in possession of real property (landowners, tenants or occupiers)
are entitled to the quiet enjoyment of their lands. If a
neighbour interferes with that quiet enjoyment, either by
creating smells, sounds, pollution or any other hazard that
extends past the boundaries of the property, the affected
party may make a claim in nuisance.
To be a nuisance, the level of interference must rise above
the merely aesthetic. For example, if your neighbour paints
his/her house purple, it may offend you, but it does not
rise to the level of nuisance.
In most cases, normal uses of a property that can constitute
quiet enjoyment cannot be restrained in nuisance either.
For example, the sound of a crying baby may be annoying,
but it is an expected part of quiet enjoyment of property
and does not constitute a nuisance.
Nuisances can either be public or private.
A public or common nuisance is such an inconvenience or
troublesome offence, as annoys the whole community in general,
and not merely some particular person. To constitute a public
nuisance, there must be such a number of people annoyed,
that the offence can no longer be considered a private nuisance,
for example where the owners of a factory cause fumes and
smoke to pollute the atmosphere in an area, or when an obstruction
is caused on the public highway. Most times public nuisances
amount to a criminal offence.
This is anything done interfering with a persons interest
in the use and enjoyment or injure of a persons property.
There would be nuisance where there has been:
* Physical damage, for example when a neighbours plants
and produce have been destroyed because of fumes from a
factory or where structural damage to a persons home
occurs because of constant vibrations from a noisy operation.
* Substantial interference, with someones use and
enjoyment of his land for example creating stenches, causing
smoke or noxious fumes to pass on to a neighbours
property, making unreasonable noise or when trees overhang
a neighbours yard.
* Interference with right of access, for example where someone
obstructs a person from accessing their property.
Who can bring an action?
Public nuisance is considered to be actionable by the State
rather than an individual person unless an individual can
show that the nuisance caused him some particular harm over
and above that suffered by the general public.
Private nuisance is actionable by people whose interest
in the land affected is entitled to bring an action for
nuisance. These include people who are owners, tenants or
people in occupation of the property.
Who can be sued?
An action for nuisance can be brought against the person
causing the nuisance, the person who occupies the land from
which the nuisance emanates, or landlord if the occupier
of the land from which the nuisance emanates is not the
The following are the usual defences to an action for nuisance:
Prescription: If the person has been committing the nuisance
for 20 years, and that the person bringing the action knowing
for that period did not object for that time.
Consent: There is a defence if the person bringing the action
knew of the nuisance before moving to its vicinity. He will
be deemed to have accepted the situation.
Statutory Authority: There is no nuisance if the defendants
action is specifically authorised by statute.
Act of God: This might include, for example, water overflowing
from the defendants well in an unusually heavy rainstorm.
The normal remedies for nuisance are damages and/or an injunction
to restrain the person from continuing the nuisance. There
is also the remedy of abatement under certain circumstances
after notification to the offending person. This is where
the person removes or remedies the nuisance without recourse
to the courts, for example dead tree limbs extending dangerously
over a neighbours house may be removed by the neighbour
in danger, after notifying the offending landowner of the
nuisance. In cases where an immediate danger to health,
property, or life exists, no notification is necessary.
* Westmin James and Stephen Wilson