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The Law of Nuisance

Jason Reimers May 3, 2015

By: Jason Reimers, Esq.

You have probably heard of the legal concept of “nuisance.” Maybe your neighbor’s rooster seems like a nuisance. Maybe the noise, traffic, and dust from the quarry next door are bothersome. Maybe someone has called your unruly dog a nuisance.

You don’t want to be a nuisance. Being a nuisance can get you sued. Perhaps more importantly, you should want to be a good neighbor. To help keep you in your neighbors’ good graces—and increase the likelihood that they will share their garden’s bounty with you or alert you to suspicious activity at your home while you are away (I’m speaking from experience)—let’s review what a nuisance is.

Legally speaking, nuisance is a tort. Torts are a broad category of wrongful acts for which you may face civil liability if you are sued, but not quite so wrongful that they are a crime. Under New Hampshire law, a nuisance exists when an activity substantially and unreasonably interferes with the use and enjoyment of another person’s property. In other words, you might be a nuisance if your activities are making it difficult for your neighbors to enjoy living next to you.

Something that is merely annoying or inconvenient is not a nuisance. Your neighbors’ ugly house is not a legal nuisance, not even if they have a couple junked cars in the yard. A friend of mine has neighbors who mounted stereo speakers to the exterior of their home so the neighborhood can hear country music. Although it is annoying, they don’t play it too loud or too late, so it probably is not a legal nuisance.

There is no bright-line test to determine whether something is an actionable nuisance. The law tries to balance the utility of the (annoying) conduct with the harm that it is causing. There is a certain level of annoyance and bother that we accept as part of living in a community with other people. It is when the noise, smell, dust, or smoke coming from someone’s property exceeds that acceptable level that a nuisance may exist.

You may create a nuisance if you build a helipad in your backyard so that you can commute to work in your new helicopter, though perhaps not if your nearest neighbors are a mile away. A barking dog at lunchtime might not be a nuisance, but a dog that barks for more than a half-hour at night may be a nuisance. (If you have dog, I suggest that you read RSA 466:31, which sets forth several ways in which a dog may be a legal nuisance, including chasing cars or bikes or feasting on a neighbor’s chickens.)

You are not liable for naturally occurring dangers. For example, a hive of wild bees on your property is not a (legal) nuisance, assuming that you did not intentionally place the hive there to bother the neighbors. However, if you are intentionally attracting bears to your property with bait and you build up a bear presence that is menacing the neighborhood and preventing your neighbors from using their yards, you might be creating a nuisance.

If your neighbor’s raw sewage is flowing onto your property, that sounds like a nuisance. If the town builds a municipal airport next to your home, that may be a nuisance.

Examples of possible nuisances are endless. The traditional law of nuisance is flexible and subject to change with the times. As retired U.S. Supreme Court justice David Souter wrote when he was on the New Hampshire Supreme Court, “we cannot anticipate at any one time the variety of predicaments in which protection of property interests or redress for their violation will be justifiable.” One thing we can do is try to be good neighbors. That should keep us out of trouble.

Jason Reimers is an attorney with BCM Environmental & Land Law, PLLC, in Concord, and a member of the Board of Directors of the New Hampshire Lakes Association.