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Swanson, Timothy; Kontoleon, Andreas --- "Nuisance" [2010] ELECD 384; in Bouckaert, Boudewijn (ed), "Property Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Property Law and Economics

Editor(s): Bouckaert, Boudewijn

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847205650

Section: Chapter 7

Section Title: Nuisance

Author(s): Swanson, Timothy; Kontoleon, Andreas

Number of pages: 22

Extract:

7 Nuisance
Timothy Swanson and Andreas Kontoleon


1. Definition
The etymology of the term nuisance comes from the Latin nocere ­ to do
harm, to inflict injury. In strict legal terms nuisance has been commonly
defined as `. . . a condition or activity which unduly interferes with the use
or enjoyment of land' (Clerk, 1989, p. 889). Fifoot (1949) notes that nui-
sance is one of the oldest branches of law dating back to the early assizes
and that its `very name ­ nucumentum ­ suggests the damage which he [i.e.
the property owner] had suffered by conduct which nevertheless fell short
of an actual dispossession'. The courts have identified nuisance disputes as
involving a `noxious' or `offensive', `unauthorised', and `unreasonable' use
of one's property that interferes, in a `continuing way', with the use and/or
enjoyment of another's property (Buckley, 1996). In economics terms, nui-
sance disputes may result when the choices of independent agents impact
upon the outcomes affecting others, i.e. they are one of the possible legal
consequences of externalities.
Nuisance can be of two kinds: private and public. A private nuisance
occurs when the externality appears in the utility function of one con-
sumer or the production function of one firm. If the externality affects
many consumers or producers, then it is a public nuisance. Examples of
such disputes include emissions from a factory that pollute a neighbouring
property, noise that interferes with a person's sleep or unpleasant smells
from one's use of his land. ...