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Timko & Moses, LLP

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Real Estate

Real Estate

Real Estate


Every property owner is entitled to use his land in a reasonable way. His use, however, may exceed the bounds of reason and become an inconvenience or even a nuisance to others. A nuisance is more than a mere inconvenience that has to be tolerated. If a nuisance rises to a certain level, it may be actionable. Some examples of nuisances include odors and noise.

Private Nuisance

A private nuisance is a substantial and unreasonable interference with a person’s use or enjoyment of property. Substantial means offensive, inconvenient, or annoying to an average person in the community. An injured party may not rely on his hypersensitivity or special use of his property to show that the interference was substantial. Unreasonable means that the impact of the injury outweighs the utility or usefulness of the defendant’s conduct.

Public Nuisance

A public nuisance, also called a common nuisance, is an unreasonable interference with the health, safety, or property rights of an indefinite number of people in a community. The extent of the interference may differ for each affected person. An injured party may bring an action to recover for a public nuisance only if he can show that he suffered some unique damage that was not suffered by the people in the community as a whole.


An injured party usually recovers money damages arising from the nuisance.

If damages cannot compensate the injured party, he may be entitled to injunctive relief. A court will consider the relative hardships that will result to the parties from the injunction, unless the defendant’s conduct was willful.

The injured party may also enter upon the defendant’s land and abate, or terminate, the nuisance himself if the defendant refuses to act after receiving notice of the nuisance. However, the injured party may use only enough force or cause enough damage in order to accomplish the abatement.


A defendant’s conduct that is consistent with legislative authority, such as a zoning ordinance, may be a defense. However, he may not rely on this defense as conclusive proof that he was not maintaining a nuisance.

The defendant may argue that the injured party has “come to the nuisance” by moving close to it after it was already in existence. This defense might not bar the injured party’s action, but it may be considered.

If the nuisance was the result of negligent conduct by the defendant, he may raise the defense of the injured party’s contributory negligence if it applies.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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