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Flashcards in Real Property Torts Deck (14)
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1
Q

Types of trespass:

A
  1. Temporary (abateable)

2. Permanent (uninterrupted)

2
Q

Legal Damages for Trespass

A
  1. General
    a. FMV Diminution
    OR
    b. Repair/Remove
  2. Special
    a. Objective loss of use of land
    b. Subjective, personal annoyance and discomfort
3
Q

When Cost to Repair Exceeds FMV Diminution

A

Generally: The FMV Dimunition is the Ceiling to Recovery
However:
1. The character of the Real Property may sway for no ceiling (Business property - just diminution, personal home - may get cost of repair and removal)
2. The type of trespass may sway for no ceiling (Permanent trespass - ceiling, Temporary - Repair and removal)
3. The type of Defendant may sway for no ceiling (willful - no ceiling, inadvertent - ceiling)

4
Q

What Special Legal Damages are Available for Trespass?

A
  1. Objective (loss of use of land)

2. Subjective (personal annoyance and discomfort)

5
Q

Elements of Ejectment:

A
  1. Prove Plaintiff’s Right to Possesion

2. Defendant’s Wrongful Witholding or Remaining

6
Q

Remedies when suing for Ejectment

A
  1. Recovery of property (Sheriff dispossess Defendant)

2. Mesne profits (forced rent)

7
Q

Maxims of Equitable Injunctions

A
  1. Equity will not try title

2. Normal Injunction Rules Apply

8
Q

Balancing Property Interests in an Equitable Injunction

A

Traditionally the rights of a property owner are weighed highly

BUT

Good faith and de minimus trespass may be alright and
Restrictive covenants and Zoning can really tip the scale

9
Q

Nuisance per se is

A

Activity that by its nature interferes with plaintiff’s use and enjoyment of the property

10
Q

Nuisance per accidens

A

Activity that is not itself a nuisance, but the way it is done interferes with plaintiff’s use and enjoyment of the property

11
Q

A public nuisance

A

An interference with the public at large’s rights to health, safety, and welfare

12
Q

Standing for a private citizen to sue for a public nuisance requires

A

The plaintiff suffered a special injury besides the common health, safety and welfare (such as lost sales, etc.)

13
Q

Effect of a private nuisance suit on future public nuisance suits

A

Private nuisance suits are not res judicata (claim preclusion) for public nuisance suits (although the reverse is true)

14
Q

Public nuisance suits against criminal behavior

A

Generally there is an adequate remedy at law (the criminal law) but courts have enjoined non-criminal aspects of a criminal course of conduct (like an injunction against running a gambling house, or drugs, or prostitution or gang related activities).