Fruit of the poisonous trees is a doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained.

A hypothetical situation to setup the question:

  1. Assume that condo owners built a set of patios on the common area in violation of rules / statute.
  2. The Association claims that it has necessity to build a retaining wall because of the soil erosion caused by the patio.
  3. Assume that the Association has a duty to not allow the patio and restore the embankment to its "OEM" state.
  4. Assume that the case law prohibits Associations from allowing owners to build patios.

Because the Association has failed in its duty to remove the patios that cause a problem: they can not claim necessity because they allowed the problem. This seems to be similar to: "fruit of the poison tree": is there a better phrase to describe the matter?

Much like "fruit of the poison tree", necessity can not be a viable claim / defense because the Association failed to uphold its hypothetical duties. In others words:

How to 'coin" the idea that the affirmative defense of "I am breaking a rule pursuant to solving a problem" is not valid if a defendant created / allowed the problem"?`

IANAL: if I can clarify please ask questions.

  • The causality chain is all messed up. Please give a chronological order how the duty to restore the embankment came to pass, and explain what caselaw would prohibit it to allow patios.
    – Trish
    Sep 24 at 16:26
  • @Trish Thanks for the feedback The sequences of the events is 1. then 2. 3. and 4. are not events and are hypotheticals to setup the question (please to just accept them as fact for the purpose of the question). A phrase similar to "fruit of the poison tree" is sought to describe why necessity can not be a viable claim / defense. Does this help?
    – gatorback
    Sep 24 at 16:37
  • 1
    No, 3&4 are established by events some time before 1 or they don't make sense, and 2 is an event that can happen before or after 1
    – Trish
    Sep 24 at 16:56
  • 2
    You have asked questions related to this issue at least a dozen times on this site. Stop! Enough is enough. If yoiu need an answer, hire a lawyer.
    – ohwilleke
    Sep 24 at 21:10

2 Answers 2


First, necessity is not a claim, so I am perhaps missing essential context. And if it is a defence, it needs to be a defence to something.

In any case, this seems to be an estoppel- or acquiescence-based argument. But I emphsize: the argument seems tangential and maybe even irrelevant, without more context about how "necessity" is arising as a claim or a defence (to what?).

Also, not every legal argument has been reduced to a "doctrine" with a coined name. Sometimes there is no shorter way to refer to an argument than to just make the argument.



Illegality in English law is a potential ground in English contract law, tort, trusts or UK company law for a court to refuse to enforce an obligation.

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