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.

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 creating a nuisance on their property, they may be liable for any resultant damages.

What Is a Nuisance?

The legal definition of “nuisance” is an activity or physical condition that is indecent or offensive to the senses, or interferes with another person’s reasonable use and enjoyment of life or property.

Whether a property owner near you is creating a nuisance depends upon the unique facts and circumstances of the situation. When evaluating an alleged nuisance, courts consider:

  • 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 the harm.

Using these criteria, what constitutes a nuisance in one neighborhood might be perfectly reasonable activity in another. For example, while a neighbor’s loud roosters in a suburban cul-de-sac are likely a nuisance, the same roosters located on a farm in a rural area probably aren’t.

Types of Nuisance

A nuisance can either be “public” or “private.” In general, a public nuisance negatively affects an entire community or a large number of people, while a private nuisance affects an individual or a relatively small number of people.

Private Nuisance

Private nuisances unreasonably or unlawfully interfere with others’ use and enjoyment of life or property. To determine if the activity is unreasonable, a court will weigh the gravity of the harm against the social benefit of the interference.

The harm caused must be significant and of a kind that would affect an average person or property in the same 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 backyard entertainment system more likely rises to the level of nuisance.

Public Nuisance

A public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public. The sheer number of people affected doesn’t transform a private nuisance into a public one—rather, the public must be affected in a manner specifically prohibited by your city’s or state’s laws.

In general, public nuisances threaten a community’s health, safety, or overall welfare. Common types of public nuisance include pollution, drug activity, explosives storage, and possession of dangerous animals.

Property Owner Liability for Nuisance

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

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.

Under most public nuisance laws, on the other hand, individuals cannot 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 pursue criminal charges and penalties.

If you need assistance with a public or private nuisance claim, a local real estate attorney can help you understand the nuisance laws where you live.

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