Nuisance

Question 1

What is Private Nuisance?

Answer 1

Substantial, unreasonable interference with the use and enjoyment of plaintiff’s property.

Question 2

Within Private Nuisance, what type of conduct constitutes Substantial Interference?

Answer 2

Conduct that is offensive, inconvenient or annoying to the average person in the community

Question 3

Within Private Nuisance, how is an Average Person determined?

Answer 3

Reasonable person test

Question 4

Within Private Nuisance - Average Person, will hypersensitivity of plaintiff be considered?

Answer 4

No

Question 5

Within Private Nuisance, if activity is done on properly zoned property, does that mean it cannot be a private nuisance?

Answer 5

No, it can still be considered a Private Nuisance

Question 6

Within Private Nuisance, Unreasonable Interference, the injury to the plaintiff must outweigh:

Answer 6

The utility of defendant’s conduct

Question 7

Within Private Nuisance - Unreasonable Interference, in balancing respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and any:

Answer 7

Alternative courses of conduct open to defendant

Question 8

Within Private Nuisance - Unreasonable Interference, courts need to weigh and balance competing:

Answer 8

Interests

Question 9

Within Private Nuisance - Unreasonable Interference, will aesthetic interference alone be sufficient?

Answer 9

No

Question 10

Within Private Nuisance, what constitutes a proper plaintiff?

Answer 10

1) Owner of property 2) Occupier of property

Question 11

Within Private Nuisance - proper plaintiff, can a guest in someone’s house file for private nuisance?

Answer 11

No

Question 12

What are the key differences between Private Nuisance and Trespass to Land?

Answer 12

Private Nuisance - there is an interference with use or enjoyment. Trespass to Land - there is an interference with landowners exclusive possession by a physical invasion

Question 13

When you see Private Nuisance, you should always think of what intentional tort?

Answer 13

Trespass to Land

Question 14

What is Public Nuisance?

Answer 14

Unreasonable interference to the health, safety or property rights of the community.

Question 15

Within Public Nuisance, when is recovery available to private individuals?

Answer 15

If the plaintiff has suffered some unique damage not suffered by the public at large

Question 16

Within Nuisance, what damages are available?

Answer 16

Actual damages may be recovered. Punitive damages may be awarded if defendant’s conduct is malicious, willful or wanton

Question 17

Within Nuisance, if remedy of damages is unavailable or inadequate, the court may award:

Answer 17

An injunction

Question 18

Within Private Nuisance, when is self-help abatement available?

Answer 18

After notice to defendant and his refusal to act, plaintiff may go onto land of defendant to stop the nuisance.

In essence, to remedy a nuisance, the law gives those neighbors who are negatively affected the right to enter onto the nuisance-creating property and clean up, or abate, the nuisance.

Question 19

Within Public Nuisance, when is self-help abatement available?

Answer 19

It is not. Plaintiff cannot go onto defendant’s land but must use public officials or public authority to abate the nuisance

Question 20

What two items (not defenses) will be considered “in the balancing” for Nuisance?

Answer 20

1) Coming to the nuisance 2) Zoning

Coming to the nuisance - a defense to a nuisance claim by the offending party is that it engaged in the offending activity (the nuisance) before the complaining party arrived and became affected by the activity. For example, defendant has owned and operated a well known music studio for many years. In spite of knowing this, the plaintiff purchased the property next door knowing that sound would regularly travel and be heard on the adjoining property.

Zoning - in an attempt to escape liability, a defendant may argue that legislation (such as zoning laws or licenses) authorizes a particular activity.

Question 21

What are the two types of Nuisance?

Answer 21

1) Public 2) Private

Question 22

What is the difference between Private Nuisance and Public Nuisance? What is an example of each?

Answer 22

A private nuisance is the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual trespass or physical invasion to the land. A public nuisance is an act or omission that obstructs, damages, or inconveniences the rights of the community.

Private - Examples of private nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant’s mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.

Public - A manufacturer who has polluted a stream might be fined and might also be ordered to pay the cost of cleanup. Public nuisances may interfere with public health, such as in the keeping of diseased animals or a malarial pond. Public safety nuisances include shooting fireworks in the streets, storing explosives, practicing medicine without a license, or harboring a vicious dog. Houses of prostitution, illegal liquor establishments, Gaming houses, and unlicensed prizefights are examples of nuisances that interfere with public morals. Obstructing a highway or creating a condition to make travel unsafe or highly disagreeable are examples of nuisances threatening the public convenience