December 28, 2006

By Brian Babcock

Maybe you just purchased your dream home on the lake and wake up one morning to the roar of jet skis. Perhaps you have lived in an established neighbourhood for twenty years, and the house next door was just subdivided into apartments, and next thing you know, there are motorbikes parking on your front lawn. Nice Mrs. McGillicuddy died and her kids built a new fence – which you are sure is a foot on your property?

Examples of “nuisance neighbours” are almost endless. We always recommend trying to resolve disputes directly through friendly discussion. Unless selling is an option, the relationship will continue long after the current dispute is resolved. Unfortunately, some people, there’s just no talking to. Having spoken softly, you might try a big stick, preferably a big legal stick (self-help can get messy).

There are a number of remedies available for noise or nuisance problems, some at little or no cost, others, worth every penny no matter how much the necessary legal fees. At the very least, we can help clients sort out which options to try and in what order. Depending upon the exact nature of the problem, low cost possibilities include:

  • Contacting the local bylaw enforcement officer, regarding noise bylaw violations;
  • Contacting local planning authorities, regarding possible zoning or building code issues;
  • Contacting the police, ask them investigate and consider charges under bylaws, provincial offences, or federal laws; or
  • A simple demand or ‘cease and desist’ letter from a lawyer, to show you are serious.

In more serious disputes, court remedies may be pursued with the legal costs depending upon how complex the facts may be and how hard the other side argues. Though cost is always a concern, failing to act promptly might later be found to have compromised your rights.

Among the remedies that might apply to the examples in the first paragraph:

  • An application for an injunction, which is a court order to stop doing something (parking on the lawn, jet skiing at unreasonable hours or noise levels), or a mandatory order to do something (remove a trespassing fence);
  • An action for damages for trespass (the fence example);
  • An action for damages for nuisance.

The last remedy deserves special attention. Often combined with a request for an injunction the action in nuisance has gained new popularity and usefulness in recent years, as it has become a popular tool to address conflicting uses in urbanizing rural areas (known to lawyers as the ‘pig farm cases’) or industrial/residential conflicts. The principles can easily apply however to any noise issues and as the remedy becomes more common, judges likely will be more willing to provide relief in a proper case.

Of course, there are situations where selling and moving might be cheaper, or better. Speaking to a litigation lawyer allows you to explore all your options. If selling turns out to be your best remedy, a full service law firm also can handle the real estate deals that result.