ANSWER A
The issue is what remedies Peter has against Diane for the damages to his restaurant business and the trespass on his property, and on what theories of liability he may base his claims. Peter has three causes of action for Diane's (1) encroachment on his property, (2) destruction of his tress and interference with his vegetable garden and the consequential damage to his restaurant business, and (3) use of Peter's land as a parking lot.
1. Peter v. Diane for encroachment of Diane's building on Peter's property
Theories of liability
Peter may bring a claim against Diane for trespass of land, which is the defendant's
intentional entering of plaintiff's real property. Whether the defendant knew that he or she was trespassing on another's property is irrelevant for purposes of determining intent. As long as the defendant intended to enter the land, an action, for trespass of land lies. Here, Diane built an office building on her land, but which encroached about ten inches on Peter's adjacent property. While Diane did not know at the time she had encroached onto Peter's property, and did so only because her Jot was so narrow and did not have much latitude in the design of her building, she had, in fact, intentionally built her structure so that, in effect, it did encroach on
Peter's property.
Therefore, Diane has trespassed onto Peter's property and she is liable for trespass of land.
Legal remedies: Damages
Usually, for non-possessory trespass, the only remedy available is nominal damages,
which are damages merely to vindicate the plaintiff's legal right. These are damages awarded in the absence of a showing of actual damages. While Peter's legal rights as to his property were violated, here, however, there is a continuing or permanent trespass, for which Peter may pursue a number of remedies.
Peter may pursue compensatory damages for Diane's encroachment on his land.
mpensatory damages are a measure of the harm done to the plaintiff. There must be actual
sation, proximate causation, certainty of the value of damages, and un_avoidability. Here,
ane's ten inch encroachment on Peter's land is the actual and proximate cause of her
spass on his land. The certainty of the damages can be measured by the value of the land.
lly, there is little Peter could have done to avoid or mitigate Diane's damages because he
not know that Diane was encroaching on his land at the time.
Punitive damages are not likely to apply since Diane's conduct was not malicious or
Therefore, Peter may pursue compensatory damages in the form of rental value for the , or a measure of diminution of value of his land.
Legal restitutionary remedies: Ejectment
Ejectment is a legal action that the plaintiff may take to reclaim real property to which
sh~ has a legal right of possession, and which the defendant is wrongfully and actually
ng. Here, Peter has a legal right of ownership of the ten inches of land on which
has encroached and is wrongfully and actually possessing the presence of her building.
Therefore, Peter may seek and ejectment action to force Diane to remove the ten inch roachment on his land.
Equitable remedy: Injunction
Peter may also seek to enjoin Diane from using his land. Peter must show that t~ere
inadequate legal remedy alternative, that he has a property right or prbtectable interest,
enforcement is feasible, that the balancing of hardships weighs in his favor, art1:1 that there
defenses that can be asserted against him.
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First, Peter will have to show that money damages do not adequately Here, Diane has encroached about ten inches onto his property. Be
indicate that the ten inch encroachment caused any other damages besid
his land (the fact that the building itself caused other consequential damag
below), money damages will probably be adequate.
Second, Peter clearly has a property right on the ten inch encroac Peter will win on this -point.
Third, enforcement is not likely to be feasible because the sheriff, injunctive action, is not likely to order Diane to tear down her building encroaching on Peter's land. Therefore, Petef''Will most likely lose on this
Fourth, the balancing of hardships is likely to weigh in Diane's favor encroached only abo~;~t t~n inches ori Peter's land. On the other hand, Dia in her building since it opened in 1998, and most of them have leases To remove t~~ encrpaching V)(all would be costly to Diane, would reduce the wo~:~Jd disruJ;>t the tenapts o.n the encroaching sid~ of the building suffici claim a constructive or e,verr an. actual eviction. Therefore, 'Diane damages to t1er building, but would suffer long-term fallOut from tenants leav breaking their leases. Bec.allse the harm to Diane is great and the harm to small, Peter is likely to Jose on this point:
~iha!ly, Piane ITlay assert 1aches in that Peter sHould have
coostruc~ion of her QUilding. She will likely lose on this·point because nAii~'"'~·~r she nor Peter realized the bui!9ing had encroached about· tefl inches.
t'
In conclusion, th~balancing of hardships will most likely prevent inju.nc;tipn. Therefore, mon~v. damages, as. discussed: above, will most likely 'for Peter.
35 s his inJury.
the trespass on will be discussed
ent. Therefore,
.
Here, Diane has has had tenants several years. space, and that they could not only suffer g and justifiably·
is relatively
the land during
ANSWER B TO ESSAY QUESTION 4
e first issue is whether Diane (D) is liable to Peter (P) for her encroachment. hboring landowners can be liable for encro~chment whenever the improvements n their land physically intrude onto the property of another. Here D's building clearly unts as such an intrusion and the slightness of the intrusion ( 1 0 inches) does not the encroach.ment from being actionable. Neither is D's liability affected by her [n]or the fact that she had little latitude in the construction of her building h her inadvertence ensures she may not be sued for a trespass to land).
rharotnra, P may sue D for encroachment.
next question is how much damage P is entitled to collect. The damages typically for an encroachment depend on the duration of the encroachment. Where an croachment is permanent, P will be awarded the market value of the encroached." land. Where the encroachment is only temporary, P will be given the fair rental lue of the encroached land for the duration of the encroachment. Further, to collect mages, one must show that D's acts were the factual and legal cause of the
age, that the damage can be calculated with reasonable certainty, and that they taken all appropriate steps in mitigation.
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On these facts, D's encroachment is likely permanent (but see injunction below) and D can seek the market value of the taken land. Cause will be established by D's conduct, and P has no realistic means to mitigate. As to certainty, D would like{ly] take the fair market value of his entire tract, as determined by some reasonable means·, perhaps by consulting a professional estimator, and divide it by the percentage of land D encroaches.
Punitive Damages Punitive damages are intended to punish D for the wrongful conduct. Punitive damages can only be awarded, however, when D has acted willfully in the damaging of P's property. Here, D's acts appear to be inadvertent in every regard, so punitive damages will not be awarded.
Restitutionary Damages P Jllay also be entitled ,to collect the benefit D 'has enjoyed from the wrongful intrusion upon his land. Restitutionary damages are awarded to P where 0 has been unjustly enriched by some wrongful conduct, in the amount of that enrichment. Again, P could take the rental value of the tenements on the encroaching portion of the building and try to calculate the amount their rent would have to be reduced were it not for the extra space of the encroachment. This calculation presents serious certainty problems fc;>r P.
It should also be noted that P must elect ~hethet to collect actual or restitutionary damages, and-cannot collect both. P should select whichever method offers the
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greatest result, or, if either method cannot be proved to sufficient certainty, should select the one that can be.
Equitable lien If P does get a restitutionary award and D refuses to pay, or is somehow unable to, p may also seek to place an equitable lien on D's bank accounts, in the amount of the award. An equitable lien entitles a plaintiff to collect money from the other party without their consent, by giving the plaintiff a secured interest in the other's money.
Injunction The next important issue is whether P will be able to compel 0 to remove the encroaching portion of her building. A court in equity can order an injunction of this kind where the plaintiff's remedies at law are inadequate, plaintiff has a legitimate property interest, the court has jurisdiction of the subject matter, making the award "feasible," the balance of the hardships tips in the plaintiff's favor, and the defendant 'las no equitable defenses.
nadeguate remedies > will argue that an award of money damages dr restitutionary damages to P is 1dequate to compensate him for his loss. P will argue that because his loss is in real ' roperty, and all real property is unique, damages are rarely if ever adequate in such ases. The court will likely rule with P that damages cannot 'adequately compensate ne for a loss of real property.
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Feasibility From these facts, it appears that the two properties and both parties all reside in the same state. In such a case, there are no barriers to a court enforcing its orders. If·, however, either party were from a different state or the properties were somehow straddling state lines, there could be a problem with [the] court ordering an injunction.
Balancing of the hardships Balancing allows the court to weigh the respective damage that each party will incur if the injunction is granted or if it is denied. Balancing is considered especially appropriate in cases of encroachment and nuisance.
Here, the encroachment is rather small and P is suffering little harm from his inability to use this 10 inches of his land. If P had some plans for his land that the encroach.ment were somehow preventing, that would weigh in his favor, but on these facts, his hardship is not gn~at.
D by contrast will lik,ely incur great costs to abate the encroachment. It is certainly possible that her building will have to be torn down entirely. 'At a minimum, her tenants on that sjde of the building will have to leave their tenancies for a substantial period and tenants in .the rest.. of the ·building will have to tolerate the noise and commotion of ongoing constru~tion. D will likely suffer great economic harm if such an order is given.
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There are no obvious equitable defenses (e.g., unclean hands, laches) presented by these facts. It seems that both parties acted in good faith and were simply unaware of the boundary lines.
Conversion of the trees
P can also sue D for the destruction of the trees on his property. A case of conversion
I be made out where one intentionally destroys or otherwise substantially damages
property of another. Here, D's conduct was "inadvertent" so an action for
nversion will not lie.
may also sue if D was negligent in the destruction of the trees. Negligence requires
duty between the parties that is breached, causing damage. Here, neighboring
owe each other a duty to perform construction competently, but the facts
not indicate whether D was negligent in the destruction of P's trees. However,
r the doctrine known as res ipsa loquitor P can still collect on a negligence theory
1) the instrumentality of harm was under D's exclusive controC 2) the type of
is one that wopld not normally occur without negligence and 3) p was not at
lt. Since D was responsible for the construction, negligence will likely be presumed
res ipsa loquitor.
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collect for the value of the trees under the same rules announced above.
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Damage to garden
;
Whether P may also collect for the rising costs of tending his garden tur~s on issue of
;
causation, certainty and mitigation. Again, P will have to show that the absence of the
! trees caused his gardening problems, he will have to establish a reasona~le means of
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calculating his costs, and will have to .prove that there were no steps hA might have
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taken to lessen his damage (e.g., erecting an alternate source of light filtrdtion). In the t
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end, the court would likely permit P to collect for his gardening costs.
Damage toP's business
.
P's right to collect for his lost business also presents serious certainty an~ causation
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problems. P's position will be substantially enhanced if his business ~as been in
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existence for a long time. The damages to the reputation of a newer bLsiness are
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frequently regarded as too speculative to be awarded by the courts. P must also show cl~ar causation. D will Jikely look to the surrounding community and ahy general decline in r~staurant revenues to explain P's losses. In the end, the court should rule
tha,t the damages -are too speculative.
Restitutionary damages •
P may not collect restitution as D was not enriched by the destruction of the trees.
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Ill. Encroachment by the parking. lot
I
Damages
That is, ~ will get the fair market value of the land encroached, unless
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Inadequate remedy
ction to remove the parking lot, in which case he will get the fair rental value of nd while it was covered. Again, an interest in land is considered "unique" and any payment of a large swath of the land like this would be considered inadequate.
also elect to collect from D the amount by which the parking lot has enriched s would be a relatively simple calculation, given that D has been charging her for use of the parking space. That is, P's case that these amounts are certain
also seek to simply have D and her tenants forbidden from returning onto the hich is almost entirely his. If he were successful, he could theoretically use the his own purposes. However, D would likely be able to recover in quantum for the amount she has enriched D's land with her construction of the parking
argue that ~ecause she's a trespasser, she is entitled to no recovery. On the court would likely allow D to recover for the amount she benefitted P.
principles explained above, P might get an equitable lien on D's accounts to prompt payment of the restitutionary damages he tnay be entitled to.
factors explained above, P could seek to have the lot completely removed.
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Balancing of the hardships
This calculation weighs far more strongly in P's favor than did the building. Here, o has taken a large portion of P's land, impairing his rights substantially. By contrast, D's only hardship will be the removal of the offending improvement and the loss of income it provides. D may also note that she may lose tenants if she has to give up the lot, but these hardships are all ones D brought on herself, and she cannot avoid them at P's
expense.
Conclusion
Therefore, the court would give P an injunction, ordering D to remove the lot from his land.