A real estate nuisance is any human activity or physical condition that is harmful to the health of another person, is indecent or offensive to the senses, or interferes with another person’s reasonable use and enjoyment of his or her property. 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. Real Estate nuisance depends upon the unique facts and circumstances of an individual case. Relevant factors include:
• the population and location of your neighborhood
• the prior use of the land (in other words, what it has been used for historically)
• whether or not you moved to a location where the alleged nuisance condition has been ongoing for years
• whether the nuisance is permanent or occasional
• the number of people harmed, and
• the degree of the harm.
Nuisance Lawsuit
The term nuisance lawsuit can refer to one of two types of lawsuits.
• The first is a tort lawsuit of the nuisance, which is a situation where in the plaintiff claims that the defendant is causing a nuisance.
• The second is a frivolous lawsuit which involves a plaintiff bringing a lawsuit that serves as nothing more than a nuisance to the defendant. A nuisance lawsuit is so named because it is brought against a person who is believed to be a nuisance to the plaintiff.
Similarly, a lawsuit itself may be deemed a nuisance if the person bringing the suit is doing nothing more than creating a nuisance for, or harassing, the defendant.
Policy behind real estate nuisance laws
The purpose behind nuisance laws stems from the idea that you can use your own property as you like, however, in so doing, you cannot unnecessarily damage or devalue the property of another person, or the general welfare of the community.
Private Nuisance
A private nuisance is an unreasonable, unwarranted, or unlawful interference with another person’s private use and enjoyment of his or her property. The test to determine whether an invasion is reasonable is whether the gravity of the harm is outweighed by the social benefit of the nuisance.
The interference must either be intentional, negligent, reckless, or ultra hazardous, and the harm caused must be significant and of a kind that would be suffered by a normal person or property in the same community.
Legal remedy to abate a private nuisance
If you are affected by a private nuisance that affects only you or a small number of neighbors and the offender refuses to abate the nuisance, your legal remedy is a lawsuit against the offender to abate the nuisance. But before suing, try other measures, such as a friendly visit, a polite letter, or even a letter from your attorney. But sometimes the only way to get the offender’s attention is to file a lawsuit to abate the private nuisance. Hiring an attorney is advisable because, if you sue the offender in local small claims court and lose, that is usually the end of your legal recourse against the nuisance offender.
Presuming the private nuisance seriously bothers you, such as keeping you awake at night due to loud noise, hiring a real estate attorney might be a cost-effective remedy. For a plaintiff to successfully sue a defendant for causing a private nuisance, the plaintiff must be able to prove several elements of his suit, including:
• The plaintiff (person filing the lawsuit) owns, rents, or leases his property.
• The defendant (person against whom the lawsuit is filed) created or maintained an environment that prevented the plaintiff from freely using and enjoying his property.
• The plaintiff did not consent to the defendant’s behavior.
• The defendant’s conduct would be considered annoying or upsetting to any reasonable person.
• The defendant’s conduct harmed the plaintiff (perhaps by preventing him from getting proper sleep).
It is recommended that neighbors try to work things out through mediation before starting the litigation process so as to save time, money, and stress, though this is sometimes easier said than done.
Punishment For A Private Nuisance
Because a private nuisance is considered a civil matter, courts will weigh certain factors when determining a defendant’s accountability: the defendant’s fault in the matter, if any; whether the defendant has posed a substantial interference with the plaintiff’s quality of life, and the reasonableness of the defendant’s behavior.
To find fault, a court must decide whether a defendant intentionally, recklessly, or negligently restricted the plaintiff’s use and enjoyment of his property. Else, fault can be found if the defendant continued behaving offensively even after learning that his conduct was harmful or posed a significant risk of harm to the plaintiff.
In an attempt to not waste the courts’ time, it must be shown that a defendant’s interference with a plaintiff’s enjoyment of his own property is a substantial interference, rather than a petty annoyance. It is easier to determine substantial interference when someone’s physical property is affected. Much harder is proving substantial interference in so far as an annoyance or inconvenience. To determine substantial interference, courts will measure the level of annoyance with that of the normal sensitivity and temperament of a reasonable person. If the plaintiff is overly sensitive, his lawsuit may not survive. If the court finds substantial interference has occurred, it must then determine whether it is reasonable for the plaintiff to bear the interference, or to bear it without compensation.
In this case, courts will weigh the interests of both parties. The nature and gravity of the harm at issue is balanced against the burden the defendant bears in preventing the harm from occurring in the future. Factors to be considered here include:
• Nature of the harm caused
• Extent and duration of the disturbance
• Motivation of the defendant
• Feasibility of the defendant mitigating or stopping the harm
Public Nuisance
A public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public. Generally, any nuisance that is not a public nuisance is a private nuisance. So, a landlord’s violation of a state’s housing codes would be both a public nuisance as well as a private nuisance to the tenants. However, the sheer number of people affected does not transform a private nuisance into a public one. The public must be affected in a manner specifically proscribed by your state’s statutes or common laws. . In public nuisance cases, a fine or sentence may also be imposed in addition to an injunction. For a plaintiff to successfully sue someone for creating a public nuisance, he must be able to prove all of the same facts that pertain to a private nuisance lawsuit, as well as the following:
• That the condition affected a large number of people simultaneously.
• That any potential usefulness the defendant’s behavior may have provided is outweighed by the severity of the harm he has caused.
• That the harm that was suffered individually was different from the harm that the general public suffered in general.
Punishment for a Public Nuisance
A defendant who is found guilty in a public nuisance lawsuit can be punished by a fine, a criminal sentence, or both. He may also be ordered to remove the nuisance, or to pay the costs involved with removing it.
Public nuisances are larger scale nuisances, in that they interfere with the public’s quality of living as a class, rather than with an individual or group of citizens’ quality of living. There are no civil remedies available for a private citizen who suffers the same harm from a public nuisance as his fellow citizens, even if he felt substantially greater effects than the others. In this case, the only remedy available is criminal prosecution. If, however, the individual suffers harm that is different from that which was suffered by the general public, then he can file a tort lawsuit for damages.
Legal remedy to abate a public nuisance
If a disturbance affects a large number of residents, that is a public nuisance. To remove or mitigate a public nuisance affecting many individuals, the customary legal remedy is for a public official, such as the city or county attorney; to bring an abatement lawsuit against the offender. The court might order
I. an injunction to stop the nuisance activity,
II. a partial abatement order,
III. a mitigation or a negotiated settlement, and
IV. payment of monetary damages to allow continuation of the public nuisance.
The judge in a public nuisance abatement action has many considerations, such as the actual nuisance and the economic effect abating it might have.
In order to recover from a responsible party in civil court, you must show:
• Your neighbor is engaging in an activity that seriously annoys you
• The neighbor’s activities have prevented you from enjoying your own property
• The neighbor is responsible for the activity
• The activities are unlawful or unreasonable
• The court can remedy the problem by issuing an injunction or awarding damages
If you live in a condominium, cooperative, or planned community, the unreasonable conduct may be prohibited by your by-laws or regulations. If so, your homeowner’s association may help you enforce the restriction against your neighbor.
Distinctions Between Public And Private Nuisance
The distinction between Public and Private Real Estate Nuisance is important for a number of reasons. Most importantly, it determines whether or not you have standing (i.e., the right to sue). An individual does not have standing to sue for a public nuisance, unless an exception applies. The principal exception is if you are harmed in a manner that is different in kind from the harm suffered by the public at large (i.e., you have a special injury).
Furthermore, a private nuisance is a civil wrong, meaning that damages are the appropriate remedy for those who have been harmed. On the other hand, a public nuisance is sometimes classified as a criminal offense, and it may be remedied by civil or criminal penalties, but it usually takes a city attorney or another public official to initiate an action over a public nuisance.
Defenses to a real estate nuisance abatement lawsuit
Winning a lawsuit to abate a public or private nuisance is usually not easy if the offender resists. The defendant might raise defenses such as
the nuisance was tolerated for a long time, and/or
the plaintiff moved to the neighborhood knowing about the nuisance.
Nuisance lawsuit results are often unpredictable. Because the result of a lawsuit to abate a nuisance is often unpredictable, it is best to first try to reach an accommodation with the nuisance offender. A crafty defense attorney, or a sympathetic judge or jury, can often result in failure to abate the nuisance, allowing it to continue. For this reason, plaintiffs in a nuisance abatement lawsuit should be very well prepared, such as with photos, witness testimony and evidence, to be successful.l Because court abatement of a private or public nuisance is often very difficult, a lawsuit should only be used as a last resort.
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.
Furthermore, 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.
How Courts Decide Cases
In deciding nuisance disputes, several factors influence courts. First, courts will look at the location in which the alleged nuisance is occurring and any applicable zoning restrictions that may apply to that area. At the same time, the fact that an activity is located in area that is zoned for that type of operation does not mean that it cannot be found to constitute a nuisance.
Real Estate Nuisance Lawyer Free Consultation
When you need legal help with a real estate nuisance matter, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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