Nuisance - Explained
Public and Private Nuisance
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What is Nuisance?
Nuisance is the use of ones property in a manner that creates a substantial, unreasonable interference with the use or enjoyment of another persons property.
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What is Public Nuisance?
Public nuisance arises from use of land that causes a substantial interference with the use and enjoyment of the property by the public at large.
- Example: Pollution from a factory that affects an entire neighborhood or town may constitute a public nuisance.
What is Private Nuisance?
Private nuisance arises when a person uses her property to substantially interfere with the use and enjoyment of another persons property.
- Example: Allowing your dog to bark and disturb your neighbor could constitute a private nuisance.
Discussion: How do you feel about a nuisance action as a method of enforcing ones property rights? How should the court balance the rights of one landowner versus those of another? Should there be public laws broadly targeting nuisance, such as criminal actions for general nuisance? Why or why not?
Practice Question: Evelyn buys a home in a small neighborhood. Since moving in, her neighbor Derek has been extremely rude to her. Specifically, Derek sent her an email asking that she avoid allowing her home to become a gaudy, eye sore in the neighborhood. Evelyn, ever the feisty one, is very angry about the email. She decides to paint a largely smiley face sticking out its tongue on the side of her house facing Derek's house. Derek is outraged by Evelyn's actions. What are Derek's options in this situation?
- Nuisance is a substantial interference with the right to use and enjoy land, which may be intentional, negligent or ultra-hazardous in origin and must be a result of the defendants activity. Nuisances can include noxious smells, noise, burning, indecent signs and pictures on businesses and many other activities. If a nuisance interferes with another persons quiet or peaceful or pleasant use of his/her property, it may be the basis for a lawsuit for damages and/or an injunction ordering the person or entity causing the nuisance to stop or limit the activity. Abatement of a nuisance may involve elimination of a nuisance by removal, repair, rehabilitation or demolition. In the practice question, Derek can apply for an injunction to have Evelyn take the indecent painting down. It will be up to the court to determine whether there is a significant interference with Dereks use and enjoyment of his property caused by Evelyns painting.
Academic Research on Nuisance
- Ball, Carlos A., The Curious Intersection of Nuisance and Takings Law. Boston University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=901236
- Culhane, John G. and Macchiaroli Eggen, Jean, Defining a Proper Role for Public Nuisance Law in Municipal Suits Against Gun Sellers: Beyond Rhetoric and Expedience. South Carolina Law Review, Vol. 52, P. 287, 2001. Available at SSRN: https://ssrn.com/abstract=277239
- Atkin, Bill, The Tort of Nuisance: 'Trucking On' (2016). in Shelley Griffiths, Mark Henaghan and M B Rodriguez Ferrere (eds) The Search for Certainty: Essays in Honour of John Smillie (Thomson Reuters, Wellington, 2016) pp 60-81.. Available at SSRN: https://ssrn.com/abstract=3091966Kairys, David, The Cities Take the Initiative: Public Nuisance Lawsuits Against Handgun Manufacturers. GUNS, CRIME, AND PUNISHMENT IN AMERICA, Bernard Harcourt, ed., N.Y.U. Press, 2003. Available at SSRN: https://ssrn.com/abstract=730843
- Keating, Gregory C., Nuisance as a Strict Liability Wrong (September 24, 2012). Journal of Tort Law, Vol. 4, Issue 3, Article 2, 2012; USC CLEO Research Papers Series No. C11-11; USC Legal Studies Research Papers Series No. 11-19. Available at SSRN: https://ssrn.com/abstract=1924519
- Smith, Henry E., Exclusion and Property Rules in the Law of Nuisance. Virginia Law Review, Vol. 90, No. 4, June 2004. Available at SSRN: https://ssrn.com/abstract=556154