That dog’s barking drove me to sue

A noisy factory; a junk-filled vacant lot; a constantly barking dog; noisy neighbors; a smelly sewerworks; a house where illegal drugs are sold; a house of prostitution; a noisy night club.

What do all these situations have in common?

If you said they are all nuisances, you earn an “A.”

PurchaseBob Bruss reports online.

Now for a tougher question: Which of the above nuisances are public nuisances, which are private nuisances, and what is the difference? The answer: “It depends on the facts.”

PRIVATE NUISANCES AFFECT JUST A FEW PEOPLE. When an offensive action or inaction adversely affects just one or a few nearby property users, that is considered to be a private nuisance. From the list above, the junk-filled vacant lot, constantly barking dog, noisy neighbors, and a house where illegal drugs are sold, depending on the exact facts, are considered private nuisances.

If a friendly conversation with the offending person does not resolve the private nuisance, the legal remedy is a lawsuit to abate the private nuisance. The services of a real estate attorney should be obtained because proving a nuisance exists and having it abated by a court order are not easy if the defendant feels entitled to continue the offensive behavior.

Private nuisances affecting just one or a small number of people can take many forms. For example, suppose your neighbor’s diseased old tree leans toward your house. You ask him to remove or at least trim the tree. He refuses. Before a strong wind blows the tree onto your house, you might consider suing him to abate the leaning-tree private nuisance. If the judge agrees with you, the neighbor could be ordered to remove the dangerous tree.

PUBLIC NUISANCES AFFECT A LARGE NUMBER OF PEOPLE. By contrast, a public nuisance is an objectionable action that is a detriment to a large number of people. From the list above, the noisy factory, the smelly sewerworks, a house of prostitution, and a noisy night club would usually be considered public nuisances because of their widespread objectionability.

The legal remedy to remove or at least limit a public nuisance is an abatement lawsuit against the offending responsible party. However, public nuisance abatement lawsuits usually must be brought by a public official, such as the city, county or state attorney.

Possible public nuisance legal remedies include (a) an injunction to prohibit the nuisance activity; (b) a partial abatement court order; (c) a negotiated settlement; and/or (d) payment of monetary damages or remediation to allow the public nuisance to continue.

Because of the political ramifications of public nuisances and the possible public benefits, which often create employment and help the local economy, public officials frequently hesitate to bring public nuisance abatement actions.

For example, noisy airports in almost every major city are considered public nuisances, but, because of their offsetting employment and economic benefits, they are rarely subject to nuisance abatement actions.

However, when public officials refuse to act to abate public nuisances, private citizens sometimes get together and bring public nuisance abatement lawsuits or sue for damages.

The most famous private lawsuit to abate a public nuisance was the California case of Lew v. Superior Court (25 Cal.Rptr.2d 42). The case involved 75 angry neighbors of a 36-unit apartment building in Berkeley where many of the residents were known drug dealers. The police and public officials had been unsuccessful in eliminating the problem, which resulted in frequent neighborhood violence.

The 75 neighbors then each sued the apartment building owners for the $5,000 maximum allowed in local Small Claims Court at the time. They won. The Lew family appealed but lost a $218,325 total judgment to the neighbors for maintaining a public nuisance.

DEFENSES TO A NUISANCE LAWSUIT. In public or private nuisance abatement lawsuits, defendants have become very creative at asserting defenses that would allow the nuisance to continue.

Possible defenses include (a) the nuisance has been tolerated for many years; (b) the plaintiff knew about the nuisance before moving to the neighborhood; (c) there is no law violation; (d) local zoning ordinances allow the offending activity; and/or (d) there are other public and private nuisances in the vicinity.

Because nuisance abatement lawsuits depend on the testimony of the parties as to whether a nuisance actually exists, the success of using these defenses varies from case to case.

But one defense that is rarely successful is the statute of limitations. Most courts now rule this is not a valid defense because each new occurrence of the nuisance is a separate offense that can be abated.

ATTEMPT TO COMPROMISE BEFORE SUING. Because nuisance lawsuits can be expensive and the results of a private or public nuisance abatement lawsuit are very difficult to predict, it is best to attempt to reach a compromise or settlement with the offending party. A sympathetic judge or jury, or a skilled defense attorney, often results in failure of a nuisance abatement lawsuit.

When a compromise or settlement cannot be reached before trial, plaintiffs should be well-prepared with strong evidence such as witness testimony, photos, and scientific evidence such as noise or vibration measurements to prove a nuisance actually exists.

What one person considers to be a nuisance another person often considers to be normal and non-offensive. For this reason, and the uncertainty of nuisance abatement lawsuit results, legal action should be avoided whenever possible. Further details are available by consulting a local real estate attorney.

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

Copyright 2007 Inman News

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