Neighbor Lawsuits for Nuisance and the Fear of Future Injury

Laine T. Wagenseller |

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Neighbor lawsuits in Los Angeles arise for many reasons, but typically involve only a few particular causes of action. A neighbor lawsuit will often involve property boundaries and encroachment. The trial attorney may plead a quiet title cause of action so that the neighbors can determine who owns the property at issue. Other neighbor lawsuits center around the destruction of trees or the building of a spite fence. The trial attorney will plead the violation of specific California statutes. Another potential cause of disputes between neighbors are sensory issues—noise, smell or unsightly properties. Here the trial attorney will allege a nuisance cause of action.

1. What Is A Nuisance Under California Law?

Litigation attorneys in Los Angeles should realize that not everything that annoys someone else is a nuisance. “A nuisance is broadly defined as ‘[a]nything which is injurious to health, or is indecent or offensive to the sense, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property....” (Civil Code §3479.)” Koll-Irvine Center Property Owners Association v. County of Orange (1994) 24 Cal.App.4th 1036, 1040.

“Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land. A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” Id. at p. 1041.

2. The Trial Attorney Must Plead and Prove Actual Damage Arising from the Nuisance.

“Damage or injury has long been considered an essential element of a cause of action for nuisance.” Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1257.

We recently handled a lawsuit between neighbors in an upscale neighborhood of Los Angeles where damages were an issue. Our clients lived on a property containing two mature pine trees and a eucalyptus tree, all three of which had been on the property for longer than anyone could remember.

The wealthy television producer who lived downhill from our client and his attorney filed a lawsuit alleging that our clients’ trees had ‘structural defects’ and had not been ‘properly maintained.’ His attorney alleged that the trees will fail ‘due to wind and weight loads.’ The complaint therefore concluded that these trees ‘represented a potential hazard to their property and to the safety of anyone using their background,’ including their young daughter.

As a part of their lawsuit the neighbors hired an arborist. The arborist was not allowed on the property to actually examine the trees close up but he opined that the trees ‘are prone to failure’ and that they must be ‘maintained on a regular basis because of the potential for collateral damage as a result of failure or branch drop.’ He concluded that the trees on our clients’ property were not well maintained and are a ‘likely cause of damage’ to his clients’ property. He therefore recommended that two of the eighty year old trees must be removed and that the third tree be trimmed and inspected.

The neighbors’ attorney proclaimed in the lawsuit that the trees were a nuisance under California Civil Code section 3479. The lawsuit sought injunctive relief ordering our clients to ‘abate the nuisance’ and ‘to continue to maintain the trees in a safe condition.’ Unless this occurred, the lawsuit alleged that the plaintiffs’ property will be substantially diminished and the plaintiffs will deprived of the use and enjoyment of their property.

The complaints’ nuisance allegation stated that ‘in maintaining the nuisance, the [neighbors] are acting with full knowledge of the consequences and damages that the trees may cause the plaintiffs.’ The plaintiffs also alleged that they ‘have no adequate remedy for the nuisance caused by the trees in that the trees are located solely on the [neighbors’] property.’

3. Is a Fear of Future Injury Sufficient to Support a Nuisance Cause of Action?

The clients’ first reaction to this lawsuit was to ask: how can a neighbor compel them to remove perfectly good trees which have been solely on their property for over 80 years? The trees have not done anything to interfere with the neighbor’s property and nothing has changed with the trees that would indicate something was about to happen.

“In this state, however, a private nuisance action cannot be maintained for interference in the use and enjoyment of land caused solely by the fear of a future injury.” Koll-Irvine Center Property Owners Association, supra., 24 Cal.App.4th at 1041-1042. “[S]uch things as fear, anxiety, and emotional distress which are not caused by an interference with a specific private property right and which are common to the general population will not support a private action for nuisance.” Id. See, City of San Jose v. Superior Court (1974) 12 Cal.3d 447 [Damages for private nuisance may include recovery for diminution in value and for annoyance, inconvenience or discomfort, but these damages were based on the property invasion of “aircraft noise, vapor, dust, and vibration.” [at pp. 453, 464].

In a case entitled Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, the court noted that Civil Code section 3479 sets forth the acts which constitute a nuisance in the present tense (i.e., “is injurious to health...”). However, in addressing a public nuisance, the court held that “Despite the use of the present tense, we are satisfied than an affected party need not wait until actual injury occurs before bringing an action to enjoin a nuisance.

But where, as here, the demand for injunctive relief is based upon the potential or possibility of future injury then at least some showing of the likelihood and magnitude of such an event must be made. ‘A mere possibility or fear of future injury from a structure, instrumentality, or business which is not a nuisance per se is not ground for injunction, and equity will not interfere where the apprehended injury is doubtful or speculative; reasonable probability, or even reasonable certainty, of injury, or showing that there will necessarily be a nuisance, is required.’ In order for a private party to enjoin an alleged public nuisance on the ground of fear of future injury, it must, at a minimum, establish facts to prove that the apprehension of injury is well founded. And the proof required cannot be speculative and must amount to more than the conclusory opinions of experts. Thus, while no one has the right to inflict unnecessary and extreme danger to the life, property and happiness of others, to establish a nuisance the plaintiff must demonstrate an actual and unnecessary hazard.” Id. at 1213.

Everything in the neighbors’ lawsuit pointed towards a fear of future injury rather than an actual injury. One paragraph referred to “growing sprouts that will fail...” Another paragraph spoke of the plaintiffs’ concern that “the Trees represented a potential hazard...” The plaintiffs referred to their “fears”. The arborist advised plaintiffs that these trees are “prone to failure” but nowhere did it state that they have failed. He has also advised them that trees must be maintained “because of the potential for collateral damage as a result of failure or branch drop.” The arborist determined that the Trees “are a likely cause of damage to the [neighbors] Property”.

The arborist believed that Tree No. 1 should be removed “to reduce the Tree’s potential for failure” and that as it grows “serious damage to the [neighbors’] house and Property is more likely to happen than not.” The complaint then sought to have the court order our clients to maintain their trees and to allow the neighbors to inspect them.

The cause of action for injunctive relief alleged that unless the trees are removed or maintained, “the economic value of the [neighbors’] Property will be substantially diminished and Plaintiffs will be deprived of the use and enjoyment of their Property.” Lastly, the Trees “may cause” future “consequences and damages.”

Our case is not resolved yet. Our clients will certainly challenge the complaint, arguing that these trees have been on the property for decades, that they have never fallen, no one has alleged that they have and that plaintiffs’ complaint is based on a fear of future injury. There is not even any indication that if they did fall, they would fall on the plaintiffs’ property. The case law states that fear of future injury is not sufficient to allege a private nuisance. However, the Beck Development case suggests that whether there is a threat of injury could be a factual question. Like many lawsuits, our client may need to go through two years of litigation before this matter is resolved. However, for real estate litigation attorneys who handle nuisance causes of action in neighbor lawsuits, the element of damages should be thoroughly investigated.

Los Angeles real estate lawyer Laine T. Wagenseller specializes in real estate litigation throughout Southern California. Mr. Wagenseller is the founder of Wagenseller Law Firm, a downtown Los Angeles law firm. For more information on neighbor lawsuits and other real estate litigation topics, please visit www.wagensellerlaw.com or contact Mr. Wagenseller at (213) 286-0371.

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