Smoke stacks.jpgA private nuisance is a nontrespassory invasion of another person’s interest in the use and enjoyment of their land. A nuisance typically involves the invasion of the plaintiff’s property by light, sound, odor or a foreign substance. The plaintiff’s interest can be invaded by any type of conduct that can form the basis of tort liability, such as negligence or intentional conduct.

To prove a cause of action for private nuisance, the plaintiff must establish that it has property rights and privileges with respect to the use and enjoyment of the land affected. To establish such property rights the plaintiff can show that it owns or occupies the land or has an easement in connection with the land.

A defendant can be liable for a private nuisance, if the plaintiff establishes that the defendant interfered with or invaded the plaintiff’s interest through negligent conduct, intentional conduct or other conduct that is abnormal and out of place to its surroundings. To prove negligent invasion, the plaintiff must establish that the defendant knew or should have known that its conduct involved an unreasonable risk of interfering with or causing an invasion of the plaintiff’s interest in the land. A defendant can be found liable for intentional invasion if the defendant acts for the purpose of causing the invasion and knew or should have known that the invasion will result or is substantially certain to result from its conduct. An example of conduct that is out of place for its surroundings is a commercial enterprise that causes or permits to escape noxious things such as smoke, soot, or odor that substantially impairs the comfort and enjoyment of those occupying neighboring property.

To prevail on a claim for private nuisance, the plaintiff must establish that the nuisance resulted in a condition that substantially interfered with the plaintiff’s use and enjoyment of the land causing unreasonable discomfort or annoyance to a person of ordinary sensibilities attempting to use and enjoy the land. The plaintiff must also establish that the nuisance caused some type of injury. Typically, a nuisance may result in two types of injury: (1) physical harm to the plaintiff’s property such as the encroachment of a damaging substance or by the property’s destruction or (2) physical or emotional harm to the plaintiff such as an assault on the plaintiff’s person or on the plaintiff’s senses through fear, apprehension, offense or loss of peace of mind.

If the defendant is found liable for the nuisance, the plaintiff can recover damages for loss of the fair market value of the property or for the loss of the use and enjoyment of the property, but not for both. The appropriate measure damage depends on whether the nuisance causing the injury is permanent or temporary. To determine whether the nuisance is permanent or temporary, the plaintiff must assess whether the nuisance’s future impact on market values can be evaluated, as well as, the frequency and duration of the nuisance. If future impact can be determined, the nuisance is permanent. However, if the future impact is only speculative, the nuisance is temporary. Conduct that is regular and consistent will typically be found permanent as opposed to conduct that is irregular and intermittent which is usually considered temporary.

If the nuisance is permanent, the plaintiff can recover damages for loss of market value. However, if the nuisance is temporary, the plaintiff can only recover damages for loss of use and enjoyment, such as loss of rental value or the cost to repair or remove the nuisance. If the plaintiff has been physically injured by the nuisance, the plaintiff can recover damages for sickness, annoyance, discomfort or other bodily harm caused by the nuisance which impairs the comfortable enjoyment of the property. However, the plaintiff may not recover mental anguish damages for injury caused solely by negligent conduct. In additional to damages, the plaintiff may also be entitled to injunctive relief to prohibit future conduct by the defendant.

The statute of limitations for nuisance is two years. A nuisance claim arises when there is substantial interference with the property, not when a potential source of the nuisance is constructed. If the nuisance is permanent, the cause of action accrues when the nuisance first begins or is discovered. If the nuisance is temporary, the cause of action accrues when each separate injury occurs. Thus, a case of action for temporary nuisance will not be barred by the statute of limitations unless the full period of the statute has run against the particular claim.

DISCLAIMER Information in this article is proved for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. The Law Office of Stephen O’Rear, P.C.does not represent any person unless and until it is retained and agrees to provide such representation in writing.