Getting to the Root of Nuisance Law

If a group of rowdy college students moved into the house next door, played loud music all night long, threw beer bottles on your lawn and even neglected to trim the large oak tree hanging over your pool--so that the falling leaves clogged your filter system--you’d no doubt be annoyed.

You might even refer to your annoyance in polite circles as a “nuisance,” in which case you’d be using legalese. Nuisance is a legal term used by lawyers to define a concept first developed in feudal England to protect landowners’ rights to use and enjoy their land.

Not Easy to Decipher

However, the law of nuisance is not easy to decipher, as one prominent law professor once acknowledged. “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ It has meant all things to all men and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie,” wrote the late Prof. William Prosser.

“There is general agreement that it is incapable of any exact or comprehensive definition,” he added.

Modern scholars do not find the law of nuisance nearly so incomprehensible.

“The area is not nearly as mysterious as Prof. Prosser makes out,” Stanford Law Professor Robert C. Ellickson says. “Although he was a great legal scholar, Prosser never had a clue about nuisance.”

California has a long-standing law on the books that attempts to define the concept: “Anything which is injurious to health, or is indecent or offensive to senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.”

Nuisances come in many varieties. Courts have ruled that relatively common annoyances in the big city--such as a neighbor’s loud air conditioner--or uncommon annoyances, such as, in one case, a pig farm that emitted offensive odors and dust, can be considered nuisances in certain circumstances.

What do you do if you’ve got a nuisance next door, a barking dog that keeps you up late into the night or a foul-smelling septic tank that makes you sick to your stomach? There are two basic legal options. You can either sue for money damages or seek an injunction to halt the nuisance.

If you seek an injunction, the court will weigh the relative hardships of each party. For instance, if a multi-unit apartment building next door has a loud air-conditioning unit that disturbs your sleep, you can seek a court order to abate the noise and remove the nuisance. The court will balance the relative hardship to the apartment dwellers left to sweat their way through sultry nights without air conditioning against the hardship to you of noisy sleepless nights.

May Award Money

If the court finds that an injunction ordering removal of the air-conditioning unit is not equitable, the judge may award money damages instead. You should be able to recover the diminution in value of your home resulting from the constant and irritating hum.

In other situations, you may be able to recover the out-of-pocket expenses you incurred as a result of the nuisance. One reader complains that the roots of a neighbor’s tree have pushed up into her brick patio and cracked the concrete. If she decided to sue, she could seek to recover the amount it cost to repair the patio and the concrete.

If you don’t want to use the civil legal system, you might consider the criminal justice system. A barking dog or loud stereo may violate the penal code, so you could file a complaint at your local police station. The police will routinely turn over these sorts of complaints to the District Attorney or City Attorney’s hearing-officer program, where an informal hearing will be held to try to resolve the problem.

There is one other possible remedy, rarely advised by lawyers. It is called “self-help,” and you do it at your own risk. You abate the nuisance yourself. Self-help is usually not advisable, because you may be sued for whatever action you take. For instance, if you jump your neighbor’s fence and try to clean the septic tank yourself, you’ll probably be sued for trespass. On the other hand, cutting down branches that hang over your property does seem to be condoned by several older California Court of Appeal decisions--but picking the fruit off the branches is not.

Overhanging tree branches and roots are a common and irritating problem that falls more precisely in the legal doctrine of “encroachments,” not nuisance law, but many of the principles are the same. You can sue for an injunction or damages or attempt self-help. Most neighbors can work out their problems, so there are very few published legal decisions in this area, but several older cases do suggest that a landowner who is injured by a neighbor’s overhanging tree branches or roots has the right to cut them off, but only to the property boundary line. You cannot cut down the tree completely, nor can you enter your neighbor’s land to do the cutting.

Whether legal or not, unilaterally cutting down your neighbor’s tree branches is not only not neighborly, it’s simply not a smart move. Besides, the branches or roots will grow back anyway, so the problem will not end there.

Old-Fashioned Solutions

Stanford’s Ellickson, who recently completed a study of how ranchers in Shasta County handle their disputes with their neighbors without the help of lawyers, advises neighbors to resolve problems the old-fashioned way:

“First try to work the dispute out in a neighborly way before you take your problem to the legal system or attempt unilateral self-help.

“If somebody needs the legal information in this column, that is a sure sign that their relations with their neighbors are in dire straights,” he adds.

If you sue your neighbor, your already strained relationship is bound to deterioriate, and the lawsuit won’t force the neighbors to move away. Rather than spending the time and money involved with lawyers and the legal system, you might try to mediate the dispute. You could seek the assistance of a mediation center such as the Neighborhood Justice Center in Santa Monica, or a neutral third party you both respect.

However, if you think that a mere annoyance is actually a legal nuisance and want to pursue your legal rights, you should first consult a lawyer to see if you’re correct and learn what remedy is best in your situation. The Los Angeles County Bar operates a Lawyer Referral and Information Service, which will refer you to a lawyer for a $20 half-hour consultation. Telephone (213) 622-6700.

Attorney Jeffrey S. Klein, The Times’ senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.