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Date Modified: September 9, 2023

A nuisance, unlike a trespass, usually involves things that could be intangible such as a substantial interference with the use of your property caused by an activity, such as an explosives factory next to your house, which causes a significant diminishment in enjoyment from the use of your property for which the law implies a remedy. However, there is an exception called coming to the nuisance.

If you intentionally built your house next to an explosives factory, you probably couldn’t get them to tear down the explosives factory as part of the relief implied for the nuisance. You likely couldn’t get anything because you came to the problem.

  • Video Transcript - What Is a ‘Nuisance’ Under Tort Law?

    Video Transcript - What Is a ‘Nuisance’ Under Tort Law?

    "0:00 What is a nuisance under tort law? A
    0:03 nuisance, unlike a trespass, usually
    0:08 involves things that could be intangible
    0:10 such as a substantial interference with
    0:13 the use of your property caused by an
    0:15 activity such as an explosives factory
    0:20 next to your house which causes a
    0:22 significant diminishment and enjoyment
    0:25 and use of your property for which the
    0:27 law implies a remedy however there is an
    0:30 exception called coming to the nuisance 0:33 where if you intentionally built your
    0:35 house next to an explosives factory. You 0:37 probably couldn’t get them to tear down 0:39 the explosives factory as part of the
    0:43 relief implied for the nuisance more
    0:45 than likely you couldn’t get anything
    0:48 because you came to the nuisance. [Music]"

According to the law, whoever is in possession of a property is entitled to its undisturbed enjoyment. However, we can state that the tort of nuisance has taken place if another person’s improper use or enjoyment of their property results in an unlawful interference with his enjoyment of property or part of the rights over it.

The Old French term “nuire,” which means “to injure, to hurt, or to annoy,” is the root of the English word “nuisance.” “Nocere” is the Latin word for annoyance, and it means “to damage.”

A person’s right to undisturbed enjoyment of their property is violated by a nuisance caused by another person using their property without lawful justification.

Essential Elements of Nuisance

Wrongful Act

Any action that is taken with the aim to harm another person’s legal rights is seen to be a wrongful act.

Damage, Loss, or Annoyance Caused to Another Individual

Damage, loss, or annoyance must meet the legal standard to be considered a substantial element of the claim.

Kinds of Nuisance

There are two types of actionable nuisance under the tort law: public nuisance and private nuisance.

1. Public Nuisance

According to the Indian Penal Code, a nuisance is an act that damages, endangers, or annoys individuals who live nearby or who otherwise occupy the property or injures, endangers, or infuriates people who may need to use a public right. It is an actionable nuisance nonetheless.

Public nuisance has an impact on society as a whole or at least a sizable section of the population, as well as any potential property rights that individuals in the society may have. A public nuisance is an act that negatively impacts or interferes with the general public’s health, safety, or comfort.

Delaware Ltd vs. Westminister City Council (2001) 4 Aller 737 (HL)

The respondent, in this case, was the owner of a tree that was growing on a public pathway. Additionally, the neighboring building developed cracks as a result of the tree’s roots. After the fractures were discovered, the transferee of the building was deemed entitled to recover reasonable remedial expenditure for the entirety of the damage from the ongoing public nuisance caused by the trees.

Dr. Ram Raj Singh vs. Babulal AIR 1982 All. 285

In this instance, the defendants built a brick-grinding machine next to the plaintiff’s medical practitioner business. Dust was produced by the brick grinding machine, adding to the air pollution.

The plaintiff’s consultation room was invaded by dust (public nuisance), which made him and his patients uncomfortable physically and caused them to see the crimson coating the dust had left on their clothing. It was decided that the plaintiff had been proven to have suffered exceptional damages, and the defendant was given a permanent injunction barring him from using his brick-grinding machine there.

2. Private Nuisance

A private nuisance is one in which another person interferes with a person’s use or enjoyment of his property. It may also negatively impact the property owner by physically harming their possessions or limiting their ability to enjoy their home.

In contrast to public nuisance, a private nuisance is a wrongful act affecting a single person as opposed to the general public or the entire society. Private nuisance can be resolved through a civil lawsuit seeking damages, an injunction, or both.

Elements that constitute a private nuisance

It must be an unauthorized or unreasonable interference. Furthermore, it is expected that the act should not be a justifiable reason and should be something that no reasonable person would do. Such interference must affect one’s ability to use or enjoy the land and certain property rights, or it must be related to the property or cause physical suffering. To qualify as a private nuisance, there must be visible harm to the property or interference with the use of the property. A nuisance may be in respect of either property or personal physical discomfort

1. Property

Any reasonable harm to the property in the case of a nuisance concerning the property will be sufficient to support a claim for damages.

2. Physical Discomfort

In contrast to normal or natural enjoyment of the property, there is excessive enjoyment of the property. There are two requirements that must be met in cases of bodily discomfort:

In excess of the natural and ordinary course of enjoyment of the property

The third party’s use must be contrary to how one party would typically enjoy themselves.

Interfering with the ordinary conduct of human existence.

Further, the discomfort should be such that an ordinary or average person in the locality and environment would not put up with or tolerate it.

What Constitutes Unreasonable Interference?

Essentially, the use of land or property in a way that would predictably interfere with the claimant’s peaceful enjoyment of their own land constitutes unreasonable interference, which is the second essential component of a private nuisance. The five basic criteria that have been used to assess unreasonableness are the neighborhood’s character, claimant sensitivity, duration of the annoyance, public benefit, and defendant malice.

Character of Neighborhood

While it would be unreasonable for a factory to make a lot of noise in the middle of a scenic rural setting, the same noise would probably be considered reasonable if found in an industrial estate. This is what is meant by the term “character of the neighborhood,” which refers to what might reasonably be expected of a particular area. Therefore, the context of a nuisance affects its relative loudness.

It should be stressed that the neighborhood character component only applies when the nuisance causes the claimant inconvenience rather than physical harm. Therefore, the defendant will be allowed to use the character of their neighborhood as a showing that their behavior is not unreasonable if the complaint is about such noise or smell. Neighborhood character is not a valid defense if the nuisance results in harm (such as acid discharge harming a claimant’s trees or cricket balls harming paint and roof tiles).

What Are the Defenses Available to Nuisance?

There are various legal defenses to a tort action, including the following:

1. Prescription

A person claims any property because their ancestors have legally owned it, known as a prescription. Essentially, a prescription is a title gained through use and time and is permitted by law.

Prescription is a unique type of defense that a party may use if a nuisance has been present for a period of time without interruption and has been done so openly and in peace. The nuisance becomes legalized at the end of this 20-year period as if it had been granted permission from the owner at the beginning.

To establish a person’s right by prescription, three requirements must be met:

  • Use or enjoyment of the property: The right to use or take pleasure in the property must be legally acquired by the user and done discreetly and peacefully.
  • Identification of the thing/property being enjoyed: The person should be aware of the nature of the thing/property that he or she is enjoying quietly or in public.

It should be detrimental to another person’s rights: The use or enjoyment of the item or property must be such that it interferes with the rights of another person, constituting a nuisance, and even after knowledge of the existence of such a nuisance, no action must have been taken.

2. Statutory Authority

All available remedies, including legal action, indictment, and charges, are eliminated when a statute permits the performance of a particular act or the enjoyment of land in a particular way, provided that every reasonable precaution consistent with the exercise of statutory powers has been taken. The statutory authority could be unconditional or constrained.

This statute permits the act when there is absolute power, and it is not necessary that the act results in a nuisance or any other kind of harm. However, when there is a conditional authority, the state only permits the act to be carried out if it can be done without causing a nuisance or any other kind of harm.

What Are the Remedies for Nuisance?

There are three different types of remedies for a nuisance:

3. Injunction

An injunction is a court order prohibiting someone from acting in a way that would endanger or otherwise breach another person’s legal rights. It might take the shape of a temporary injunction that is issued for a brief period and may be overturned or upheld. If confirmed, it takes the form of a permanent injunction.

4. Damages

Essentially, the injured party may be offered nominal damages as compensation in the form of damages. The statute determines the amount of damages that must be paid to the party who has been wronged, and their goal is not only to make up for the harm done but also to make the defendant realize his mistake and discourage him from committing the same wrong twice.

5. Abatement

Essentially, the removal of a problem by the party who has suffered without resorting to legal proceedings is referred to as abatement of the nuisance. The law does not favor this type of remedy. However, it is available in specific situations.

This privilege must be exercised within a reasonable time and usually requires notice to the defendant and his failure to act. Furthermore, a civil lawsuit for damages, an injunction, or both (not an indictment) is appropriate in a private nuisance action.

Nuisance and Trespass – Distinguished

A nuisance is a sensible injury to the right of a person’s possession of the property but not the actual possession. In contrast, trespass is a direct physical interference with the plaintiff’s ownership of the property through some material or tangible object. Trespass is actionable per se (activities that do not require allegations or proof), whereas, in the case of a nuisance, only proof of actual damage to the property is required.

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Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients.
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