Real estate is often the most valuable asset we own. Noise, odor, unsightliness, and other poor conditions can affect your use and enjoyment of your property and can reduce its marketable value. An experienced attorney can help you navigate Missouri’s private nuisance laws and protect your most valuable assets.
What is private nuisance?
Nuisances are conditions, activities, or situations that interfere with the use of enjoyment of your property. Missouri recognizes two forms of nuisance: private and public. The key difference between the two is who has standing to sue. Public nuisances are pursued by local authorities to protect everyone from the offending condition. Public nuisances, however, can be pursued by an individual property owner who has suffered a special injury not common to the public generally. A plaintiff’s proximity to the nuisance can be sufficient to give standing for a private nuisance claim.
Nuisance per se v. nuisance in fact
The easiest way for a plaintiff to show a nuisance is to prove that the defendant’s conduct is unreasonable as a matter of law. This type of action is referred to as “nuisance per se.” When a condition is a nuisance per se, it is a condition that is a nuisance at all times and under all circumstances. Extreme examples include nuclear-waste leaks and buildings used for the manufacture of methamphetamine.
A nuisance in fact is a condition that exists because of the circumstance of the use or the particular location of the use. Determining what is a reasonable use of property and whether a particular use is an unreasonable invasion of another’s use and enjoyment depends upon the circumstances of each case. Courts take into account several factors in deciding whether a nuisance exists, including the locality and character of the surroundings; the nature, utility, and social value of the use; the extent and nature of the harm involved; and the nature, utility, and social value of the use or enjoyment invaded.
Noise may constitute a nuisance where it is of such a character or so excessive as to become a nuisance, even though it arises from operations of a lawful business. In Clinic & Hospital v. McConnell et ux., the music played from defendant’s business was a nuisance because the plaintiff could hear it across the street at their own business. A nuisance based on noise was also found in the case of Massey v. Long where plaintiffs’ bedroom window was seven feet from defendant’s noisy air conditioning units.
Aesthetic considerations may also constitute a nuisance if the unsightliness adversely affects the value of the plaintiff’s property. In Wallace v. Grasso, for example, the defendant was liable for a nuisance over the construction of an unsightly and mismatched fence.
Finally, odors have also been held to constitute a nuisance in certain cases. In both Hanes v. Continental Grain Co. and Bower v. Hog Builders, Inc., plaintiffs alleged that the odors from hog farms and resulting fecal waste had prevented them from using and enjoying their nearby properties.
Relief from nuisances
A prevailing plaintiff in a nuisance case may seek a court order commanding a defendant to act or refrain from acting in certain ways. Injunctive relief may restrict an activity to a level which does not interfere with a plaintiff’s peaceful use and enjoyment of their property.
Defendants may also be enjoined for their contemplated future acts, but only where the contemplated act will, no matter how carefully undertaken, would constitute a nuisance per se, defendant’s intentions are proved, and defendant has taken preliminary actions in furtherance of the contemplated future act.
Damages for a permanent nuisance are measured by the difference in the land’s market value immediately before and after the injury; damages for a temporary nuisance includes the decrease in rental or usable value of the property during the injury.
Navigating Missouri’s nuisance laws requires an experienced attorney. Call or email today to learn more about how Andrew can help you protect your property.