What are your property rights against your neighbour?
In ancient Kenyan times, the land was abundant and neighbours were distant. As the population began to grow and urban areas increased, the courts were called upon to resolve property disputes.
One of the very first judge-made doctrines applied to property disputes in the law of nuisance was inherited from the colonialists.
This doctrine still finds its way into property disputes today. This doctrine is generally raised when a neighbouring property owner is acting in a manner that can be described as a nuisance.
Property Rights: The Law of Nuisance
Lawsuits invoking the law of nuisance typically involve neighbours suing their neighbours. Or a public official suing a property owner for the benefit of the general public. By bringing suit, the plaintiff usually seeks to control or limit the use of the land owned by the defendant.
There are two basic types of nuisance suits. These are private and public nuisance actions.
- A private nuisance means there has been a loss of the use or enjoyment of property without an actual physical invasion of that property. An action for a physical invasion of property is known as a trespass action.
- A public nuisance is one that has more far-reaching effects. It has the ability to affect the health, safety, welfare, or comfort of the public in general.
No matter what the type of nuisance, to be subject to injunctive relief, the interference with the property must be substantial and continuous.
Relief that is injunctive in nature generally requires the defendant to take some specific actions to minimize the negative effect of its operations on the plaintiff, Like limiting the hours of the action to placing an all-out prohibition on the negative action.
In constructing its relief, however, most courts will attempt to balance the relative hardships to both of the parties involved in the action. Especially where ongoing business, as opposed to an individual, is the defendant in the action, the court will try to minimize the economic impact on the business.
How Courts Decide Cases
In deciding nuisance disputes, several factors influence courts. First, courts will look at the location in which the alleged nuisance is occurring and any applicable zoning restrictions that may apply to that area.
For instance, a court may be less likely to place restrictions on a livestock feedlot located in a rural area than on one located at the edge of urban sprawl.
On the other hand, no matter how rural, if the feedlot is located in a “residential” zone, a court may be more likely to allow injunctive or other relief.
At the same time, the fact that an activity is located in an area that is zoned for that type of operation does not mean that it cannot be found to constitute a nuisance.
For example, an area may be zoned to allow a mixture of residential and commercial building, and, a court might still find that an “all night” petrol station creates a nuisance for the residential property owners in the area.
There are some other points to consider if you are thinking about bringing a nuisance action.
First, the mere fear of future injury will not merit injunctive relief. Further, usually pure aesthetic considerations, such as the “look” of a funeral home in a residential area, will not rise to the level of a nuisance.
Finally, where a person specifically purchases property knowing that a given operation is located nearby, the “moving to the nuisance” doctrine will usually prohibit injunctive relief.
In this manner, if a person moves into a house located next to a club, this doctrine may prohibit the person from seeking relief from the bright lights and noise.
Is Your Neighbor a Nuisance? Get Legal Help with Your Property Rights
Being on either side of a nuisance lawsuit is not a pleasant experience and can be quite emotionally draining. Lawsuits like these arise when disputes between neighbouring property owners go unresolved.
If your neighbour is making it difficult for you to enjoy your property, you may want to reach out to an experienced real estate lawyer to help you get to a resolution.