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Private Nuisances

A private nuisance is a civil wrong that affects a single individual or a definite number of persons in the enjoyment of some private right which is not common to the public[i].  In other words, a private nuisance is a substantial and unreasonable interference with the private use and enjoyment of one’s land.  Examples include interference with the physical condition of the land, disturbing the comfort of its occupants, or threatening future injury or disturbance.  The origin of private nuisance liability is purely tortious in character and not criminal[ii].

It is to be noted that a private nuisance exists only where one is injured in relation to a right that s/he enjoys by reason of his/her ownership of an interest in land.  Private nuisance includes all injuries to an owner or occupier in the enjoyment of the property of which s/he is in possession, without regard to the quality of the tenure[iii].  However, a nuisance may be a public and a private one at the same time[iv].

The elements of a private nuisance are satisfied if[v]:

  • The other has property rights and privileges in respect to the use or enjoyment interfered with,
  • The invasion results in significant harm,
  • The actor’s conduct is the legal cause of the invasion, and
  • The invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultra hazardous conduct.

 

In order to proceed on a private nuisance theory, a person must prove an injury specifically referable to the use and enjoyment of his/her land.  However, such an injury need not be different from that suffered by the general public[vi].  Damages for emotional distress can be recovered in an action for private nuisance.  But the emotional distress must be caused by an interference with a specific property right.  In some jurisdictions, a private nuisance action cannot be maintained for interference in the use and enjoyment of land caused solely by the fear of a future injury[vii].

It was observed in Rose v. Chaikin, 187 N.J. Super. 210 (Ch.Div. 1982) that noise is an actionable private nuisance if two elements are present: (i) injury to the health and comfort of ordinary people in the vicinity, and (ii) unreasonableness of that injury under all the circumstances.  The circumstances may be multiple and must be proven by clear and convincing evidence.

[i] Armory Park Neighborhood Ass’n v. Episcopal Community Servs., 148 Ariz. 1 (Ariz. 1985).

[ii] B & W Management, Inc. v. Tasea Inv. Co., 451 A.2d 879 (D.C. 1982).

[iii] Couture v. Board of Education, 6 Conn. App. 309 (Conn. App. Ct. 1986).

[iv] Malhame v. Demarest, 162 N.J. Super. 248 (Law Div. 1978).

[v] Capitol Props. Group, LLC v. 1247 Ctr. St., LLC, 283 Mich. App. 422 (Mich. Ct. App. 2009).

[vi] Koll-Irvine Center Property Owners Assn. v. County of Orange, 24 Cal. App. 4th 1036 (Cal. App. 4th Dist. 1994)

[vii] Id.


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