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Know the rules, then complain

(ran HC)

What do a loud barking dog, smelly sewerworks, a neighbor's junk-filled lot, a noisy factory, an apartment building where illegal drugs are sold, and a noisy airport have in common?

You go to the head of the class if you said they are all public or private nuisances. However, abating such nuisances is often not easy.

Just ask the neighbors who live near the 36-unit Lew Apartments in Berkeley, Calif. They constantly phoned the police to stop the illegal drug activity taking place in and around the building. Nothing worked to end the drug sales in this HUD-insured Section 8 low-income complex.

But then the neighbors got together. Each filed a Small Claims Court lawsuit against the apartment owners. A total of $218,325 damages for allowing a public nuisance was awarded to the neighbors. The Court of Appeal upheld the unique award, explaining, "The fact that a nuisance is public does not deprive the individual of his action in cases where, as to him, it is private and obstructs the free use and enjoyment of his property" (Lew vs. Superior Court (Byrd), 25 Cal.Rptr.2d 42).

A private nuisance affects only a few people. If only a few people are affected by a nuisance, such as a loud barking dog, it is a private nuisance. When a city or state law is violated, the police or other local officials should be notified to abate the nuisance.

However, if no law is being violated but the nuisance interferes with enjoyment of your property, your legal remedy is to sue the offending person for an injunction to stop or limit the activity. An alternative remedy available is monetary damages.

But there are several possible defenses the offender might raise. They include the neighbors (a) have tolerated the nuisance for a long time and (b) knew about the nuisance when moving to the neighborhood. Another possible defense is the statute of limitations, which is three to five years in most states. But most courts view each private nuisance occurrence as a new event which restarts the running of the statute of limitations.

Defenses which are ineffective include (a) no law is being violated, (b) the neighborhood has other private and public nuisances, and (c) the zoning does not prohibit the offending activity.

A public nuisance affects a large number of people. A private nuisance involves just a few people, but a public nuisance offends a large number of people, often an entire neighborhood or city. Examples include a smelly sewerworks, a public dump, and a noisy airport.

The traditional method of abating a public nuisance is for a public official, such as the city attorney, to bring an abatement lawsuit against the offender. However, often for political reasons, it's difficult to get governmental action to abate a public nuisance.

An alternative legal remedy is for a class-action lawsuit brought by the affected individuals. Many lawyers welcome class-action lawsuits, which often result in huge legal fees.

Legal relief from a public nuisance can include (a) an injunction ordering the activity abated, (b) partial abatement, (c) payment of monetary damages to the injured people, and (d) a negotiated settlement.

For example, airports are generally agreed to be noisy public nuisances. However, they also create jobs and benefit their passengers as well as the economy of the region. Weighing airport nuisance detriments against their benefits, courts usually either refuse to act or order mitigation of the nuisance, such as the airport paying for sound insulation or purchase of nearby homes affected by the noise.

Proving a private or public nuisance can be difficult. A major difficulty in getting a private or public nuisance abated is proving the extent of the nuisance. Expert witnesses and specialized evidence is needed to convince the judge or jury that the nuisance exists,

To illustrate, proving the house next to yours is used for prostitution or illegal drug sales requires more than just suspicion. Photographs or other factual evidence is necessary. But large numbers of affected neighbors joining together in a lawsuit, as occurred in the Lew case, is a new method of proving nuisance damages actually exist.

Summary. Public and private nuisances that affect the enjoyment of property are not always easy to abate. But courts have substantial leeway to determine if the nuisance exists and what the appropriate legal remedy should be. But affected citizens can create an effective nuisance deterrent by suing the offender for monetary damages.

Robert J. Bruss is a nationally syndicated columnist on real estate.