On The Abatement Of Nuisance In The Property Law

The Property Law of China provides for the first time expressly the defensive claim right of the abatement of nuisance in article 35,however fails to give clear guidelines of application,which leads to many difficulties in practice.To avoid this problem,we should firstly make sure that the claim right applies to the recovery of the ownership and usufructuary right of real estate,and distinguish it from recover of original property,restitutionrestoration of the original conditions,compensation for damages;thereafter the following questions need to be answered:1)the definition and judgment of nuisance;2)the application of the abatement of nuisance;3)The defenses of the abatement of nuisance;4)the legal consequence of the abatement of nuisance.The concept of nuisance should be strictly distinguished from the concept of hindrance,occupation and damage.Nuisance(in broad sense)can be further classified as trespass and nuisance(in narrow sense),the latter includes visible and invisible nuisance.The invisible nuisance is an assemblage of active nuisance,passive nuisance and aesthetic nuisance.To make sure whether there's a nuisance or not,four factors are to be considered:1)the illegality of the consequence;2)the continuity of the condition;3)the significance of the harm;4)the unreasonableness of the invasion.For different type of nuisance,the consideration factors may vary:For trespass,only the first two factors need to be considered;for visible nuisance,the 1-3 factors matter;for invisible nuisance,all factors should be taken into consideration.For the question of who can recover for nuisance,the answer is the people below can be the plaintiff:1)the owner of the real estate;2)the owners of easements and profits in the land;3)the person who has the right of habitation in the house;4)the tenant or the borrower;5)the owners' committee.The person below can be the defendant:1)the person who commits an invasion(sometimes the renter or the governor of a specific place);2)the owner of the real estate;3)the user of the real estate(regardless of validity).The defenses of nuisance are:1)the statutory provisions;2)the administrative licensing;3)the consent of the right holder;4)the contractual obligation.There are other reasons which cannot be the defenses while on the other hand can be taken into account when sharing the expenses of the abatement of nuisance,which are:1)coming to nuisance;2)force majeure;3)third party's action;4)others contributing to the nuisance.On the legal consequence of the abatement of nuisance,the exclusion of hindrance mainly aimed to the alimentation or the removal the obstruction;the cessation of infringement means to stop the encroaching;the pecuniary compensation is applied when the nuisance caused significant harm while it is reasonable.The expense to abate the nuisance is usually bore by the defendant,but shared by several people under particular circumstances.