Real Estate Liability and Law of Tort – Private Nuisance and Negligence

The basic principle of nuisance to is a person committing a nuisance by using his property to cause damage to the property of another. This is known to be a big problem on beachfront properties for sale in Jamaica where some owners liked to parade on the beach nude.

Liability of occupier and owner for private nuisances:

The primary liability for a nuisance rests upon the occupier of the premises upon which the nuisance arose and there is no liability cast upon the owner of the premises merely by reason of his ownership. But if the owner has created the nuisance then he, and not the occupier, will be liable for it. Thus if the owner of Jamaica home premises creates a nuisance upon those premises and then lets them with the nuisance still in existence he is liable because he has created the nuisance. But in such a case the occupier will also be liable if, with notice of the nuisance, he has allowed it to continue.

Defenses to an Action for Nuisance

1. Good Defenses:

(a) Statutory Authority – Act authorized by Statute;

(b) Lawful User – defendant’s lawful use of his own Jamaica land and real estate resulted in damage to the plaintiff’s land;

(c) De Minimis – damage is trifling.

2. Ineffectual Defenses – The following have been rejected by the Court:

(a) Coming to the nuisance;

(b) Public Benefit – although harmful to the individual plaintiff, it is beneficial to the public as a whole;

(c) Care and Skill – it is no defense that the defendant exercised all possible care and skill to prevent the operation complained of from becoming a nuisance.

Remedies for Nuisance:

1. Action for Damages

2. Injunction

3. Abatement – hardly used remedy as the law feels that it could result in problems.

Negligence

Negligence has two separate and distinct meanings in the law of tort:

(i) A state of mind in which some torts may be committed. I commit a trespass intentionally or I may commit it negligently as a result of carelessness.

(ii) Breach of a legal duty to take care resulting in damage.

When there is a case of negligence, the plaintiff must prove that:

(1) The defendant owed him a duty to take care;

(2) That there was a breach of that duty

(3) As a result of that breach he has suffered damage;

(4) Such damage is not in law too remote a consequence of the breach of duty.

The Duty of Care

There can be no liability for negligence unless in the particular case the defendant was subject to a legal duty to take care. He must owe this duty to the plaintiff himself, either alone or with other persons. For example, the occupier of land or premises is under certain duties towards persons who come onto his Jamaica property or into his premises, but the duty which he owes a visitor is not owed to a trespasser.

The circumstances in which a duty of care does exist are infinite, so the following are examples:

(1) Persons using the high way;

(2) Master and servant;

(3) Carriers of passengers

Standard and Degree of Care

The standard of care is fixed – that of the ordinary reasonable man. The degree of care which an ordinary reasonable man would use is relative and whether or not an act or omission is negligent depends upon the circumstances of the particular case.

Remoteness of damage

A plaintiff can only recover compensation for loss which in Jamaica real estate law is not too remote a consequence of the wrongful act. A defendant is liable only for damage which could reasonably have been foreseen.

Proof of Negligence

The burden of proving negligence is on the person who alleges it, for example, the plaintiff, and he must prove not only that the defendant was negligent but that it was the cause of the damage he suffered.

Contributory Negligence

This is a failure to take reasonable care for one’s safety and a person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might hurt himself.

Negligence is not such as fine line as nuisance in Jamaica real estate. Assume an example that a man who purchases Jamaica beach land for sale and discovers that as a result of a neighbor his landscape has suffered damage. This is negligence on the part of the neighbor.

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