How To Get Rid Of A Real Estate Nuisance
| | Monday, October 17, 2005 @ 09:36 AM EDT
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Does a neighborhood nuisance seriously disturb you?
Examples might be a barking dog that keeps you and other neighbors awake at night; airplanes flying overhead landing or taking off at a nearby airport; perhaps a smelly sewerworks or factory; maybe a neighbor's late-night noisy parties; or a neighbor revving up his motorcycle as he departs for work at 5 a.m.
These are typical illustrations of public and private nuisances that might affect the enjoyment of your house or condominium. Depending on the severity of the disturbance, you might have a legal remedy to have the nuisance abated.
ONE PERSON'S NUISANCE IS ANOTHER PERSON'S ENJOYMENT. There is rarely agreement on what is a public or private nuisance.
For example, in a community not far from my home, there is a city-owned amphitheater where there are many outdoor concerts and performances by famous entertainers. Especially in the
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summer, this is a wonderful venue for enjoying entertainment.
But many nearby neighbors complain about the loud noise. As a result, there are now noise controls that keep the sounds at a reasonable level. What was formerly a public nuisance has become a mere inconvenience.
Another example is my neighbor who occasionally honks her car horn when she enters her driveway. I think it is to reassure her dog that she is home. I really don't mind. However, if she arrived home at 2 a.m. every night and honked the car horn, that would be a private nuisance, which I could have abated.
THE TWO TYPES OF NUISANCES. There are two types of nuisances that might affect your home. Often, all it takes is a request to the offending party to keep things quiet. That frequently happens to me when I visit my second-home condominium and have to ask the hard-of-hearing downstairs neighbors to turn down the TV or stereo.
Because the excessive noise only affects a small number of neighbors, that is an example of a private nuisance.
However, when a nuisance affects many property owners and residents, that is a public nuisance. The legal remedy to remove a public nuisance is much different than for a private nuisance.
1. LEGAL REMEDY TO ABATE A PRIVATE NUISANCE. If you are affected by a private nuisance that affects only you or a small number of neighbors and the offender refuses to abate the nuisance, your legal remedy is a lawsuit against the offender to abate the nuisance.
But before suing, try other measures, such as a friendly visit, a polite letter, or even a letter from your attorney.
For example, several years ago my friend Elaine told me how she abated a loud noise nuisance at her adjacent condominium. Her new neighbor insisted on playing loud rap music. Elaine's friendly visit and polite requests to turn down the volume didn't produce results. The condo homeowner's association rejected her plea for help. However, a forceful letter from her attorney to the offender, which cost about $100, resulted in peace and quiet.
But sometimes the only way to get the offender's attention is to file a lawsuit to abate the private nuisance. Hiring an attorney is advisable because, if you sue the offender in local Small Claims Court and lose, that is usually the end of you legal recourse against the nuisance offender.
Presuming the private nuisance seriously bothers you, such as keeping you awake at night due to loud noise, hiring a real estate attorney might be a cost-effective remedy.
2. LEGAL REMEDY TO ABATE A PUBLIC NUISANCE. If a disturbance affects a large number of residents, that is a public nuisance. Examples include a nearby house of prostitution, a "drug house," a smelly factory, a rat-infested dump, and a noisy airport.
To remove or mitigate a public nuisance affecting many individuals, the customary legal remedy is for a public official, such as the city or county attorney, to bring an abatement lawsuit against the offender.
The court might order (a) an injunction to stop the nuisance activity, (b) a partial abatement order, (c) a mitigation or a negotiated settlement, and (d) payment of monetary damages to allow continuation of the public nuisance.
For example, many public airports pay nearby homeowners for installation of sound insulation and double-pane windows.
The judge in a public nuisance abatement action has many considerations, such as the actual nuisance and the economic effect abating it might have. To illustrate, noisy major airports create employment for thousands and enhance the local economic situation while, at the same time, severely disturbing many local residents.
WHAT IF PUBLIC OFFICALS REFUSE TO ABATE A PUBLIC NUISANCE? Occasionally, the appropriate public officials such as a city or county attorney, refuse to act to abate a public nuisance affecting many individuals. The reasons for refusing to act are often political.
In such a situation, individuals who want the public nuisance abated must become creative to get results.
For example, a few years ago the neighbors in Berkeley, Calif., became very upset with the drug dealer residents of a 36-unit apartment house. The police and city council were unable to resolve the problems. So 75 angry neighbors, very upset over the shootings and other crimes originating at the apartment building, became very creative.
They each sued the apartment building owners for the $5,000 maximum in local Small Claims Court. Faced with 75 individual lawsuits for $5,000 each, the judge ruled in favor of the 75 plaintiffs.
However, the apartment building owner appealed. The 75 plaintiffs won a total of $218,325 damages in the appellate court against the apartment building owners for refusing to abate a public nuisance that affected many neighbors (Lew v. Superior Court, 25 www.Cal.Rptr.2d 42).
DEFENSES TO A NUISANCE ABATEMENT LAWSUIT. Winning a lawsuit to abate a public or private nuisance is usually not easy if the offender resists.
The defendant might raise defenses such as (a) the nuisance was tolerated for a long time, and/or (b) the plaintiff moved to the neighborhood knowing about the nuisance.
But most courts now rule the statute of limitations is not a defense to a lawsuit to abate a longtime nuisance, and each new occurrence is a separate offense that can be abated.
Other defenses, usually ineffective, are (a) there was no law violation; (b) the neighborhood has other public and private nuisances; and (c) the local ordinances and zoning allow the offensive activity.
NUISANCE LAWSUIT RESULTS ARE OFTEN UNPREDICTABLE. Because the result of a lawsuit to abate a nuisance is often unpredictable, it is best to first try to reach an accommodation with the nuisance offender. A crafty defense attorney, or a sympathetic judge or jury, can often result in failure to abate the nuisance, allowing it to continue.
For this reason, plaintiffs in a nuisance abatement lawsuit should be very well prepared, such as with photos, witness testimony and scientific evidence, such as noise measurements, to be successful. Because court abatement of a private or public nuisance is often very difficult, a lawsuit should only be used as a last resort. For more details, please consult a local real estate attorney.
By- Bob Bruss
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