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.
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.
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.
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.
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.
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.
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.