Nuisance Law: Enjoying Property without Unreasonable Interference - dummies

Nuisance Law: Enjoying Property without Unreasonable Interference

By Alan R. Romero

A nuisance (sometimes called a private nuisance to distinguish it from a public nuisance, which is a completely different subject) is an interference with the right to use and enjoy real property. Physical invasions onto the property are trespasses, so a nuisance can be called a nontrespassory interference with the use of real property.

A property owner doesn’t have the absolute right to use her land any way she can imagine. Such a right would be impossible because one person’s right to do whatever she wanted on her land would sometimes conflict with another person’s right to do whatever he wanted on his land.

So the law of nuisance in theory gives every property owner the same right: the right to use and enjoy his or her property reasonably, without unreasonable interference by others.

A nuisance is an unreasonable interference with a person’s use and enjoyment of her property. Many types of activities may be nuisances, especially ones that cause the following:

  • Noise

  • Odors

  • Dust and smoke

  • Pollution of air or water

  • Bugs, rodents, and other pests

  • Explosions and other vibrations

  • Illness

  • Crime

  • Light

Some activities are generally considered nuisances at law or per se. Such activities are always nuisances as a matter of law, regardless of the circumstances. An activity is a nuisance per se in the following cases:

  • The activity is illegal. When a statute specifically prohibits certain conduct that affects use of land, engaging in such conduct is inherently unreasonable and therefore is a nuisance.

  • The activity is inherently and unavoidably dangerous to life or property.

Other activities may be nuisances if they’re unreasonable under the circumstances. Such nuisances may be called nuisances in fact or per accidens. Courts consider all the relevant circumstances to decide whether the activity is unreasonable. The relevant circumstances generally include the following:

  • The location of the properties and the character of the surrounding area: An activity may be appropriate in some locations and unreasonable in other locations. For example, a gas station may be appropriate in a commercial area but not in the middle of a residential neighborhood.

  • The extent of the harm to the plaintiff landowner: To evaluate the extent of the harm, the court considers

    • The character of the defendant’s activity and interference with the use of land

    • How much the activity actually interferes with the plaintiff’s land use

    • How often it interferes

    • In some cases, the alternatives available to the plaintiff

  • The benefits of the defendant’s activity: Courts weigh the harm to the plaintiff against the benefits of the defendant’s nuisance-causing activity, not just to the defendant but also to the community.

    Evaluating the benefit includes considering the cost of alternatives that wouldn’t interfere with the plaintiff’s land use. The more easily the defendant could conduct its activity without interfering with the plaintiff’s land use, the more likely the activity is a nuisance.

  • Who was there first: Courts consider which of the conflicting land uses began first. If the defendant’s lawful land use was first, it may seem less fair for the plaintiff to come along later and make the earlier use stop or change because it conflicts with how the plaintiff wants to use her land.

    But this is just one of many considerations, because it may also seem unfair for a nuisance-causing land use to begin operation somewhere and then forever prevent others from using their nearby land productively because of the pre-existing objectionable use of land.

  • Zoning: An activity is more likely to be a nuisance if it violates an applicable zoning ordinance, and it’s less likely to be a nuisance if it complies with an applicable zoning ordinance.