Legal Remedies in a Private Nuisance Case

If someone else’s actions make it impossible for you to use or enjoy your home or property, you might be able to get compensation, get rid of the nuisance, or get both.

By | Updated by David Goguen, J.D.

You have the right to free use and enjoyment of your property. When someone does something or creates a situation that interferes with that right, it can rise above the level of a mere annoyance and could be seen as a "nuisance" in the eyes of the law.

What Is a Nuisance?

The actions or conditions that create a nuisance can be harmful, indecent, illegal, offensive, or just disruptive. A nuisance can also be classified as either "public" or "private." In this article, we'll discuss your legal options if you've been harmed by a private nuisance.

Usually, if your use or enjoyment of your property is harmed because of the acts (or inaction) of another person (like a neighbor), you might be able to sue and win damages (money), get an injunction forcing the neighbor to stop the nuisance behavior, or both. You might also have a right to "self-help"—that is, to remove the nuisance (like a spite fence) yourself. Let's take a closer look at these options.

Who Can File a Private Nuisance Lawsuit?

To be able to sue someone for a private nuisance, you must have "standing," or the legal right to sue. Only an individual whose personal use or enjoyment of property is harmed can bring this kind of action. Put differently, you've got to have a property interest in the land.

You have an obvious property interest if you own the land, but ownership isn't always required to have standing to file a private nuisance lawsuit. Like a tenant of an apartment building, a renter also has interest in the property and can usually bring a lawsuit over someone's interference with their use and enjoyment of it.

What Are Nuisance Damages?

To recover damages (money), you don't always need to show the nuisance caused a physical injury or that it caused your property to lose value. The definition of nuisance includes human activities that are simply indecent or offensive to the senses. That means a nuisance could be:

  • a dangerous condition that you're afraid will injure you (like a neighbor's dead tree that hangs over your backyard), or
  • something your neighbor does that disturbs your ability to enjoy your home in peace (like loud music or a rooster crowing at dawn).

Differences in taste don't fall under the "nuisance" umbrella. You might not like the color your neighbor painted their house, but it's probably not a nuisance unless you can show that it reduces your property value.

Measure of Damages in a Private Nuisance Case

Generally, the "measure of damages" for a private nuisance is compensation for the loss or injury sustained (like the amount your property value declined because of the nuisance). However, if the nuisance is only temporary, the measure of damages is usually the dollar value that might reasonably be placed on the interference to your use and enjoyment of the land or property, plus any "special damages."

Special damages can include reasonable costs associated with removing the nuisance, loss of business or profits, or compensation for personal discomfort, inconvenience, annoyance, etc. You might also be entitled to punitive damages if the defendant's actions are particularly reckless.

"Abatement" and "Balancing of the Hardships"

In addition to making your neighbor pay damages, you might also want the nuisance removed or destroyed completely (called "abating" the nuisance). The traditional method for abating a nuisance is an injunction—a court order requiring the other person to do or stop doing a specific act or acts.

For example, if your neighbor's loud music is keeping you up at night, you might be able to get an injunction ordering your neighbor to stop playing music after a certain time of night. Or if the nuisance is a dead tree that you're afraid is going to fall on your car, the court could issue an injunction ordering your neighbor to have the tree removed.

To receive an injunction, you must be able to show that you'll suffer irreparable harm if the nuisance continues.

Courts use a balancing test to determine who has the most at stake in this kind of dispute. The court must decide if allowing the nuisance to continue will harm you more than stopping the nuisance would harm the defendant. This test is called a "balancing of the hardships."

For instance, let's say your neighbor opens a business on the property next door. The business draws so many people that parking on your block becomes impossible for the majority of the day. You often must park a block away and walk to your home.

If the court forces your neighbor to close the business, you'd regain your ability to park in front of your house, but your neighbor would lose their livelihood. The court must decide if your parking a block from home harms you more than closing the business would harm your neighbor.

If the court finds the harm caused to you (parking a block from home) is minimal and the harm caused to your neighbor (losing the business) would be severe, the court would likely deny the injunction. However, you could still win monetary damages.

Self-Help: Getting Rid of the Nuisance Yourself

A person who's been harmed by a nuisance can also engage in "self-help." Self-help means that you're allowed to remove or destroy the nuisance if you can do so without unnecessarily harming anyone or anything or without "breaching the peace."

However, if you have to go onto someone else's property to stop the nuisance, you typically must give "reasonable notice" before doing so, in compliance with local or state laws.

For example, if you live next to a vacant lot on which people have been dumping their garbage, you'd probably need to send a formal letter to the property owner, describing the problem and asking the owner to fix it. In the letter—and depending on what the law allows—you might be able to state that if no action is taken within a certain time, you intend to resolve the situation yourself. You'd then describe when and how you plan to take action (by entering the lot and removing the garbage at a specific time, for example).

Before going the self-help route, make sure you have a complete understanding of how this option works under state and local laws. The last thing you want is a trespassing allegation or other complication making matters worse.

To make sure all your legal bases are covered, it might make sense to discuss your situation with a lawyer. And keep in mind that engaging in self-help doesn't mean you give up your right to take your complaint to court later on.

Know Your Rights

Disagreements among neighbors are all too common. Fortunately, the law is there to serve as a guide for resolving disputes and to protect you if things get out of hand. You can learn more about your rights and responsibilities in dealing with your neighbors—and how to resolve conflicts—with Nolo's Neighbor Law by Emily Doskow and Lina Guillen.

If you've tried to resolve your property-related dispute yourself, but things have hit a standstill or become adversarial, it might make sense to discuss your situation (and your options) with an experienced legal professional. Learn more about finding the right lawyer for you and your case.

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