General

Private Nuisance – Tort in Virginia

Private Nuisance - lawful activities that become obnoxious to occupants of neighboring dwellings endangering the life or health or obstructing the reasonable and comfortable use of the property gives rise to tort liability.

“[S]o use your own as not to injure another's property."

Black’s Law Dictionary 1872 (9th ed. 2009)

An owner or occupant of land has a right to recover against the operator of a private nuisance.

In Virginian Railway Co. v. London, 114 Va. 334, 76 S.E. 306 (1912), the court stated: ‘A private nuisance is the using, or authorizing the use of, one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property (1) by diminishing the value of that property; (2) by continuously interfering with his power of control or enjoyment of that property; (3) by causing material disturbance or annoyance to him in his use or occupation of that property.’

Even a lawful activity or business can become a nuisance
Here's what the Court said about lawful business activity in National Energy Corp. v. O'Quinn, 223 Va. 83, 85, 286 S.E.2d 181, 182 (1982)

When a business enterprise, even though lawful, becomes obnoxious to occupants of neighboring dwellings and renders enjoyment of the structures uncomfortable by virtue of, for example, smoke, cinders, dust, noise, offensive odors, or noxious gases, the operation of such business is a nuisance. . . .

A nuisance may diminish value of realty. The condition also may interfere with some right incident to the ownership or possession of real property. Such interference may be accomplished by substantially impairing the occupant’s comfort, convenience, and enjoyment of the property, causing a material disturbance or annoyance in the use of the realty.

The claim may be brought by not just the land owner but by all in possession of the land - this includes children of lawful occupants.

Members of the family. ‘Possession’ is not limited to occupancy under a claim of some other interest in the land, but occupancy is a sufficient interest in itself to permit recovery for invasions of the interest in the use and enjoyment of the land. Thus members of the family of the possessor of a dwelling who occupy it along with him may properly be regarded as sharing occupancy with intent to control the land and hence as possessors, as defined in § 328E. When there is interference with their use and enjoyment of the dwelling they can therefore maintain an action for private nuisance

Bowers v. Westvaco Corp., 244 Va. 139, 149, 419 S.E.2d 661, 668 (1992) citing Restatement (Second) of Torts, § 821E comment d,

Moving into the area is not a defense

 “coming to the nuisance” is simply one factor to consider while weighing the equities in an abatement action and that it is irrelevant with regard to a claim for damages. Prosser & Keeton § 88B, at 635

DAMAGES THAT MAY BE AWARDED

Damages are NOT limited to “compensation for loss or deprivation of rights associated with property and for harm resulting therefrom.

Bowers v. Westvaco Corp., 244 Va. 139, 147, 419 S.E.2d 661, 667 (1992)

Nothing herein is intended to be legal advice to you!  If you represent yourself – you alone are responsible.  The law firm always recommends that you seek the advice of counsel.  Sometimes it is well worth it to pay for a 1 hour paid consult with an attorney even if you decide to represent yourself.  Nothing herein creates an attorney client relationship.  As with all of this website – it is intended for Virginia and nothing in this website evidences any intention to purposely avail the law firm of the benefits and protections of other jurisdictions.