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Problem of nuisance

PEOPLE 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.

Public Nuisance

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.

Private Nuisance

This is anything done interfering with a person’s interest in the use and enjoyment or injure of a person’s property. There would be nuisance where there has been:

* Physical damage, for example when a neighbour’s plants and produce have been destroyed because of fumes from a factory or where structural damage to a person’s home occurs because of constant vibrations from a noisy operation.

* Substantial interference, with someone’s use and enjoyment of his land for example creating stenches, causing smoke or noxious fumes to pass on to a neighbour’s property, making unreasonable noise or when trees overhang a neighbour’s 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 owner.

Defences

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 defendant’s action is specifically authorised by statute.

Act of God: This might include, for example, water overflowing from the defendant’s well in an unusually heavy rainstorm.

Remedies

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 neighbour’s 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

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