Features

What to know about nuisance

MANY PERSONS ARE disturbed in the use and enjoyment of their land by neighbours who use their own land without due regard to the effect on other people.

These uses might include the construction of buildings which cause damage to the neighbours business or residence, or the use of land which may cause smells which in turn interfere with a person's right to enjoy the use of his property, among other things. In law, the interference mentioned above is called nuisance.

There are two categories of nuisance; public nuisance, which is a nuisance which affects the public at large, for example a factory operating and giving off poisonous substances, and private nuisance, which affects particular individuals rather than the general public. The focus today will be on private nuisance although the two often overlap in actuality.

Private nuisance

In law, a person has a right of action to restrain a private nuisance as the law is designed to protect an owner or occupier of land from substantial interference with his enjoyment of his property by another person. However, it should be noted that the person affected must have an interest in the land as either an owner or occupier and not a mere visitor to the land affected.

In every day language, the word nuisance is used to cover a wide range of circumstances but in law it has a very restricted meaning. Therefore the act complained of must be in a recognised legal category. There are three types of nuisance:

Acts which cause physical injury to property, for e.g. damage to crops and buildings.

Acts which cause a substantial interference with the person's use and enjoyment of land, for eg. noise pollution.

Acts which cause interference with easements and rights of access, for eg. the blocking of driveways.

Considerations

After that hurdle is crossed, what needs to be looked at is whether the act complained of is sensible, where there is material damage to property, in that it is not trifling or minimal and causes a reduction in the value of the property, or substantial, where there is interference with enjoyment of land, in that the inconvenience caused materially interferes with the ordinary physical comfort and, in all the circumstances, the commission of the act was unreasonable.

The last requirement of unreasonableness is striking a balance between both persons' right to use their land as they choose. In determining whether the act is unreasonable, the locality, whether the other person is abnormally sensitive, whether it was done out of spite and the duration of the nuisance, will be taken into account.

The person affected may sue the creator of the nuisance, the occupier or the landlord of the premises, in certain circumstances, for damages or an injunction.

There is also the remedy of abatement by which the person may take the law into his own hands and remove the nuisance, but unless it is an emergency this is not advisable as it may also affect a person's right to sue.

KEITH N. BISHOP is an Attorney-at-law and a partner in the firm Bishop & Fullerton.