Real property

private nuisance

A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. Nuisance refers to a kind of damage done, rather than to any particular type of conduct. Noise, light, and odor coming from a neighboring property are common forms of nuisance.

A private nuisance is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property—without an actual trespass or physical invasion to the land.

An actionable nuisance may arise from an invasion of another’s interests attributable to activity that is intentional, negligent, or abnormal and out of place in its surroundings.

A person is subject to liability for an intentional invasion when their conduct is unreasonable under the circumstances of the particular case.

When negligence has created or contributed to the creation of a nuisance, the plaintiff must allege and prove a legal duty owed to the plaintiff, a breach of that duty by the defendant, and damage proximately resulting from the breach.

Liability for a negligent activity simply involves doing what a person of ordinary prudence would not have done—or failing to do what a person of ordinary prudence would have done in the same or similar circumstances.

Likewise, liability for negligent nuisance depends on whether the defendant acted as a person or party of ordinary prudence would have under the same circumstances in a legitimate use of their property.

Laws regarding private nuisances vary from state to state and may be located in a state’s statutes or in its court opinions—also known as common law or case law. Because statutes are also known as codes, law that is included in statutes is sometimes said to be codified.


The general rule in cases involving injury to real property is that the proper measure of damages is the cost to restore or replace, plus loss of use for temporary injury, and loss in fair market value for permanent injury.

But courts apply this rule with some flexibility, considering the circumstances of each case to ensure that an award of damages neither over-nor-under-compensates a landowner for damage to the property. The purpose of the law is to compensate the owner for the injury received, and the measure of damages that will accomplish this in a given case is to be used.

For example, when a landowner can show that the destruction of trees on real property resulted in no diminishment of the property’s fair market value, or in so little diminishment of that value that the loss is essentially nominal, the landowner may recover the intrinsic value of the trees lost; that is, the ornamental and utilitarian value of the trees.

An injury to real property is considered permanent if:

• it cannot be repaired, fixed, or restored, or

• even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated.

Conversely, an injury to real property is considered temporary if:

• it can be repaired, fixed, or restored, and

• any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.

Thus, the plaintiff may recover:

• actual damages for restoration or repair, lost profits, loss of use of the land, lost mineral rights, loss in fair market value, loss for the intrinsic (aesthetic and utilitarian) value of trees destroyed on the property, sickness, annoyance, discomfort, inconvenience;

• prejudgment interest;

• postjudgment interest; and

• costs of court.

And if the defendant’s interference with the plaintiff’s use and enjoyment of the property was the result of fraud, malice, or gross negligence, the plaintiff is entitled to recover punitive or exemplary damages from the defendant.

Temporary and Permanent Injunctive Relief

The plaintiff may be entitled to temporary and permanent injunctive relief to prevent injury to the plaintiff’s real or personal property. Laws vary from state to state, but, for example, a writ of injunction may be granted if:

• the applicant is entitled to the relief demanded and all or part of the relief requires the restraint of some act prejudicial to the applicant;

• a party performs or is about to perform or is procuring or allowing the performance of an act relating to the subject of pending litigation, in violation of the rights of the applicant, and the act would tend to render the judgment in that litigation ineffectual;

• the applicant is entitled to a writ of injunction under the state’s principles of equity and statutes relating to injunctions;

• a cloud would be placed on the title of real property being sold under an execution against a party having no interest in the real property subject to execution at the time of sale, irrespective of any remedy at law; or

• irreparable injury to real or personal property is threatened, irrespective of any remedy at law.

And an applicant for injunctive relief must demonstrate:

• the existence of a wrongful act;

• the existence of imminent harm;

• the existence of irreparable injury; and

• the absence of an adequate remedy at law.

State Statutes for the State of Texas

Federal Statutes