Unauthorized Trespass - Essay Example

Unauthorized Trespass Trespass occurs when a person or his/her property unlawfully enters, intrude or interfere with that of the other person devoid of a pre-existing agreement or consent for instance easement to right of way (Galbraith et al 2004). Question (I) Unauthorized trespasser injured while trespassing the property of another, may claim damages or compensation from the owner of the property in circumstances where the owner applied force beyond reasonable limits whilst defending his property since the owner the owner owes the trespasser a duty of care (Galbraith et al 2004). Case: Revill v Newbery Facts: the defendant, 76 years of age was asleep on his allotment in a brick shed. It was around 2am when he heard the plaintiff plus another man attempting to break in. the defendant took his shotgun and loaded it, then he poked the barrel via a minute opening in the door, he fired and the plaintiff was hit at a close range of around 5feet on his upper arm, by the armpit and eventually into the chest. Plaintiff pleaded culpable to a number of offences which were committed at that night. Defendant was impeached on charges of injuring/wounding but was later acquitted. Not in favor of the defendant, the plaintiff claimed damages owing to infringement of duty of care in negligence and under Occupier’s Liability Act 1984(sec 1). Held: The defendant was found guilty of significant contributory negligence (one third) since he applied violence to the plaintiff that was beyond reasonable limits allowed for lawful self-defense. The plaintiff was awarded 4,033pounds as compensation for personal injuries, the defendant appealed but this was dismissed by the court of appeal. Question (II) The defendant should seek supporting evidence that the cause of action by the plaintiff was founded on illegal or immoral act, self-defense or accident. The property owner by applying comparative negligence as a defense should show that the plaintiff did not apply reasonable care for his own safety; and with reference to a new law that came into effect in 1996, in case the injured party is more than 50% fault for detriment lies with him/her, he/she cannot recover non-economic damages (Zweigert and Kotz 1998). The property owner should make better his claim that he was not negligent and that he exercised to a great extent the duty of care owed to the plaintiff e.g. the gunshot was to signal warning or in self-defense. The property owner could lay a claim that he shot in the air with a clear intention to frighten the burglar away and contrary to his expectation the burglar was in the roof and thus got injured. Question (III) Property professionals may be held liable both to their own clients and to third parties for loss and damages suffered out of their professional negligence provided duty of care in law exists, a conduct which falls short of ordinary care as imposed by the law, the damage and the defendant’s conduct has a causal connection and that the actual damage falls within the extent of the duty. Case: Bryan v. Maloney Facts: Bryan (a professional builder) built a house for Mrs. Manion and this was a normal commercial transaction i.e. under contract. Bryan had not been asked to do the job cheaply. Subsequently, the house was sold by Mrs. Manion to a couple and later, after 7 years the couple sold it to Mrs. Maloney. The plaintiff prior to purchase of the house inspected it for three times and was satisfied that it was properly built since she didn’t notice any defects or cracks. After six months lapsed following the purchase of the house, its walls started cracking owing to negligence of the builder since the footings could not endure seasonal changes within the clay soil. Held: It was held by the high court that the builder of the house a sense of duty to a later purchaser and this extended to an obligation against causing fiscal loss i.e. reduction in property worthiness due to it being built in insufficient foundations). It was dictated by this policy that owners of domestic dwelling should not be liable for the negligence of a particular builder. It was held that the house itself was the pertinent proximity. Question (IV) Freehold Freehold refers to a land/real estate over which exclusive right/interest of full use over an indefinite time period has been granted by the crown. Frequently, freehold interest in land is referred to as ‘ownership’ of the land since it is the least restricted of all interests in land (Lunney and Oliphant 2003). Subsequent to granting of the freehold interest, the use of the term ‘crown land’ is no longer applicable and the crown doesn’t have the right to condition the use of that land. Restrictions on the manner in which the land can be put into use may exist owing to supplementary laws for instance laws for the local government. The owner of a freehold interest has the right to sell the particular land to another party, rent it or lease it to a third party on such conditions he/she feels fit (owner can lease the land just like the crown). After the freehold interest is granted by the crown, the crown reserves the right to buy back the land compulsorily irrespective of disagreement with the owner for social works e.g. hospitals, schools, railways, roads, etc. compulsory buyout and compensation occurs after efforts by the crown to agree with the owner fails. There are two varieties of freehold fee tail and fee simple. Commonhold Commonhold refers to a fresh type of land ownership and offers an alternative to some independent properties and the long leasehold of flats. A commonhold have units (personal freehold properties e.g. shops, offices and flats owned by unit-holders) in addition to common parts (parts other than units of a commonhold development which comprise of landings, stairs and roof; managed and owned by a limited corporation known as Commonhold Association (CA) whose members are only the unit-holders). Unit-holders interest in the commonhold is twofold i.e. interest in CA membership and express interest in their own units. The value of a commonhold is maintained over time. Unit-holders and the CA are responsible for the management of a commonhold according to the provisions of Commonhold Community Statement (CCS); hence a landlord is not required. The entire commonhold has a single set of documentation which is fundamentally standardized lessening the identification of the obligations and rights of particular unit-holders. Long Leasehold Long leasehold refers to a type of land possession where a tenant (leaseholder) purchases leasehold interest from the landlord (owner) thus acquiring him or herself a right to possess or occupy the particular property over an established/fixed time period either by a contract or a lease. The leaseholder/tenant commits to be making known as ground rent for his/her acquired possession. The leaseholder/tenant has certain responsibilities and rights towards the landlord who is under obligation to maintain and manage the ordinary parts and the entire building or any other property under lease. The principle behind the system for long-leasehold is that the landlord (owner) preserves control of the entire building or property, being in a position to insure, manage plus maintain the entire, the exterior structure, services, grounds and common areas, charged to and paid for by the tenants (leaseholders) in form of service charges. The long-leasehold lease term diminishes as time goes and thus the leasehold loses its value accordingly. Landlord is needed to manage and maintain the property under lease. References Galbraith, A, Stockdale, M, Wilson, S, Mitchell, R, Hewitson, R, Spurgeon, S, Woodley, M, & Davenport. A 2004, Galbraith’s Building and Land Management Law for Students’, Butterworth-Heinemann, UK. Johnstone, D, & Markesinsis. K 2008, Markesinsis & Deakin’s Tort Law, Oxford University Press, UK. Lunney, M, & Oliphant. K 2003, Tort Law- Texts, Cases, Oxford University Press, UK. Zweigert, P, & Kotz. H 1998, An Introduction to Comparative Law, Clarendon Press, Oxford. 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