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Fair trespass

Ben Depoorter UGent (2011) COLUMBIA LAW REVIEW. 111(5). p.1090-1135
abstract
Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. Though widely supported in academic commentary and scholarship, this conventional viewpoint of trespass law lacks empirical and analytical grounding In fact, the interests involved in trespass disputes often extend beyond the interests of a private landowner, affecting broad societal interests such as the free flow of information, public safety and health, and similar considerations. This Essay attempts to align these observations with a doctrine more attuned to reality. To that end, it develops a new doctrinal framework for determining the limits of a property owner's right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of "fair trespass" to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner's property interest. The main advantages of this proposal are twofold. First, this novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion. Second, by replacing the existing patchwork of ad hoc situations where courts excuse trespassory acts, this proposal provides a more coherent and consistent context in which to adjudicate trespass conflicts. By developing a balancing test to assess trespass claims, the proposed doctrine seeks to protect the rights of property owners on the basis of a more explicit and predictable framework, while at the same time safeguarding the societal interests in access.
Please use this url to cite or link to this publication:
author
organization
year
type
journalArticle (original)
publication status
published
subject
keyword
ADVERSE POSSESSION, ECONOMIC-ANALYSIS, PRIVATE PROPERTY, RIGHTS, LAW, UNCERTAINTY, SOVEREIGNTY, COPYRIGHT, NUISANCE, EXCLUDE
journal title
COLUMBIA LAW REVIEW
Columbia law rev.
volume
111
issue
5
pages
1090 - 1135
Web of Science type
Article
Web of Science id
000291457900004
JCR category
LAW
JCR impact factor
3.36 (2011)
JCR rank
6/134 (2011)
JCR quartile
1 (2011)
ISSN
0010-1958
language
English
UGent publication?
yes
classification
A1
copyright statement
I have transferred the copyright for this publication to the publisher
id
1169374
handle
http://hdl.handle.net/1854/LU-1169374
date created
2011-02-24 14:42:04
date last changed
2016-12-19 15:46:40
@article{1169374,
  abstract     = {Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. Though widely supported in academic commentary and scholarship, this conventional viewpoint of trespass law lacks empirical and analytical grounding In fact, the interests involved in trespass disputes often extend beyond the interests of a private landowner, affecting broad societal interests such as the free flow of information, public safety and health, and similar considerations. This Essay attempts to align these observations with a doctrine more attuned to reality. To that end, it develops a new doctrinal framework for determining the limits of a property owner's right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of {\textacutedbl}fair trespass{\textacutedbl} to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner's property interest. The main advantages of this proposal are twofold. First, this novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion. Second, by replacing the existing patchwork of ad hoc situations where courts excuse trespassory acts, this proposal provides a more coherent and consistent context in which to adjudicate trespass conflicts. By developing a balancing test to assess trespass claims, the proposed doctrine seeks to protect the rights of property owners on the basis of a more explicit and predictable framework, while at the same time safeguarding the societal interests in access.},
  author       = {Depoorter, Ben},
  issn         = {0010-1958},
  journal      = {COLUMBIA LAW REVIEW},
  keyword      = {ADVERSE POSSESSION,ECONOMIC-ANALYSIS,PRIVATE PROPERTY,RIGHTS,LAW,UNCERTAINTY,SOVEREIGNTY,COPYRIGHT,NUISANCE,EXCLUDE},
  language     = {eng},
  number       = {5},
  pages        = {1090--1135},
  title        = {Fair trespass},
  volume       = {111},
  year         = {2011},
}

Chicago
Depoorter, Ben. 2011. “Fair Trespass.” Columbia Law Review 111 (5): 1090–1135.
APA
Depoorter, B. (2011). Fair trespass. COLUMBIA LAW REVIEW, 111(5), 1090–1135.
Vancouver
1.
Depoorter B. Fair trespass. COLUMBIA LAW REVIEW. 2011;111(5):1090–135.
MLA
Depoorter, Ben. “Fair Trespass.” COLUMBIA LAW REVIEW 111.5 (2011): 1090–1135. Print.