Have you ever felt annoyed or disturbed by your neighbour for playing music out loud, littering on your property and many more?
Do you know that you can take legal action against your irritating neighbours?
You can sue your neighbours under the tort of nuisance. Nuisance is a branch under torts which protects the right of comfort and enjoyment of people who have proprietary interest in land and members of the society in general.
Nuisance occurs when there is an unreasonable interference done by the defendant that has caused special damage to the plaintiffs in enjoying their rights and interest over a certain property.
Types of Nuisance:
There are two types of nuisance:
1) Public nuisance
2) Private nuisance
Public nuisance:
Occurs when there is an interference in the enjoyment of public rights.
Arises when the action or activities by the Defendant interfere with the comfort and convenience of public within a particular community.
It is sufficient to show that there is a class of people from that community who have suffered the consequences of the said nuisance.
Private nuisance:
Private nuisance occurs when there is a dispute between two parties whereby there has been an unlawful, substantial, and unreasonable interference with a person’s use, comfort, enjoyment, and any interest that a person may have over his land.
To establish an action under the tort private nuisance against the alleged wrongdoer, the burden of proof lies on the person who bring the claims whereby he must prove the following elements: –
1) That there is a substantial interference with the enjoyment or use of his property;
2) That such an interference was unreasonable; and
3) That the interference had caused him damage/ severe inconvenienced.
Basically, such interference must be a result of a repeated/ an on-going action rather than a one-off incident. It must be regarded as unreasonable to the extend it ‘goes beyond the normal bounds of acceptable behaviour’.
This time, we will focus on the private nuisance that commonly happen in the neighbourhood.
One of the real-life nuisance situations that you may refer to for you to sue your neighbours:
Have you had any bad experiences with a neighbour who loves to light incense, burn joss paper and billowing smoke everywhere for the entire day?
Do you know that burning joss paper and incense frequently can be liable under tort of nuisance?
This has happened in the case of
‘Neighbour From Hell’ Case [2011] MLJU 409
In this case, the Defendant had conducted noxious activities on his property, including but not limited to,
undertaking regular and frequent open burning of offering.
On certain occasions the burning has resulted in smoke and ashes blown to neighbouring lots and caused unpleasant and noxious smells.
The Plaintiffs, the neighbours had commenced legal action against the Defendant under tort of nuisance.
The Court held that the emission of smoke and or noxious substances via the Defendant’s open burning amounts to a private nuisance.
It cannot be denied that this interference with the Plaintiffs’ quiet enjoyment of their land and inevitably reduces the amenity value of their land.
The next real-life situation that you may refer to:
Have you ever been so upset with your neighbour for parking his car in front of your gate for the umpteenth time?
This can be illustrated in the case of:
‘Neighbour From Hell’ Case [2017] 7 MLJ 548
In this case, the plaintiffs submitted that the defendant had always parked his vehicle in front or near the front gate of the plaintiffs’ house, causing obstruction and inconvenience for them to exit and enter their vehicles into their house.
The continuous conduct of the defendant thereof had also caused physical and mental distress to the plaintiffs.
In support of their allegations, the plaintiffs relied upon the evidence of CCTV recording and photograph of the alleged nuisance.
The first plaintiff had also lodged police reports against the defendant on various occasions for various reasons, inter alia, for fear of his safety when the defendant scolded him and challenged him to a fight.
In his defence, the defendant submitted that he had entered into an oral agreement with the plaintiffs in which, the first plaintiff had allowed him to park his vehicle opposite the plaintiffs’ house.
The defendant further denied that he had parked his vehicle right in front of the plaintiffs’ house.
He further denied that he had caused obstruction and inconvenience to the plaintiffs.
From the CCTV recording, the flow of traffics along Lorong Sungai Kelian 3 in front of the plaintiffs’ house was heavy.
With the defendant’s vehicle parked by the roadside, the space for the plaintiffs to reverse their vehicles when exiting from their house became narrow. In the circumstances, it could not be disputed that the defendant’s parking had created dangerous situation.
Further, the defendant’s conduct of parking his vehicle by the roadside instead of in his house compound which was a safer place was most unreasonable.
In totality, the Court held that the defendant had committed a tort of private nuisance against the plaintiffs for the illegal parking and the obstructions which caused to the plaintiffs. Stay tuned for more info on private nuisance!
The next real-life situation:
What can you do if your property is badly affected by the renovation works done by your neighbours?
This has happened in the case of:
‘Neighbour From Hell’ Case [2020] 9 MLJ 713
This is an appeal case in High Court. The first plaintiff was the registered owner of a piece of land known in the District of Kuala Muda, Kedah with a single storey house erected thereon. The second plaintiff was the son of the first plaintiff and occupies the property of the first plaintiff.
The defendants were the registered owners of a piece of land known the District of Kuala Muda, Kedah. The defendants’ land was located adjacent to the first plaintiff’s land. The geographical location and landscapes of the defendants were lower than the first plaintiff’s property.
Around May 2015, the first plaintiff was aware that the defendants appointed agents, employees, or contractors to carry out construction and excavation work on the defendants’ border/cliff area which was very near to the first plaintiff’s property. The first plaintiff filed a complaint against one of the defendants and/or their representative.
On 25 May 2015, the first plaintiff filed a complaint to the Sungai Petani Municipal Council regarding the work. As a result of the construction and excavation work carried out by thev defendants, the plaintiffs claimed the plaintiff’s first property was damaged.
The lands on the cliff/boundaries of the first plaintiff’s property with the defendants’ land became unstable and cracked. Some of the first plaintiff’s property lands collapsed and it worsened on rainy days.
The fences built were damaged/destroyed and fell to the ground. Trees and plants planted by the plaintiffs were also damaged and destroyed. The defendants failed to take precautionary measures while intentionally carrying out construction work which disturbed the peace, security, and comfort of the plaintiffs.
The plaintiffs filed a writ and statement of claim against the first, second and third defendants on the grounds of nuisance and negligence resulting in the plaintiffs’ loss.
The defendants also filed a counterclaim against the plaintiffs for their actions resulting in the defendants’ damages and losses. The High Court allowed the plaintiffs’ claim and dismissed the defendants’
counterclaim.
The court held that the trial court failed to consider the oral evidence given by the first plaintiff during the trial which clearly outlined the nuisance and damage suffered by the plaintiffs and family members.
The adjoining area has never occurred a landslide. There was no basis for asserting that the plaintiffs’ land area was more stable and favorable than it was previously.
Instead, the construction work carried out by the defendants caused the plaintiffs’ family to worry. The court agreed that the defendants had failed to produce the certificate of completion and compliance for the construction of the wall.
The court held that the plaintiffs were in a state of discomfort and threatened to choose the right course by applying for inter parte injunctions against the defendants.
The defendants were liable for negligence and nuisance against the plaintiffs after considering the damage, order and discomfort suffered by the plaintiffs.
The deterioration of the fence along the borders of the plaintiffs’ land continued for over a year.
The court agreed with the arguments of the plaintiffs’ counsel that during that period, the safety of the plaintiffs was in jeopardy when the protective fence was damaged by the nuisance of the defendants. The court held that a general damage of RM100,000 was reasonable and acceptable.
What are the remedies/ legal relief against the noisy and nuisance neighbours?
A person who suffers interference with the enjoyment of his land or property due to the actions of another person can sue the wrongdoer to put an end to the interference and to also claim damages against that wrongdoer.
The most common remedies/ legal reliefs available for nuisance are: –
1) Injunction order to stop the wrongdoer from carrying on the interference activities;
2) Monetary compensation for damages suffered.
However, we have always to be mindful that whether the Courts find the activities and/or actions by the wrongdoer is a nuisance or not ultimately depends on the facts and circumstances of the case.
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