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Free «Discussion About A Case In Civil Law» Essay Sample

Introduction

            Trespass is a wrongful action conducted directly and causing injuries and losses; it can be said that trespass is an unauthorized intrusion into land or property. It gives the aggrieved person or a group of people the right to take action by bringing a civil lawsuit and be able to demand compensation for the suffered damages and interference. Trespass as a crime can also be punished as an intentional tort. This law is enforced by the police after the land owners have initiated a case.

            Trespass on property is an unlawful act that is committed violently to the person denying rights for property. Every offence includes trespass, nevertheless, in common law such actions are not considered to be such, but they subject the offender to an action committed as trespass after acquittal or conviction. The other kind of trespass is committed without use of force and this act is also known as trespass.

            To determine if a caused injury can be referred to as trespass, the following points are put into consideration by the offended. By trespassing, one can be faced with a legal action that involves compensation and even conviction to the aggrieved party. Therefore, property protection rule provides immunity against transactions that are forced on an individual.

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            The following are rules that characterize the damages and injuries caused by trespassing. To determine if an injury or damage is a trespass, one due regard must be given to the victims to determine the nature of the affection, health condition and the relative rights of an individual in order to strictly adhere to the subject matter.

Injuries caused by force are referred to as denominated trespasses or wrongs committed against property owner at the same time risking the rights of a person. Both of the parties involved have to agree in terms as the law stipulates. The wrongs are characterized as injuries that bring about the trespass law and the immediate consequences that are injurious to the victim. The damage caused to the property falls under the trespass act and is given a strict and thorough proof as to its extent. The sustained cost of the property at the time of damage is a consequence that is remote.

            All unlawful acts are injurious and therefore lead to access and proof where the force that was applied to the property and the person is an act of that law. The recovery of damages and wrongs committed to a person as an intrusion into his property or breaking into and destroying the property is under question.

            The name of an action that is given to the damages recovery, committed against the wrongs and the affected matter is tangible. The subjected is considered with regard to:

  1. The injuries sustained after the trespass
  2. Declaration
  3. Plea
  4. The judgement taken.

            This part is subjected and considered in reference to injuries sustained during the destruction. Major emphasis is given to the following as a part of the main reference:

  1. The person
  2. Personal property
  3. The real property in place
  4. Cases when trespass can or cannot be justified with the legal proceedings.

            The proper remedy for trespass is fines and imprisonment, since it also caters for an injury to a relative and occasioned by force; as wounding a person or injuring property of a person leads to higher fines according to current market price of the mentioned property.

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            Trespass developed into a form of compelling the offender or defendant to pay or compensate the plaintiff for the injuries caused to personal property and life. It took different forms, namely (a) an action for trespass on the real estate (b) and an action for the injuries caused to personal property.

            Nuisance is the term that is used to refer to a condition that is both harmful and annoying to an individual. It is a condition that arises from constant objectionable noises and unpleasant smells. This law was created to stop bothersome conducts or activities when they reasonably interfere with people’s activities in particular surroundings or with the rights of other land owners. The nuisance tort allows the party affected to sue any act that intervenes in the use of land and also the enjoyment and the general public rights. Nuisance does not condone any activity that interferes with the enjoyment of the owner of the land or property. Any dangerous interferences or exposures of property owners to any kind of risk lead to the proper application of the law on nuisance.

            David’s property has been subjected to damage and, consequently, claimed for compensation since the rose flower that the family had brought to their new home has died as a result of pollution from the manufacturing firm. This is one of the major damages that they have faced from the firm as they have been exposed to danger. The rose flower has been completely damaged. It is a simple justification for the party involved to take up a legal action against the defendant. David has sufficient evidence that is required by the legal authorities to sue the company. The manufacturing company is also faced with losing the ground as it is destroying the neighbours’ property and therefore is leading to enhancement and implementation of policies obliged to protect a person.

            But there are cases where an officer will not or cannot be justified only by the court authority or the warrant having jurisdiction. The statement, or declaration, should always contain at least the concise information of the complaints and the committed and complained about injury. The assessed damages lead to the verdict of the jury.

 

Consent

            In tort one cannot hold another to be liable for the actions, which one has accepted or approved of. The agreement or opinion that is derived from the course of actions is to be taken. This law or act operates at that point when the claimant consents to the loss or damage and the risks are incurred. The claimant has to know that there are risks of buying a property near a noisy area. Some slight issues may also arise if the defendant had been given warnings before, for instance, through public notice or through personal appeal to the claimant or even signed agreement that there is a danger of injury that can occur at any time. To this extent, the defendants can strongly rely on notices so as to exclude or put a limit to liability, which varies from one country to another. Actually, this is an issue of policy that has to show and prove that the defendants have to warn of any unknown danger and also act by taking steps of fencing the area and avoiding the exposure of neighbours to risks.

 
 
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            The main issue in trespass is whether or not the owner consented to the performed action or negligence of not informing the people nearby. A claimant can use the reasonable force in order to defend him-/herself and this leads to some questionable facts in each case. The defendant is liable to compensating the claimant any damage incurred, and the payment of the compensation is done according to the current market value of the property.

            The court of law recommends to increase the capability of the landowners to bring private actions to the people who trespass by increasing their rates of recovery on the property damages that are caused by them. The land owners are also faced with a kind of recovering damages that is tripled to the actual costs of the physical damage. This allows landowners to recover attorney fees and the costs that they incur in pursuing the cases.

            Landowners are also warned to be careful as they are liable to the burden of repairing the damaged properties and also paying the cost of treating the victims from the pollution from their firms and any other damage to their health.

Conclusion

            In this essay we argue that advocates should truly take property rights seriously and also reject any utilitarian justification by one who is violating the rights of properties; they should also consider the proper approach that can be given in order to fully deal with the situation.

            Taking into consideration this case, we propose a set of rules that are in place to allocate the burden of proof between the two parties involved. An owner, who is aggrieved, will bear the burden and this burden will give a strong presumption to the aggrieved that the needed compensation is real.

            Indisputably, the property owner should not overstate the price since the court has to approve it. If the pricing is not approved by the claimant, then the court will affirm the owners’ price and also use it as a basis of calculating the compensation that is supposed to be done when the court finds the trespasser. By breaching and breaking the law on protection of property, the defendant will have to pay more as simply for negligence that extends to disrupt the other neighbours.

            Full enforcement of this law is done by the presiding court where confirmation of adhering to the proposed standards and rates of compensation is done. The condition of the property is cautioned before and after the damage has occurred (1982). The court makes sure all the remedies and designed help that will make the complainant safe and fended from any unwanted entry or interference from the surrounding is given.

            The law also takes an unexpected twist and a different tack all together. When a trespass has been committed, the law in place gives authority to the aggrieved owner to claim damages commensurate with the current value and market value of the unwanted damage to the property (Mark 2003). When protected by law, the right to exclude is an injunctive relief, which confers upon the owner and also the privilege to demand price. David has to benefit from the damages he incurred from the manufacturing firm because the law stipulates clearly on the rights to property that the manufacturing firm has breached and caused damages to.

            According to a research, a person’s failure to remove or eliminate a pollutant or any other environment contaminants from plaintiff’s property may cause a “continuing” trespass; in this case, it is Harrington and Nephew Limited who owned the firm and have been operating for many years. The court can also dismiss the case on the grounds that it falls under trespass. Public nuisance is an action that has not been authorized by law, like the remission of dust that is causing health hazards to David and his family. This family is facing one challenge because it is the sole family that filed complaints in court. Their rights have also been infringed upon by daily noise occuring during the day and night that disturbed their peace.

   

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