Good neighbourliness

Unless you live on your own private island you probably have to deal with neighbours. Sometimes we are lucky and develop a relationship with neighbours that lasts years and generation. Unfortunately, some neighbours are set forth from the pit of hell to make your life miserable.

If you watch as much television as I do, you will learn how serious disputes between neighbours can be. Some disputes can be resolved by tolerance, mediation and the courts, but there are some cases where one party has resorted to homicide. It goes to show how protective people can be of their right to enjoy their property without disturbance from others.

Your home is your castle, so when something or someone interferes with your quiet enjoyment of your castle, then there is a problem. The question is whether that interference rises to the level of a nuisance.Nuisance falls under tort law and it is an act or omission that amounts to an unreasonable interference with or disturbance of or annoyance to another person’s reasonable enjoyment of his property. Nuisance actions can fall into two categories: public or private nuisance. Most actions between neighbours will fall under private nuisance. Private nuisance could be one of three situations: encroachment on a neighbour’s land; direct physical injury to a neighbour’s land; or nuisance by interference with a neighbour’s quiet enjoyment of his land.

The law agrees that your property is your refuge from this big, bad, world of troubles and that you should be able to retreat into your home and be at peace. The law therefore has developed parameters within which we negotiate the peaceful and quiet enjoyment of our properties. So what are these parameters? First, typically, the threatened or actual act or omission must be of a continuous nature. If your neighbour throws a 60th birthday party that lasts till dawn and disturbs your sleep that day, that would probably not fall into the realm of nuisance. Rather it would be considered one of those situations of give and take that we are expected to tolerate from our neighbours for the sake of good neighbourliness. If, however, your neighbour decides to make such a party a daily occurrence and convert his home into a night club, then you may have a claim.

Secondly, “It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that.”Hanrahan v. Merck Sharp and Dohme (Ireland) Ltd., [1988] ILRM 629 (emphasis added). The law will not impose your special needs and peculiarities on your neighbours. If for instance you like to hit your pillow by 6:30pm every night and expect all street activities and your neighbours to shut down at the same time, so that you have the required peace and quiet to drift into dreamland,your success in a nuisance claim is highly unlikely.

Some years ago, I had a neighbour who was not very friendly. One day, she came to me in very dramatic fashion and asked me to come over to her compound because she needed to show me something. It turns out that some branches from a tree in my compound had grown over the property boundary and were shedding leaves in her compound, and apparently, all she was doing day and night was sweeping the leaves from my tree. My tree was constituting a nuisance. She had every right to cut the branches that had grown into her compound, but why take on that expense? It was a simple matter, easily resolved by me trimming the branches of the offending tree. Sometimes an act can cross the line from nuisance to negligence. For instance, until recently, branches from a tree on my neighbour’s property hung precariously over one of the structures on my property. I brought it to the attention of the occupiers of the property several times and secretly hoped that a strong wind would blow and a branch would fall and cause damage to my property because the structure on my property was in need of repairs.

Such an outcome (the damage to my property) was reasonably foreseeable. Admittedly, that wait-and-see game was a gamble because a claim for the full loss to my property may fail if it is shown that I could have mitigated my loss in some way. It took some time and several “neighbourly” reminders, but the tree has been trimmed within their boundary.

What will the courts consider in a claim for nuisance? The magnitude of the harm done; the nature of the locality; the defendant’s motives; and the social utility of the defendant’s acts are things that the courts will look at to determine whether or not a claim in nuisance can succeed. For example, if a neighbour uses their property for an act that is infrequent but has an intense impact on you, the courts may be inclined to give you relief. If you move to a farming community, you would be lucky to find a court that would agree with a claim that the clucking of chickens and smell from your neighbour’s poultry are disturbing your enjoyment of your property. On the other hand, your claim may succeed if the properties are located in an urban residential area.

Unless you are dealing with a malicious and recalcitrant neighbour from hell, there is no reason why you and your neighbour should end up in court, at the police station or in the offices of the local authorities because of a nuisance claim. A conciliatory approach is usually the best way to deal with a neighbour’s disturbing acts. Make a complaint to the neighbour and hopefully an amicable resolution can be found. If not, then document all occurrences of the act because you will need evidence should you decide to get the authorities or the courts involved.