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The Three Types of Nuisance Claims Under Michigan Law

Written by Alex Reuter on June 7, 2019 Category: Michigan Land Use and Zoning

In everyday conversation it is not uncommon to hear, “he’s just being a nuisance,” or, “that is such a nuisance.” But what actually is a nuisance? More specifically, when does a person’s (or entity’s) conduct become so inappropriate that it rises to the level necessary to be legally actionable as a nuisance under Michigan law? You may be surprised to learn that there’s more than one answer to that question. In fact, Michigan actually has three forms of nuisance, each with its own unique application and elements.

The first form is known by many names, including: private nuisance, common law nuisance, and nuisance in fact, to name a few. Regardless of what one calls it, this first type of nuisance receives the bulk of attention in most cases. At its heart, a private nuisance is an act that causes an unreasonable interference with another’s use and enjoyment of his or her property. While this may seem like a simple and straightforward idea, its application in Michigan case law has been anything but, which has likely resulted from the fact that a private nuisance can exist in a variety of situations.

By way of example, let’s say that your neighbor has a neon sign displaying his favorite sports team, and let’s assume that said sign is not prohibited by any local ordinance or state law. However, the sign lights up at night, flooding your bedroom with the glow of neon colors and preventing you from getting a good night’s sleep. This situation could very well give rise to a viable legal claim for private nuisance against your neighbor. But there is one requirement that must be met; you have to establish that the neon sign (or any other unreasonable interference with your use and enjoyment of your property) has caused you significant harm. This last requirement of a private nuisance claim is one of things that really sets it apart from trespass claims – where one need not show that the unlawful intrusion on his or her land caused any actual damage.

The second type of nuisance claim in Michigan is most often referred to as public nuisance. Public nuisance is defined as an unreasonable interference with a common right enjoyed by the general public. The term “unreasonable interference” is the important phrase here and it has been discussed by a number of courts and ultimately held to include conduct that (1) significantly interferes with the public’s health,  safety, peace, comfort, or convenience, (2) is prohibited by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on those rights.

This is a noteworthy departure from the simpler private nuisance doctrine in that it requires the actor’s unreasonable interference to be of such a nature as to affect not just his neighbor, but the general public. It is, thus, no surprise that public nuisance claims are less common than their private nuisance cousin. In addition, public nuisance claims are typically filed by prosecutors, city attorneys, or the attorney general. A private citizen may only file an action for a public nuisance against an actor if he or she can show that they suffered a type of harm that was different from the harm suffered by the general public. A common example of this is when a landowner’s handling of a toxic substance contaminates the ground water. Obviously, this would present a situation where the landowner’s conduct has significantly interfered with the public’s health and safety. But for a private citizen, there must also be contamination of his or her specific property in order for him or her to have a viable public nuisance claim.

Finally, Michigan also has a specialized form of nuisance known as a nuisance per se. A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. On its face, this may sound like something that could envelope a great many things, but in reality it has been almost exclusively applied (with a few exceptions) where some violation of a particular law is present. Perhaps the most common situation faced by Michigan Courts is where an act, occupation, or structure violates a local zoning ordinance.  So, going back to our original example with the sign, if a local zoning ordinance expressly prohibited neon signs in residential areas, then your neighbor could be liable under a nuisance per se theory.

The original question presented above asked what constitutes a nuisance under Michigan law, and the answer is that it depends on the situation. An oft-quoted line from one Michigan Supreme Court opinion described nuisance as “the great grab bag, the dust bin, of the law.” But at a foundational level, nuisance is  just a broad legal theory intended to do one thing; protect property rights against unreasonable interference. Some of those rights may arise by virtue of your private ownership of real property (private nuisance). Others may arise simply from some right that is common to the public (public nuisance), or due to some violation of local law (nuisance per se).

Regardless of your specific situation, the attorneys at Dalton & Tomich have significant experience in litigating and resolving all forms of nuisance claims.

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