The neighbors living near Albert Lew’s 36-unit Berkeley, Calif., apartment building were fed up. Twenty-four hours a day, drug dealing was taking place inside the building, in the parking area and in front of the building. Gunshots being fired were not unusual.
Neighbor Edgar Peterson said, “Because of this illegal activity my child is unable to use our front yard and I even have to check the back yard since it has been intruded upon from time to time by people running from the police. He is learning to count by how many gunshots he hears and he can’t understand why he can’t enjoy our rose garden.”
Despite frequent phone calls to the police, the illegal drug dealing and related crimes continued. Lew ignored the neighbor’s pleas and complaints. He refused to evict the troublemakers and keep non-residents out.
Finally, the neighbors got together and filed 75 lawsuits against Lew in Small Claims Court. They requested maximum damages for Lew’s allowing illegal drug activity to occur on the premises, causing emotional and mental distress to the neighbors. The judge awarded each neighbor $5,000 damages. But Lew demanded a new trial in Superior Court.
After hearing testimony on the nuisances at the Lew apartment building, the Superior Court judge awarded $218,325 total damages, finding Lew knew or should have known of the public and private nuisances at his property.
The Court of Appeal affirmed, ruling a “drug house” is a public and private nuisance. The proper remedies, the appellate court explained, are nuisance abatement and/or Small Claims Court damages actions by private parties when public authorities refuse to act (Lew vs. Superior Court, 25 Cal.Rptr.2d 42).
Although the recent decision in the Lew case is very unusual, it is an example of both public and private nuisances.
A public nuisance disturbs a large number of people, thus interrupting quiet enjoyment of their property. Examples include a smelly sewer plant, a rat-infested garbage dump, a noisy factory, a house of prostitution and a house where drug dealing takes place.
The usual legal remedy is for a public official, such as the city or county attorney, to bring a lawsuit for an injunction to abate the public nuisance or to arrange a negotiated settlement.
For example, rather than close a noisy airport which could cost hundreds of jobs, the court might order noise reduction and payment to nearby homeowners for the decreased value of their homes.
But a private nuisance only affects a few people. Examples include a neighbor’s barking dog, a junk-filled yard, a neighbor’s dead tree that leans toward your house and noisy patrons of a bar who keep you awake at night.
If a city, county, or state law is being violated, such as disturbing the peace, then the police or other public authorities can be called to abate the nuisance.
However, there are several valid defenses to private nuisance lawsuits if no law is being violated. If the nuisance has been tolerated for a long time, for example, or the complaining party moved to the neighborhood knowing of the nuisance.
But ineffective defenses include no law violation, zoning or another law allows the offending activity and other private or public nuisances in the neighborhood.
Another possible defense is the statute of limitations, typically three to five years in most states. But some courts have ruled each private nuisance occurrence starts the statute of limitations running again.
As those who have tried to have a private or public nuisance abated have learned, proving a nuisance exists can be difficult.
For example, a nearby noisy factory might disturb you, but documenting proof a nuisance exists can be difficult. Proving a house is being used for prostitution or illegal drug sales can be equally troublesome.
Even if you prove a nuisance exists, such as smells from a nearby sewer works, the judge might not order it abated after weighing the public benefits such an operation provides.
Public and private nuisances can greatly affect the enjoyment and market value of private properties. Once a nuisance is proved, abating it or obtaining monetary damages is not always easy because a court must then be convinced of its detriments.
For further details on abating public and private nuisances, please consult a local real estate attorney.
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Please note: Real estate laws differ from place to place, and laws of your area should be checked before making decisions on real estate problems. Letters should be addressed to Tribune Real Estate Features Service, P.O. Box 280038, San Francisco, Calif. 94128.
