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Property or Use of Property

Generally, a person can use his/her property for any lawful purpose[i].  However s/he should not use his/her property in such a manner that it deprives others of any right of enjoyment of their property which is recognized and protected by law[ii].  This rule is laid down in the maxim “sic utere tuo ut alienum non laedas”, which means use your own as not to injure another’s property.  The offense of nuisance is based upon this maxim.

Accordingly, any unreasonable interference or disturbance that injures a neighbor’s comfortable and reasonable use and enjoyment of property will attract an action for nuisance.  Therefore one must use his/her property in a manner that is not deemed under law as nuisance[iii].  Likewise, one may not conduct a business on his/her own land in such a way that it is injurious or offensive to those residing in the vicinity and rightfully traveling on an adjoining highway.

There are no fixed general rules to determine whether a particular use of land is a nuisance.  Generally, a property’s inherent nature together with other relevant facts such as the nature and extent of the harm involved, and the nature, utility, and social value of the use or enjoyment invaded are taken into consideration for determining a nuisance[iv].

An owner of a property must not use his/her property for any special and delicate uses to increase the liability of his/her neighbor.  But a sensitive use of land would receive protection if the conduct of a defendant is unreasonable with respect to that sensitive use[v].

Nuisances that are a mere consequence of a legitimate use of a property are not remediable under law.  Similarly a landowner should expect reasonable trifling annoyances, inconveniences, and discomforts that result from a neighbor’s use and enjoyment of property. Annoyances are treated as trifle when they are suitable to the locality, and do not cause any unnecessary damage to the locality.

Sometimes a building or a house can also become a subject of nuisance.  A building or house can create either a public or private nuisance because of its filthy, unsanitary, and odorous condition.  Generally a building that is fit for human use or habitation is not a nuisance per se, even if it is old and dilapidated.  A building generally becomes a nuisance by virtue of its unsafe, harmful, or illegal use.  Therefore a building that is used for acts prohibited by a statute will be declared a public nuisance[vi]

A building cannot be cited for nuisance merely because it obstructs the view from a neighboring property.  Hence, the height of a building alone is not enough to constitute a nuisance[vii].  Similarly the mere fact that construction of a building to carry out a lawful business will lessen the value of other property in the locality will not constitute a nuisance[viii].

While determining the question of nuisance created by the unlawful use of a property or building, the trial court must see that whether the nuisance is in fact permanent or not.  If it finds that it is permanent then the trial court shall enter into judgment damages for the decrease in market value.  And if it finds that it is not permanent, then the trial court shall grant injunctive relief and such additional damages as may be proven for the temporary decrease in the value of the use of the property while the nuisance continues[ix].

[i] Cason v. Florida Power Co., 74 Fla. 1 (Fla. 1917).

[ii] Lee v. Florida Public Utilities Co., 145 So. 2d 299 (Fla. Dist. Ct. App. 1st Dist. 1962).

[iii] Abbinett v. Fox, 103 N.M. 80 (N.M. Ct. App. 1985).

[iv] Grzybowski v. Faraci Manor, Inc., 1993 Conn. Super. LEXIS 1325 (Conn. Super. Ct. May 24, 1993).

[v] Gronn v. Rogers Constr., Inc., 221 Ore. 226 (Or. 1960).

[vi] People ex rel. Van De Kamp v. Am. Art Enters., 33 Cal. 3d 328 (Cal. 1983).

[vii] Collinson v. John L. Scott, 55 Wn. App. 481 (Wash. Ct. App. 1989).

[viii] Duncan v. Hayes, 22 N.J. Eq. 25 (Ch. 1871).

[ix] Spaulding v. Cameron, 38 Cal. 2d 265 (Cal. 1952).


Inside Property or Use of Property