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Law for Property Professionals: 'The owners of land can suffer harm and Tort serves to rectify the situation. Is this true with regard to real property'

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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

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preview essay on Law for Property Professionals: 'The owners of land can suffer harm and Tort serves to rectify the situation. Is this true with regard to real property'
  • Pages: 9 (2250 words)
  • Document Type: Essay
  • Subject: Law
  • Level: Undergraduate
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