A Comparative Study Of The Law Of Private Nuisance

Private nuisance in the common law system regulates the conflicts betweenadjacent landowners in using and enjoying their land. It protects landownersfrom substantial and unreasonable indirect interference by other land users.Private nuisance is a tort. The factors it relies on in finding whether there is anuisance and the choice of specific remedy available to plaintiffs all embodybalancing of utilities to some extent. The flourish of the law and economicsprovided a new angle to examine private nuisance, breathing new life into thisold-fashioned tort.In China, the conflicts between adjacent landowners in using their land isregulated by the law of neighboring relations, specifically by Article83of theGeneral Principles of the Civil Law of the People's Republic of China, Opinions onSeveral Issues Regarding the Implementation of the General Principles of the CivilLaw of the People's Republic of China and the Property Law. Regrettably, defectsand loopholes still abound in the current neighboring relations laws, such as therestricted scope, ambiguity of the standards by which to establish liability anduncertainty of rules in the application of specific remedies. Most importantly, thecurrent neighboring relations laws are so inadequate that new problems in thesociety such as the disputes involving the indirect interference caused by vapor,noise, vibration, etc. are not properly regulated in Chinese law.The literature of neighboring relations focuses on clarifying and defining thescope of it and is mainly based on the civil law system. There has been noin-depth study on private nuisance in China so far. As a time-honored tort with ahistory of nearly1,000years, the proven rules of private nuisance will be ofimmeasurable value to the improvement of Chinese neighboring relations laws.The paper is composed of six chapters. It studies the origin, developmentand current status of private nuisance, distinguishing it from other relatednuisances, such as public nuisance and statutory nuisance. The paper analyzesthe scope of private nuisance, the interests protected, the nature of the liability ofprivate nuisance as well as the difference between private nuisance andnegligence. By exploring the standing to sue, standards used to determineliability, defenses and remedies, and contrasting them with relevant laws in thecivil law system, the study attempts to shed some light on the improvement ofChina's neighboring relations laws. Chapter one is an introductory part of the paper. The significance of thisstudy is first discussed. Through analyzing the current research and legislationregarding neighboring relations as well as the defects of them, the paper pointsout the necessity and urgency of conducting a study on private nuisance.Chapter two discusses the history, development and current status of privatenuisance and compares and contrasts private nuisance, public nuisance andstatutory nuisance. It also attempts to define private nuisance, which is almost animpossible mission, demonstrating the complicated nature of private nuisance.The interests protected by private nuisance are also discussed in this chapter.Private nuisance and trespass to land used to be quite distinct from each other,now the line between the two is somehow blurred. The rule of Rylands v. Fletchernow has been subsumed by private nuisance, regulating abnormally dangerousactivities.Chapter three analyzes the standing to sue in private nuisance. Since privatenuisance is a land-based tort, the plaintiff must have some possessory orproprietary interest over the land in order to have a standing to sue generally.English courts have held this stance even today, though there were somedeviations from this orthodox view, showing signs of relaxing the standingrequirement in private nuisance. However, the ruling by the House of Lords inHunter reaffirmed that private nuisance was a land-based tort, not personalinjury tort. Now, things have become complicated because of the impact fromEuropean Human Rights Convention and Human Rights Act1998. As a matter offact, some recent cases have already attracted enough controversies. It is still notsure whether the English courts will change their stance to accommodate the newhuman rights laws, but it is safe to say that the possibility is not ruled out. Incontrast, the standing to sue under private nuisance in the U.S. is less restrictive,and family members are allowed to sue under private nuisance because theysharing the home with the landowner or occupier is a sufficient link. Defendantsof private nuisance do not need to have a possessory or proprietary interest inthe land at issue. As long as they create, continue, adopt or authorize thenuisance, they may be held liable.Chapter four discusses the nature of nuisance liability and the twostandards based on which liability is found in private nuisance, namelysubstantial interference and unreasonable interference. When a nuisance is found by the court, the defendant will be liable on the basis of strict liability,negligence or intentional tort. Substantial interference means that theinterference should reach a certain magnitude before the defendant is held liable.Trivial interferences should be tolerated because neighbors require certainamount of give and take among each other. Unreasonable interference meansthat it is unreasonable to require the plaintiff to suffer this amount of loss causedby the defendant without any legal relief. A defendant may be liable for privatenuisance if the interference is both substantial and unreasonable. The relevantregulations in Germany and France are also strict liability. The relevant rules inChina are unsystematic, but it can be concluded with certainty that neighboringrelations laws in China are also strict liability.Chapter five analyzes the defenses and remedies of private nuisance. Thevalid defenses of private nuisance include statutory authorization, prescription,plaintiff's consent and necessity. Coming to nuisance and the social value ofdefendant's enterprise are not valid defenses. The plaintiff of a private nuisancelawsuit could seek for three remedies: injunction, compensation and abatement,each with different application rules. Courts have also modified the conditionsaccording to which a certain remedy is granted in response to the change ofsocial economic development. The flourish of law and economics in the1970sprovided a new angle for analyzing the remedies of private nuisance. Incomparison, there are no clear rules to apply the remedies available in Chineseregulations, though these remedies are essentially the same as those in privatenuisance.Chapter six analyzes neighboring relations laws in China and points outdefects of them. Based on the above study, the paper proposes that the relevantChinese neighboring relations laws could be improved in the following aspects:broadening the scope of neighboring relations to include more types such as theinterference with light, air or ugliness; establishing a “substantial interference”standard according to relevant laws and regulations as well as to specific factorssuch as the sensitivity of plaintiff, severity, locality, etc.; clarifying the liabilityrules of neighboring relations laws; and specifying the application rules ofremedies in neighboring relations laws.