Torts.  A private nuisance is a civil wrong based on a disturbance of private rights in land.  The essence of a private nuisance is an interference with the use and enjoyment of a property right.  For instance, an odor can constitute a private nuisance if it affects only one person’s interest and enjoyment of his or her land.

The elements of a cause of action for private nuisance are: (1) plaintiff owned or controlled the real property; (2) defendant, by acting or failing to act, created a condition that was harmful to health, indecent or offensive to the senses, or interfered with the comfortable enjoyment of life or property; (3) the condition interfered with plaintiff’s use or enjoyment of the real property; (4) plaintiff did not consent to defendant’s conduct; (5) an ordinary person would be reasonably annoyed or disturbed by defendant’s conduct; (6) plaintiff was harmed; and (7) defendant’s conduct was a substantial factor in causing plaintiff’s harm; and (8) the seriousness of the harm outweighs the public benefit of defendant’s conduct.

Importantly, a claim for private nuisance requires a plaintiff to show the defendant substantially and unreasonably interfered with plaintiff’s use and enjoyment of the property.  A mere decline in property value alone without an interference with an actual property right does not support a claim for nuisance.  Neither is fear of a future injury sufficient to give rise to a private nuisance action.

“Such things as fear, anxiety, and emotional distress which are not caused by interference with a specific property right and which are common to the general population will not support a private action for nuisance.” Koll Irvine Center Property Owners Association v. County of Orange, 24 Cal. App. 4th 1036, 1041 (1994).

Instead, an “action for private nuisance is designed to redress a substantial and unreasonable invasion of one’s interest in the free use and enjoyment of one’s property.” Hellman v La Cumbre Golf and Country Club, 6 Cal. App. 4th 1224, 1229 (1992).

Further, unless the alleged nuisance interferes with plaintiffs use and enjoyment of his land, neither personal injury nor interference with any other purely personal right will create a cause of action for private nuisance.  Thus, a private nuisance can support recovery only for harm to a property interest, not for personal injury.

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