Property Ii- Mkm

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Nuisance

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an unprivileged interference with a person’s interference with the use and enjoyment of land

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Trespass

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invasion of the possessor’s interest in exclusive possession

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Private nuisance

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Involves interference with the private use and enjoyment of one or a number of nearby properties. A private nuisance is conduct that causes a substantial interference with the private use of land and is either (i) intentional and unreasonable, or (ii) unintentional but negligent, reckless, or resulting from an abnormally dangerous activity (for which there is strict liability). A person cannot sue claiming a private nuisance unless she has a property interest that is affected or alleges bodily harm as the result of the activities complained of

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Public nuisance

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Interference is with a right common to the general public

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Intentional nuisance

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The primary factor in determining an intentional nuisance is the unreasonableness of the interference with the neighbor’s use and enjoyment. Under the Restatement (Second) of Torts, any intentional invasion
of an interest in the private use and enjoyment of land is unreasonable, and therefore a nuisance, if the gravity of the harm outweighs the utility of the actor’s conduct. Even if the utility of the conduct outweighs the gravity of the harm, an activity can still be a nuisance if the harm is serious and the defendant can afford to pay those damaged.

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Gravity of the harm- Restatement

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The Restatement lists the following factors to be considered in determining the gravity of the harm: (i) the extent of the harm; (ii) the character of the harm; (iii) the social value of the use or enjoyment invaded; (iv) the suitability of the use invaded to the locality; and (v) the burden on the person harmed of avoiding the harm.

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Utility of the conduct- Restatement

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The Restatement lists the following factors to be considered in determining the utility of the conduct of the invader: (i) the social value of the primary purpose of the conduct; (ii) the suitability of the conduct to the character of the locality; and (iii) the impracticability of preventing or avoiding the invasion.

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Fault- Restatement

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The fault of the defendant is not controlling, but the failure of the defendant to use due care in avoiding the harm may be a ground for imposing liability. In some cases, courts have imposed liability on the defendant even though she has taken all reasonable precautions and is in no way at fault. They have concluded that the gravity of the harm outweighed the utility of the conduct.

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Unintentional act

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An unintentional act may give rise to a nuisance when the conduct in question is reckless or negligent or involves abnormally dangerous activities. Nuisances of this type are uncommon, but an example is the storage of dangerous explosives.

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“Nuisance per se” vs. “nuisance in fact”

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Courts sometimes distinguish between a “nuisance per se” (an activity that is a nuisance no matter how reasonable the defendant’s conduct) and a “nuisance in fact” (an activity that is unreasonable under the particular facts). However, the distinction is of dubious
value, because it conflicts with the basic concept that a nuisance is determined by whether the activity causes an unreasonable interference with the use of another’s land—not whether the activity is unreasonable regardless of the use of the other land. The tendency
of courts that have found nuisances per se is to limit them to unduly hazardous activities (e.g., storage of explosives), unlawful activities, or highly objectionable uses in the particular district.

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Character of the harm- Depreciation of property value

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Use of property in a manner that depreciates the value of surrounding property is not enough by itself to constitute a nuisance.

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Character of the harm- Discomfort

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Serious discomfort and inconvenience in the use of land is another important factor in determining a nuisance. Objectionable noise, odors, or smoke are frequently the interference complained of. The standard of unreasonable interference is measured by the sensibilities of the average person.

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Sunlight

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It has been held that blocking a neighbor’s roof solar collector can be enjoined as a nuisance.

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Spite fences

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A spite fence, erected solely to harm the neighbor and of no economic benefit to the erecting party, can be enjoined as a nuisance. Such conduct has no social utility.

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Fear of harm

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If the use is a dangerous one that puts the adjoining neighbor in fear of harm, this is a significant factor in declaring a nuisance (e.g., storage of high explosives, mental hospital, leprosarium). The reasonableness of the fear is tested by general community beliefs and extrinsic
evidence based on experience. And, of course, even though people fear a use, it may be permitted to exist because it has high social value.

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Fear of Harm example

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Example: The owner of Blackacre wants to put a “halfway
house” on Blackacre to provide temporary residence for selected parolees from state prison. It has been held that a halfway house, which has a high social value, is not a nuisance in a residential area because the fear of bringing criminal activity to the neighborhood is speculative. Until established and tried, the halfway house is an “unknown quantity.”

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Use authorized by zoning ordinance

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A zoning ordinance is admissible in court to show community policy with respect to desirable land use within a neighborhood. However, the fact that the defendant’s use of her land is consistent with local
zoning is not controlling in an action for private nuisance. Even though the ordinance may permit the use generally, the specific activity may be carried out in such a manner as to constitute an unreasonable interference with the particular adjoining properties.

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Social value of conflicting uses

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One of the primary objects of nuisance law is to avoid the more serious harm. Society does not want to resolve conflicts in such a way as to make it poorer. If one party’s conduct has great social value (e.g., a factory employing many people), a court will be reluctant to enjoin it as a
nuisance. On the other hand, if the harm is serious and the payment of damages will not shut down the plant, the court may order the payment of damages for nuisance and refuse to enjoin the activity.

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Priority in time

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Another important factor is which of the conflicting uses was first located in the vicinity. If the defendant’s use was first, the plaintiff has “come to the nuisance” and has a less appealing case because she could have avoided the harm.

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Exam Tip

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Coming to the nuisance is a popular exam ploy. Watch out for a fact pattern with a sympathetic defendant—such as a farmer whose family has been raising pigs on the same plot of land for generations without complaint from neighboring farmers, but who has been receiving complaints over the past five years from rich urban lawyers who have moved into country estates built by developers who bought out all of the farmer’s neighbors. If the lawyers file a nuisance action, although some courts will take into account the plaintiffs’ coming to the nuisance, in no court will that fact be determinative—all other relevant factors will also be considered, such as the suitability of the farmer’s use to the neighborhood, the value of the properties in question, the costs of eliminating the condition complained of, and the so-
cial benefits of allowing the use to continue.

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Intentional nuisance

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The plaintiff must show (i) unreasonable interference; and (ii) substantial injury. The court may, in its discretion, give damages for past conduct or permanent damages for future conduct or an injunction. The remedies for nuisance are more flexible than for trespass.

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Air pollution

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Air pollution can be classified as a trespass on the theory that unseen but measurable particles are entering the plaintiff’s land. Or it can be classified as a nuisance, an interference with plaintiff’s enjoyment of clean air. Restatement (Second) of Torts section 826(b) (supra, §1313) permits a court to treat air pollution as a nuisance—even if the utility of the conduct outweighs the gravity of the harm—if the harm is serious and the defendant can afford to pay those damaged.

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Economic Analysis

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Economic analysis is increasingly used by modern courts in solving problems of nuisance, including what remedy to give.

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Externality

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a cost (or benefit) of any given action that is not taken into consideration by the actor in determining the level of that activity that is optimal from the actor’s point of view

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Transaction costs

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The holdout and free rider problems mean that when there are many parties, the costs of transacting are high. When there are few parties, transaction costs may be made high by strategic behavior.

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Initial allocation

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The initial allocation of the right is called the “entitlement.”

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Give to highest valued user

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If the market says that the right is going to end up with the party who
most values it, allocate it there initially and avoid transaction costs. By
eliminating transaction costs, the total wealth of society is increased.
Economic analysis favors reduction of costs. Another way of phrasing this argument is to say: Allocate the liability (not the right) to the cheapest cost avoider, the person who can eliminate the conflict at the least monetary cost. This will reduce total costs to society.

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Healthy environment

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Another noneconomic argument for allocation of the property right (or entitlement) is that it is morally right for society to guarantee a minimally healthy environment. A person should not be subject to certain health risks, no matter how economically inefficient such a policy might be.

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Judicial remedies

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Injunction, damages, enjoin A and give A damages, refuse B damages or an injunction

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Public nuisance

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A public nuisance affects the general public, whereas a private nuisance affects only particular individuals. A public nuisance is widespread in its range or indiscriminate in its effects. Uses classified as public nuisances include gambling, prostitution, nude sunbathing, air pollution, and rock festivals. The underlying test of a public nuisance is the same as for private nuisance: substantial harm caused by intentional and unreasonable conduct or by conduct that is negligent or abnormally dangerous. Unreasonableness turns primarily on the gravity of the harm balanced against the utility of the activity

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Enforcement of a pubic nuisance by a private person

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A private individual may act against a public nuisance only if she can show
that the nuisance is specially injurious to her. The person does not have to own any affected land (as in private nuisance), but she must show that the damage to her is of a different kind than the damage to the public at large. It is not enough to show that she suffers the same kind of harm as the general public but to a greater extent.

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Exam Tip

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Be careful not to confuse the requirements to bring a private nuisance action with those for a private individual to bring a public nuisance action. To claim a private nuisance, a person must have a property interest that is affected or must allege bodily harm. For a private individual to have standing to sue against a public nui sance, that person need not own any affected land, but must show a special injury different from the public at large.

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Use authorized by statute

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If a use is authorized by statute or ordinance, it is not a public nuisance and cannot be enjoined. Even so, what would be a public nuisance (in the absence of a statute authorizing it) may be treated as a private nuisance if special injury is shown. Zoning ordinances are not defenses to a private nuisance suit

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Right to lateral support

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A landowner is strictly liable if she changes her land use so as to withdraw lateral support from her neighbor and cause her neighbor’s land to slip or fall in. It is no defense that the excavator acted with the utmost care and not negligently. The absolute right to support of land is based on the idea that fairness requires that adjacent landowners not disturb the natural conditions so as to deprive the other’s land of lateral support.

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retaining walls

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Although a landowner is not liable for failure of support because of an act of God (erosion, storm, flood, etc.), decay or deterioration of a retaining wall is not an act of God so as to relieve the excavator from liability. Once a landowner changes the natural conditions and erects an
artificial support, she and all subsequent owners of the changed property have a duty to maintain such support.

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Right to support of buildings on land- majority view

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Strict liability for withdrawal of lateral support to a neighbor’s property does not extend to buildings on the neighbor’s land. There is no obligation to support the added weight of buildings. Where an adjacent landowner excavates and provides sufficient support to sustain the weight of the neighboring land in its natural state, but the neighboring land slips because of the weight of the buildings on it, the excavator is not liable
in the absence of negligence. On the other hand, if land would have slipped even in its natural state (i.e., without the buildings) because of the excavation, the neighbor who withdraws support to the land, resulting in damage to the building, is strictly liable for damage to the land
and the building. The crucial fact is whether the weight of the building placed so much pressure on the land that the building caused the subsidence when the neighbor withdrew support. If it did, the neighbor is liable only for negligence.

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Right to support of buildings on land- minority view

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In a minority of states, an adjacent landowner has the same strict liability for failing to support neighboring buildings as she has with respect to land. Statutes and city ordinances adopt this position in many states.

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Exam tip

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Keep in mind that at common law, strict liability for withdrawal of lateral support did not apply where the damaged land was improved with buildings; instead, if the weight of the building caused slippage of the land, the excavating landowner was liable only for negligence. However, the common law rule has been replaced in some states, most large cities, and the Restatement (Second) of Torts. If you get an exam question involving a building that collapsed because of a neighbor’s excavation, be sure to mention both views. Also note that the minority (Restatement Second) position protects the first builder and so encourages development, but also discourages development somewhat because it imposes (slightly) increased costs on subsequent builders.

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Rights in airspace

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The real test of a surface owner’s rights is whether use of airspace harms the surface owner. If it does not harm
the surface owner, intrusions in airspace by aircraft are not actionable.

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Noisy flights as inverse condemnation

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If the noise of airplanes flying over land constitutes a direct and continuing interference with the enjoyment and use of the surface, a governmental body may have taken property for which compensation must be paid under the Constitution.

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Inverse condemnation

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Inverse condemnation is an action brought by an owner against a governmental body having the power of eminent domain. The purpose of the action is to recover the value of property that in effect has been taken by the government, although no formal exercise of the power of
eminent domain has occurred

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Noisy flights as a nuisance

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If noise pollution from airplanes is classified as a nuisance, the landowner can collect damages.

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Rights of neighboring landowners

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A landowner whose land is near, but not directly under, the flight path may suffer nearly as much noise and air pollution as those owners directly under the flight path. However, because an aircraft has not entered the landowner’s airspace, it may be difficult for the landowner to claim a taking of an easement for noisy flight. On the other hand, a few state courts have permitted a recovery on the theory that the noise constitutes a physical invasion interfering with the neighboring owner’s enjoyment

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Injunction not available

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Note, however, that a court cannot issue an injunction, as this would interfere with the regulation of air traffic by the appropriate governmental agencies. In addition, an injunction would be an economically inefficient way to allocate airspace, because it would require the airline to buy out the landowners, each of whom might hold out for an unreasonable price. The award of damages means that the landowners are forced to sell a navigational servitude for noisy flights at a price set by a jury.

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Neighboring lands may recover

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Because a nuisance does not necessarily involve a physical invasion of the landowner’s space, this theory permits recovery of damages by landowners whose airspace is not entered by the airplanes, but whose enjoyment and use is substantially harmed.

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Exam Tip

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Overflights can constitute a taking of an easement, and the landowner can bring an action for inverse condemnation.

Because an action for inverse condemnation alleges a taking without just compensation as required by the Fifth Amendment, the action can be brought only against a government agency (e.g., the military if they are making the overflights, the airport authority, or perhaps the Federal Aviation Administration if they approved the flights); private parties are not subject to the proscriptions of the Fifth Amendment.

Private parties may be liable in nuisance for noisy overflights, but check the facts carefully. Remember, nuisance will lie only for a substantial interference that is unreasonable as measured by the sensibilities of an average person. If the overflights interfere with an uncommon or ultrasensitive use of land (e.g., mink farming), they might not be actionable.