How to get rid of a neighborhood nuisance

“Do I have to disclose to my buyer the real reason I amselling my house is the obnoxious noisy neighbors?”

That was the e-mail question I received a few days ago. Moststates now have home-sale disclosure laws that require sellers to revealserious problems that have a material affect on the market value ordesirability of a residence.

Purchase Bob Bruss reports online.

My answer was, “Yes, you must disclose the next doorneighbors are noisy.” However, you don’t have to reveal that is theprimary reason for your home sale. I based my answer on the only court case ofwhich I am aware, which said home sellers must disclose especially troublesomeneighbors.

That case involved an IBM employee who had been transferredto Seattle. A corporate relocation firm took over the sale of the employee’sformer residence. The firm was not aware of the very troublesome neighbors andthe police had been called many times.

After the buyers moved in, they immediately noticed theobnoxious neighbors and sought a rescission of the home sale. The CaliforniaCourt of Appeal granted rescission and refund of the buyer’s money because ofthe seller’s failure to disclose the neighborhood nuisance. The case is Shapirov. Sutherland (1998) 60 Cal.App.4th 666.

YOUR NUISANCE MIGHT BE ENJOYABLE TO OTHERS. Severalyears ago, in the town adjacent to where I live, there was a very popular nightclubthat featured loud rock music. Hundreds of people came every evening to danceand enjoy the music. But the nearby apartment building neighbors couldn’t sleepbecause of the loud noise.

Although the nightclub was properly licensed, the cityattorney received so many citizen complaints that he brought a lawsuit to abatethe public nuisance that affected many neighbors. Before trial, a settlementwas reached. The nightclub owners agreed to keep the doors and windows closedso the sound could not escape into the neighborhood.

However, that still didn’t abate the nuisance from the loudband music. Before the neighbors could bring another lawsuit, the nightclubowners agreed to close their business. Today, there is a superb restaurant atthe site and now all the neighbors complain about is the smell of greatcooking. But I don’t think that is an abateable nuisance.

TWO TYPES OF NUISANCES TO CONSIDER. Legally,there are two types of nuisances that might affect the enjoyment of your homeor business property. When a disturbance affects only one or a small number ofindividuals, that is a private nuisance.

For example, recently I heard about a commercial tenant wholeased office space. Sometime later, the landlord leased the adjacent space toa metal stamping plant, which installed heavy equipment to stamp metal. Thevibrations drove the adjoining office tenant to vacate because of the”private nuisance” created by the next-door tenant.

The other type of nuisance is a public nuisance, whichaffects many people. Examples include a rat-infested dump, a noisy airport, ahouse of prostitution, a “drug house,” and a noisy or smelly factory.

1. PRIVATE NUISANCE ABATEMENT IS A PRIVATE MATTER. Mostprivate nuisances, which affect only one or a small number of people, involveneighbors. For example, if your neighbor’s dog barks all day while the owner isat work, it is a private nuisance if you are the only person affected. However,if the barking dog disturbs many neighbors, then it is a public nuisance.

The legal remedy to abate a private nuisance, whichaffects only a few people, is to bring a nuisance abatement lawsuit against theoffender. However, before resorting to a lawsuit, which might not besuccessful, try to politely talk with the offender.

For example, my neighbor’s two old trees were leaningprecariously toward my house. In the event of a strong windstorm, my housewould probably be severely damaged if they fell. However, my neighbor was notaware of the danger. When my neighbors came over to my property and observedthe lean of their dying trees, they promptly had them removed. I didn’t evenhave to mention the words private nuisance or abatement lawsuit.

2. PUBLIC NUISANCE ABATEMENT CAN BE COMPLICATED. When adisturbance affects many individuals, that is a public nuisance, which can bevery difficult to abate, especially if it has existed a long time.

A public nuisance is usually not “all bad.” Itoften has benefits. Examples include a noisy airport, a smelly factoryemploying many individuals, an amphitheater providing loud entertainment tothousands, and a shopping center with traffic congestion, which providesemployment and tax revenue.

The legal remedy to remove or mitigate a public nuisance isusually (a) an injunction to stop the nuisance activity, (b) a partialabatement court order, (c) a negotiated settlement, and/or (d) payment ofmonetary damages to allow the nuisance to continue.

The customary legal remedy to remove or abate a publicnuisance is for a public official, such as the city or county attorney, tobring a nuisance abatement action against the offender. However, when such anofficial refuses to act, matters become complicated.

To illustrate, noisy airports are very important to thelocal economy. The success record abating airport noise has not been good.Because of the economic benefits, elected public officials are usuallyreluctant to bring public nuisance abatement actions.

WHEN PRIVATE LAWSUITS CAN ABATE PUBLIC NUISANCES. Whenpublic officials refuse to abate public nuisances, individuals can take action.

The most famous court decision on this issue is Lew v.Superior Court (25 Cal.Rptr.2d 42). In that case, 75 angry Berkeley,Calif., neighbors of the 36-unit apartment building owned by the Lew familysued to abate an alleged “drug house” that the police had been unableto close. The neighbors were very upset over the shootings and other crimesoriginating in the apartments.

Each of the 75 neighbors sued the apartment owners for thelocal Small Claims Court maximum $5,000. The judge ruled in favor of the 75plaintiffs. The Lews appealed.

But the California Court of Appeal upheld the $218,325damages against the apartment owners for allowing a public nuisance affectingmany neighbors.

POSSIBLE DEFENSES TO A NUISANCE LAWSUIT. Justbecause a private or public nuisance disturbs you doesn’t mean it can besuccessfully abated.

Possible defenses include (a) the plaintiff moved to theneighborhood knowing about the nuisance and (b) the nuisance was tolerated formany years.

Most courts now rule the statute of limitations is not adefense to a lawsuit to abate a longtime nuisance, and each new occurrence is aseparate offence that can be abated.

Additional defenses, usually ineffective, include (a)there was no law violation, (b) there are other public and private nuisances inthe neighborhood, and (c) local zoning and ordnances allow the offendingactivity.

TRY TO SETTLE BEFORE SUING. Because the results of apublic or private nuisance abatement lawsuit are extremely difficult topredict, it is best to first attempt to reach a settlement with the offendingparty. A crafty defense attorney or a sympathetic judge or jury can oftenresult in failure to abate a nuisance.

Plaintiffs in a nuisance abatement lawsuit should thereforebe well prepared with evidence such as photos, witness testimony, and scientificevidence such as noise measurements. In other words, because public and privatenuisance abatement can be very difficult, a lawsuit should be avoided wheneverpossible. For full details, please consult a local real state attorney.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

Copyright 2006 Inman News

To search and research real estate data for more than 130 million properties nationwide, sign up for a FREE trial to RealtyTrac.

For the latest real estate news and trends get a FREE issue of our award-winning real estate newsletter, the Housing News Report.

Related Posts

Leave a Reply

Copyright © 2016 Renwood RealtyTrac LLC - All rights reserved