Can the Owners of Land Suffer Harm and Tort Serves to Rectify the Situation - Essay Example

Law of Property Professionals Number Department Introduction It is an indisputable fact that owners of land are susceptible to harm and do suffer harm. As such, the law of tort serves to rectify this situation. In itself, land is defined as the surface, subsoil, airspace surrounding it, and any other thing that may permanently be attached to this land. The gravity of this definition is that it paves way for a wider scope, given that anything permanently attached to this land may include houses or other forms of property. Secondly, this definition means that unpermitted entry on land, below, or above its ground, or the airspace above it may be considered as trespass. Again, the airspace surrounding land may also introduce the need for proper qualification, since the rights of the landowners over this airspace may not be unlimited. Thus, in light of this, the manner in which owners of land are susceptible to harm, suffer harm and are restituted through the application of tort law is to be seen in the discussion which ensues forthwith. Despite the variations that characterise the definitions above, the concept of possession of land features constantly. This is because it is sacrosanct in sustaining the case. Possession of land is a salient feature herein, since this tort law was developed to protect only owners of the land, only the owners of land may sue. The gravity of this provision is that landlords, licensees or lodgers of leased premises lack the exclusive possession of land and may therefore not sue. Subtenants and tenants are nevertheless allowed to sue. First it is important to take stock of the fact that land owners can suffer harm from criminal acts and offenses that range from trespassing, theft, interference and even being a nuisance. For one, trespass to land in this case is essentially the unjustifiable interference with land that is under the exclusive and immediate possession of another party. It may also be alternatively defined as the intentional direct interference with another party’s possession of land, without the lawful justification which is actionable, per se. This trespass to land may also occur where a person directly makes entry upon another person’s land or remains upon that land, or places or projects any object upon that land without permission. Basely v. Clarkson (1681) 3 Lev. 37 epitomises the charge that walking onto land outside the owner’s permission or declining to leave upon the revocation of that permission or throwing objects onto another person’s land amounts to trespass. Conversely, even real estate firms and other corporate entities are mandated to observe this law. The case, Bulli Coal Mining Co. v Osborne (1899) AC 351 also shows clearly that owners of land suffer harm when one trespasses against their subsoil. In this case, the Bulli Coal Mining Company had mined from its land through to the plaintiff’s land. The court ruled in favour of the plaintiff. Tawiah (2012, 57) contends that it is also possible for trespass to the airspace to be factored in tort cases of land owners suffering harm and being compensated for the same, in a court of law. Kelsen v Imperial Tobacco Co [1957] 2 QB 334 aptly exemplifies this situation. In this case, the defendant, the Imperial Tobacco Company committed trespass to the plaintiff’s airspace by erecting two advertising board into Kelsen’s property: one at the ground level, and the other, above the ground level. The court ruled in favour of Kelsen, and stated that the plaintiff be compensated. As a side note, one readily agrees with the input made by Steele (2007, 90) to the effect that Section 76 (1) of the Civil Aviation Act, 1982 makes provision to the effect that no action shall stand in trespass or in nuisance by reason of only an aircraft’s flight over any property at a reasonable level above the ground level. Nevertheless, it is also important to note that Section 76 (2) of the Civil Aviation Act of 1982 provides and confers a statutory right of action, in light of physical damage that may be caused only by an aircraft, with this statutory right being actionable without the proof of negligence being adduced in the court of law. Legal experts such as Burk (2000, 36) and Clark (2002, 139) are poignant that another way in which land owners may incur harm and may seek to be compensated through the provision of tort law is continuing trespass. Continuing trespass in this case refers to the failure of the defendant to remove himself or an object from land upon which he had unlawfully placed himself or upon which the object had been unlawfully placed. The cases Konskier v Goodman Ltd [1928] 1 KB 421 and Holmes v Wilson and others (1839) 10 A&E 503 show clearly that unlike trespass, continuing trespass warrants a cause of action every new day, for as long as it continues to last. Particularly, in the case, Holmes v Wilson and others (1839) 10 A&E 503, the defendant had built support for a road on the plaintiff’s land. The court ruled that the defendant pays for the damages that his act of trespass had caused. Again, the court ruled that the defendant be held liable because of his failure to withdraw the buttress from the plaintiff’s land (Mead, 2011, 75). Normally, the threshold for opening up the case on trespass to land is very small: proving that harm was sustained in order to advance a claim is not necessary. On the contrary, the claim is actionable per se. That this provision is broad, is a matter that is underscored by both intentional and negligent trespass being considered as applicable herein. For this, tort cases are largely intentional. Konskier v Goodman Ltd [1928] 1 KB 421, Holmes v Wilson and others (1839) 10 A&E 503 and Kelsen v Imperial Tobacco Co [1957] 2 QB 334 exemplify cases that touch on willful trespass. Conversely, accidental trespass is also factored into tort cases on land. This is because accidental, negligent or mistaken entry also brings about, the incurring of liability. While trespass to land is a form of intentional tort, intention for the act of trespass is essential, but not an intention to trespass. The import of this is that while deliberate entry is required, lack of knowledge concerning the trespass itself is not a defence, as was exemplified by the case, Conway v George Wimpey & Co [1951] 2 KB 266, 273 (John, 2003, 44). That the court takes mistaken entry as being injurious to owners of the land and is rectifiable through the law of tort, is a matter that is underscored by the case, Basely v Clarkson (1681) 3 Lev 37. In this case, the defendant owned land that was adjacent to the plaintiff. When mowing his own land, he inadvertently mowed down grass on the land belonging to the plaintiff. Collins (2010, 86) concludes that since the court had the defendant make restitution for the damage that the defendant’s land sustained, through his action, the law recognises the vulnerability of land owners or real estate owners to harm and the same law seeks to settle this problem through the stipulated and proper legal channels. McLaughlin (2010, 27) points out that negligent entry can also cause owners of land and real estate to incur losses and was considered in the case, League against Cruel Sports v Scott. In this case, the plaintiff owned 23 unfenced tracts of land. Staghounds belonging to the defendant would sometimes enter this land in pursuit of deer. The plaintiff opened a legal suit against the Masters of the Hounds for the damages that the land was subjected to, and sought an injunction against further trespass. In this light, the jury issued an injunction in light of an area constraining he defendants themselves, their mounted followers, their servants and agents from permitting or/ and causing the staghounds to cross or enter the plaintiff’s property. That the court took negligent entry as a serious matter that shortchanges the owner of the land is first underscored by the judge ruling that the defendant pays for the damages for the six trespasses that had been committed by the defendant, his agents and staghounds. Secondly, the seriousness of the matter (negligent entry) is felt in the weight of the judge’s ruling. The judge waxed poignant that in an instance where an owner of staghounds takes out a pack of staghounds and willfully sets them in pursuit of a deer, being conscious to the fact that there is a real risk that while in pursuit, the hounds may cross or enter prohibited land, the owner becomes liable for trespass. Feng-Sing (2002, 89) explains that this is if the owner of the staghounds intentionally caused the staghounds to enter such land, or/ and when by his failure to exert appropriate control over these staghounds, he causes these staghounds to make an incursion on such land. According to Barret and Jordan (1996, 36), the exception to the development above is involuntary entry, which is somewhat different from involuntary entry. An involuntary trespass is not considered actionable, going by the case, Smith v Stone (1647) Sty 65. In this case, the defendant was carried into the plaintiff’s land by others’ use of force and violence. It was determined that the trespass was committed by people who carried the defendant into the plaintiff’s land, and not by the defendant himself. Another exception to the law on trespass to land is when the case involves the defendant entering land that adjoins a road unintentionally. This is commonest in instances such as traffic accidents. In the same vein, it is imperative to note that in the presence of a licence, the law on trespass on land becomes fully met. In this case, the licence refers to a contractual, an implied or an express permission to enter land, according to the Landlord and Tenant Act of 1954. This means that in real estate law, the owner of the land may not sue for an incursion upon his land, provided he had given licence for entry- whether this licence comes in written or oral form, that notwithstanding. This situation is expressly typified in the case, Street v Mountford [1985] AC 809. In the aforementioned Street v Mountford [1985] AC 809, Mr. Roger Street had given Mrs. Mountford a term for occupation, for rent. This term of occupation took the form of a written agreement which was inclusive of an array of reference which in effect stated that it was a licence. In this agreement was also reinforced by several clauses which purported to consolidate Mr. Street’s rights of entry and termination of he same. There were also restrictions that specified what Mrs. Mountford could do on the property, such as bringing children and animals. This agreement was drafted in such a manner to create a licence that would not be subjected to the Rent Act, in lieu of tenancy which was to entitle Mountford to the protection provided in the Rent Act. It is against this backdrop that Mrs. Mountford applied for protection, and thereby opening a case that would proceed to the House of Lords. The Lords Scarman, Keith of Kinkel, Brightman, Templeman and Bridge of Harwich ruled that an agreement for exclusive possession at a rent for a term denotes readily, tenancy or lease, regardless of the names that the parties involved in it call it. The Lords in this case cited the Landlord and Tenant Act of 1954 which provided that if terms are incorporated into a licence, calling the document embodying the agreement does not make any provision for the landlord to sidestep laws and regulations that govern leases. Conversely, the law (or even real estate law) does not treat incidents wherein: the defendant has a private right of way that had been granted by the defendant; if the area involved is under public right of way; the common law provides the right situation of entry such as the right or the need to assuage nuisance; and when the right to access land or a given area has been declared as such by a statute such as Section 8 of the Party Wall Act, 1996 and Land Act 1992 as an act of breach (Kwolek, 1999, 141). It is also important to note that though cases of owners of land suffering harm was purely a matter of tort, the United Kingdom judicial reforms introduced conditions in which trespass to land could be taken as a criminal offence. This is because of the preponderance of cases of trespass that readily co-occurred with other criminal activities. In this light, a burglar in the UK may be charged as guilty on several counts of criminal offences, chiefly, (willful) trespass and burglary. Again, the susceptibility of land and real estate owners to suffer harm and the need to rectify this situation through the use of tort is further underscored by the remedial provisions that the law has put in place. The remedies in this case include: the declaration of damages; the issuance of injunctions to prevent further or future acts or cases of trespass, as the court of law deems discretionary; and the determination and enforcement of an action for recovery of land in the event of an act of ejectment (when a person has been deprived of lawful possession of this land). Fletcher (1971, 22) takes the immediately foregoing as being only practical, executable and observable with the restrictions that an action may not be brought to recover land, upon the expiry of 12 years from the time in which the right of action was realised. This is according to Section 15 of the Limitations Act, 1980. Another restriction to the matter at hand is that going by the Eviction Act, 1977, a residential occupier or tenant cannot be evicted by his landlord outside the existence or provision of a court order. As is divulged by Bar (1979, 75), in like manner, the procedure for dispatching squatters is supposed to conform to Schedule I of the Civil Procedure Rules which were known as the RSC Ord. 113. The binding nature of Schedule I of the Civil Procedure Rules was seen in the manner in which it determined the verdict of the case, Countryside Residential Ltd. v Tugwell (2000). In this case, the court ruled that the real estate owner or landlord had no onus to evict a tenant or a resident without a court order. Conclusion The foregoing clearly shows that the law recognises the vulnerability of landowners and real estate owners to losses or harm, and seeks to redress their plight through legal mechanisms. The converse of this is that the absence of this recognition of the law of land ownership readily brings about a desperate situation bereft of the recognition of the right of privacy and the freedom to own private property. Given that the law on land ownership protects even the interests of the tenant, those who find land laws as tending towards capitalism must appreciate their wrongness. Particularly, tenants who are relatively poorer than land and real estate owners are protected from the oppressive and exploitative acts of landlords or landowners through special provisions such as Schedule I of the Civil Procedure Rules, Section 15 of the Limitations Act, 1980 and the Eviction Act, 1977. References Bar, T. 1979. Annual Survey of Commonwealth Law. Cambridge: Cambridge University Press. Barret, P. & Jordan, R. 1996. “Private Law: Tort.” Legal Frameworks for the Built Environment, 21 (11): 34-45. Burk, D. L. 2000. “Trouble with Trespass.” Small and Emerging Business Journal, 7 (5): 31-45. Cane, P. 1997. The anatomy of tort law. London: Longman Publishing. Clark, B. 2002. “Migratory things on land: property rights and a law of capture.” Journal of Comparative Law, 2 (4): 84-139. Collins, L. 2010. “Protecting Aboriginal Environments: A Tort Law Approach.” Critical Torts, 4 (1): 84-125. Feng-Sing, T. K. 2002. “Harassment and Intentional Tort of Negligence.” Journal of Legal Studies, 2 (4): 71-101. Fletcher , G. P. 1971. “Fairness and utility in tort theory.” Harvard Law Review, 7 (6): 22. John, C. 2003. Law of Tort. Oxford: OUP. Kwolek, J. K. 1999. “Aspects of geo-legal mitigation of environmental impact from mining and associated waste in the UK.” Journal of Geochemical Exploration, 8 (2): 141. McLaughlin, Y. 2010. “Rambler & the Farmer: An Irish Property Problem-The Rambler, Farmer & Rights over Land.” Galway Student Law Review, 3 (5): 21-33. Mead, D. 2011. “Dropping the case against the Fortnum protesters.” British Politics and Policy at LSE, 6 (5): 75. Steele, J. 2007. Tort Law: Text, Cases, & Materials. Cambridge: Cambridge University Press. Strong, S. 2008. Complete Tort Law. Oxford: OUP. Tawiah, T. 2012. “Privacy Right and Common Law Protection.” Journal of Law, Policy and Globalization, 6 (5): 55-7. Read More