Private vs. Public Nuisance Claims Against Property Owners

Property owners can be liable for things they do on their property, when that activity disturbs others.

The legal definition for “nuisance”, though not quite as broad as its common usage, is still broad enough to encompass a variety of activities and conditions. In fact, one judge has even called it “a sort of legal garbage can.”

A 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.

Examples of a public nuisance include indecency, pollution, noise, and contagious disease. The exact definition may vary from jurisdiction to jurisdiction, so it is important to check your state’s laws.

Totality of the circumstances.  Whether or not an act is a nuisance depends upon the unique facts and circumstances of your 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 have “come to the nuisance” (meaning that 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.

So, some activities, such as roosters in your backyard, can be a nuisance in one location but not in another.

Policy behind 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 v. Public Nuisance

A nuisance can either be “public” or “private”. Generally speaking, a public nuisance affects the rights of an entire community or a large number of people, whereas a private nuisance affects an individual or the property rights of a small number of people.

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.

What is a 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 ultrahazardous, 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. This means that if you are hypersensitive to a particular smell caused by a factory, the activity might not be considered a nuisance.

What Is A 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.

Why This Distinction Is Important

The distinction between public and private 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 (as opposed to a private citizen)    to initiate an action over a public nuisance.

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