Is Trespassing Involved in Private Nuisance?

There is a great deal of confusion over the difference between the legal concepts of private nuisance and trespassing. Homes and city properties are so close together these days that property rights come into question far more often than they may have in the past. What rights does a property owner have to protect their property and their enjoyment of it?

Property Protections

There are two primary legal concepts that protect a person's property from the intrusion of others, either directly or indirectly. The first -- trespassing -- protects property owners, renters, or lessees from the trespass of others.

At its most basic, in relation to real estate, trespassing means entering property without the consent of the property owner. The law generally only applies to those who enter someone else's property with the intent to trespass, not those who do so in error.

The second legal concept protecting property is less obvious: private nuisance. It prevents Person A from disturbing or interfering with Person B's use or enjoyment of his or her own property. It can occur when one neighbor plays music in the backyard at a disturbing level so that their neighbors are unable to enjoy their backyard or even leave their windows open. Private nuisance can also be more serious, such as when a neighbor leaves their property in such a state of decay or toxicity that it infringes upon their neighbor's enjoyment of their own property. Many varieties of private nuisance take place every day.

Nuisance Claim Essentials

Whenever possible, it is beneficial to attempt to solve nuisance claims through negotiation. Discussing the problem with the neighbor who is creating the disturbance is the first step. If that fails, writing a letter or enlisting a neutral mediator may help. If that is also unsuccessful, and if all else fails, a property attorney can help. They may be able to provide the negotiating expertise to bring the dispute to a compromise solution. If that also is ineffective, they can file a personal injury lawsuit asking for money damages or an injunction to stop the ongoing private nuisance.

Private nuisance laws vary from state to state. But generally speaking, there are a number of conditions that must exist in order for such a suit to be successful:

• the plaintiff must own, rent, or lease the property that is affected

• the defendant must be performing an action that damages the plaintiff's health, is offensive to them, or obstructs their enjoyment and use of their own property

• the plaintiff must never have consented to the actions of the defendant

• the acts performed by the defendant would be considered annoying by any reasonable person, and

• the plaintiff suffered some type of harm as a result of the defendant's action.