Monday, September 24, 2007

Subdivision Nuisance: What is a Private Nuisance?

In contrast to a public nuisance, which affects a large number of individuals, a private nuisance only disturbs one or a few neighbors. Examples include barking dogs, a neighbor who plays loud music, and a vacant lot that has become a neighborhood dump, which attracts rats.

Often a polite request to the offender is sufficient to solve the problem. Sometimes, a strong letter from an attorney will get results. If there is a city ordinance violation, a public official's action will usually resolve the problem.

However, when none of these methods works, a lawsuit to abate the private nuisance might become the only effective remedy. Even if the activity is legal, such as operating a properly licensed but noisy night club, the court can order the private nuisance abated or monetary damages paid to the complainants.

Possible legal defenses to a private nuisance abatement lawsuit include (1) the nuisance was tolerated for a long time and (2) the plaintiff moved to the neighborhood and knew about the private nuisance.

However, most courts now rule the statute of limitations is not a defense to a private nuisance lawsuit because each new occurrence is a separate offense, which can be abated.

Other ineffective private nuisance defenses include (1) the zoning or local ordinances allow the offensive activity, (2) there was no law violation, and (3) the neighborhood has other private and public nuisances.

NUISANCE ABATEMENT LAWSUITS ARE UNPREDICTABLE. If you or your property are affected by a public or private nuisance, the best course of action is try to resolve the problem with the offending party.

The reason is the results of nuisance abatement lawsuit results are very difficult to predict. A sympathetic judge or jury makes the results uncertain even when the plaintiff proves a public or private nuisance exists.

Factual evidence, such as photos, witness testimony and scientific test evidence, can prove the nuisance actually exists and it should either be abated or monetary damages awarded to the complainant.

For more details, please consult a local real estate attorney.

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