Default Featured image

There Goes the Neighborhood (Part 2)…Damages Available Resulting from Nuisance

Neighbor & Nuisance Disputes by Simon Offord, Esq.

In my previous article titled “There Goes the Neighborhood,” I provided an overview of some of the activities that can constitute a nuisance.  In this article, I will discuss the types of remedies that are available if you are able to prove the existence of a nuisance.

The owner of property that is adversely affected by a nuisance has remedies to enjoin its continuance and/or recover damages for past injury.  In order to obtain these remedies, the injured party can either resort to self-help, seek judicial intervention, or potentially seek redress under local city or government codes.

Self-Help

The remedy of self-help is available if it can be done without committing a breach of the peace or causing unnecessary injury. However, where a private nuisance results from a mere omission, and it cannot be abated without entering on the property of the responsible party, reasonable notice must be given before entry is made.

As a general rule, we would recommend against using self-help to attempt to abate a nuisance.  Using self-help subjects you to the potential of being sued by the other party, and likely will escalate emotions and cause greater rift between the parties.  We would highly recommend seeking legal counsel before deciding to proceed with self-help.

Civil Suit

In most instances, a person adversely affected by the nuisance can file suit in civil court regarding the nuisance.  A party injured by a private nuisance generally has three options: (1) commence an action for an injunction, (2) commence an action for damages, or (3) both.

Injunction

An injunction is an order from the Court requiring the offending party to abate the nuisance.  For example, if you have sued because your neighbor’s tree is overgrown and causing sap and leaves to litter your property, a successful injunction would require the neighbor to either remove the tree or otherwise ensure it is no longer on, or affecting, your property.

Code Enforcement

In some instances, the City or County may have ordinances aimed at preventing nuisances.  For instance, Palo Alto has noise ordinances specifically detailing the levels of acceptable noise.  Before proceeding with the remedies outline above, we would advise looking into the local ordinances to determine if the City or County may already have restrictions on the offensive conduct and seek their assistance in enforcing their own regulations.

Damages

The general measure of monetary damages recoverable as a result of a nuisance is the reduction in  value of the property resulting from the nuisance.  Additional damages may include the sums to compensate the affected homeowner for the interference with the “use and enjoyment” of the property.  This can even include lost profits resulting from the nuisance or “stigma” damages stemming from the fact that, upon sale of the property, the affected owner would have to disclose the prior nuisance.  These damages are difficult to ascertain and will oftentimes require an expert witness to educate the judge or jury on what the appropriate damage figure is.

In justifiable (but rare) circumstances, punitive damages or emotional distress damages may be recovered.  Punitive damages require the damaged party to prove that the offending party acted with oppression or malice in causing the nuisance.  This is a difficult standard to meet, and these types of damages are only awarded in the most extreme of circumstances.

Conclusion

This article is intended to be a brief overview of damages available resulting from a nuisance. Stay tuned for future articles that will detail who can abate particular nuisances, whether trees can constitute a spite fence, and what factors may be considered during trial to determine whether a nuisance exists.

If you have questions about neighbor law, or any other potential real estate issue, Brewer Offord & Pedersen LLP would be happy to answer those questions.  Brewer Offord & Pedersen LLP can be reached at (650) 327-2900, or on the web at www.BrewerFirm.com.

Latest Posts

Marijuana & Real Estate

Navigating the Unstable World of Real Estate and Cannabis in California

by Ashlee D. Gonzales, Esq. on June 25, 2018

Marijuana legalization in California is here, but the fact that the substance is still considered illegal at the Federal level is causing some confusion and hardships for growers and sellers. Learn about how to navigate the unknown areas in attorney [more]

Landlord & Tenant Law

5 Things Landlords Should Remember When Evicting Tenants

by Lorena Roel, Esq. on August 16, 2018

Summer is a time where most things slow down. School is out, vacations are plentiful, and the days are longer. What does not slow down is the housing market. With that inevitably comes evictions. A landlord who wants to regain [more]

Real Estate Contracts & Transactions

Selling Your Home with a Tenant Inside

by Ashlee D. Gonzales, Esq. on August 16, 2018

Being a landlord in California can be very rewarding, but also challenging at times. Being a landlord and trying to sell your home can be even more challenging. In the Bay Area specifically, we’ve noticed a slowdown in the market [more]