Property rights are often referred to as a bundle of sticks.  The bundle of sticks image is helpful because property can be sold outright, conveyed for a particular purpose, or leased.  Each transaction carries with it a certain set of rights and obligations.  Thus, each conveyance of property can be thought of as transferring a bundle of sticks.  Buying property outright vests the owner with the entire bundle of sticks: including but not limited to the right to exclude others, the right to transference, the right to use, the right to mortgage, etc.  Those that lease their apartment or home have only some of these rights.  This starting point is helpful for personal injury law because what is common for owners and renters is their right to reasonable use and enjoyment.

Private nuisance occurs when there is a substantial, unreasonable interference with another’s use or enjoyment of property.  Property owners cannot use their property in a manner that interferes with another’s right to use their property.  An isolated interference, or minor inconvenience is not enough to constitute a private nuisance.

The interference must be substantial.  Hypersensitive plaintiffs, or plaintiffs using their property in a specialized way may not be able to establish a substantial interference.  The interference must be offensive, inconvenient, or annoying to an average person in the community.

Illegal activity, noise pollution, light pollution, water pollution, noxious odors, fences, and constant barking all may rise to the level of a private nuisance.  Whatever the type of nuisance, it must be unreasonable.  Generally, the severity of the injury must outweigh the utility of the defendant’s conduct.  Courts may evaluate the character of the neighborhood, land values, and whether the defendant has alternative course of conduct.  Determining whether a nuisance exists may require the court to balance the competing interests of litigating landowners.

Florida’s nuisance statute is codified at § 60.05.  The statute allows landowners to file for a permanent injunction, or a “temporary injunction without bond on proper proof being made.”  A word of caution to vexatious litigants, if “the court finds that there was no reasonable ground for the action, the costs shall be taxed against the citizen.”  For successful plaintiffs, “if the existence of a nuisance is shown, the court shall issue a permanent injunction and order the costs to be paid by the persons establishing or maintaining the nuisance and shall adjudge that the costs are a lien on all personal property found in the place of the nuisance and on the failure of the property to bring enough to pay the costs, then on the real estate occupied by the nuisance.”

Nuisance actions are different than trespass actions.  Trespass to land is an interference with a landowner’s exclusive possession by physical invasion of the land.  Whether you own or rent, you have the right to invite or exclude others from your property.  A nuisance to land is not a physical invasion, but an interference with your use and enjoyment of the property.

Neighborhoods subject to homeowner’s associations, apartment complexes, and condominiums require residents to abide by certain rules and regulations.  If you live in such a community, as a matter of course your first step in abating a nuisance should be contacting the HOA, landlord, or condominium association.  The oversight and authority vested in these bodies can remedy most neighborhood disputes.

However, if you live in a community that is not subject to an HOA or other such association, your only recourse against an interfering neighbor may be the courts.  As the nuisance continues, keep detailed records.  Even if a temporary injunction is issued, permanently enjoining the nuisance will require some level of evidence to prevail.

If you or your family are living in discomfort because of a neighbor’s noise, obstruction, or other such disturbance, contact Bryan W. Crews today.  Bryan W. Crews is your Orlando personal injury attorney.

What do you do when the courts are used not to resolve a dispute, but as an instrument of harassment against an undeserving defendant?

America is home to one of the greatest legal systems in the world.  While not always perfect, our courts provide access to a fair and impartial system of justice that more often than not results in an equitable and fair resolution.  Unfortunately, from time to time, this access to justice is abused.  Frivolous lawsuits, vexatious filers, and over-litigation bogs down the judicial system.  Fortunately, in Florida, plaintiffs that file baseless lawsuits in bad faith may be held accountable by filing a claim for malicious prosecution.

To file a claim for malicious prosecution, the plaintiff must establish the following:

(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).

Prevailing in a claim for malicious prosecution requires proving each element listed above.  In short, this legal standard means that you must prove you were sued, you won the suit, and the person suing you did so maliciously.  Maliciously filing a lawsuit is not the same as filing a weak claim.  But, there must be some merit, or probable cause for a plaintiff to have reasonable grounds for filing.

In most cases, proving an absence of probable cause for the original proceeding, and malice on the part of the present defendant will go hand-in-hand.  The two elements should not be conflated, but if you can show there were no reasonable grounds for the suit, an improper motive may be assumed.  The Florida Supreme Court has held that “it is not necessary for a plaintiff to prove actual malice; legal malice is sufficient and may be inferred from, among other things, a lack of probable cause, gross negligence, or great indifference to persons, property, or the rights of others.”

Plaintiffs injured as the result of a malicious prosecution must be able to prove damages.  You have a right to recover any and all damages that result from the defendant’s improper suit.  Depending on your jurisdiction, damages may include expenses, or the embarrassment of the suit.  Because of the nature of malicious prosecutions, punitive damages may be awarded.  Punitive damages require a showing of willful or wanton behavior, which is the essence of a malicious prosecution lawsuit.

Similar causes of action include the wrongful institution of criminal proceedings, and abuse of process.  The wrongful institution of criminal proceedings includes filing a police report, or doing anything that initiates a criminal proceeding against an innocent plaintiff.   Abuse of process is the purposeful misuse of civil or criminal processes such as a garnishment action to force a party to do something.

Bryan W. Crews is a personal injury attorney serving clients throughout Orlando.  If you have successfully defended a baseless lawsuit that you believe was filed maliciously, call Bryan W. Crews today, an Orlando personal injury attorney.