How to get rid of a neighborhood nuisance

Lawsuit should be avoided whenever possible
By: Robert J. Bruss: Inman News
"Do I have to disclose to my buyer the real reason I am selling my house is the obnoxious noisy neighbors?"

That was the e-mail question I received a few days ago. Most states now have home-sale disclosure laws that require sellers to reveal serious problems that have a material affect on the market value or desirability of a residence.

My answer was, "Yes, you must disclose the next door neighbors are noisy." However, you don't have to reveal that is the primary reason for your home sale. I based my answer on the only court case of which I am aware, which said home sellers must disclose especially troublesome neighbors.

That case involved an IBM employee who had been transferred to Seattle. A corporate relocation firm took over the sale of the employee's former residence. The firm was not aware of the very troublesome neighbors and the police had been called many times.

After the buyers moved in, they immediately noticed the obnoxious neighbors and sought a rescission of the home sale. The California Court of Appeal granted rescission and refund of the buyer's money because of the seller's failure to disclose the neighborhood nuisance. The case is Shapiro v. Sutherland (1998) 60 Cal.App.4th 666.

YOUR NUISANCE MIGHT BE ENJOYABLE TO OTHERS. Several years ago, in the town adjacent to where I live, there was a very popular nightclub that featured loud rock music. Hundreds of people came every evening to dance and enjoy the music. But the nearby apartment building neighbors couldn't sleep because of the loud noise.

Although the nightclub was properly licensed, the city attorney received so many citizen complaints that he brought a lawsuit to abate the public nuisance that affected many neighbors. Before trial, a settlement was reached. The nightclub owners agreed to keep the doors and windows closed so the sound could not escape into the neighborhood.

However, that still didn't abate the nuisance from the loud band music. Before the neighbors could bring another lawsuit, the nightclub owners agreed to close their business. Today, there is a superb restaurant at the site and now all the neighbors complain about is the smell of great cooking. But I don't think that is an abateable nuisance.

TWO TYPES OF NUISANCES TO CONSIDER. Legally, there are two types of nuisances that might affect the enjoyment of your home or business property. When a disturbance affects only one or a small number of individuals, that is a private nuisance.

For example, recently I heard about a commercial tenant who leased office space. Sometime later, the landlord leased the adjacent space to a metal stamping plant, which installed heavy equipment to stamp metal. The vibrations drove the adjoining office tenant to vacate because of the "private nuisance" created by the next-door tenant.

The other type of nuisance is a public nuisance, which affects many people. Examples include a rat-infested dump, a noisy airport, a house of prostitution, a "drug house," and a noisy or smelly factory.

1. PRIVATE NUISANCE ABATEMENT IS A PRIVATE MATTER. Most private nuisances, which affect only one or a small number of people, involve neighbors. For example, if your neighbor's dog barks all day while the owner is at work, it is a private nuisance if you are the only person affected. However, if the barking dog disturbs many neighbors, then it is a public nuisance.

The legal remedy to abate a private nuisance, which affects only a few people, is to bring a nuisance abatement lawsuit against the offender. However, before resorting to a lawsuit, which might not be successful, try to politely talk with the offender.

For example, my neighbor's two old trees were leaning precariously toward my house. In the event of a strong windstorm, my house would probably be severely damaged if they fell. However, my neighbor was not aware of the danger. When my neighbors came over to my property and observed the lean of their dying trees, they promptly had them removed. I didn't even have to mention the words private nuisance or abatement lawsuit.

2. PUBLIC NUISANCE ABATEMENT CAN BE COMPLICATED. When a disturbance affects many individuals, that is a public nuisance, which can be very difficult to abate, especially if it has existed a long time.

A public nuisance is usually not "all bad." It often has benefits. Examples include a noisy airport, a smelly factory employing many individuals, an amphitheater providing loud entertainment to thousands, and a shopping center with traffic congestion, which provides employment and tax revenue.

The legal remedy to remove or mitigate a public nuisance is usually (a) an injunction to stop the nuisance activity, (b) a partial abatement court order, (c) a negotiated settlement, and/or (d) payment of monetary damages to allow the nuisance to continue.

The customary legal remedy to remove or abate a public nuisance is for a public official, such as the city or county attorney, to bring a nuisance abatement action against the offender. However, when such an official refuses to act, matters become complicated.

To illustrate, noisy airports are very important to the local economy. The success record abating airport noise has not been good. Because of the economic benefits, elected public officials are usually reluctant to bring public nuisance abatement actions.

WHEN PRIVATE LAWSUITS CAN ABATE PUBLIC NUISANCES. When public officials refuse to abate public nuisances, individuals can take action.

The most famous court decision on this issue is Lew v. Superior Court (25 Cal.Rptr.2d 42). In that case, 75 angry Berkeley, Calif., neighbors of the 36-unit apartment building owned by the Lew family sued to abate an alleged "drug house" that the police had been unable to close. The neighbors were very upset over the shootings and other crimes originating in the apartments.

Each of the 75 neighbors sued the apartment owners for the local Small Claims Court maximum $5,000. The judge ruled in favor of the 75 plaintiffs. The Lews appealed.

But the California Court of Appeal upheld the $218,325 damages against the apartment owners for allowing a public nuisance affecting many neighbors.

POSSIBLE DEFENSES TO A NUISANCE LAWSUIT. Just because a private or public nuisance disturbs you doesn't mean it can be successfully abated.

Possible defenses include (a) the plaintiff moved to the neighborhood knowing about the nuisance and (b) the nuisance was tolerated for many years.

Most courts now rule the statute of limitations is not a defense to a lawsuit to abate a longtime nuisance, and each new occurrence is a separate offence that can be abated.

Additional defenses, usually ineffective, include (a) there was no law violation, (b) there are other public and private nuisances in the neighborhood, and (c) local zoning and ordnances allow the offending activity.

TRY TO SETTLE BEFORE SUING. Because the results of a public or private nuisance abatement lawsuit are extremely difficult to predict, it is best to first attempt to reach a settlement with the offending party. A crafty defense attorney or a sympathetic judge or jury can often result in failure to abate a nuisance.

Plaintiffs in a nuisance abatement lawsuit should therefore be well prepared with evidence such as photos, witness testimony, and scientific evidence such as noise measurements. In other words, because public and private nuisance abatement can be very difficult, a lawsuit should be avoided whenever possible. For full details, please consult a local real state attorney.