Preventing Construction Near Your Property

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 Preventing Construction Near Your Property

A person who owns property has the right to use and enjoy their land. Proposed construction of some types of facilities near the person’s land may interfere with these rights. There are steps a person 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 the home or property of another person, under limited circumstances the person may have the right to legally stop, “enjoin” in legal terminology, that construction under the theory of nuisance.

In general, a nuisance occurs when one property owner uses their property in a way that prevents other neighboring owners from enjoying their property. Nuisance law is usually applied to uses of property that are already in existence and damaging 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.

No matter the type of nuisance, to be stopped (enjoined through an injunction) the interference must be substantial and continuous. The nuisance cannot be only trivial or intermittent. When it issues an injunction to stop a nuisance, a court usually requires the defendant to take some specific actions to minimize the negative effect of their operations on the plaintiff.

This might involve limiting the hours of the action, for example. Of course, a court can prohibit the defendant’s negative, annoying actions completely. Usually however, most courts balance the relative hardships to each of the parties involved in the action. Where the nuisance is caused by an ongoing business activity of the defendant in the action, i.e., a business activity that is not new to the place, the court will try to minimize the economic impact on the business.

What is Nuisance Per Se?

A nuisance per se is something that is a nuisance all the time in every circumstance. In order to show that a proposed structure or facility will be a nuisance per se, a person must show that there is no way to construct the new structure that will not interfere with the person’s use and enjoyment of their own property.

For example, if the proposed building or facility will cause constant and pervasive noise, odor, dust, vibration or other forms of annoyance that cannot be avoided, it may be a nuisance per se. If a person were to purchase a home in a neighborhood of single-family residences and start operating a brothel in it, a court is likely to order the business to close because it is both a new operation rather than one that is ongoing and because it does not fit the character of the neighborhood. It may also violate zoning ordinances.

In deciding nuisance disputes, courts weigh several factors. First, courts will look at the location in which the alleged nuisance is occurring and any applicable zoning restrictions that may apply. For instance, a court may be less likely to restrict an animal farming operation located in a rural area than one located at the border of a suburban housing development next to an agricultural area. If the feedlot is located in a “residential” zone, a court may be more likely to issue an injunction or give 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 a nuisance. For example, an area may be zoned to allow a mix of residential and commercial buildings, but a court might still find that an “all night” truck stop creates a nuisance for the residential property owners in the area.

If the only problem with a property or some operation on it is that it violates a zoning ordinance, this alone does not give a neighboring property owner the right to file a private nuisance lawsuit. However, it might give rise to a cause of action for nuisance if the activity causes a neighboring property to lose market value.

Remedies for Nuisance

One remedy for nuisance is to file a lawsuit seeking an injunction to stop the nuisance. If a court finds that a nuisance exists, it can issue an injunction that orders the party responsible for the nuisance to stop the activity that creates it. In the case of a nuisance per se which is not yet constructed, an injunction that prevents the construction might be awarded, but the case would have to be a compelling one.

There are some other factors that a person should consider when thinking about bringing a nuisance action. First, the mere fear of future injury will not win injunctive relief. Further, usually purely aesthetic considerations, such as the “look” of a funeral home in a residential area, will not rise to the level of a nuisance.

In addition, if a person purchases property knowing that a given operation is located nearby, the “moving to the nuisance” doctrine will usually prohibit injunctive relief. So, for example, if a person moves into a house located next to a 24-hour skateboard park, this doctrine may prohibit the person from seeking relief from the banging of skateboards and noise of the skateboarders during nighttime hours.

If the interference only makes a person’s use and enjoyment of their property less comfortable, without inflicting physical damage to the land, a court would consider the character of the neighbourhood to determine whether a nuisance is an unreasonable interference with a neighboring owner’s property.

However, an activity that causes actual physical damage to neighbouring land, will probably be found to be a nuisance irrespective of the character of the neighbourhood. Such things as vibrations that cause walls to crack or toxic vapour that destroys vegetation would be the kind of nuisance that causes actual physical damage.

A person can also recover money damages in a nuisance lawsuit. A person does not always need to show an injury, or even a decrease in the value, to their property to win an award of money damages. The definition of nuisance includes human activities that are indecent or offensive to the senses and such activities can justify an award of damages.

Generally, the measure of damages for a private nuisance is compensation for the loss or injury sustained (i.e., the diminution of property value caused by the nuisance). However, if the nuisance is only temporary, the measure of damages is the value of the interference to the owner’s use and enjoyment of the land caused by the nuisance plus any special damages.

Special damages can include reasonable costs for removing the nuisance, loss of business or profits, or for personal discomfort, inconvenience, annoyance, and the like. A person might also be entitled to punitive damages if the defendant’s actions are especially egregious, but this would only happen in the rare case.

Lastly, abatement is a type of remedy that is available in cases of nuisance. The property owner who is injured by a nuisance can remove the source of nuisance themselves. Of course, the removal must be peaceable and not cause any damage to other people.

If it is necessary to enter onto another person’s land to abate a nuisance, the person performing the abatement must give notice and an opportunity to correct the nuisance to the owner of the property on which the nuisance exists.

A nuisance can be abated without notice only if the nuisance must be abated quickly and it is not safe to wait. Courts do not look favorably on the remedy of abatement and one would want to be certain that the circumstances justify abatement before undertaking it.

Should I Consult a Real Estate Attorney?

An experienced real estate lawyer will be able to analyze the facts of your situation and advise you as to whether a neighbor’s activities constitute a nuisance. Every annoyance that a person suffers at the hands of a neighbor will not rise to the level of a nuisance that would justify a lawsuit.

An experienced real estate lawyer can help make an objective judgment and decide on which course of action is the most likely to succeed. An experienced real estate lawyer can help you to explore your options and protect your most valuable asset. Of course a lawyer can represent you in court if that becomes necessary. You are mostly likely to get the best outcome with a lawyer representing your interests.

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