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More Defenses to Nuisance Claims


A person who acts to prevent a threat of harm or injury can sometimes claim “necessity” as a defense in a subsequent nuisance action. Defendants need not sit by and watch a preventable harm take place, and if the actions necessary to prevent the harm are later claimed to present a nuisance, the defendant should speak with legal counsel about the possibility of a necessity defense.

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The defense of “laches” can be invoked in many tort cases, but the law considers it a “disfavored” defense, which means that courts are not always quick to allow it to proceed.

A claim of “laches” requires proof of:

1. The plaintiff’s unreasonable delay in bringing or prosecuting the suit; and

2. Either a prejudice or damage to the defendant resulting from the plaintiff’s delay or the plaintiff’s acquiescence in the defendant’s allegedly wrongful act.

Plaintiffs and defendants should note, however, that no amount of time can legalize a public nuisance or justify a laches defense in a public nuisance case brought by private plaintiffs.

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Sometimes, if a nuisance continues long enough, the defendant may acquire a legal right to continue the activity. This is due to a legal concept called prescription (sometimes also called a “prescriptive easement”). Like Laches, prescription is a highly technical claim and difficult to prove, so defendants should seek experienced legal counsel with familiarity with this special defense.

Note: Prescription is not a defense to  claims of public nuisance, because statutes (codified laws) state that public nuisances do not become allowable activities merely due to the passage of time.

Nuisance law is a complex and ever-changing area, so plaintiffs should consult an experienced lawyer promptly if they believe they have a nuisance-related claim. Defendants should also seek counsel promptly, because the range of technical defenses to nuisance actions makes it difficult for defendants to evaluate and defend their own cases appropriately. An experienced lawyer may well be the difference between victory and a costly defeat.


DISCLAIMER: This article is intended for informational purposes only, does not constitute legal advice to any person or entity, and does not create an attorney-client relationship with any person or entity. Trespass, nuisance, and premises liability are complex legal topics, and no single article can provide complete or comprehensive coverage or information about this or any other legal topic or issue. Your personal rights and liabilities may differ, based on individual facts and circumstances. If you believe you have a legal claim or issue, or wish to know more about your individual rights, consult an experienced attorney immediately.page3image15904 page3image16064

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