Private vs. Public Nuisance Claims Against Property Owners

When property owners engage in or allow activity that disturbs others, they may be held liable for damages.

By , Attorney · UC Berkeley School of Law
Updated by Stacy Barrett, Attorney · UC Law San Francisco

One of the many benefits of owning property is the right to reasonably use it as you please. However, this right is not unlimited: Nuisance laws aim to balance the rights of property ownership with the rights of adjoining neighbors and the community at large. Although nuisance laws vary, they all prohibit activity that unnecessarily damages or devalues the life or property of others. When property owners engage in or allow activities that create a nuisance on their property, they may be liable for any resultant damages.

What Is a Nuisance?

The legal definition of a "nuisance" is an activity or condition (such as a loud noise or an offensive odor) that interferes with the use or enjoyment of property. Courts typically consider the following factors when deciding whether something is a nuisance:

  • the population and location of the area
  • the prior use of the land (in other words, how people have used the property in the past)
  • 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
  • how many people are negatively affected by the activity, and
  • the degree of harm caused by the activity or condition.

The same activity can be a nuisance in one neighborhood and perfectly reasonable in another. For example, while a neighbor's loud, stinky chickens might be a nuisance in a suburban cul-de-sac, the same chickens located on a farm in a rural area almost certainly aren't.

Two Types of Nuisance

A nuisance can either be private or public. A private nuisance is an activity or condition that affects an individual or a small group of people. A public nuisance is an activity or condition that affects an entire community or a large number of people. For example, if your neighbor's tree falls and blocks your driveway, you may have a private nuisance claim against your neighbor. If your neighbor's tree falls and blocks a public road, the local government will likely investigate and take legal action if necessary.

Property owners can be liable for both private and public nuisances that originate from their property—even if the nuisance is created by someone other than the owner, such as a tenant.

Private Nuisance

To determine if an activity or a condition is a private nuisance, courts typically weigh the social benefit of the activity or condition against the amount of harm it causes.

The harm caused must be significant and something that would affect an average person in the community. For example, an individual with an extremely sensitive sense of smell might not be successful in claiming a smell coming from a neighbor's house is a nuisance if no one else living nearby can smell it.

The activity must also have little to no social benefit. For example, the sound of music coming from the home studio of a professional pianist likely isn't a nuisance, while music played at all hours from a souped-up sound system in someone's garage more likely rises to the level of nuisance.

Public Nuisance

State and local laws define what constitutes a public nuisance in a community. To understand what counts as a public nuisance where you live, it's critical for you to study the nuisance laws in your state, county, and city.

In general, public nuisances are broken into three categories:

  • Health nuisances: Examples include pollution, diseased insects and animals, dangerous animals, and untreated waste or garbage.
  • Moral nuisances: Examples include illegal gambling, prostitution, and public viewing of pornography.
  • Drug nuisances: Examples include illegal drug use or sales that decrease the quality of life and property values in a neighborhood. Many jurisdictions are also using public nuisance laws to stop criminal street gang members from doing certain activities in specific locations.

Enforcing Private Nuisance Laws

Individuals harmed by a private nuisance may sue the offending property owner for damages caused by the activity, such as medical bills, loss of property value, or the cost of repairs. They may also request the court to issue an injunction—an order telling the property owner to put an end to the nuisance.

Enforcing Public Nuisance Laws

Under most public nuisance laws, individuals can't seek to stop the activity, unless an exception under state or local law applies. (Often, though, public nuisance laws allow individuals who are harmed in a manner that is different from the harm suffered by the public at large to sue for damages.) Due to the nature of public nuisances, under most laws, only a public agency can sue to stop the activity. In some areas, certain public nuisances are classified as criminal offenses, meaning that a city attorney or other public official may press criminal charges and penalties.

How Much Is a Nuisance Case Worth?

You can typically pursue two types of relief in nuisance cases:

  • abatement, and
  • money damages.

What Is Abatement?

When confronted with a public or private nuisance, most people want the nuisance to end. Courts typically issue an injunction to abate (end) a nuisance, which is a court order that someone do something or stop doing something. Let's say you have a noisy neighbor, you might be able to get an injunction ordering your neighbors to stop playing loud music at midnight or to keep their dog inside after 10 p.m. You'll have to show that allowing the noise to continue will harm you more than stopping the noise will harm your neighbor.

What Are Damages?

Damages are compensation (money) for the losses and injuries caused by a nuisance, including:

  • loss of value or use of property
  • costs associated with removing the nuisance
  • loss of business or profits, and
  • compensation for discomfort, annoyance, and emotional distress.

In some extreme cases, a person filing a nuisance lawsuit (the "plaintiff") might also get punitive damages.

Talk to a Lawyer

If you need assistance with a public or private nuisance claim, talk to a lawyer. A lawyer can answer your questions and explain your legal options. Learn more about working with a lawyer. You can also connect with an attorney directly from this page for free.

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