Personal Injury

What is a Nuisance?

Don't let a barking dog or stinky dumpster ruin your life. Your neighbor's conduct could amount to a legal nuisance.

When your neighbor’s conduct is driving you crazy, there isn’t always an easy legal remedy for the situation. But in some instances, a neighbor’s actions (or inaction) can rise to the level of a "nuisance" in the eyes of the law. In this article, we’ll explain the legal concept of "nuisance," including what you’ll need to prove when taking your case to court.

The Legal Definition of “Nuisance”

A nuisance is something that interferes with your use of property by being:

  • irritating
  • offensive
  • obstructive, or
  • dangerous.

Nuisance is different from trespassing because it involves an interference with the owner's use and enjoyment of property, while trespassing requires a physical interference with the owner's exclusive use of land.

Interference with a plaintiff's use and enjoyment of property can amount to either a "private" or "public" nuisance, but when it comes to neighbor-to-neighbor disputes, a private nuisance lawsuit is usually the only option available. So, let’s look at what a property owner will need to establish in order to bring a successful claim for "private" nuisance (we’ll touch on "public" nuisance towards the end of this article).

Private Nuisance -- What You Need to Show

A private nuisance is a nontrespassory (non-physical) invasion of a plaintiff's interest in land that interferes with the plaintiff’s use and enjoyment of that land. More specifically, a successful private nuisance lawsuit requires that:

  • the defendant's conduct caused a substantial and unreasonable interference with the plaintiff's use and enjoyment of property
  • the defendant's conduct amounts to negligence or negligent inaction; or the conduct was intentional and unreasonable; or abnormal considering the area, and
  • the plaintiff has a protected interest in the land where the nuisance occurs.

That’s a lot of legalese, so let’s look at some of these elements in more practical terms,

The kind of “interference” that can amount to a private nuisance includes smoke, odors, flooding, excessive noise or light, or pollution.

A nuisance can cause physical damage to the plaintiff's property, and/or physical or emotional harm to plaintiff. Physical damage might consist of the encroachment of a toxic substance onto the property. Emotional harm could be fear or annoyance (even "pain and suffering") caused by a neighboring dog's excessive barking. The key is that the harm must come from the defendant's interference with the plaintiff’s use and enjoyment of his or her land.

Whether harm is substantial is judged against the standard of what an ordinary member of the community with normal sensitivities would deem substantial. The harm is also balanced against the reasonableness of the defendant's conduct. So, even where the interference to the plaintiff's interests has been substantial, the defendant's conduct must also be unreasonable. In balancing the interference and reasonableness, courts assess factors like:

  • the extent and duration of the interference
  • the social value of the plaintiff's interest in the land
  • the social value of the defendant's conduct
  • the burden to the plaintiff and the defendant to prevent the harm, and
  • the suitability of the land uses being made by plaintiff and defendant.

One common question related to the reasonableness of the defendant's activity is whether the plaintiff "came to the nuisance," by acquiring land near an existing source of interference.

A negligent nuisance occurs when the defendant knows -- or should know -- that his or her action (or inaction) unreasonably risks interfering with someone else’s interest in the use and enjoyment of land. On the other hand, a nuisance can be intentional if the defendant acts with the purpose of causing the invasion, or knows the invasion is substantially certain to result.

Additionally, nuisance liability is possible when conduct is abnormal or out of place relative to the surroundings. One court famously commented that a nuisance "may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." For example, a business or industry emitting noxious gas might be a nuisance when located near a residential neighborhood rather than in an industrial district.

Finally, a plaintiff must have a sufficient legal interest in the land in question, usually by ownership. In cases of permanent nuisance, a successful plaintiff will receive damages, including compensation for lost property value. Where the nuisance is continuing, the plaintiff might get an injunction, depending on the social value of the defendant's conduct and the cost of putting a stop to the nuisance.

What is a "Public" Nuisance?

A “public” nuisance usually involves acts or conditions that threaten the health, safety, welfare, or comfort of the public, not just one neighbor. So, a private citizen usually will not have a right of recovery for harm resulting from a public nuisance. Instead, public nuisance is largely covered by state and federal statutes that provide for criminal prosecution of offenders who cause unreasonable interference with a right common to the general public.

An individual who has sustained a particularized injury -- one that is substantial and unique from the harm suffered by the general public -- can sue to recover for those damages, but it’s not enough that the plaintiff suffered a greater degree of the same kind of harm as the general public.

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