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Our homes should be our sanctuaries of peace, safety and comfort, whether we own or rent.  Unfortunately, drug houses or inconsiderate neighbors can steal our sense of peace, safety and comfort. When bad conditions or conduct occurs on a neighbor’s property the law provides several remedies.  This article discusses a lawsuit for nuisance.

WARNING AND DISCLAIMER: This article is no substitute for legal advice, and it is insufficient to understand your rights and obligations.

1.   Private Nuisance vs. Public Nuisance  

There are two kinds of nuisance: public and private.  A “public nuisance” interferes with a public right, like walking down a sidewalk.  A “private nuisance” impacts a person’s own property or personal enjoyment of the property.  This article discusses private nuisance.

2.   How bad does the nuisance have to be to sue?  

To sue, the impact must be significant.  It must be both “substantial” and “unreasonable.”   What those terms mean in any case is up to a jury to decide.  It must be too much or unfair to put on a typical person.  It’s one thing to deal with a loud party once per year.  It is another thing to endure a filthy and dangerous conditions spilling onto your land month after month.

3.   The impact must cause “damage.”

To sue, the offending conditions or activity must cause “damage.”  Different kinds of damage can justify a lawsuit.

Reduced property value.

The law permits recovery for depreciation in fair market sales value of your property if the noxious conditions are long-term.  On the other hand, if the problem can be fixed with a court order to get rid of a ton of horse manure, then that would be considered a temporary problem.  The law would not permit you to recover long-term money for a short-term problem.

Temporary problems can still support damages for lost rental or use value.

Consequential damages.

In addition to depreciated property values, the law permits owners to recover for their discomfort, inconvenience, annoyance, and personal injury for significant interference with  use and enjoyment of their property.

Punitive damages.

Punitive damages are available in the right circumstances.  One must show that the other party (1) acted with malice or (2) acted with a “reckless and outrageous indifference to a highly unreasonable risk of harm” AND “acted with a conscious indifference to the health safety and welfare of others.”

4.   Intentional, reckless or negligent conduct.

To sue, one must show the neighbor knew or had reason to know of the nuisance arising from their property.  “Knew or should have known” includes intentional conduct, recklessness and negligence.

A landowner is liable even when a tenant, squatter or “camper” is causing the nuisance if the owner (1) knows the activity is going on that involves an unreasonable risk of causing a nuisance and (2) consents to the activity or fails to exercise reasonable care to prevent it.

Liability for nuisance can also arise from violating an ordinance and other activities.  (As I warned, this article is a summary, not a comprehensive encyclopedia.)  Portland, for example, has an ordinance on “chronic nuisance properties,” which could bolster a lawsuit for nuisance.  Of course, citizens may also seek relief through the city process described in the ordinance.  Tigard’s code, also, lists certain conditions that constitute a nuisance.

To avoid any doubt whether the land owner “knew or should have known” of the problems, any neighbor suffering from a nuisance should send a certified letter to the offending property owner detailing the problem.  If the offending property owner is a public body, such as a city or state, then, in Oregon, the neighbor should follow the format of a “tort claims notice.”  Tort claims notices are covered in ORS 30.275.  (Also, time limitations on claims against public bodies differ from deadlines to act against private property owners.)

5.   Defenses against Nuisance Claims.

In addition to proving the above, a successful lawsuit for nuisance must overcome potential defenses.

Sometimes, people have a legal right to do what might otherwise be a nuisance, such as the noise from building an apartment tower next door or the smell from conducting lawful farm operations.

Also, people cannot move next door to a problem and then claim they were hurt by it, which they call “coming to the nuisance.”

Public bodies will offer other defenses, too.

6.   Stopping the problem, or Suing for an Injunction.

A nuisance lawsuit can ask the court for an order to stop or “abate” the nuisance not just for money damages.

To win an abatement injunction, a person must show that an award of money will not be enough to fix the problem.  For example, if the nuisance makes one’s own property unfit for habitation or threatens the health of the complaining party.

Courts acting “in equity” have leeway to do what is right.  The court may balance the harm being caused by the activity with the needs of the person or business conducting the activity.  Under the comparative injury doctrine, the court may refuse to enjoin the activity if the loss to the offending party greatly outweighs the benefits to the complaining party.

7.  Conclusion.

Neighbors do NOT have to tolerate nuisances.  If the city won’t deal with it, then sue the owner.

I’m happy to work with responsible neighbors trying to clean up their community.  Feel free to call me.

Jeff Merrick, Attorney

(c) 2018 by Merrick Law, LLC and Jeff Merrick.

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