Once a reader queried whether this column carried ‘imagined’ instances. We replied that the law is far stranger than fiction and we had no need to invent stories. Now comes a judgement that puts many of our columns into one, single, perspective. It’s a merging of case studies and fortifies the maxim, ‘If there is a malady, there must be a remedy’.
A landlord is responsible for his property; the polluter pays; the wild beast theory and many others have been discussed before. This column revisits them.
Folks think that Switzerland is a whistle-clean country; the reason is that the Swiss collect all their junk in designated places. The authorities pay for the permission. “If you allow me to sweep my dirt under your carpet, I’ll compensate you.” Cash for trash. This went on for 10 years on a particular site, and the owner collected his dues. One day, he died.
His heirs inherited the pile of whatever it was. The three of them then sold it to someone else. The new proprietor now owned the stuff. And with it, a mountain of troubles. After 30 years of dumping, a routine site assessment found sub-soil leaching, and a pollution threat loomed. The latest owner asked for a competent authority ruling, claiming that it was not his fault and he must not be asked to pay.
Now, you be the judge.
How would you decide this?
The Polluter pays. This is a now globally accepted axiom. In the current case, whom would you consider the polluter? The dumper or the one who permitted it? The principle says that all those responsible need to pay. One contracted, the other received. Which cat should be belled? One or both? The authorities gave a political solution: 75% by the dumper and the rest to be shared by the three heirs. The trio balked.
We are not the current owners, they said. Our benefactor was unaware of the pollution, and even if he were, liability is non-transferable. Why not charge the current owner who should not buy property with his eyes wide shut, they questioned. On the other hand, the authorities claimed that since covenants run with the land, so do liabilities; the heirs had not forsaken the bequest. They were not charged as polluters themselves; only clean-up costs were levied.
The matter went to the Supreme Court. There, various permutations and combinations were discussed. The underlying theme was about knowledge of the fact. Also, when and where this knowledge became known and to whom was this known. Who were the active participants in the act? Did they know of the polluting effects of the landfill? Was the trio aware of the pollution, when accepting the bequest?
Here, we need to discuss some points in law. One is that the owner of the property is responsible for such acts that damage others. The landlord is responsible, knowledgeable or otherwise. Next is the doctrine of election, which had serious repercussions on the judgement. Election is the choice of opting out. One is not bound to accept an inheritance and can, if one so chooses, not partake of the bequest. After all, the inheritance could be a kiss of death. It could be loaded with liabilities and should, therefore, be refused.
In the instant case, the trio was unaware of pollution at the time of claiming the property. If they had known of the strings attached, the bequest could have been refused. Again, the new buyer, the present owner, was also innocent, thanks to lack of knowledge. In fact, he had purchased the plot after it showed no signs of being a landfill.
With both, the buyer and the seller displaying clean hands, on whom did the Supreme Court lay the 25% burden? While retaining the 75% costs on the dumper, it transferred the remaining costs on the community of citizens. Smart move.
Spread it thin so no one will complain.