In every society, it is a fundamental right for citizens to be able to live in freedom. However, in line with the modern-day realities of life, their rights get infringed upon by fellow human activities which could be harmful. Where such infringements occur, it could be said that a tort of nuisance has been committed. A nuisance to a layman could mean annoyance or disturbance but it’s way broader than that in law.
Have you experienced insomnia and terrible headaches because of that factory adjacent to your house in a residential area that uses big trucks to offload heavy stones and building materials and thereby causes heavy vibration resulting in your walls cracking?. Or could it be that you have the life of the party as your neighbour? That no night goes by without loud music and noise. Well, you might just have the right cause of action in the tort of nuisance against these individuals. How? Read along!
The law of nuisance seeks to draw a balance between your right to use your land and also protecting the right of your neighbour to his land as well.
‘It is simply a disturbance that interferes with the right of an individual thereby depriving him of the private use and enjoyment of his property’.
A nuisance could be private and it could be public. Both are governed by fundamentally different rules. While a public nuisance is an unlawful act that affects the use and enjoyment and also the right of the community as a whole, Private nuisance is simply interference with the private use and enjoyment of an individual interest in their land.
As an individual who seeks to ensure maximum enjoyment of your property, you need to know what to do with people ‘creating nuisance' on your property. Hence, We shall mainly focus on private nuisance. An act of private nuisance could range from the following:
Loud noises and foul odours
Deposit of materials or pollution
Causing physical damage to another’s land
Encroaching on your neighbours land and lots more.
So you might begin to think of suing that welder or that life of the party for nuisance!
However, for every act of nuisance, there are basic elements a court of reputable jurisdiction would consider which you might want to consider before that suit. What are they? Firstly, before imposing liability on your neighbour, you should try to talk to him or her because many times, a person might not know his wrongs until his attention is brought to it. So before going to court, try a civil conversation with your neighbour or offender.
Secondly, was there substantial interference? It could be an interference with the use and enjoyment of your land thereby causing discomfort or material or physical damage to the land. The former occurs where although no actual physical damage has been done, you are not comfortable in your own house. It could be the noise, the smoke or even that bad and choking smell. These are substantial as it can lead to serious health issues like insomnia, headaches, breathing difficulties, lung problems etc.
Another important element that must be succinctly proven is that the act of nuisance must be unreasonable. The court in Sedleigh V O’ Callaghan stated that there must be a balance between the rights of the occupier and his neighbour. The law recognizes the need for neighbours to live in harmony with each other or to make it relatable, the law is about ‘love and light’. A lot of people are quite intolerant and not every little thing is actionable in the tort of nuisance. For instance, if your neighbour brings a goat to be killed the next morning and over the night, it keeps bleating. Although it could be quite annoying, that shouldn’t be enough reason for you to institute an action against your neighbour the very next morning, even after discovering the goat has been killed. For an act to be considered unreasonable it should not only be unreasonable in the eye of the law but also be unreasonable in the eye of a reasonable man of common intelligence, not a man who is overly emotional and intolerant.
Also, in deciding the reasonableness of the interference, the court in Sturges V Bridgman held that what could be regarded as reasonableness in use and enjoyment of one's property depends on the locality of the nuisance of regardless of whether the plaintiff came to the nuisance or not such as moving from one locality to the locality where the nuisance occurred. Hence that factory undergoing harmful activities in a residential area thereby causing a nuisance to the residents could be liable in nuisance. However, locality might be irrelevant where physical damage has been done because the property owner must be protected at all cost.
Now having established these elements, you might begin to wonder what you could get as redress from the court of law after successfully proving these various elements. There are legal remedies available which include:
Damages are usually awarded to the plaintiff for damages suffered and it is mostly in monetary terms. Injunction Is simply a judicial order to restrain or stop or refrain the other party from the unlawful act. It could be a temporal or permanent injunction. An injunction is often used where monetary compensation won't suffice for loss or damage done. Abatement on the other hand is done by the suffering party who has suffered damage. Although it is a restricted remedy, it is quite effective. It is the removal of the subject of nuisance after notifying the offending party.
Wrapping this up, It could be very annoying when you can’t have private use and enjoyment of your own property as a result of a neighbour causing nuisance. I do hope you now know why you should institute a legal proceeding against that neighbour that has been ‘creating nuisance’ as this was for the main purpose of drawing your attention to those acts that might have been hindering your right to live in freedom. Are you the one creating nuisance all these while? I hope you know better now, desist from such acts. Still, wondering how you can validly claim your right? Contact a lawyer and get that civil litigation going!
Written by Oluwatimileyin Okumodi.