Private nuisance may occur when any person unreasonably interferes with a right connected to your property.
By owning or renting a residential property, you possess the right of quiet enjoyment of that property.
These types of behaviour may include loud and excessive noise, smoke and other unpleasant odours, overhanging trees/objects, dust, vibrations, obstruction of paths/water supplies, and blocking out light/air flow.
In order for the nuisance to likely amount to a legal nuisance, the interference would need to continue for a long period of time or is repeated often.
However, this requirement may be replaced by major inconveniences such as loud noise in the middle of the night.
It also needs to be established the nuisance is ‘substantial’ and ‘unreasonable’ for an action to be successful.
Factors the court may take into consideration in determining this may include the location of the land, its character/use, the duration and timing of the interference, and its effect.
What is private nuisance?
To sue a party for private nuisance, you must have an interest in the land, a right to occupy the property or exclusive possession.
This generally translate to if you own the property, are tenants renting and residing on the property, or are otherwise entitled to exclusive possession, you have title to sue for private nuisance.
Landlords not residing on the property generally cannot sue for private nuisance unless the defendant has significantly damaged the property.
What’s the best course of action if I have been a victim of private nuisance?
Initially, an option to consider could be to speak with the person/s causing you the nuisance and attempt to come to a resolution.
However, be mindful when entering their property to speak with them as it could escalate the situation and if they ask you to leave, you should do so to avoid any legal action to yourself.
If this fails to resolve the nuisance, you could consider communicating with or making a complaint to your local council.
Council’s website will be able to advise whether the matter is something they handle.
If they cannot assist with the nuisance, you may consider contacting police to possible issue fines or take action to prevent the nuisance.
Private Nuisance Litigation
In some circumstances, an applicant may be unable to put forth a private nuisance action if the respondent is protected by legislation.
This is more likely with commercial property as, for example, most music venue sites are protected from nuisance actions.
If the private nuisance you have endured has resulted in any losses, you can possibly bring a legal in the Court action in nuisance seeking damages.
Additionally, if the nuisance is serious an injunction may be put in place to prevent any ongoing nuisance to the applicant.
Remedies Available for Nuisance
- Self-abatement
Self-abatement is also referred to as ‘self-help’, which means to take steps in resolving or reducing the issue yourself.
A common example of this is cutting branches encroaching onto your property or digging out roots.
This pathway can be successful, as long as you are not damaging or entering your neighbour’s property to prevent legal action against yourself.
With this, you may also seek injunctions from the Court.
- Injunctions
An injunction is an order by the court to prevent the neighbour from continuing the action constituting the nuisance.
An example of this may be an injunction to not play loud music between certain hours or not at all.
If it is proven all the elements of private nuisance as stated above are satisfied, you may be entitled to damages from your neighbour causing the nuisance.
- Damages
Damages can be awarded within certain categories, including compensatory damages, aggravated damages, and exemplary damages.
These will depend on the nature of the nuisance and whether any damage was done to your property.
This is where it may be helpful to engage a lawyer.
When should I seek legal advice?
Lawyers within this area of law are very experienced within this process.
To find out whether you have an action available to you against a neighbour and what you may be eligible for, it may be wise to engage a sunshine coast litigation solicitor and seek legal advice.
Please feel free to find one for you through our website.
Unfair Dismissal in Queensland