Private Nuisance: What remedies Do I Have Under Arizona Law?
Often the subject of comedy sketches or included in popular movies, in reality noisy neighbors are no laughing matter. As anyone who’s experienced living near an excessively loud neighbor can attest, a property owner’s use and enjoyment of their own property can be seriously negatively impacted by inconsiderate neighbors. Late night loud parties, live bands, construction or other work noise: all these and more can leave you thinking, “is there anything I can do for some peace and quiet?” Luckily, property owners in Arizona have remedies when it comes to their noisy neighbors.
Local Noise Ordinances
The simplest solution when it comes to dealing with noisy neighbors is to get the local police involved. Most cities in Arizona have ordinances that deal with noise levels in residential areas. For example, in the City of Mesa, noise that is intermittent or continuous for a period of at least 15 minutes, or between the hours of 10:00 p.m. and 6:00 a.m., and exceeds the property line and disturbs the peace and order of the neighborhood or a person of ordinary sensibilities can be considered a violation of the City’s noise ordinance.
In case of a violation, an individual can simply call their municipality’s non-emergency police number to report the violation. Individuals reporting a violation may have the option of remaining anonymous if they so choose, depending on the municipality’s rules. The police officer responding will issue an order to the individual(s) violating the ordinance, and may issue a fine to those individual(s) as well. Subsequent infractions can lead to increased fines.
Local Covenants, Conditions & Restrictions (CC&Rs)
Unfortunately, sometimes working with the police just doesn’t resolve your noisy neighbor problem. In that case, depending on where you live, you may be able to resort to your local CC&Rs to get some peace and quiet.
Where they exist, CC&Rs are a contract between homeowners. Typically created by a subdivision’s initial developer, the CC&Rs bind the homeowners within that subdivision to the terms contained within the CC&Rs. If your home is subject to CC&Rs, those CC&Rs will be on file with the county recorder’s office. It’s important to note that you will only be able to use CC&Rs to limit your neighbor’s noise levels if (1) you and your neighbor are on property bound by CC&Rs, (2) you and your neighbor are within the same CC&Rs, and (3) the CC&Rs somehow restrict noisy behavior.
Assuming these three conditions are met, a neighbor’s violation of the CC&Rs due to excessively noisy behavior constitutes a breach of contract, rendering that neighbor liable to you for damages incurred as a result, and potentially for specific performance of the terms of the contract (the CC&Rs). This would give you the right to bring a court action against your neighbor to enforce your rights as contained in the CC&Rs.
Public Nuisance Vs. Private Nuisance
So what can you do if working with the police isn’t getting you the results you hoped for, and there are no applicable CC&Rs between you and your neighbor? At this point, your recourse is going to come through a nuisance lawsuit.
Arizona law recognizes the tort of property nuisance, and it comes in two different varieties: public nuisance and private nuisance. Public nuisance is a type of nuisance that impacts the quality or enjoyment of a large number of neighboring properties. A good example of this is a business that decides to set up shop in a local neighborhood to produce pesticides or other noxious products. This is likely to have a negative impact on neighborhood air quality and health. Neighbors in this situation can come together to bring a public nuisance lawsuit seeking abatement of the actions creating the nuisance, damages, or sometimes both. Even though courts take local zoning ordinances into consideration when deciding nuisance actions, certain behaviors can constitute a nuisance even while being in compliance with local zoning laws.
A private nuisance, on the other hand, is a suit brought by one individual against another for interference with that person’s property rights. An example is a neighbor who regularly blasts loud music for extended periods of time so that it is audible in your home and interferes with the quiet enjoyment of your property. Private nuisance can come in the form of lights, smells, sounds, and air pollution, among others. In a private nuisance case, the specific facts of the case will play a huge part in the case’s outcome. This is because the standard in nuisance cases is based on a “reasonable person,” meaning that a reasonable person would have to find your neighbor’s actions to be a nuisance in order for you to prevail in your lawsuit. This means that a judge or jury will have to agree with you that your neighbor’s actions are in fact unreasonable and interfere with your enjoyment of your property. For example, in Arizona encroaching vegetation typically does not constitute a nuisance, with Arizona courts stating that neighbors on the receiving end of intrusive plant life can remedy the situation simply by trimming anything growing over the property line.
Contact Mesa Attorneys Experienced In Private Nuisance Cases
If you’ve tried self-help to try and resolve issues with a difficult neighbor and feel you haven’t been getting anywhere, working with a skilled attorney can help. The attorneys at Gunderson Denton & Peterson, P.C. have been handling disputes between neighbors for decades, and have the knowledge and skill necessary to advocate on your behalf, whether through informal negotiation or a full-on nuisance lawsuit. Contact us today to set up a time to discuss the details of your case and to see how Gunderson Denton & Peterson, P.C. can help you protect your property rights.
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