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Private Nuisance: Your Right to Peace and Quiet

December 21, 2017

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.

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