Private nuisance: Where do you draw the line?

It is a cold winter’s night and you just had your night cup after a hard day’s work. Your residence is located at an area that has a reputation for being one of the most peaceful and serene neighborhoods in the city, whilst relations with your neighbors are excellent. Nevertheless just as you are about to go to sleep the neighbor’s dog from the adjoining house starts howling like a wolf and his primal instincts seem to be indifferent to your basic right of enjoying the peace, quiet and comfort of your own house. If the above situation continues and is repeated for the days that follow, you may have a claim in private nuisance.

Whilst the dictionary meaning of the word is simple and straightforward, that is ‘a person or thing causing inconvenience or annoyance’ its legal meaning can be quite troublesome. In Cyprus the Law governing cases of Private Nuisance is found in the Civil Wrongs Law, CAP. 148 (‘the Law.’) Article 46 of the Law provides the following:

‘Private nuisance comprises or exists where a person behaves in such a manner or manifests such a state of affairs or uses immovable property in which he or she is the absolute owner or occupier thereof in such a way, that it habitually interferes with the reasonable use and enjoyment of one’s property, when taking into consideration the position and nature of the immovable property of the other person.’

‘It goes without saying that a claimant is not entitled to compensation as a result of private nuisance except if he or she has suffered damage because of the private nuisance.’

‘Further it goes without saying that the provisions of this article do not apply in cases of interference with light.’

Although the offence is one of the oldest we find in Common Law and there is abundance in Case Law governing the topic, issues like reasonableness make it difficult and presumably undesirable to lay down a definite and absolute definition for the offence. The most common types of private nuisance include, inter alia, loud and extended noises, odors and noxious fumes, vibrations, trees encroaching on the complainant's property etc. Whether your case falls under any of the above mentioned examples or if you are dealing with a novel scenario you can find some useful guidelines in assessing and filtering the situation you are dealing with below.

There is an old Chinese proverb which says, and I quote, “Do not use a cannon to kill a mosquito”, so before spending hundreds of euros in soundproofing your house from the neighboring barking dogs it’s better to start by taking some practical steps towards remedying the situation by yourself.

First of all find a reasonable time of the day to communicate the problem of nuisance with the person that is responsible for causing or creating it. Inform the person of the situation and the way that is affecting you. In certain cases the person that’s causing the nuisance might not even be aware that he or she is causing nuisance.

If the person causing the nuisance is not willing to cooperate with you then the factors mentioned below should be taken into account before venturing in a professional legal action:

• Is your immovable property situated in an industrial, commercial or residential area? The level and/or degree of nuisance tolerated will be different in each of these areas.
  
  
• Does the source of the nuisance emerge in foreseeable times of the day or does it occur randomly and unforeseeably? A Court will be reluctant to issue an Order to terminate a nuisance in the latter scenario.
  
  
• What effect does the nuisance has on you or your immovable property? If there is a physical damage to your property or a health problem arising through the said nuisance the Court will definitely be more willing to issue an Order terminating the nuisance than in a case where there is only an interference with use and enjoyment of your property.
  
  
• Always keep in mind that even though there might clearly be a degree of nuisance there must be a balance between your right to use and enjoy your property and the other person’s right to use and enjoy theirs.
  
  
• Furthermore if the nuisance is created by a person or organization that provides something beneficial to the community (for example morning mass at the Church and tolling of its bells, football matches at a stadium and other athletic events), a Court will be reluctant to intervene and issue an order terminating the said nuisance.

The above mentioned law citations and guidelines offer by no means an exhaustive list of professional legal advice and are given without prejudice.