Clark_11e-AM-Ch48.doc - C HAPTER 4 8 R EAL P ROPERTY AND L...

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377 C HAPTER 48 R EAL P ROPERTY AND L ANDLORD -T ENANT R ELATIONSHIPS A NSWERS TO Q UESTIONS AT THE E NDS OF THE C ASES CASE 48.1—(PAGE 983) THE ETHICAL DIMENSION At one point in their dispute, the Biglanes blocked off two parking lots that served the Saloon. Was this an unreasonable interference with the Saloon’s rights? Explain. The Saloon claimed that the Biglanes’ act was “a tortious interference with a business relationship.” This requires an act that is intended to, and does, damage a business, “without right or justifiable cause” (i.e., with malice). The trial court ruled in favor of the Saloon on this claim, despite finding no actual damage (in fact, the Saloon’s business had increased), and awarded nominal damages because of the intentional nature of the act. The state supreme court reversed the award. Although the ownership of one of the lots was in dispute (the Biglanes owned the other one), actual damage was an important element of this claim, and in this case none was shown. THE LEGAL ENVIRONMENT DIMENSION Could repulsive odors emanating from a neighbor’s property constitute unreasonable interference with a property owner’s rights? Why or why not? Yes (for example, a property owner might be overwhelmed by the repulsive odors of a rendering plant). The general rule is the same—“a business, although in itself lawful, which impregnates the atmosphere with disagreeable and offensive odors and stenches, may [unlawfully interfere with the right of] those occupying property in the vicinity, where such obnoxious smells result in a material injury to such owners”—according to the court in the Biglane case. An injunction would likely be the proper remedy. CASE 48.2—(PAGE 990) THE ETHICAL DIMENSION Should the court have rescinded the sale despite the running of the limitations period on the Whiteheads’ sewer claim? Why or why not? Yes, it seems only fair, considering the cost to fix the problem, the amount of the seller’s profit,
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378 UNIT TEN: PROPERTY and the fact that the septic tank was in the same place as when the sale occurred. No, because a seller (non-owner) should not be subject to potential liability beyond a reasonable period of time—at some point any problem, particularly one of which neither party was aware at the time that the property changed hands, must become the responsibility of the buyer (owner). THE LEGAL ENVIRONMENT DIMENSION In Louisiana, a seller who knows of a defect and does not inform a buyer can be liable for the buyer’s attorney’s fees in a suit based on that defect. Did Humphrey qualify as such a “bad faith” seller in this case? Explain. Yes. The Whiteheads argued that “Humphrey was a seller who knew of the existence of the defect, plac[ing] him in the category of the so-called bad faith seller entitling them to attorney's fees.” The court agreed. “[T]he trial court expressly addressed and decided the factual issue of Humphrey's knowledge of the rotten sills upon which hinge . .. the enhanced
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This note was uploaded on 03/17/2011 for the course LAW 1024066 taught by Professor K during the Spring '09 term at Fairleigh Dickinson.

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Clark_11e-AM-Ch48.doc - C HAPTER 4 8 R EAL P ROPERTY AND L...

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