From: Legal firm
Re: Legal advice
This particular memorandum will set out the legal research which is conducted into the matter of Geraldine where she seeks the remedy against the act of trespass and violation of easement rights committed by Bruno under the law of tort.
Bruno had put a letter of his blueprint of building an apartment near the vacant land in the letterbox of Geraldine. All the necessary approvals are taken from the council and the government regarding the construction of an apartment block and the substantial retaining wall on the border of the property. Apart from this the fact clearly stated that Geraldine's son was collecting her mail. It is very clear from the fact that in July 2019, Bruce had realized that he had not shown the letter of Bruno to her mother due to which she was unaware of the fact that Bruno was constructing an apartment in the near vacant land1. This is a clear case of negligence according to the laws enshrined by the common law and under the doctrine of tort. According to the Civil Liability Act of 2003, the duty of care is an act or omission of a person to avoid any foreseeable harm. Bruce was aware of the fact that he has collected the letter from the mailbox and had not shown the same to his mother.
This is a clear case of trespass from the end of Bruno as according to the law of tort if any individual enters the property of any person without his or her permission will be deemed under the offence of trespass under the Civil Liability Act of 20032. Any person who has been invited to the property or has entered with a particular intention will not be charged under the offence of trespass. It must be noticed that under the Lands Protection Act of 1901, section 4,4Aa and 4B clearly states that whenever a particular property is sense organ closed3, a person who unlawfully enters will be subjected to various penalties and would be deemed to have committed offensive conduct4. Any situation where a person or is representative enters into a property without the permission of the owner of the land should be removed immediately and will be subjected to pay damages to the party. Therefore based on this ground Geraldine can claim remedy and damages from the court of law against the act of trespass from the builder. Apart from this, the client can also take remedy under the offence of nuisance committed by Bruno. Nuisance is any activity e which is irrespective of being unintentional had caused damage to the normal enjoyment of the property will be subjected to the crime of nuisance. The facts clearly state that Bruno had built the concrete blocks approximately 30 cm over the property of the client which hinders the enjoyment of property by the owner of the land.
Also, it must be noticed that according to the Neighboring Land Act of 2000, any person can make an application to the Local Court regarding the entry into the neighbouring land which can be done under the purpose of construction for demolition, inspection, removing ceilings or treating edges of the property, any type of repair on the dreams or blockages under section 12 of the Neighboring Land Act of 20005. However, it must be noticed that it is very important that precautions must be taken to minimize the loss of privacy of the other party which is not present in the concerning case. If under any circumstances a person is seeking to enter into the property of the other party it is very important to reach into an agreement with the concerned person whose consent is needed to enter the property. A prior 21 days of the notice must be served to the other party e under section 10 and 11 of the Act6. However, in the present facts and circumstances of the case, it is very clear that no agreement was entered between the builder and the client for entering her property regarding retaining the wall. For this is a clear case of breach of privacy and trespass under the common law.
So, therefore, any unjustifiable physical interference into the possession of another party will make the offender subjected to the offence of trespass under the English common law. It is very important to understand that be taught of trespass requires certain essential that needs to be fulfilled to make the other person liable for the act. There is no requirement of the proof of unlawful intention or any sort of damage suffered by the plaintiff7. The only requirement to stylish the tort of trespass is the interference into the territory of the property of the other party without sitting appropriate permission. Another important essential for trespass is the directness of the act. This means that under any situation if the act is direct which is arising out of a natural consequence of action done by the party will be deemed as an act of trespass8. However, it is worthy to note that any direct cause of action done by the defendant where he had caused any object to directly enter into the property of the other party will be considered as trespass. Present case it is very clear that the builder was aware of the property of the client and he deliberately encroached into the property of declined by exceeding up to 30 cm the retaining wall in the present case.
This is a clear case of violation of the easement rights of the owner. Infringement of easement occurs when a certain land is possessed by the occupier to enjoy that particular land cost to do or to prevent from doing something upon it. It can be seen that Bruno had the ownership of the weekend land and cannot erect a retaining wall by placing concrete blocks on the property of Geraldine. This is a clear case of abuse of easement rights on the part of Bruno. Under such a situation according to the case of Brown vs Voss9, the photo of law will serve damages instead of injection to the person who has committed the abuse of his easement rights. Under the common law, property rights are considered to be very sacred most of the people and this gives rise to the right of easement which can be used by the neighbour without having any actual position of the land10. Passing through the neighbours land to get into to some other property will be considered as an easement right but in the lights of the present facts and circumstances the easement rights are violated by Bruno as he had not only started roaming on the property of Geraldine without her knowledge and permission but had also placed concrete blocks for approximately 30 cm which is a complete violation of easement rights provided to a person under the law of Australia.
This is a clear case of the negative easement as particularly there are two categories of easement that are positive and negative which provides a mandate to a person regarding what can be done and what cannot be done to create a particular easement. For positive is meant a situation arises where a dominant tenement requires a benefit from a servant tenement and therefore a positive easement is created on a valid basis which allows a person to do certain things which would otherwise normally be treated as trespass or nuisance if there is no is men provided by the owner. On the other hand, the present case reflects light upon the negative easement where a servient tenement is abstained from doing certain particular things on the property of the other person for the enjoyment of their estate11. Creating any landmark for building any blocks will come under the category of the negative easement as this right goes beyond the positive is meant according to the law of tort.
In the present situation Transfer of Land Act, 1893 will be applied. According to the general law of easement, the same cannot exist without a dominant tenement as provided under section 199 of the land administration Act of 1997. In the present case, there was no express easement but was an implied one. However, in the present case, there was no instance shown which provide enough evidence of the creation of the express easement12. A remedy of abatement can be sought by Geraldine as abatement is a particular right to update the particular interference of easement by the other party e in such a way that the use of easement can be obstructed. It must be noticed that a benefited lot owner can be prevented by the other person if that person is more than his easement under such circumstances a legal action can arise and the benefit blood donor can be sued for paying damages against nuisance and even an injunction can be sought against the person. Under section 181 of the Property Law Act of 1974, the court has the power to extinguish the use and enjoyment of easement if the same has been used beyond the reasonable use by the owner13.
So far as trespass is concerned in the present case the plaintiff has to prove that the defendant is liable for the trespass of land under the law of tort. Four things need to be proved by the plaintiff.
It is important to show that the entry made by the defendant was wrongfully intended as the same can be proved in the present case because Bruno had constructed 30cm blocks on the property of Geraldine. The property was of another person that was used without the consent of the owner which is the case in the present situation and the act of the defendant had caused damages to the plaintiff. Under such a situation the property of the owner has a right to claim compensation for the injury caused to the property because of the activity of trespass committed by the defendant14. the damages can be seed in the form of loss of market value of the property, cost of restoration of the property, laws of use of the property, any physical injury caused to the land, emotional distress caused to the plaintiff due to the activity of the defendant or any discomfort or annoyance caused due to the trespass of the defendant15. In the present case cost of restoration land, physical injury to the land, emotional distress, and discomfort and annoyance are the grounds upon which Geraldine seeks a remedy in the form of injunction from the court of law.
It is clear from the facts of the case that Geraldine was suffering from a deadly virus and was subjected to a solution for 3 weeks which is clear to understand that physical well-being was not proper at the time of tort of trespass and infringement of easement rights was committed by Bruno so under this ground, Geraldine can ask damages for emotional and mental distress caused to her due to the unreasonable activity done on the path of Bruno. According to the Australian law reform commission, damages can be awarded on the grounds of emotional distress to protect and promote the psychological well-being of an individual. The damages don't need to be tangible; this is the reason why the Australian law reform commission has provided damages for intangible losses cost to the plaintiff in the form of injury to feelings. According to the court of Wales and England, it is very important to establish that it will be reasonable in supposing that the particular damage caused by the defendant to the plaintiff had caused distress and had hurt the feelings of the plaintiff.
Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help
Proofreading and Editing$9.00Per Page
Consultation with Expert$35.00Per Hour
Live Session 1-on-1$40.00Per 30 min.
Doing your Assignment with our resources is simple, take Expert assistance to ensure HD Grades. Here you Go....