COMMENTARY: Nunavut May 11, 2018 - 3:30 pm

Legal Ease, May 11

Bad neighbours

JAMES MORTON

Sometimes it’s hard having neighbours.

It’s true that a neighbour can be a genuine lifesaver if, say, your house catches fire, or there is a medical emergency and you need someone to help right away.

But sometimes neighbours can be loud and obnoxious and cause all kinds of grief.

The law is fairly clear about behaviour of neighbours. They have to behave in a reasonable way, so as not to cause an unreasonable interference in your use of your property.

An unreasonable interference is known legally as a “nuisance.”

Nuisance is a cause of action you can sue for in court, when your reasonable use of your property is frustrated by someone else’s conduct.

Nuisance can be any sort of interference. For instance, someone can cause a nuisance by playing music too loudly, putting up spy cameras looking directly into your house, or causing bad odours to spread onto your property.

The nuisance must be substantial and be an unreasonable interference.

These two criteria make nuisance very much a fact-driven type of case. A recent case out of Ontario dealt with a situation where one neighbour complained that another neighbour was so loud that the first neighbour could not use his backyard.

The judge hearing the case listened to both sides and decided that the second neighbour was a bit noisy, but that the second neighbour was only having cook-outs and the usual sort of outdoor parties that were normal for backyards.

As a result, there was no nuisance; the behaviour was reasonable in the circumstances.

Nuisance relates to interference with lawful use of property and not the ownership of property. As a result, someone renting property can sue for nuisance.

The simple fact that the one neighbour was “there” before the other is not a defence to nuisance.

If someone builds their home beside a factory, the smells and noise of the factory may still cause a substantial interference in the reasonable use of the house, depending on the facts.

Neither is “lawful use” necessarily a defence to nuisance. The construction of a new factory near houses may be legal according to zoning laws, but may still constitute a nuisance to those houses.

Some years ago, I acted for a slaughterhouse that had been in the same location in Toronto for decades.

The neighbourhood was changing and the surrounding properties changed from industrial to high-density residential—and the new residential property owners complained about the noise and smell of the slaughterhouse.

Even though the slaughterhouse had been there for years, it closed and moved to a new location far out of the city.

All that said, if you are having trouble with a neighbour being too loud, or skinning animals right next door to your home and making strong smells, the best plan is not to go directly to a lawyer.

Talk to your neighbour. If you need the assistance of someone else to help mediate, perhaps ask an elder if they can listen to both sides of the story and try to come up with a good solution.

The law can help, but it is a blunt—and expensive—tool, and trying to resolve an issue amicably makes the most sense.

Only go to the law if you have tried everything else first.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.