Arizona law—via common law tort and nuisance statute—recognizes the concept that one party’s use of their property may have an effect on the ability of another party to use theirs. Sometimes that effect is, from the perspective of the latter party, a negative one. This negative effect may come in the form of de-valuing nearby properties, by ruining the air quality (as air has a tendency to diffuse from one property to another before its molecules dissipate), and so on. Not everything that bothers a property owner will qualify as a nuisance, however.
There are two broad categories of nuisance: “private” nuisances and “public” nuisances.
Private nuisances are claims made by one property owner against another, and are generally handled in civil court—often resulting, when the alleged property use is judged to be a nuisance, either in a court order that the misuse of property be ceased immediately, or that some sum of money be paid to the claimant. Sometimes both.
Public nuisances are different in that the claim is often filed by a whole group of people, who are able to prove that the way in which the alleged offending party has used their property has had some sort of negative impact on the lives or property use of the group. (This often applies to, for example, companies setting up shop nearby and manufacturing things like pesticides or fertilizers, which causes noise, noxious gases, and water pollution.) But just because a property can be considered a nuisance doesn’t mean its owner can be forced to stop operations at no cost to the complainer.
One important case in Arizona nuisance law is taught in Property courses in law schools throughout the nation. Spur Industries v. Del E. Webb Development Co. is about the idea of “coming to a nuisance.” This case established that, when the “offending” use of a property pre-exists the arrival of the complaining party, then the complaining party may not demand equitable relief from the nuisance owner. (In this case, Del Webb built Sun City near a livestock feedlot, and then complained in court that the stench and flies it produced were a nuisance, with the hope that the feedlot would be forced to cease operations. But the Arizona Supreme Court found partly in the feedlot owner’s favor, saying that though the effects of the feedlot could now be considered a nuisance, Webb would have to make up for the feedlot owner’s cost of either shutting down or moving his enterprise, because Webb created the problem by building a populous residential real estate community near the nuisance.)
Naturally, the best course of action whether you want to stop a nuisance on a property near yours or when your property is accused of being a nuisance is to consult with a qualified attorney.And if you’re looking to invest in real estate in Tempe or anywhere else in the state of Arizona, Provident Law’s real estate attorneys stand ready to help. We structure, negotiate and document a variety of real estate and financing transactions, such as leases, purchase and sale agreements, loans and development agreements for a variety of commercial and residential projects, and we can help ensure you are not “coming to a nuisance.” Contact us for more details.
Christopher J. Charles is the founder and Managing Partner of Provident Law ®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS ® (the “AAR”). Mr. Charles holds the AV ® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.
Christopher is a licensed Real Estate Instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.