Torts: Waste & Nuisance

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Tort of Waste arises when ownership of land is 1, 2 or 3

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1. Divided into a present estate and future estate, for example a LE and remainder interest

2. Is shared simultaneously by concurrent tenants (JT, TC, TE)

3. Is mortgaged, allowing the MGEE (bank) to sue MGOR for waste

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Tort of Waste
Definition

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The tort of waste is any act or omission that diminishes the land’s value

An action is in WASTE, is to protect the interest of another who is in privity of estate in the same land

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Tort of Waste
Committed by:

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Tort of waste can be committed only by a person who is lawfully in possession of the land

If that person was not on the land lawfully, then the tot would be trespass and NOT WASTE

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Tort of Waste
Remedy

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The remedy for waste is money damages for past waste and an injunction to prevent future waste

Money damages can be sought by a concurrent tenant, a MGEE, or a vested reversion or remainder interest in a fee simple

BUT not by one with a contingent remainder with a possibility of reverter or with a rt of entry because it is too uncertain whether these future interest will EVER become present estates. These uncertain future interests can only seek an injunction and only if there isa reasonable likelihood that the future estate (interest) will become a present possessory interest

Front 5

CL. Waste & T/Life T substantially altering or demolishing a structure

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The CL doctrine of ameliorating waste prohibited a T or Life T from substantially altering or demolishing a structure even tho it would be replaced with something more valuable

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Today. Waste & T/Life T substantially altering or demolishing a structure

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Today by statute, most jurisdictions (NY) allow a LifeT or a T with a long term lease to tear down an old structure an replace it provided there is a substantial number of years remaining on the present estate and the alteration would increase the future interest

NY allows the future interest to demand a bond be posted to ensure completion of the new structure

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Nuisance

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Nuisance means to unreasonably annoy another

It arises where the D maintains an offensive condition or activity on her land that causes substantial and unreasonable discomfort to a person of ordinary sensibility on neighboring land

For example
i. Loud noise (bar noise)
ii. Smoke
iii. Dust
iv. Unpleasant smells or
v. Vibrations

It is nontrespassory unreasonable invasion of the P’s use and enjoyment of her land

Front 8

CL tort of nuisance

Back 8

The CL tort of nuisance did not describe any particular conduct by the D it simply focused on whether D’s use of the land substantially and unreasonably interfered with the P’s enjoyment of her land

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Modern tort of nuisance

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Today most cts require the D’s intent, negligence or abnormally dangerous conduct, however, an intentional invasion for nuisance does NOT have to be inspired by ill will, thus a D who knowingly causes an offensive invasion onto another’s property acts intentionally

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Types of nuisance

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1) A pvt nuisance annoys 1 person or only a few.

2) On contrast is a public nuisance where the annoyance is to the public at large. For example. Water or air pollution or a dump creating unreasonable smells in a community.

The remedy for a public nuisance is govt action

Generally individuals lack standing to obey a public nuisance unless they have suffered some injury unique and substantially different from the rest of the public.

Ex. Commercial fisherman suing GE who was polluting the Hudson which preventing fish form coming

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Damages
Tort of nuisance, trespass, negligence or waste, property damage

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Whether speaking of the tort of nuisance, trespass, negligence or waste, property damage is measured by 1 or 2

1) The decline in the mkt value of the affected property
or

2) The reasonable cost for repairs to restore the property to its former condition.

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"Coming to a nuisance" Doctrine

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The fact that the nuisance EXISTED WHEN THE P MOVED INTO THE neighborhood is just 1 factor in determining whether the D’s activities are unreasonable

this defense of “coming to a nuisance” which is similar to AR is asserted against a P who moved to a location where the D’s activities have been ongoing

this doctrine usually makes it harder for the P to prove a nuisance because the P’s purchase price was probably reduced because it was located within the nuisance area

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Nuisance
Balancing Test

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Most cts resolve nuisance claims by balancing the utility and value of the D’s activity and the gravity of the harm to the P’s land

1) A subsequent change in the neighborhood may alter the balance of the equities

2) An activity that originally was NOT a nuisance can become a nuisance if the surrounding area substantially changes

3) A continuing trespass for 10 years may ripen into a EUNUCH adverse possession or a PIGS easement by prescription, but NOT a continuing nuisance

4) However, the NY 3 year SOL (A SOFT RAIN) Limits the P’s damage recovery to the 3 years PRECEDING commencement of P’s nuisance action

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Nuisance
Passive unisightlyness

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Passive unisightlyness alone is NOT actionable as a nuisance (communities have gotten around this with zoning law)

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Nuisance
A refusal to alter a natural condition existing on the land

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A nuisance DOES NOT ARISE from a refusal to alter a natural condition existing on the land.

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Nuisance
Standing

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In order to sue for nuisance, the P must have SOME interest in the adversely affected land

For example. As an owner, T, lifeT, or a family member

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Nuisance
Stigma damages reducing the value of the P’s land

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Stigma damages reducing the value of the P’s land caused by the D’s storage of dynamite, toxic waste, or opening a drug treatment clinic, is not tortious even though it lowers the value of the P’s land

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Nuisance Remedies

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There are 3 possible remedies for the tort of nuisance

1) Injunction where the ct will balance the equities by using the comparative hardship test

2) Self help which is risky because it exposes the person seeking to abate the nuisance to possible liability for trespass and property damage

3) Money damages to compensate the P for the loss of the value of the P’s property plus any discomfort flowing from the nuisance such as illness or personal inconvenience to the P and her family