Real Estate & Property Law

Nuisance

A nuisance occurs when a landowner engages in an activity that significantly interferes with the use or enjoyment of another's property, or that affects the health, safety, welfare or comfort of the public at large. A nuisance that violates an individual's right to quiet enjoyment of his or her land is referred to as a private nuisance, while a nuisance that affects the health and safety of more than one person is known as a public nuisance. Nuisance actions are instituted for a number of reasons, such as the desire to eliminate an unpleasant smell, sound or other hazard that disturbs the lives of surrounding property owners.

Significant Interference Requirement

To prove the existence of a public or private nuisance, the party bringing the suit (the "plaintiff") must prove that another party (the "defendant") engages in an activity that significantly interferes with public or private property rights. The interference must be substantial. For example, a person will not succeed in a nuisance action simply because they do not like the smell of a neighbor's cooking. A proper nuisance action may be alleged, however, if the smell of a neighboring dairy farm prevents a person from using his or her backyard or outside patio, or keeps a person from opening his or her bedroom windows.

Balancing Test

Courts use a balancing test to determine whether an activity rises to the level of a nuisance. A court will weigh the extent and severity of the harm caused by the activity against the activity's social value. If more harm would result from limiting the activity than allowing it to continue, a court may deny a plaintiff's nuisance action. For example, a court may refuse to shut down a factory that emits an offending smell if the factory employs hundreds of workers and is involved in making a product that benefits the community.

Defenses

Even if the balance of harms weighs in favor of enjoining the nuisance, the offending party may assert several defenses. First, a defendant may argue that the offending activity complies with local zoning laws. A court is less likely to restrict an activity that has been approved by the local government. Second, a defendant may assert that the plaintiff "came to the nuisance." A "coming to the nuisance" defense may be successful if a defendant can prove that he or she engaged in the offending activity with similar results before the plaintiff moved to the neighborhood. For example, a plaintiff is unlikely to succeed in a nuisance action for barking dogs when the plaintiff knowingly bought property next to a large dog kennel.

Remedies

If a plaintiff succeeds in proving the existence of a nuisance, the most common remedy is the issuance of an injunction. An injunction requires the defendant to stop or limit his or her participation in the offending activity. If the costs of complying with an injunction exceed the costs of the plaintiff's injuries, a court may authorize the defendant to purchase the injunction. Purchasing an injunction allows a defendant to continue his or her activities while compensating plaintiffs for any harm suffered as a result of the nuisance.