Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97
Permanent Injunctions Injunctions to Protect Property Interests
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- Possible Alternatives to Permanent Injunctions in Real Estate Cases
- 1. Live and Let Live
- 2. Modify the Property Rights
- 3. Remedial Alteration
- 4. Statutory Intervention BC Property Law Act
- Injunctions to Address Nuisance
Permanent Injunctions Injunctions to Protect Property InterestsThe law on permanent injunctions favours property owners. [see Lewvest;40 John Trenberth v. National Westminster Bank]41 Injunctions are generally the preferred remedy in real estate cases. Rationale: It’s a similar idea to specific performance in land contracts. Consumer surplus concerns, straight damages often inadequate, no substitute available, etc. The best way to protect a property right is through the use of an injunction. That way, no one can interfere with your right without striking a bargain. We want to create a market around these rights, and injunctions are the best way to do this. Where there has been a trespass, the harm to is the loss of their veto power the ability to exclude other people except with their consent. [Goodson v. Richardson]42 Note: this is a bit circular, since the only reason people have this veto power is because the courts grant injunctions. Note: we can also look at what the lost in terms of the bargain they might have been able to strike [recall Wrotham Park] There is a Sometimes, despite ’s strong claim to an injunction, courts will use their discretion to suspend/delay an injunction, to mitigate the impact on ∆ [see e.g. Woolerton v. Costain]43 Possible Alternatives to Permanent Injunctions in Real Estate Cases:Where the conduct of the ∆ is innocent, the burden of an injunction is oppressive, and other discretionary factors weigh against granting an injunction in relation to property, courts have four alternative routes: 1. Live and Let LiveIn cases of minor trespass, e.g., courts may adopt a de minimis approach: yes, there has been a trespass, but it’s so minor that the right it infringes won’t be enforced [see e.g. Bertram v. Builders Association of North Winnipeg; but see also Trenberth where the court chose to enforce anyway.]44 Where there is an established use of property by non-owners, an injunction may not be granted. [see Behrens v. Richards]45 2. Modify the Property RightsIn an age of air travel, it’s no longer realistic to treat overhead air travel as trespass. It’s nuisance, and it’s measured by whether it interferes with reasonable use – no presumptive injunction. [Bernstein v. SkyViews]46 An overswinging crane will at most be considered a nuisance, not a trespass. [Kingsbridge Developments v. Hanson Corp. (1990, ONHC)] It’s part of a new understanding of property rights, under which your rights are circumscribed as you leave the ground. While you may have veto power/right of exclusive dominion in relation to the physical/grounded portion of the property, rights fade as you go higher in the air. Up in the air, it becomes a right to reasonable use, but not exclusivity.
This option is becoming more appealing to judges, because (as noted above) courts can now craft damages for loss of the bargain they should have had, and can compensate landowners accordingly for interference w/ their property. Courts can substitute damages for an injunction where [per Shelfer v. City of London Electric Lighting48]: 1. The injury to ’s legal rights is small; 2. The injury can be estimated in money; 3. The injury can be adequately compensated in money; and 4. The case is one in which it would be oppressive to the ∆ to grant an injunction Canadian courts have consistently applied Shelfer – in a trespass context as well as nuisance. [see e.g. Vaz v. Jong]49 4. Statutory Intervention BC Property Law ActS. 34: the BC Supreme Court can make an order allowing modest trespass on neighbours’ property if necessary to conduct repairs In practice: if owner objects, trespasser has to go to court and get an order giving them that authority. So, this takes care of cases like Trenberth. S. 36: where you build something on neighbour’s property and you are innocent, the court can modify the property lines on payment of an appropriate amount of money. Basically a codification of Clark v. McKenzie the court can order payment of damages and then transfer the property to ∆ who has built the trespassing structure.
Nuisance is generally an indirect interference with owner’s reasonable use and enjoyment, arising out of the use of a neighbouring property. The key: balancing competing property rights. Nuisance gives flexibility in two ways: 1. It’s much easier to balance interests and find a lack of nuisance as opposed to trespass, which is pretty much yes/no. There is very little room for interest-balancing in trespass, but the definition of nuisance is predicated on this idea: it must be unreasonable this leaves courts with the discretion. 2. Even where nuisance IS found, the remedy can be tailored to the situation. Most dramatically by giving damages instead of an injunction There’s really no bright-line test for nuisance – it’s highly fact-specific and judge-specific [see e.g. Miller v. Jackson]50 “First in time” is not an excuse for nuisance [despite Denning MR in Miller v. Jackson; see Spur v. Del Webb]51 Something can become a nuisance due to changing nature of a neighbourhood. If an established use was always a defence to a nuisance claim, it would freeze the status quo different areas couldn’t evolve to new uses over time. Geoffrey-Land and Cumming-Bruce hit this policy concern in Miller v. Jackson, even though Lord Denning doesn’t. BUT, ‘first in time’ status might factor into the selection of a remedy. “Character of the neighbourhood rule” [per Miller v. Jackson] What is reasonable depends on the character of the neighbourhood. Farming communities vs. industrial vs. residential areas different standards of acceptable use/behaviour. What constitutes a nuisance will vary depending on the normal/existing practice in the neighbourhood, up to a point. Public interest will factor in But beware of competing public interests [Miller v. Jackson; Palmer v. Burnaby]52 Note: while allowing free use of a public park may be in the public interest [Miller v. Jackson], this will not apply on private property, such as a golf course [Sammut v. Islington Golf]53 Injunctions cannot be overly broad - usually won’t prohibit an activity entirely, just put limits on it [see e.g. Cattel v. Great Plains]54 Courts may choose to award Compensatory Injunctions gets their order, but have to pay ∆ damages for it. [see e.g. Spur v. Del Webb] A court may award damages in lieu of an injunction, which may include both past and future damages. [see Boomer v. Atlantic Cement Co. Ltd.]55 Canada Paper v. Brown Canadian equivalent of Boomer, except they went the other way – company couldn’t continue b/c it would be appropriating property rights of π. Follow CP but consider both. Where there is a significant disparity between the harm to ∆ and the gain to , courts are reluctant to grant an injunction [see Bottom v. Ontario Lead Tobacco]56 Courts may suspend or delay a nuisance injunction, rather than imposing an immediate requirement on the ∆. [see e.g. 340909 Ontario v. Huron Steel]57
Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 outlines -> Course Outline as/huma 2650 0A Download 1.08 Mb. Share with your friends:
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