Am I the Nuisance, or Is My Neighbor? What the Law Says

The law of nuisance came from Merry Olde England, and it crops up in property cases to this day.

Sometimes, a nuisance is both private and public. Consider a body shop that emits fumes or dumps oil — impacting specific residences, and creating a public hazard at the same time.

Or perhaps it feels more personal — like that constant late-night party noise next door.

So let’s take a look at how these laws function, and what a private deed holder needs to know.

What’s a Private Nuisance?

Private nuisance laws exist to protect the comfort of your home. As you might expect, people sue their neighbors for all sorts of annoyances that they’re unable to resolve person-to-person.

Loud noises, offensive smells, heavy or hazardous obstacles — anything that interferes with the use or enjoyment of property in an unreasonable, ongoing, and substantial way could be deemed a nuisance. A nuisance is distinct from a trespass, which involves someone deliberately entering the property.

When some sort of menace affects just one or a few people’s homes, it might be a private nuisance. In this case, the affected individual(s) bring a legal claim against whoever’s responsible for the alleged nuisance.

There could be grounds to ask a court for an injunction against the responsible party. An injunction serves as a limitation. It could restrict the hours when an activity may go on. Or it could prohibit the nuisance outright.

But is the nuisance really substantial? Or is a neighbor just being oversensitive? Courts take into account the sensitivity of the average person in a given community to try to answer that question.

Courts also balance the harm of the nuisance against the reason it exists. The idea is to try not to put undue hardship on either side of the dispute. And courts may reject a case brought by someone who would have known about the issue when they moved into their home in the first place.

Some nuisances are both private and public. For example, if a private wall has fallen and blocked access to a public road it would be a public nuisance.

And that brings us to…

What’s a Public Nuisance?

It’s something that unreasonably threatens a right that people hold in common. That is, public nuisance law applies to parties interfering with the health, safety, and property rights of a whole community — not just one or a handful of affected people.

Of course a state wants to prevent the spread of diseases, the leaking of toxins, or anything that threatens public health, safety, or comfort. So, private parties can be held liable for abatement (removal) of public nuisances.

State laws prohibit public nuisances. These laws include lists of things like dumping, discarding old TVs or fridges, or putting advertisements up on someone else’s property without permission (or a court order).

Is it a crime to create a nuisance? Typically, a private nuisance is a tort, not a crime. But creating or maintaining a “public or common nuisance” is often classified as a misdemeanor. Remember Arlo Guthrie’s song Alice’s Restaurant Massacree? In the lyrics, the young offenders were charged with creating a nuisance because of the garbage they dumped at the bottom of a cliff in New York on Thanksgiving. Under New York’s Penal Law, someone is guilty of criminal nuisance when illegally or unreasonably (given the circumstances) “creates or maintains a condition which endangers the safety or health of a considerable number of persons.” Dumping  Alice’s garbage could be considered a public health menace. New York nuisance law also bans maintaining any place where people gather to engage in outlawed activities. Either way, New York State makes this crime a class B misdemeanor.

Some statutes target certain vices or sexually explicit media or activities carried out in public. Nuisance law enables governments to seek court-issued injunctions against buildings or homes implicated in things like illegal drugs.

States also use nuisance laws to address physical obstructions and various activities that interfere with people’s own rights to enjoy their properties. But because nuisances are usually localized, states pass a good deal of authority on to the local governments.

And in fact, many cities and townships do address the ways people annoy their neighbors. But state law typically says local ordinances can’t just declare some specified activity a nuisance per se. Before taking action, the local government has to show that actual danger, health risks, or public harm is resulting from whatever they’re calling a nuisance. As a familiar illustration, let’s look at that classic annoyance: someone who leaves old stuff around.

Nuisance ordinances often say people can’t use their home properties as places to keep cars without registration and insurance. But an inoperative car isn’t an automatic nuisance. So to get someone to clear their property of their prized antiques, the local investigators might need to find hazardous parts, for example, that could harm kids who play around the cars. Same for removal of any kind of debris, decaying buildings and so forth. Something that’s just ugly usually won’t be enough to constitute a nuisance under the law. But something that presents a public hazard usually will.

Neighbors Too Close for Comfort?

State laws have traditionally protected the right of property owners to the “quiet enjoyment” of their homes. If you feel like quiet enjoyment has been sabotaged by your neighbor, local rules and laws can back you up.

Sources of authority are:

• State nuisance law. For public nuisances, state law controls. But your state likely delegates the specific issue in question to…

• Local nuisance ordinances. Local governments draft nuisance-related ordinances. Noise pollution could be named in an ordinance. Fallen trees, fences or walls could come into play. If it’s a public nuisance, the local government should be willing to act on it. But the state can also create a private right of action. This lets impacted residents bring public nuisance claims against things that local governments ignore.

• Local zoning rules. Be aware that an activity could be carried out in an area zoned to allow it, and still constitute a nuisance to area residents. This can easily occur in mixed residential and commercial zones.

• Homeowner associations. Check the governing documents of your homeowner association (HOA) if you have one. Condos may have no-smoking and other health and safety rules in their Conditions, Covenants, and Restrictions (CCRs).

Outcomes in nuisance complaints vary. An experienced real estate attorney can help you file, and obtain the remedies available to you.

Is your condo association interfering with your rights to enjoy your own property? You may have legal recourse. Learn more.

Word to the Wise

We hope and expect you’re better informed about nuisances after reading this column. But the discussion above is only an orientation. For personalized guidance, consult a local real estate lawyer or legal services in your home state. The articles on Deeds.com cannot substitute for an experienced lawyer’s examination of your particular case.