WHAT IS A NUISANCE?

California Civil Code § 3479

Anything which is injurious to health, including:

A) the illegal sale of controlled substances, or 

B) is indecent or offensive to the senses, or 

C) an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or 

D) unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway is a nuisance. 

PROOF

Proving the existence of a nuisance is important. Photos, letters, and witness testimony are important in proving your case by a preponderance of the evidence. 

So long as the interference with your property is substantial and unreasonable, and would be offensive or inconvenient to the normal person, virtually any disturbance concerning the enjoyment of your property can be a nuisance. Damage to your property is not necessary; all you need to prove is interference with the use and enjoyment of your property (i.e., land that you own or control).

The degree of harm is judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though it may be unendurable to a particular person. Another consideration is whether the gravity of the harm outweighs the social utility of the nuisance. All of this is a question of fact that turns on the circumstances of each case. 

Evidence of offensiveness or indecency is usually not enough to recover damages and courts will look at applicable zoning laws to help determine whether an activity is a nuisance. 

Civil Code section 3482 states: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” In other words, if the government gave its permission for the activity, then it is not actionable as a nuisance. 

RELIEF

To obtain injunctive relief (ban or limit the activity), the nuisance must be significant, unreasonable, and on-going. A rare or isolated event is not enough to obtain injunctive relief.  

DAMAGES IS YOUR NEIGHBOR A NUISANCE?

THE MOST COMMON NEIGHBOR DISPUTES ARE:

1. NOISE

Barking dogs (or other animals), motorcycles (or other vehicles), loud music, parties, or construction work. Such noises keep people up at night, are annoying, and prevent people from enjoying activities, their families, and the quiet enjoyment of their homes. 

2. JUVENILE MISBEHAVIOR

You can try to resolve these issues with the juvenile's parents, sue the parents for negligent entrustment (in some cases), or even sue the child if they were old enough to understand their actions - but suing the parents or child for negligence is often frowned upon by the courts. Thus, annoying juveniles who are noisy, trespass, break windows, or damage other property can also be addressed in an action for nuisance.  

3. OFFENSIVE ODORS, TRASH, AND EYESORES

Unkempt lawns and vegetation, inoperable vehicles, and garbage often lead to problems between neighbors. No one wants to live next to a garbage dump, junk yard, or factory farm or feedlot. Health and building code violations - and other potentially dangerous or hazardous conditions - can often provide sufficient evidence for a nuisance. 

4. BOUNDARY DISPUTES AND PARKING DISPUTES

5. BUILDINGS THAT OBSTRUCT VIEWS ARE NOT PROTECTED BY NUISANCE - UNLESS MALICIOUS

Construction or landscaping that blocks or obstructs your view can be nuisance. Views can add considerable value to your property and blocking that view can substantially reduce that value of your property. You can protect your view and light by contract (CCRs or easement) or zoning laws, but such protection is available via an action for nuisance.

"Spite fences" - or deliberately placed obstructions are maliciously placed there by neighbors to block your view and is illegal. Note that proving their malicious intent can be extremely difficult.

5. ILLEGAL DRUG HOUSE OR OTHER ILLEGAL ACTIVITIES

TWO TYPES OF NUISANCE - PUBLIC AND PRIVATE

A nuisance may be either a negligent or intentional. 

PUBLIC NUISANCE

This applies to the community at large. Individuals can not sue for public nuisance. A public official (i.e., District Attorney, City Attorney, etc) brings an action for public nuisance. For example, a pulp mill releases a sulfur gas that spreads all over town. When the nuisance effects everyone the same, it is a public nuisance. Note that so long as the pulp mill has express statutory authority to engage in the activity, it cannot be a nuisance.   

PRIVATE NUISANCE

Plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. For example, a neighbor has a chicken coop a few feet from your bedroom window with a rooster who starts crowing at 5 a.m. every day of the week. There is no trespass to your property, but the fowl noise and foul odor prevent you from enjoying your property (i.e., causes you to keep the windows closed to reduce the smell and causes you to wear earplugs to sleep or think). Barking dogs and owners who do not properly clean up after them can create a similar nuisance. 

PRIVATE NUISANCE PER SE AND PRIVATE NUISANCE PER ACCIDENS.

These are the two types of private nuisances. Per se nuisances are prohibited by statute (like maintaining a junkyard without a license. Per accidens nuisances are based on the circumstances, i.e., whether the nuisance is unreasonable after weighing the harm against the utility of the conduct.  

PUBLIC AND PRIVATE NUISANCE COMBINED

Sometimes a nuisance can be both public and private. For example, a racetrack may produce excessive noise in communities causing a public nuisance and their bright lights shining directly into your home can cause a private nuisance. You may still bring an action for private nuisance even if the injury is no different from that suffered by the general public.

WHAT IS NOT A NUISANCE?

1. Fear of future injury.

2. Aesthetic considerations - such as the color 

3. Moving to the nuisance. Not always, but when a person knows about the nuisance and moves to the nuisance, they do not get much sympathy from judges and juries.