Balancing Interests in a Nuisance Claim

Real Estate Law

A landowner enjoys specific rights granted by law with respect to his land. Namely, a landowner is entitled to use and enjoy his land in comfort and convenience free from the interference of any other individuals. A private nuisance occurs when there is an unreasonable interference with another person’s use of his land. Nuisances can present in many forms- some relate to the physical condition of the land (pollution of soil or water or blasting), and others impinge on the comfort of the landowner (such as loud noises and foul odors). If you experience a condition or event that seems to qualify as a nuisance, you are entitled to bring an action in civil court.

Many courts will generally look at three factors to determine whether the activity rises to the level of an actionable tort: the fault of the defendant, whether there has been a substantial interference with claimant’s rights, and whether defendant’s conduct was reasonable in light of the circumstances. The requirement to show “substantial interference” is intended to avoid lawsuits based on petty complaints. The action must significantly interfere with the plaintiff’s rights to enjoy his property as measured by whether an ordinary member of the community would similarly be affected by defendants’ action.

The last prong of the test- the reasonableness of defendant’s conduct- is probably the most challenging to ascertain. The courts must engage in a balancing process wherein the interest and rights of both parties are evaluated. This evaluation is undertaken to determine whether it is unreasonable to require the plaintiff to experience a “substantial interference” without compensating him for such interference. Thus, the gravity of the “damage” is balanced against the usefulness or reasonableness of the conduct and the attendant burdens of prohibiting the conduct. Courts typically consider the following factors in making this determination: (i) extent and type of activity, (ii) duration of activity, (iii) burden to the plaintiff, (iv) value of defendant’s conduct, (v) reasonableness of defendant ceasing the activity, (vi) value of the land to the plaintiff, and (vii) reasonable uses of the land by both parties.

If a claimant is successful in showing a substantial interference and the balancing of interest weights in his favor, he may be eligible to receive monetary damages or an injunction under certain circumstances.

The experienced team of attorneys at the Law Offices of Mark Weinstein, P.C. can help you litigate your real estate claims. Contact Mark Weinstein and his colleagues at (770) 888-7707 or visit them at to find out how they can advise you.

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