Nuisance

Question 1

Nuisance

Answer 1

• Invasion of property rights by tortious conduct.
• 2 types: private & public

Question 2

Private Nuisance

Answer 2

• Substantial, unreasonable interference w/ another private individual’s use/enjoyment of property the other individual actually possesses/has a right of immediate possession.

Question 3

Tip:

Answer 3

• Nuisance questions on the MBE will often flag the correct choice with a key term from the definition of nuisance (ex. D is liable because the activity created a “substantial” (or “unreasonable”) interference with the P’s use of their land)

Question 4

Substantial Interference

Answer 4

• Interference that is offensive, inconvenient, or annoying to average person in the community.
• Not substantial if merely result of P’s hypersensitivity/specialized use of their own property.

Question 5

Unreasonable Interference

Answer 5

• Unreasonable interference, required for nuisances based on intent/negligence, severity of inflicted injury must outweigh utility of D’s conduct.
• In balancing, cts take into account that every person is entitled to use their own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to D.

Question 6

Trespass to Land Distinguished

Answer 6

• In a trespass, there is an interference w/ landowner’s exclusive possession by a physical invasion; in a private nuisance, there is an interference w/ use/enjoyment

Question 7

Public Nuisance

Answer 7

• Unreasonable interference w/ health, safety, or property rights of the community, (ex. using a building for criminal activities such as prostitution).
• Private party may recover for public nuisance only if private party suffered unique damage not suffered by public at large.

Question 8

Remedies: Damages

Answer 8

P usually will be awarded damages.

Question 9

Remedies: Injunctive Relief

Answer 9

• Injunctive relief will be awarded, if legal remedy is unavailable/ inadequate (ex. nuisance will cause irreparable injury),
• Ct will consider relative hardships.
• Hardships will not be balanced if D’s conduct was willful.

Question 10

Remedies: Abatement by Self-Help

Answer 10

• Private nuisance: self-help abatement is available after notice to D & their refusal to act.
• Only necessary force may be used.
• Public nuisance: only public authority/private party who has suffered some unique damage can seek an injunction/abatement.

Question 11

Defenses: Legislative Authority

Answer 11

• Legislative authority for “nuisance activity” (ex. a zoning ordinance) is not an absolute defense but is persuasive.

Question 12

Defenses: Conduct of Others

Answer 12

No one actor is liable for all damage caused by concurrence of their acts & others.

Question 13

Defenses: Contributory Negligence

Answer 13

• No defense unless P’s case rests on a negligence theory.

Question 14

Defenses: Coming to the Nuisance

Answer 14

• One may “come to a nuisance” (purchasing land next to an already existing nuisance) and, thereafter, pursue an action.
• It is generally not a bar to P’s action unless P “came to the nuisance” for sole purpose of bringing a harassing lawsuit