Public Nuisance, Trespass and Dispossession of Land

Public Nuisance, Trespass and Dispossession of Land

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ca. 1998, Cancun, Mexico --- Lounge Chairs on Beach at Club Med --- Image by © Macduff Everton/CORBIS
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Public Nuisance

A public nuisance is same unlawful act or emission which endangers the lives, safety or comfort of the public generally or of some section of the public, or by which the public or some section of it are obstructed in the exercise of a common right. Thus if a person erects a factory which emits foul smelling smoke from its chimneys and this smoke spreads over a large area causing discomfort he commits a public nuisance, for all persons in the area will be affected by it. This also true for Jamaica beach property where companies might pollute the beach causing owners nuisance for enjoying their surroundings.

Similarly if a person causes an obstruction on the public highway he thereby prevents the public from exercising their right to pass and re-pass along the highway and so commits a public nuisance.

The remedy for a public nuisance is either:

1. Criminal proceedings

2. An action by the Attorney General of Jamaica on behalf of the public for an injunction to restrain the public nuisance.

But if an individual can show that he has suffered damage beyond that suffered by the public generally he will be entitled to bring an action for damages in respect of the public nuisance. In other words, the public nuisance becomes, in so far as it causes particular injury to an individual, a private nuisance actionable at his suit. But he must show that the damage he has suffered is different in kind and not merely degree from that suffered by the public generally.

Thus, as we have seen, to obstruct the Jamaican highway is to commit a public nuisance, but this nuisance will not be actionable at the suit of a person who is merely prevented from using the highway for the ordinary purpose of passage, for his damage is the same as that suffered by other members of the public.

Moreover, it makes no difference that he is accustomed to use the highway to a greater extent than the remainder of the public. That is a mere matter of degree. But if he sustains personal injuries by, say, tripping over the obstruction, or if the obstruction prevents him from using his private right of way from adjoining land to the highway, he will have suffered damage of a kind peculiar to himself and will be entitled to sue in respect of it.

Trespass

Trespass to Jamaica land may be committed by:

1. Unauthorized entry on land in the possession of some other person.

2. Remaining on such land after some right to do so have ceased.

3. Causing some object to enter on the land.

Three Common Facts of Trespass

1. Trespass is not a criminal offense.

2. A person who trespasses on the land of another is liable even though he was entirely unaware that he was trespassing and mistake is no defense.

3. Trespass is actionable without proof of damage.

This is another situation that is cause for great concern to Jamaica real estate owners. Let us assume that a person wonders on Jamaica treasure beach house for sale, they become a trespasser as their entry is “unauthorized”.

Dispossession

If a person is given possession of land, for example, by a Jamaica beach lease for 21 years, he does not commit a trespass by remaining on the land after his right to possession has expired; it is the wrong of dispossession, which consists of wrongfully depriving a person of possession of land, either by wrongfully taking possession or by wrongly withholding possession, after a lawful right to possession has ended. So both the tenant and landlord can cause dispossession.

Title of the Plaintiff

Trespass is an interference with the possession of land, and the person entitled to sue is the person in possession, for example, of rented property, the tenant has to sue, unless the landlord can prove that the trespasser has caused some damage to his reversionary interest.

Remedies for Trespass

1. Damages

2. Injunction

3. Forcible ejection: no more force than is reasonably necessary and the trespasser must be given the opportunity to leave peaceably.

It is important to understand how these affect Jamaica real estate and property sales. If trespass and nuisance are common place for a some Jamaica homes for sale it should be the moral responsibility of the vendor, but the onus is on the purchaser to conduct due diligence before buying any property.

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