Private property use

controls
Dr. Vikas Bhati
Assistant Professor (Law)
Dr. RMLNLU, Lko.

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Private Nuisance: Meaning
 An act/condition on the defendant’s land
which substantially and unreasonably
interferes (SUI)with the plaintiff’s use and
enjoyment of plaintiff’s land.
 Interference: physical invasion (trespass) or

intangible invasion (interference by smell,

light, pollutants, sounds, vibrations)
 Former easy to prove: to show only invasion.
 Latter difficult: to show SUI.

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
example
 “A” who walks his dog on a neighbor's land/
“B” allows his (many) dogs to bark at night.

Former is a trespass liable for minimal

damages.
Latter is a nuisance if court determines that
the noise cause SUI with plaintiff’s UAE of
their property.

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Evolution of law:3 approaches
 Early cases looked solely at interference with
plaintiff’s UAE (= as they evaluate trespass
today)
 Industrial revolution: accommodating progress
by a BALANCE OF THE UTILITIES APPROACH.
 Later courts, recognized new balancing rule
allowing damages as relief but injunctions were
deemed inappropriate.
 Recent trend allowing any of three/ favoring
damages.

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Terminology of Interferences
 Intentional: does not mean that defendant
intended to interfere in UAE / it rather
distinguishes the acts or conditions from
negligent one’s. here he knows that it would
affect UAE of neighboring property, but feels
that other should tolerate or even encourage
his act or condition despite inconvenience.

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Contd…
 Unintentional: usually result from negligent
or reckless (disfavored as falling below
expected standards of conduct) or
abnormally dangerous activity (imposes a
standard of care than a strict or near strict
liability applies as long as interference is
substantial)

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Example
 “A” mowing his lawn knows or should know
that noise, dust and smoke would go into
neighbor’s property.

It is intentional but probably are not

unreasonable (or substantial with his
neighbor’s UAE)

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Contd…
 Substantial: only that with UAE would amount to
a private nuisance.
 It does not necessarily means egregious/ but

that person of normal sensitivity would consider

it to be substantial.
 So invasions which are insubstantial, or petty

complaints or by overly sensitive complainants.

eg., children playing at daylight hours,
automobile noises etc.
 Historically it was the main enquiry now court

focuses on unreasonable as more important.

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Contd…
 Unreasonable: some considerations to
determine:
a. The gravity of harm to the plaintiff’s UAE,
outweighs the social utility of defendant’s
act/condition on his property;
b. The harm to plaintiff is sufficiently grave and
greater than he should be required to bear
without compensation;
c. The harm is sufficiently grave and the financial
burden of defendant’s compensating for the
harm and for similar

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Contd…
… harm to other’s would not make the
continuation of defendant’s activities
infeasible;
d. The harm to plaintiff is sufficiently grave and
the defendant could avoid the interference in
whole or in part without “undue hardship”;
e. The harm to the plaintiff is sufficiently grave,
plaintiff’s use is well- suited to the
characteristics of the locality, and the
defendant’s conduct is unsuited to the locality.

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Fact basedexercises:
 8 plaintiff’s and the defendant “B” live in a semirural
area with homes in relatively close proximity. The
closest of any home to B is 50 feet. Plaintiff’s were
already residing in area before B. two years ago B built
a dog kennel for his 16 dogs. They remain outdoor in
day time and inside kennel at night. They barked all
night and day. Plaintiff’s could not sleep, perform lawn
work, enjoy their porches because of dog’s constant
barking. They became annoyed, irritable and physically
upset. They lost sleep became short tempered. B says
the dogs never woke him. The 5 plaintiff’s brought an
suit for private nuisance. What result?

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow
Thanks.

© Dr. Vikas Bhati, Assistant

Professor, Dr. RMLNL, Lucknow