Dealing with a nuisance neighbour

By Musyoki Kimanthi

Q: I live in a third floor apartment in a Nairobi suburb. My neighbour in the apartment below mine is a heavy smoker, and all the time my house is inundated with cigarette smoke emanating from his house. I have discussed the matter with him but he retorts that I should mind my own business because, after all, he is not smoking in my house. Do I have a remedy in law against my neighbour?

A: The conduct of the smoking neighbour can be classified as a nuisance. In law, there are three types of nuisance: private, public and statutory nuisance. Statutory nuisance, as the name suggests, are those, which operate by virtue of particular statutes. Public nuisance is defined as any disturbance, which affects the reasonable comfort and convenience of life of people in general, whereas private nuisance is relevant where a claimant suffers interference with use of his or her property.

Unacceptable behaviour

Several types of private nuisance can arise: Physical injury to property for example by flooding or noxious fumes; substantial interference with the enjoyment of the property for example smells, dust and noise; encroachment on a neighbour’s land for example by spreading roots or overhanging branches among others.

All these forms seek to protect the claimant’s use and enjoyment of property from an activity or state of affairs for which the defendant is responsible.

To understand private nuisance, lets look at the decision of Lord Wright in the 1940 case of Sedleigh–Denfield –vs- O’Callaghan. He said ‘a balance has to be maintained between the right of the occupier to do what he likes with his own and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages in a particular society. The forms which nuisance may take are varied.

Use common sense

As Lord Wright suggests, in determining whether a defendant has been a nuisance, the court looks at the result of his conduct. Such a balancing exercise places a considerable amount of discretion on the magistrate. It is impossible to establish a legal rule as to what is a reasonable use of one’s property (in this case the smoking neighbour’s) and the most that can be done is to use common sense and obtain guidance from the many reported cases.

The court takes into consideration the following factors; whether there has been damage to the claimant’s property or personal discomfort – ordinarily personal discomfort will have to be substantial to merit a good response from the court; the nature of the locality – for example, emission of smoke from a factory will not be considered a nuisance in an industrial estate, but is a nuisance in a largely residential area; the longer and more frequent the interference the more likely it will be found to be a nuisance among other considerations. There are, however, cases where the claimant is abnormally sensitive.

Defendant

In such instance the court will not interfere if it is established that the claimant has an abnormal sensitivity to smoke. The courts will also not interfere where a claimant is offended simply because his neighbour has painted his house yellow.

Assuming that the claimant sues and succeeds in proving that the defendant was unreasonable in the use of his apartment and that he has resulted in the claimant’s substantial discomfort, what are the likely remedies? The court may give an order for injunction to stop the offending behaviour while also seeking to achieve an equitable result, or it may order payment of damages for the diminution in value of the claimant’s property or lesser enjoyment of the use of the property or its fixtures.

Abatement is a self-help remedy and has to be exercised with caution. It is of limited utility and realistically only worth considering in relation to minor problems such as encroaching roots and branches.