II. Private nuisance
A. What constitutes an actionable nuisance?
To be actionable, a nuisance must be a real interference with the comfort or convenience of living according to the standards of the average person. An interference which alone causes harm only to someone of abnormal sensitiveness does not of itself constitute an actionable nuisance.
It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. In order to assess whether the interference is actionable, the court considers factors like the following:
1. The circumstances and character of the locality of the neighbourhood
The court will consider the location of the property and the type of people living in it when assessing the standard of comfort. For example, if you are living in a busy shopping area, if the shops are operated in a fair and reasonable way, you are expected to be more tolerant of some disturbances, such as a crowded environment or occasional peddling. You cannot expect such a neighbourhood to be as quiet as Mid-levels, for example.
2. Any similar interferences which exist or previously existed in the neighbourhood
Although you are expected to tolerate some degree of discomfort or inconvenience, if an interference already existed in the area, it does not mean that a substantial additional interference cannot be regarded as a nuisance. Taking the above scenario as an example, if a shop extends its opening hours to 24 hours a day and keeps using loudspeakers to attract customers late at night, such a nuisance would be actionable.
3. Extent, degree and duration of the interference
If an interference is a temporary consequence of carrying out lawful work, such as renovation or repair work, and the method used to carry out such work is reasonable, the interference may not be an actionable nuisance.
4. Sensitivity of the complainant
When judging whether the activity in question constitutes a nuisance, the court will adopt the standard of tolerance of a reasonable person. So if a person is hypersensitive or exceptionally delicate, the claim may not be successful.
5. Intention of the creator of interference
If it can be proved that the creator of the interference is deliberately acting in an improper way or has a malicious motive, this may provide evidence of unreasonable use of the property.
6. Effect of the interference
This concerns whether the effects of a nuisance are transitory or permanent, occasional or continuous.
If an interference is unreasonable, the person who causes the nuisance is liable even though he may have used reasonable care and skill to avoid causing it.
B. Who can sue?
Owners or occupiers with the right to exclusive possession, such as tenants, are entitled to sue for nuisance. The right to exclusive possession means the right to prevent others from using or invading the property without your consent. Exclusive possession enables the tenant to exclude strangers and even the landlord.
However, even if members of the owner’s or occupier’s family living in the affected flat are lawful and permanent residents, they are not entitled to sue, as they have no right to exclusive possession. They are mere licencees, which means they are permitted to use the flat by the owner only for an agreed purpose.
If the affected property is let out, the tenant is the proper plaintiff to sue for nuisance. However, if the damage caused by a nuisance is of a permanent nature, not a mere temporary annoyance, the landlord can sue for nuisance.
C. Who can be sued?
Obviously, the person who creates a nuisance is primarily liable.
If an owner or occupier does not create the nuisance, but knows about it, or has a way of knowing about it or that it is likely to happen in his flat and allows the nuisance to continue, he is liable.
An owner or occupier who “authorises” or “adopts” the nuisance caused by the creator is also liable. If the landlord is aware of the nuisance before renting out the premises, or if the lease provides that the landlord is obliged to repair the premises, both the landlord and the tenant are liable.
A person affected by a nuisance may commence legal proceedings to seek damages for the actual loss suffered.
Damages usually include repair costs, alternative accommodation costs, loss of property value, and general damages for annoyance, inconvenience and discomfort.
A person may seek an injunction to restrain another person from continuing to create the nuisance.
A person who is affected by a private nuisance is, in general, entitled to abate it. For this purpose, he may enter the property of the person causing the nuisance provided that it does not cause a breach of the peace. However, it is a remedy which is not usually advisable. This is appropriate only in simple cases which would not justify the expense of legal proceedings or urgent cases which require an immediate remedy. The abatement must be done so as to cause as little damage as possible to the wrongdoer and other innocent parties. If there are alternative methods of abatement, one of which will be less injurious to the wrongdoer than the other, the least injurious method must be adopted.
If the abatement requires the abator to enter the property of the person causing the nuisance, prior notice must be given except in emergency situation; otherwise, the abator is trespassing.
F. Jurisdiction of the Courts
If you suffer loss or damage arising from a nuisance caused by your neighbour, you may sue the person in the Small Claims Tribunal if the amount claimed does not exceed $50,000.
The hearings in Small Claims Tribunal are informal and no legal representation is allowed. For details about the fees, required documents and hearing procedures of the Small Claims Tribunal, please click here .
If the nuisance continues, the Small Claims Tribunal may not be the proper forum for the dispute, as it has no power to grant an injunction to stop your neighbour from causing further nuisance. In that case, depending on the amount of the claim, the District Court or the Court of First Instance may be a more appropriate venue.
For more information about taking civil action, please refer to “ Bringing or Defending a Civil Case ” on the CLIC website.