Nuisance

Question 1

what is a ‘nuisance’?

Answer 1

nuisance is an INVASION of property rights by tortious conduct.

Question 2

what are the 2 types of nuisance?

Answer 2

(1) private nuisance
(2) public nuisance

Question 3

what is (1) private nuisance?

Answer 3

a private nuisance is a
(1) SUBSTANTIAL,
(2) UNREASONABLE
(3) INTERFERENCE with another private individual’s USE OR ENJOYMENT of property that the other individual actually POSSESSOS OR has a RIGHT of immediate possession.

Question 4

what is 1) substantial interference?

Answer 4

substantial interference is interference that is OFFENSIVE, INCONVENIENT, or ANNOYING to the average person in the community.

Question 5

what is (2) unreasonable interference?

Answer 5

to establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must OUTWEIGH the UTILITY of the defendant’s conduct (balancing test)

In balancing these interests, courts take into account that every person is entitled to use their own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

Question 6

difference between trespass to land and a private nuisance?

Answer 6

in a trespass - there is an interference with the landowner’s EXCLUSIVE POSSESSION by a physical invasion

in a private nuisance - there is an interference with USE or ENJOYMENT

Question 7

2) PUBLIC nuisance

Answer 7

public nuisance is an act that UNREASONABLY interferes with the health, safety or property rights OF THE COMMUNITY

i.e. using a building for criminal activities such a prostitution.

Question 8

is a private party able to recovery available for a public nuisance?

Answer 8

recovery by a private party is available for a public nuisance ONLY if the private party suffered UNIQUE damage not suffered by the public at large.

Question 9

what are the remedies for nuisance?

Answer 9

a) damages
b) injunctive relief
c) abatement by self help

Question 10

a) damages

Answer 10

the P usually will be awarded damges

Question 11

b) injunctive relief

Answer 11

if the legal remedy of damages is unavailable or inadequate (for example - nuisance will cause irreparable injury), injunctive relief will be awarded

In this case - the court will consider the relative hardships - but hardships will not be balanced if the D’s conduct was willful

Question 12

c) abatement by self-help

Answer 12

in the case of PRIVATE nuisance, self-help abatement is available AFTER notice to the defendant AND their refusal to act

Only necessary force may be used

in PUBLIC nuisance cases - only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement

Question 13

defenses in nuisance cases

Answer 13

a) legislative authority
b) conduct of others
c) contributory negligence
d) coming to the nuisance

Question 14

a) legislative authority

Answer 14

legislative authority for “nuisance activity” (i.e. a zoning ordinance) is not an absolute defense but is persuasive

Question 15

b) conduct of others

Answer 15

no one actor is liable for all damage caused by concurrence of their acts and others acts. (only liable for the damage they have caused)

Question 16

c) contributory negligence

Answer 16

contributory negligence generally is no defense to nuisance unless the P’s case rests on a negligence theory

Question 17

d) coming to the nuisance

Answer 17

one may “come to the nuisance” (purchasing land next to an already existing nuisance) and thereafter pursue an action

Generally not a bar to the P’s actions unless the P came to the nuisance for the sole purpose of bringing a harassing lawsuit