A person who owns property has the right to use and enjoy their land. Proposed construction of some types of facilities near the person’s land may interfere with these rights. There are steps a person can take to prevent such construction or to stop construction already in progress.
When an individual owns a piece of property, they have certain rights associated with that property ownership, including:
- Surface rights
- Subterranean rights
- Air rights
- Vegetation rights
- Improvement rights
- Right to lateral and subjacent support
- Right to be free from public or private nuisances
- Riparian rights (water use and access rights)
Surface Rights
These rights are rights that landowners have related to the surface of the property they own, including the right to occupy, use, and develop it. This includes engaging in activities such as building structures and planting food.
These rights typically come with ownership of the land but they may be leased or sold separately from the other land ownership rights.
Subterranean Rights
These are the rights that landowners have related to the materials and resources that are located beneath the surface of the land, such as water, gas, and minerals. It is important to note that these rights may be separate from surface rights and that may also be owned by a different party than the landowner.
Air Rights
These are the rights landowners have to the space above their property. These rights may include the right to build a structure that extends above ground level, such as a bridge or high-rise building as well as the right to control the airspace above the land.
These rights are commonly subject to restrictions and regulations that are imposed by national and local authorities, especially in more populated areas.
Vegetation Rights
These are rights that landowners have to trees and plants growing on their property. This may include the right to remove, prune, and plant vegetation and the right to prevent other individuals from doing so without permission.
These rights may also be subject to local restrictions and regulations, especially in areas that are environmentally sensitive or where there are certain species of plants that are protected by law.
Improvement Rights
These are the rights to add to and improve property, including installing fixtures, building structures, and making other modifications that may increase the utility or value of the land. These rights are subject to:
Right to Lateral and Subjacent Support
This right is the right of a property owner to have their land supported by the underlying and adjacent soil. This means neighboring landowners are not permitted to build or excavate structures in a way that undermines the stability of the land where another property rests.
These rights help protect the integrity and value of land and buildings. If a property owner violates this right, the owner who is affected may be able to seek legal compensation or recourse.
Right to be Free from Public or Private Nuisances
This right allows property owners to seek compensation for or prevent activities that interfere with the enjoyment and use of their property, which may include:
- Noise pollution
- Odors
- Other environmental pollutants
- Activities that create physical hazards or obstructions
If this right is violated, a property owner may be able to seek a legal remedy, such as an injunction or damages.
Riparian Rights
These are rights that the property owner has to bodies of water that border or pass through their land. This may include the right to use the water for irrigation or other purposes as well as to access it for recreation or transportation.
These rights can be subject to local restrictions and regulations, especially when the waterway is used for industrial or commercial purposes. In some situations, the rights are shared among multiple property owners or are subject to limitations that are imposed by local environmental laws or authorities.
It is important for landowners to be aware that there are limits on these basic rights of property ownership and that they are not absolute. These rights have to be balanced against the interests of society as a whole and the rights and interests of other individuals.
This means that, even though a property owner may be able to build a structure on their property, it may be subject to building codes and zoning regulations restricting its location, height, and size.
For example, a property owner may have the right to build a structure on their property, but that structure may be subject to zoning regulations and building codes that restrict the structure’s size, height, and location. All of these rights can be used to ensure nearby construction complies with the applicable laws and does not disturb current owners or interfere with their right to quiet enjoyment of their property.
What Are My Rights When it Comes to Nearby Construction as a Renter?
Rental tenants do not have as many rights as property owners. However, the owner of their rental property will have all of the property ownership rights discussed above.
Commercial and residential rental tenants have certain rights, including, but not limited to:
- The right to possess a habitable home
- The right to privacy
- The right to quiet enjoyment of the rental property without interference
The right to possess a habitable home means that the landlord must maintain the property in a habitable condition. This means ensuring the property meets safety, health, and building codes.
The right to privacy typically includes a requirement that the landlord provide notice, often at least 24 hours, before entering the rental property. It is important to be aware that, if there is an emergency, the landlord is permitted to enter without notice.
The rental tenant also has the right to quiet enjoyment, which means using their property in a peaceful manner without interference. If noise from the construction interferes with the tenant’s quiet enjoyment of their property, they may be able to break their lease.
Some areas will place restrictions on the hours construction noise may be made, such as from 8:00 a.m. to 5:00 p.m. This also applies if the construction restricts the rental tenant from accessing their residence.
The tenant may have the right even if their rental agreement does not specifically address the issue. Issues with these rights may arise if nearby construction causes a health hazard, safety hazard, or other type of issue subject to these regulations.
Preventing Construction Through Nuisance Law
If construction of a building or other type of structure is being proposed near the home or property of another person, under limited circumstances the person may have the right to legally stop, “enjoin” in legal terminology, that construction under the theory of nuisance.
In general, a nuisance occurs when one property owner uses their property in a way that prevents other neighboring owners from enjoying their property. Nuisance law is usually applied to uses of property that are already in existence and damaging nearby property owners.
However, nuisance law can also be used to prevent new construction or other harmful uses of land, if a property owner can show that the proposed use of the land would be a nuisance per se.
No matter the type of nuisance, to be stopped (enjoined through an injunction) the interference must be substantial and continuous. The nuisance cannot be only trivial or intermittent. When it issues an injunction to stop a nuisance, a court usually requires the defendant to take some specific actions to minimize the negative effect of their operations on the plaintiff.
This might involve limiting the hours of the action, for example. Of course, a court can prohibit the defendant’s negative, annoying actions completely. Usually however, most courts balance the relative hardships to each of the parties involved in the action. Where the nuisance is caused by an ongoing business activity of the defendant in the action, i.e., a business activity that is not new to the place, the court will try to minimize the economic impact on the business.
What Is Nuisance Per Se?
A nuisance per se is something that is a nuisance all the time in every circumstance. In order to show that a proposed structure or facility will be a nuisance per se, a person must show that there is no way to construct the new structure that will not interfere with the person’s use and enjoyment of their own property.
For example, if the proposed building or facility will cause constant and pervasive noise, odor, dust, vibration or other forms of annoyance that cannot be avoided, it may be a nuisance per se. If a person were to purchase a home in a neighborhood of single-family residences and start operating a brothel in it, a court is likely to order the business to close because it is both a new operation rather than one that is ongoing and because it does not fit the character of the neighborhood. It may also violate zoning ordinances.
In deciding nuisance disputes, courts weigh several factors. First, courts will look at the location in which the alleged nuisance is occurring and any applicable zoning restrictions that may apply. For instance, a court may be less likely to restrict an animal farming operation located in a rural area than one located at the border of a suburban housing development next to an agricultural area. If the feedlot is located in a “residential” zone, a court may be more likely to issue an injunction or give other relief.
At the same time, the fact that an activity is located in an area that is zoned for that type of operation does not mean that it cannot be a nuisance. For example, an area may be zoned to allow a mix of residential and commercial buildings, but a court might still find that an “all night” truck stop creates a nuisance for the residential property owners in the area.
If the only problem with a property or some operation on it is that it violates a zoning ordinance, this alone does not give a neighboring property owner the right to file a private nuisance lawsuit. However, it might give rise to a cause of action for nuisance if the activity causes a neighboring property to lose market value.
Remedies for Nuisance
One remedy for nuisance is to file a lawsuit seeking an injunction to stop the nuisance. If a court finds that a nuisance exists, it can issue an injunction that orders the party responsible for the nuisance to stop the activity that creates it. In the case of a nuisance per se which is not yet constructed, an injunction that prevents the construction might be awarded, but the case would have to be a compelling one.
There are some other factors that a person should consider when thinking about bringing a nuisance action. First, the mere fear of future injury will not win injunctive relief. Further, usually purely aesthetic considerations, such as the “look” of a funeral home in a residential area, will not rise to the level of a nuisance.
In addition, if a person purchases property knowing that a given operation is located nearby, the “moving to the nuisance” doctrine will usually prohibit injunctive relief. So, for example, if a person moves into a house located next to a 24-hour skateboard park, this doctrine may prohibit the person from seeking relief from the banging of skateboards and noise of the skateboarders during nighttime hours.
If the interference only makes a person’s use and enjoyment of their property less comfortable, without inflicting physical damage to the land, a court would consider the character of the neighborhood to determine whether a nuisance is an unreasonable interference with a neighboring owner’s property.
However, an activity that causes actual physical damage to neighboring land, will probably be found to be a nuisance irrespective of the character of the neighborhood. Such things as vibrations that cause walls to crack or toxic vapor that destroys vegetation would be the kind of nuisance that causes actual physical damage.
A person can also recover money damages in a nuisance lawsuit. A person does not always need to show an injury, or even a decrease in the value, to their property to win an award of money damages. The definition of nuisance includes human activities that are indecent or offensive to the senses and such activities can justify an award of damages.
Generally, the measure of damages for a private nuisance is compensation for the loss or injury sustained (i.e., the diminution of property value caused by the nuisance). However, if the nuisance is only temporary, the measure of damages is the value of the interference to the owner’s use and enjoyment of the land caused by the nuisance plus any special damages.
Special damages can include reasonable costs for removing the nuisance, loss of business or profits, or for personal discomfort, inconvenience, annoyance, and the like. A person might also be entitled to punitive damages if the defendant’s actions are especially egregious, but this would only happen in the rare case.
Lastly, abatement is a type of remedy that is available in cases of nuisance. The property owner who is injured by a nuisance can remove the source of nuisance themselves. Of course, the removal must be peaceable and not cause any damage to other people.
If it is necessary to enter onto another person’s land to abate a nuisance, the person performing the abatement must give notice and an opportunity to correct the nuisance to the owner of the property on which the nuisance exists.
A nuisance can be abated without notice only if the nuisance must be abated quickly and it is not safe to wait. Courts do not look favorably on the remedy of abatement and one would want to be certain that the circumstances justify abatement before undertaking it.
Should I Consult a Real Estate Attorney?
An experienced real estate lawyer will be able to analyze the facts of your situation and advise you as to whether a neighbor’s activities constitute a nuisance. Every annoyance that a person suffers at the hands of a neighbor will not rise to the level of a nuisance that would justify a lawsuit.
An experienced real estate lawyer can help make an objective judgment and decide on which course of action is the most likely to succeed. An experienced real estate lawyer can help you to explore your options and protect your most valuable asset.
There are many different issues that may prevent construction around your property, such as zoning laws, boundary lines, and permits. A lawyer can help an individual present their position to a local planning board if needed to explain why construction should not be allowed.
It is important to reach out to a lawyer as soon as you can, as construction will be allowed to continue until a court issues an order otherwise or a ruling is made on the permit. You may also be able to argue that the construction will disrupt the community.
Of course a lawyer can represent you in court if that becomes necessary. You are mostly likely to get the best outcome with a lawyer representing your interests.
LegalMatch is an excellent way to find a lawyer to help you with your construction near your property issue. Just submit your concern on the website at no cost and, in around 24 hours, licensed and pre-screened lawyers in your area who are ready to help will respond.
