Preventing Construction Near Your Property

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As a property owner, you posess the right to use and enjoy your land.  Proposed construction of some types of facilities near your land may interfere with these rights.  There are steps you can take to prevent such construction or to stop construction already in progress.

Preventing Construction Through Nuisance Law

If construction of a building or other type of structure is being proposed near your home or property, under limited circumstances you may have the right to enjoin, or legally stop, that construction under the theory of nuisance law.  

In general, a nuisance occurs when one property owner uses their property in a manner that prevents others from enjoying their own property.  Nuisance law is usually applied to uses of property that are already causing damage to nearby property owners.  However, nuisance law can also be used to prevent new construction or other harmful uses of land, if a property owner can show that the proposed use of the land would be a nuisance per se.

What is Nuisance Per Se?

A nuisance per se is something that is a nuisance at all times and under all circumstances.  In order to show that a proposed structure or facility will be a nuisance per se, you must show that there is no way to construct the new structure that will not interfere with your use and enjoyment of your own property.  

For example, if the proposed building or facility will cause constant and pervasive noise, odor, dust, or other forms of annoyance that cannot be avoided, it may be a nuisance per se.  

Remedies for Nuisance

If a court finds that a nuisance exists, they can issue an injunction that orders the party responsible for the nuisance to stop.  In the case of a nuisance per se which is not yet constructed, such an injunction would result in the prevention of the construction.

Should I Consult a Real Estate Attorney?

Your home and property are probably the most valuable things you own, and certain types of construction near your home could interfere with your use and enjoyment of your land, and diminish your property value.  An attorney with expertise in the real estate and property field can help you to explore your options and protect your most valuable asset.

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Last Modified: 02-11-2013 01:50 PM PST

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