Wendy's Real Ppty Outline Spring I

Wendy's Real Ppty Outline Spring I - WENDYS PROPERTY...

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WENDY’S PROPERTY OUTLINE - PART II p 1 of 5 ADVERSE POSSESSION CONCURRENT AND MARITAL PROPERTY LANDLORD-TENANT NUISANCE CONVEYANCING NUISANCE PUBLIC NUISANCE - generally confined to governmental πs and affecting the public-at-large formerly : a general crime (solicitation, vagrancy, gang activity). modernly : statutory, criminal, or it’s no longer nuisance. Q UESTION OF L AW - criminal code or statue setting forth prohibited behavior. Statute/legislation defining public nuisance may define requirements and damages for private c/a, allowing private π suit w/o showing special damages Remedy : injunction/abatement. Q UESTION OF F ACT - conduct by person(s) is claimed to be a public nuisance as a fact (no specific ordinance). Remedy : injunction/abatement. P RIVATE C AUSE OF A CTION - Private party must show Special Damages , damages different both in kind and in degree than that suffered by public-at-large Remedy : immediate injunction ; CA also allows money damages Private party claims against public officials through writ of mandamus , that the official is slack in his duties PRIVATE NUISANCE P ER S E - activities on private property which are tantamount to per se nuisance, based on case law Q UESTION OF F ACT - the right thing in the wrong place, validity as a c/a is location-specific. C/L : “Assize of Nuisance”- claim that π was disturbed by things made or done on Δ’s property (likely between neighbors) CA : anything that is not a public nuisance, extending C/L to those who: • Created the nuisance, whether intentional, assisting, or unknowingly (chemical mfr’s wrongful use polluted the water supply) ; OR • Maintained the nuisance (new owner where a spite fence is existing must remove it or be liable) modernly : shift from Δ’s actions to interference w/ π’s use and enjoyment Continuing or Permanent (ex: neighbors playing loud music every night after midnight v. “spite fences”) Factors: abatable ( subject to injunction) or “unabatable” (cannot be ‘fixed’ money damages) Existence of nuisance must be determined first, then existence of damages E LEMENTS - ownership is not required; π must have a property interest may bring a c/a, even tenant or easement owner Substantial interference with π’s use and enjoyment of his property by Δ’s unreasonable conduct I NTENTIONAL / U NINTENTIONAL Intentional conduct by Δ: π must show the conduct was unreasonable (a lesser requirement due to Δ’s conduct) Unintentional conduct by Δ: π must show conduct was negligent, reckless, or abnormally dangerous R EMEDIES Injunction - using a COMPARATIVE INJURY ANALYSIS balancing utility v. harm, where cost is irrelevant but commercial uses are (usually) favored Money damages - “Those who would benefit should pay.” C OMING T O T HE N UISANCE formerly an affirmative defense, if Δ could show π “came” to an existing ‘nuisance,’ π is barred from recovering
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Wendy's Real Ppty Outline Spring I - WENDYS PROPERTY...

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