What can you do if someone moves in to your Palo Alto neighborhood and suddenly the neighborhood you were used to has completely changed? In certain instances, the newcomer’s presence may constitute a nuisance, and you may be able to prevent the offensive activities.
In this article, we will overview some of the activities that can constitute a nuisance. In future articles, we will detail such topics as whether you have standing to sue, what factors will be important to your likelihood of success, and who may be held liable.
Businesses as a Nuisance
A business may be a nuisance either by reason of its location or because of the improper or negligent manner in which it is conducted. A business that is not a nuisance in itself may be classified as a nuisance because of its location. For example, a store, a laundromat, or a mortuary are each common and legal uses on properly zoned property, but they may be nuisances in a neighborhood in which they are incompatible.
The following activities have been found to constitute a nuisance because of the activities’ effect on the use of another’s property: a rock quarry; a dance hall; a draw poker establishment; a gas station and garage; and an airport.
Conditions Dangerous to Health and Safety
Various activities and conditions on private land may pose a danger to the health and safety of neighbors or the community at large. The city or county may abate this type of condition using its police power or in some cases the offensive conduct may be enjoined by a neighboring property owner.
Examples of dangerous or offensive conditions that were found to constitute a nuisance include: buildings used by gang members; discharge of pollution and/or trash; installation of asbestos; conditions that create traffic hazards; and even weeds or bugs/pests.
Sale of Alcohol or Drugs
Every building or place used for the unlawful sale or service of alcohol, and every building or place where liquor is sold, served or given away unlawfully, is a nuisance that can be abated, enjoined and prevented.
A business establishment licensed by the State to sell alcohol is subject to local regulation of nuisances. A city may impose conditions relating to health and safety on the operation of retail liquor establishments and may abate as nuisances activity in or near such establishments. For example, a local agency may regulate activity in and around a licensed establishment, such as drunkenness, drug activity, prostitution, harassment of pedestrians, excessive noise, and other conduct that may constitute a nuisance.
In addition, the illegal sale of controlled substances is a nuisance. A person engaging in the illegal sale of a controlled substance on a parcel of real property, or who makes use of the premises to further that purpose, is deemed to be causing a nuisance on the premises.
Indecent or Offensive Acts
Nuisances include activities or conditions that are offensive to the senses or “anything which is indecent.” Thus, conduct that is offensive to a community’s “moral sensibilities” is also subject to regulation as nuisances, as well as anything offensive to the five senses.
Aesthetic offense is not a nuisance, and not every activity or condition that may be offensive or indecent constitutes a nuisance. Furthermore, when the activity or conduct merely produces a personal discomfort rather than a material injury to property, the test of whether the act constitutes a nuisance is its effect on persons of ordinary sensitivities.
The following activities have been held to constitute a nuisance as either indecent or offensive: an adult book store; selling counterfeit goods; and a cemetery.
Obstruction of Light/Air
Generally, without a recorded restriction (i.e. an easement), and as long as the obstruction is permitted, an obstruction of light and air will not constitute a nuisance.
Similarly, The location of a fence will generally not constitute a nuisance. Unless the fence is erected maliciously or maintained for the purpose of annoying the neighbor, it is not a nuisance. This does not, however, mean that the affected landowner does not have other remedies under the law, including an action for trespass.
This article is intended to be a brief overview of types of nuisances that may exist, and to provide a few examples of what the California courts have determined are nuisances. Stay tuned for future articles that will detail what damages can result from nuisances, 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 nuisance 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.