Nuisance – unlawful interference with land

Tortious nuisance is where one party has a claim against another for a continuous, unlawful and indirect interference with their use or enjoyment of their land, or some right of way which they enjoy over a piece of land. Such claims are dealt with by the Civil Courts and a person would be entitled to

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Tortious nuisance is where one party has a claim against another for a continuous, unlawful and indirect interference with their use or enjoyment of their land, or some right of way which they enjoy over a piece of land.

Such claims are dealt with by the Civil Courts and a person would be entitled to seek damages for such a nuisance or even to seek an injunction to prevent the other party from continuing their actions which are causing the nuisance.

Tortious nuisance, or ‘Private Nuisance’ as it is also known, must involve the effects of a nuisance over someone’s land.

What elements must be proved?

Case law sets out the following three requirements to bring a claim for tortuous nuisance:

  1. That there be a continuous interference.
  2. That such interference must be unlawful/unreasonable.
  3. That such interference affects the use or enjoyment of land or some right that you have over it.

Continuous:

This means that the interference must occur over a period of time. It need not be over any specific period, such as during the day or night time and it need not be for very long. Even a continuous 20 minute fireworks display which may cause damage to a neighbouring property could be considered a continuous nuisance.

Unlawful:

The interference caused must be unreasonable, as only then would it be considered unlawful. Therefore, if a neighbour is using their property in a way in which they will not affect your land, then their actions would be considered lawful, however much annoyance it may be causing. The Courts will consider various factors when deciding if their actions are unreasonable, including the locality of the property, the sensitivity of the parties, the actions of the parties and the necessity for those actions to be taken.

For example if the Defendant was carrying out works which were necessary to prevent damage occurring to another person or their property, then such works, even if a nuisance may be considered reasonable.

Affecting the use or enjoyment of land or some right over it:

To make any claim of nuisance you must be able to show that damage was caused by the actions of the other party. Such damage can include actual damage to the physical land itself, or damage to a persons health which would impair a persons use or enjoyment of the land itself, for example where a person starts having headaches which is caused by the noise made by his neighbours which then prevents him from enjoying the use of his land.

Making a Claim:

In order to make any claim for tortuous nuisance, you must have an interest in the land which has been damaged. This would include situations where:

a)      You own the land.

b)      You have exclusive possession over the land.

c)      You are a tenant or licensee over the land.

Interestingly the wife of someone who has possession under a licence will be unable to make a claim, as she will not have any interest in the land itself. Only if she is the wife of the land owner will she be able to make a claim, as in that situation she will have an interest in the land under her Matrimonial Home Rights.

Who can I claim against?

When a tortious nuisance occurs you would be entitled to seek a claim against the following:

  1. The person causing the nuisance – This person can be sued irrespective of whether or not they have an actual interest in the land from which the nuisance was caused.
  2. Occupier – This person can be sued for allowing the nuisance to occur. This includes a case where the nuisance was started by a previous occupier and the new one simply continued to allow the nuisance to occur.
  3. Landlords – This person can be sued if the nuisance comes under the normal use for which the property was leased, or where the nuisance was in existence before the tenancy began and the landlord was aware of it or if he has the right to enter and carry out repairs to the property giving him continued control of the property. In this last case the landlord need not have been aware of the nuisance beforehand. The fact that he retains control over the land makes him liable.

Defences to tortious nuisance:

Possible defences to tortuous nuisance include:

  • Where the nuisance has been continuing uninterrupted for a period of 20 years or more. This would give the person causing the nuisance a right to continue.
  • Where there is a right under statute to carry out the activity which is creating the nuisance, then no claim can be made for tortuous nuisance. However it must also be shown that the nuisance was a direct outcome of the statutory act permitted and that he could not have avoided it.

It is not a defence to claim that the nuisance existed before the claimant moved into the property and therefore they have no right to complain as they should have been aware of it before coming.

In practical terms ?

Neighbour disputes of any kind are inherently difficult (more advice on this type of legal issue here on our site). It is extremely important to know, from the outset, that the threat of litigation will be more about costs than damages in almost every case, since English law does not generally award punitive damages or significant damages for inconvenience. Consequently, litigation is a risky business, and it is also worth remembering that it is one thing obtaining a court judgment for damages or costs and another thing enforcing that judgment. there are no guarantees.

It is always worth a step by step approach, a strong legal letter with compelling supporting evidence would be the best starting point and that can be reasonably cost effective.

Please get in touch with our litigation team to find out more about how we can help.

Disputes • Shmuel Portnoy

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