Don't Bet the Business

Litigation attorneys like to think of ourselves as creative people. We often spend our billable hours combing through dusty records, looking for possible issues and hoping to construct what we believe, in good faith, are plausible theories to support our client’s goals. 

It’s what we do. But sometimes we get things wrong, or at least we stretch the bounds of applicability beyond the easily recognizable. One such claim that lawyers and lay people sometimes get wrong is the “nuisance.”

I blame the title. A “nuisance,” intuitively, can be anything that irritates me.  But everything that irritates me is not an actionable nuisance. Rather, at law, a nuisance at law is something relating to the use and enjoyment of real property. Stated a bit differently, something that interferes with the use or enjoyment of real property might be a nuisance. 

So right away, it helps to understand that the “nuisance” law is part of the real property laws; it has nothing to do with rude or socially awkward behavior at movie theaters, restaurants and parking lots.

This property law concept has been around a very long time. There are public nuisances. These are property uses that threaten the public health, safety and welfare. Common examples involve polluting land or water, harboring dangerous animals, storing dangerous materials, among others. This type of land use threatens a general public interest and can be actionable by civil suits or even criminal prosecution.

A “private nuisance,” on the other hand, takes on a different character. The concept of a private nuisance evolved over time as a common law doctrine intended to resolve conflicts between neighboring land owners. I’m fine, but my neighbor really bugs me, is that a nuisance?  Well, as is typical in the law, it might be. 

If your neighbor habitually flies an Ohio State flag on football Saturdays it can be really annoying to you Wolverines, but it’s not an actionable nuisance. Your neighbor’s use of his property has to amount to a substantial interference with the use or enjoyment of your property. More than an obnoxious temporary flag waving in the breeze think of conditions such as perpetual loud noises, bad smells, bright lights, as well as pollution and potentially illegal uses. 

In such circumstances the law of “private nuisance” may be a useful common law tool to help ensure that your neighbor’s land use reasonably accommodates yours. In this context, a plausible claim for a private nuisance is established when one can plead and prove facts to show that:

• You have property rights in the land you are trying to protect,

• Your neighbor’s property use results in a significant harm to your property use,

• Your neighbor’s use or conduct is the legal cause of the harm you are suffering, and

• Your neighbor’s use is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, recklessness, or
ultra-hazardous conduct.

This law of private nuisance is not limited to residential property use; it is equally applicable to commercial property as well.

There are other aspects of nuisance law that can impact a nuisance claim such as zoning, locally-permitted land use, or possibly something as simple as who got there first.  There are some land uses that may always be considered a nuisance, some that are a nuisance because a statute says so, and some that are a nuisance just as a matter of the specific circumstances involved.  You might be responsible for a nuisance as a landowner even if you did not actually create the conditions amounting to the nuisance.  It can get complicated. 

And you can’t forget that if conditions arise amounting to an actionable nuisance the law only gives you a finite amount of time to complain. Being a tolerant neighbor may be admirable, but sitting on your rights might not be so well received in court. If you do have an actionable nuisance, it is very important to think about the remedy you will ask a court to award. Is money going to serve your needs, or is a court order altering your neighbor’s land use the only real way to protect and restore the use and enjoyment of your property? 

It helps to know what you don’t know.  Ask us, we can help.