller must deliver (20.06.A). 4? Owen has owned a house in England for many years but lives abroad most of the time. After a bad experience with tenants, he preferred to leave the house unoccupied. He asked his cousin Pamina, who lived nearby, to ‘keep an eye on my house.’ In April 1998, however, Pamina moved to Spain to live with a new boyfriend. She told Owen to make other arrangements for checking on his house but he was busy and did nothing. In August 1998, Queenie and Riccardo broke into Owen’s house and decided to live there. They immediately changed the locks on the doors, had the gas and electricity reconnected and signed up to pay Council tax. In November 2008, Queenie and Riccardo discovered that they could apply to become owners of the house they live in. They wrote to the Land Registry. It turns out that Owen never informed the Land Registry of his current address in the United States and they cannot trace him. Six months later, Owen returned to England and discovered Queenie and Riccardo living in ‘his’ house. They say they now own it. Advise Owen. The deed is the basic document used to transfer an estate or other interest in land “during the owner’s lifetime” (23.01). Virtually all deeds are recorded, meaning the information contained in the deed is entered into the public land records maintained by the appropriate local government. Recordation is not required in order for a deed to be valid (23.06). 5? In 2000, Faisal and Gilda bought a house together with Faisal’s parents, Hafsha and Jahan, for them all to live in. Hafsha and Jahan paid half the purchase price in cash, and the remaining half was paid for by a mortgage in Faisal and Gilda’s names. The house was conveyed into Faisal and Gilda’s names alone because Hafsha and Jahan did not want to have any responsibility for the mortgage repayments. In 2002 Faisal and Gilda remortgaged the house to obtain capital for their business. They did not tell Faisal’s parents about this, because they did not want them to think the business was in difficulties. The business failed last year and the mortgagee seeks repossession. The house is now worth about the same amount as the current mortgage. Hafsha and Jahan are appalled and want to go on living in the house. Alternatively, if they have to leave, they want their money back so that they can buy somewhere else to live. Advise Hafsha and Jahan as to: (a) the mortgagee’s rights; Traditionally, the seller of real property had no duty to disclose hidden or latent defects to the buyer, absent a fiduciary duty or other special circumstances. A buyer could recover only when the seller intentionally misrepresented facts about the property or physically concealed known facts (common Law Approach 21.02.A). (b) their own rights to the property and/or the purchase price; Because the mortgage is viewed as the transfer of an interesting real property, the formalities required for an effective deed also apply to the mortgage (22.04). AND (c) any course of action they might take. Sell the house. Power of Sale foreclosure is a purely private procedure, without judicial involvement. It is permitted only when authorized by the express terms of the mortgage. Most states allow the mortgagor to bring suit to cancel the sale only where the bid price is so grossly inadequate as to shock the conscience or if fraudulent or unconscionable conduct has occurred (22.06.B). 6?Answer all of the following: a) Summarize the factors which the law takes into account in determining whether a nuisance has been committed, and explain who is entitled to be a claimant. The common law divided nuisances into two categories private nuisance and public nuisance. At one time court recognized a defence called coming to the nuisance; plaintiff who moved into the area after the offending conduct began was not entitled to recover (29.05). b) Compare and contrast the situations in which an occupier of land can be liable to his or her lawful visitors with those in which he or she can be liable to trespassers. At common law, any intentional and unprivileged entry onto land owned or occupied by another constituted a trespass(30.02). An encroachment is a permanent or continuing trespass caused by the construction of a building or other improvement. As the Restatement of Torts provides, a person’s harmful conduct is deemed intentional if either (1) he acts for the purpose of causing harm or (2) he knows that the harm is resulting or substantially certain to result from his conduct (29.04.A). c) Explain when an occupier will be liable for damage caused by something escaping from his or her land. The liability of the capture rule in general , ownership rights end when a wild animal escapes or is released into the wild. If it is released or escape after capture the capture rule applies for damages (3.01 – 3.04). d) Outline the rules for making a valid contract for the sale of land or any interest in land. What must you do to ensure that you pass a legal interest? Every real property transaction had four basic stages: (1) locating the buyer; (2) negotiating the contract; (3) preparing for the closing; and (4) closing the transaction (20.01). e) How can easements be granted? The law recognizes five basic categories of affirmative easements: (1) express easements; (2) easements implied from prior existing use; (3) easements by necessity; (4) prescriptive easements; and (5) irrevocable licenses or “easements by estoppel.”(32.01). How can they be extinguished? Easements may be terminated in many ways. For example, an easement is deemed abandoned where the holder both (1) stops using it for a long period and (2) takes other actions that clearly manifest intent to relinquish the easement (32.11). 7? Kwame and Samia have bought a house in Reading. What attracted them particularly was the ‘retro’ kitchen with its freestanding Aga cooker and antique dresser. All the appliances like the washing machine and refrigerator were slotted separately under one long countertop. They also loved the chandelier in the living room. In addition, the garden suited them, for both were keen gardeners. There was a fine bed of roses, all in bloom, and a kitchen garden already sprouting summer vegetables. The price of the house was a little over Kwame and Samia’s budget, but these factors persuaded them to buy. Imagine their disappointment when they moved in to find that the kitchen had been stripped bare – only the countertop remained – and that the chandelier was gone from the living room. All the roses in the garden had been pulled up and so had all the vegetables. Kwame and Samia feel they have been swindled: they would not have paid so much for the house if they had known they were not going to get the retro kitchen, the chandelier, the roses and the vegetables. Advise them. We must define property, and contractual agreements. Must properly review contract to see what the options may be. Under our legal system, property rights are limited, not absolute. They exist only to the extent that they serve a socially useful justification.(1.03). Real property consists of rights in land and anything attached to the land (buildings, signs, fences, or trees) Personal property consists of rights in things other than land (1.04). All types of contracts must meet the same minimum requirements of offer, acceptance, consideration, and so forth. However, a contract for the sale of an estate or interest in real property is enforceable only if it also satisfies the Statute of Frauds (20.04.A.). 8? Last year Alan and Betty decided to buy a flat together as they were expecting their first child. Although their joint salaries only amounted to ?60,000, the building society offered them a mortgage of ?240,000. They accepted the offer and bought a flat costing ?250,000. Six months ago their son was born. Unfortunately the baby has serious health problems and Betty has had to give up her job to care for him. Now they are in financial difficulties and are two months in arrears with their mortgage repayments. Alan and Betty ask your advice as to the building society’s remedies and whether there is anything they can do. They want to know the best and worst case scenario. Advise them. Sell the house. The power of sale foreclosure is a purely private procedure, without judicial involvement. It is permitted only when authorized by the express terms of the mortgage. While most states allow this form of foreclosure, statutory safeguards are generally provided for the mortgagor. Most states allow the mortgagor to bring suit to cancel the sale only where the bid price is so grossly inadequate as to shock the conscience or if fraudulent or unconscionable conduct has occurred (22.06.B). 9?Two years ago Edward inherited the family estate. Since he prefers to live abroad, he split the land into four parts and sold them to Ady, Banjo, Chloe and Derek respectively. The conveyances all had similar terms including a covenant forbidding the purchaser to build a structure more than two story’s high on his or her land. Derek has just sold his land to Farran who plans to build a five-storey block of flats there. Can Farran do this? Who, if anyone, can prevent him, and how? In general , a donor is free to give his property away to anyone he chooses. Statutory exceptions have eroded this rule in extreme situations. For instance, most states restrict lifetime gets by one spouse that are intended to nullify the property rights that the law accords to a surviving spouse (5.05) . However, the zoning laws may have something to say. The typical state zoning enabling act empowers a city council or other local legislative body to (1) adopt a comprehensive plan; (2) enact a zoning ordinance; and (3) delegate administrative authority to an appointed board. (36.04). In general, zoning regulates only future development. Thus, virtually all zoning ordinances allow the prior nonconforming use to continue. A non conforming use is a use of land that lawfully existed before the zoning ordinance was enacted, but that does not comply with the ordinance. 10? Shaila was the registered proprietor of a flat though her boyfriend, Ky, paid half the purchase price. A professional musician, Ky was often away on tour. Last summer while he was on a six-week tour of the United States, Shaila fell in love with Jael, an estate agent. Jael persuaded her to sell her flat to his client, Bert. Jael knew that Ky had shared the flat with Shaila but Bert did not, as Shaila had put all Ky’s possessions into store when Bert came to view the flat. Ky has returned from his American tour to find that Shaila has gone and Bert is living in the flat. Ky has nowhere to go, and seeks your advice as to whether he has any claim against Shaila or Bert with respect to the flat. Ky can sue for return of personal items. Real property consists of rights in land and anything attached to the land (1.04). Ky also can try to sue for first occupancy. First occupancy theory reflects the familiar concept of the first-in-time: the first person to take occupancy or possession of something owns it. This theory is a fundamental part of American property law today. One major drawback of this theory is that while it helps explain how property rights evolved, it does not adequately justify the existence of private property (2.02). References LexisNexis. LexisNexis Capsule Summary Property Law. (2003). Retrieved May 7, 2011, from http://www.lexisnexis.com/lawschool/study/outlines/pdf/prop.pdf. Read More