Neighbors barbecuing may be defined as a nuisance

Law Offices of Fred M. Duman & Associates
2807 Castro Valley Boulevard     Castro Valley, California 94546
Tel: (510) 537-3388 Fax: (510) 889-1114



Dear Mr. Duman:

My neighbor built a large outdoor brick barbecue in his back yard a few years ago.  He loves to barbecue and does so almost every week.  The barbecue has overhead protection from the rain.  As a result, smoke and ashes get spit onto my property all year long, rain or shine.

I finally decided to confront my neighbor about this nuisance.  I told him that my patience was at an end, and if he did not do something to redirect the smoke and ashes, I would take him to court.

My neighbor has refused to do anything, saying that this has gone on for years, and I have lost my right to complain now, because the "statute of limitations" has expired.

Please explain about "statute of limitations."

                              K.J. San Lorenzo


 Dear K.J.:

 A "statute of limitations" is a period of time imposed by law, the expiration of which will bar legal action for a designated claim.  The statute of limitations for a "nuisance" lawsuit between private landowners is different depending upon whether the nuisance is "continuing" or "permanent" in nature.  Your problem is probably a "continuing" nuisance.

Generally speaking, a "nuisance" takes the form of some conduct or activity, attributable to a third party, which interferes with the injured person's reasonable use and/or enjoyment of his/her property. Nuisances can include strong odors, loud noises, smoke damage, and invasive debris, such as dust, chemicals, leaves and deflected rain water.  Further, certain inherently offensive violative activity such as toxic pollution, fire hazards and prostitution, can constitute "per se" (presumed nuisances).

An actionable nuisance can create liability for the offending party, regardless of whether the cause was intentional or negligent, requiring only that it be proven that the accused party was at fault in creating the offensive condition. If successful, a suit for nuisance can yield injunctive relief from a court, ordering the "abatement" of the nuisance, as well as possible monetary damages.

 As stated, the statute of limitations applicable to "private" nuisance actions, (those between individual property owners) differs depending upon whether the activity is a "permanent" or "continuing" nuisance.

A "permanent" nuisance is generally created by a one-time act (such as the construction of an intruding structure), resulting in permanent "interference" with the property's use and/or enjoyment.   The statute of limitations for actions based upon a "permanent" nuisance is three (3) years from the date original creation of the nuisance.

By contrast, a "continuing" nuisance is one that persists only as long as the offensive activity exists (such as smoke, odors, noise, and rain runoff), and which can therefore be abated, by either removal or termination of the offending conduct.  Actions based upon a "continuing" nuisance carry a statute of limitations of three (3) years from the most recent repetition and/or continuation of the offensive activity.   Hence, with each successive day the offending activity is repeated or continued, a "new" cause of action is deemed to arise, with each actionable claim carrying its own three (3) year statute of limitations.

In some cases, it is possible for the same activity to be characterized as both "permanent" and "continuing".

 As space limitations prevent a comprehensive discussion of this subject, we urge any of our readers with this type of problem consult with their attorney, in order to ensure that you undertake the proper remedy tailored to your specific circumstances.

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This page last updated February 4, 1999.
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