California law provides for two types of nuisance: public nuisance and private nuisance. From a statutory standpoint, California law broadly defines nuisance. It states: “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civil Code § 3479.)
So, parsing the statutory language, a nuisance is anything that (1) is unhealthy, (2) is indecent or offensive to the senses, (3) obstructs the free use of property in a way that interferes with the comfortable enjoyment of life or property, or (4) unlawfully obstructs the passage through, or use of, a public space.
The nuisance is a “public nuisance” if it “affects at the same time an entire community or neighborhood, or any considerable number of persons.” (Civ. Code, § 3480.) And a nuisance is a “private nuisance” if it pertains to the use of land between individual property owners. (See generally, People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.) In some cases, a nuisance can be both private and public. But if it is a nuisance and it isn’t a public nuisance, it’s a private one. (Civil Code, § 3481.)
In addition to being one of the acts statutorily defined as a nuisance, there are some additional elements that must be satisfied before someone can sue for a private nuisance. Some of those requirements aren’t obvious from the text of statute.
The first non-obvious requirement is that the conduct must affect your land. A claim for private nuisance is “tied to and designed to vindicate individual ownership interests in land.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.) If the action doesn’t affect your land, it isn’t a “private nuisance” under the law. (Ibid.; San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.)
The second non-obvious requirement is that the effect of the harmful action against your land must be “substantial.” It must cause you to suffer “substantial actual damage.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) To make this requirement a little more confusing, “substantial actual damage” doesn’t necessarily mean losing money. A homeowner can experience substantial actual damage if the nuisance lowers their home value. Both a renter and homeowner can prove substantial actual damage if the nuisance makes it uncomfortable to continue living on the property. That’s often the case where the harmful activity is a noise or smell.
And the third non-obvious requirement is that the harmful action against your land “must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) California measures the reasonableness of a nuisance from an objective standard. “[T]he question is not whether the particular plaintiff found the invasion [of his or her land interest] unreasonable, but ‘whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.’” (Ibid.)
Despite all the statutory language and mountains of case law, nuisance law is muddy and complicated. There are a lot of pitfalls. Who can sue? What’s considered “unhealthy”? What does “indecent” or “offensive” mean? What actions “obstruct” the free use of property? Does the nuisance even affect my land? What’s considered “substantial”? What’s “reasonable”?
To make matters even more complicated, both public and private nuisances can be either “continuing” or “permanent.” And there are special rules regarding when you can sue and what type of relief you can get, depending on whether the nuisance is “continuing” or “permanent.”
And to add one more layer of complication, CC&Rs can affect nuisance claims too. CC&Rs can both complicate and ease the nuisance analysis. Almost every set of CC&Rs restricts a homeowners’ ability to use his or her land in some material way. Almost every set of CC&Rs restricts the HOA’s authority over both common area and non-common area land. And the vast majority of CC&Rs contain a provision that turn a breach of the CC&Rs into a nuisance. If the CC&Rs contain that kind of provision, then you may be able to prosecute a breach of the CC&Rs as a nuisance claim.
Vice versa, many CC&Rs contain a provision that turn every nuisance into a breach of the CC&Rs. So, if you have a nuisance claim, you may also have a claim for breach of the CC&Rs, which may entitle you to attorneys’ fees.
As you can imagine, nuisance law can get really complicated. The evaluation of each of these aspects requires an attorney to research and apply the law to each specific situation. You shouldn’t do it alone; thankfully, you don’ have to.
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