Nuisance & Land Use Conflicts Among Neighborshttps://guttulus.com/wp-content/themes/corpus/images/empty/thumbnail.jpg 150 150 tony tony https://secure.gravatar.com/avatar/aa9bbdf8f1e6bbf534778ecea7c0c925?s=96&d=mm&r=g
Nuisance & Land Use Conflicts Among Neighbors
Land Use Entitlements
Basic solution to Land use conflicts between neighbors
D’s privilege: freedom to act despite the harm
Damage without legal redress
P’s security: strict liability or absolute right to be free from the harm
P effectively has veto rights over D’s harmful activity
Authorized the D to engage in the activity if it’s deemd to be reasonabl but not if the conduct and/or the harm caused by it is deemed unreasonable
The extent of harm to P and social utility of P’s activity
Social benefit of D’s activity, measured by what society would lose by preventing the activity
Overall relative costs and benefits of the conflicting uses of P and D
Availability of alternative means to mitigate or avoid the harm; and the least cost avoider
Which use was established first
Prior Use: Appropriation or Prescription
Prior appropriation grants a right to commit the harmful activity to the person who first established her use.
basic ways to resolve land use conflicts
Important Rights of Landowners and Neighbors
Examples of Shifting Rights
Property law axiom: balancing the autonomy interests of owners against the security interests of neighbors
Coase and the Problem of Social Cost
Diffuse Surface Water
Armstrong v. Francis
D drained off excess water from its land by means of culverts and pipes, thereby causing injury to it’s neighbor, P’s, property.
The NJ court here adopts the reasonable use rule, as opposed to either the civil law rule or the common enemy rule. Under this rule, it is unreasonable for a developer of land to discharge of his excess water upon his neighbor’s land through the use of artificial waterways.
The developer is the least cost avoider as well as the latecomer in time.
The issue of reasonableness includes such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and other relevant matter.
Both the “common enemy” rule and the “civil law” rule are rarely enforced strictly by courts of varying jurisdiction. Most courts instead read in a “reasonable use” rule which has the virtue of flexibility.
Civil Law/Natural Flow Rule
Common Enemy Rule
Reasonableness Use Rule
A. Social Benefit From Development
Cost-benefit analysis; benefits and harms of preventing or allowing either party’s activities.
B. Cost-Effective Means to Avoid or Mitigate Harm
Least cost avoider
C. Gravity of Harm to P’s Property
Substantial harm to P is likely to be found unreasonable regardless of value of D’s development project.
* Motives of the parties
1. Rights: Freedom of Action Versus Security
2. Social Utility: Competition Versus Secure Investment
3. Formal realizability or administrability: rigid rules v. flexible standards
Crafting Legal Rules
1. Bright Line Rules
Tend to be over/under inclusive
2. Flexible Standards
Tend to lead to judicial bias and unpredictability
SL: absolute duty to provide lateral support to neighboring lands. P has entitlement
If would subside even without structure, same rule: D liable for all damages, including structure
We use a negligence standard to determine liability.
a. Proper Notice
c. Unreasonable Recklessness
Support from beneath the earth
Noone v. Price
P contended D breached her duty to supply lateral support P’s hillside home by allowing a retaining wall to fall into disrepair.
The wall had been built prior to the installment of P’s building on the land.
An adjacent landowner is strictly liable for acts of commission and omission that result in the withdrawal of lateral support to his neighbor’s land in its natural state.
If the land would have subsided without any structures on it, we go directly to strict liability.
If the land would not have subsided without structures on it, we go to negligence.
If, as a result of the additional weight of a building so much strain is placed on the lateral support that it will not hold, then in the absence of negligence, the adjacent landowner is not liable for any resulting damages.
At the time the retaining wall was built, there were no structures on P’s property, therefore the wall needed only to support the land in its natural state.
If P is to recover, he must do so by proving that the disrepair of the wall would inevitably led to the subsistence of his land in its natural condition, without the house upon it.
D became responsible for the wall when the land became her responsibility
Rights and Duties That “Run With the Land”
Right of lateral support is an example of a stick in the bundle corresponding to your land that is actually held by your neighbor.
A right on your land for some purpose (usually passage) held by someone else (usually a neighboring landowner)
Said to be a right that “runs with the land”
Common Law Nuisance
When you use your land in a manner that
(1) substantially, and
interferes with your neightbor’s use and enjoyment of own land.
A use that interferes with rights of the public in general, usually by threatening public health or safety.
The Adjudicator might consider;
a. which use was established first
b. any important rights implicated
c. extent of harm to P and social utility of P’s activity
d. social benefits of D’s harmful activity
e. any means to avoid or mitigate harm
least cost avoider?
f. motives of the parties
Manner, Place, and Circumstances, against Community Standards
Page County Appliance v. Honeywell
D placed a computer in a business adjoining P that interfered with P’s business of selling television sets.
Lawful activity constitutes a nuisance if unreasonably interferes with another’s enjoyment of his or her property.
A litigant need not show negligence in an action for nuisance; he need only show that it was unreasonable in the context in which it took place.
P cannot, by devoting his own land to an unusually sensitive use, make a nuisance out of conduct of the adjoining D, which would otherwise be harmless.
Social utility argument
There is a community interest in advancing technology
Right-based fairness argument
We have a right to conduct our business without the interference of others
Remedies (278 -81)
Prah v. Maretti (legal arguments)
Economic Analysis of Law
Critiques of Economic Analysis
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