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22 Jun 2016

Most of us have been there – living beside a difficult neighbour. If the situation is beyond “working it out”, what can you do about it legally? The answer, most often, is the legal claim known as “nuisance”.

Nuisance is a legal complaint designed to address harmful conduct arising from another property. The term nuisance means something different legally than it does in everyday words. Most people think of “nuisance” as something that merely annoys us, but a lawsuit for nuisance requires something more. Put simply, a lawsuit for nuisance requires proof that your neighbour has substantially interfered with your use and enjoyment of your own property. In that respect, the courts have been clear that in a modern society, a certain amount of interference is unavoidable. Therefore, “substantial” interference must be something that goes beyond the natural consequence of having neighbours.

Generally speaking, the conduct complained of can’t simply be a one-off event, such as a single night of loud partying. Instead nuisance requires a continuing course of conduct. If you’re being seriously annoyed on a regular basis to such an extent that you’re considering moving out, you have moved out or changed your routine, then a lawsuit for nuisance might be for you. The courts will consider the following when determining whether the interference with your enjoyment is unreasonable in the circumstances:

How severe was the interference?
What kind of neighbourhood do you live in? Is this interference reasonable for your neighbourhood?

Some key examples would be: continuous loud noises; release of dangerous substances, obstructions that block driveways or your backyard view, even the presence of dangerous objects that may be alluring to children. In essence anything that realistically stops you from enjoying your property for an extended period of time. Most recently the courts have also reaffirmed the principle that a claim for nuisance must originate from a property other than your own (so if you want to bring a nuisance claim against your no-good, lazy roommate, you’re probably out of luck).

In one of our recent cases, for example, we assisted our client with a nuisance lawsuit based upon a neighbour who insisted on, amongst other things: continually hurling insults at our client from their own property and leaving indecent items within plain view of our client’s property. In another case, we dealt with a neighbour who built a fence that was designed to obstruct our client’s driveway.

Given the requirement that the conduct be continuous, it is important that if you are thinking of suing your neighbour, take time to record the conduct that is causing the problem. You could keep a diary of the offensive conduct, but better yet, keeping time-stamped photographs or video. In addition, if you live in a close-knit neighbourhood, it may also be a good idea to reach out to other neighbours who may be able to testify to the conduct complained of. Not only will this front-end effort help you prove your lawsuit, but it will also help you establish the amount of monetary compensation, or “damages”, to which you are entitled.

By the same token, if you are sued for nuisance, you can prove that there wasn’t nuisance if you are able to establish that the “harm” is minimal or that the person suing you cannot prove nuisance. In one case regarding the erection of a disputed fence argued by our firm, we were entirely successful when we represented the neighbour that was sued for nuisance by emphasizing to the court the lack of proof. As with any legal claim, it's not enough to make the assertion, you have to prove it.

Actual damages may therefore often be a sticking-point to prove. A nuisance lawsuit requires that your neighbour has acted unreasonably, and most importantly, that this has caused you actual and significant harm.

If one of your neighbours is interfering with the enjoyment of your property or you have been sued for “nuisance”, let us help you with your legal options.

Mark Donald also contributed to this article.

Read 1446 times Last modified on Thursday, 23 June 2016 11:35
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