Legal

Disclaimer

Legal information is not legal advice. We strongly recommend you consult an attorney for professional assurance that our information, and its interpretation, is appropriate to your particular situation.


Litigation

When negotiations fail, it may become necessary to file a lawsuit. It should be considered a last resort: litigation is time consuming, stressful and expensive.

Every war is a war of economics. Filing a lawsuit requires a financial commitment that can cost several thousand dollars. If you and nearby neighbors are dealing with the same noise problem, the legal costs can be shared, but if they later decline to continue, you can inherit the legal costs. If you later win the case, they essentially benefit at your expense.

Your warchest will be pitted against a noisy neighbor or business that could have greater financial resources than you. Threatening a lawsuit can backfire if you do not have the financial means to follow through.


Representation

Hiring the right attorney is the most important step. You qualify the attorney by learning what past cases they handled, such as neighbor disputes, homeowners and land use rights. An unqualified attorney will cost you time and money as they essentially will be learning on the job in handling your case. Their mistakes will also cost you.

You can check references by requesting the contact information of past clients with similar cases. If the attorney is not willing to provide references, find another attorney.

An initial consultation may cost about $100 and if you hire the attorney, it will then require a retainer fee (money that is paid in advance each month for billable time) of at least $1,000.

The first course of action your attorney will take is a written letter (sent via registered courier) to the defendant advising them you have retained the services of an attorney and your intentions to file suit if they do not abate the noise.

Depending on the noise problem, the attorney can file a civil suit on the basis that the defendant is causing a public nuisance. The specifics of proving a case includes:

  • Description of the noise problem
  • Chronology of when the noise started, days and times the noise occurs
  • Photographs
  • Police reports
  • Medical and psychological research describing the adverse effects of noise
  • Noise measurement readings
  • Existing community noise ordinances, zoning and variances

Acoustics Consulting

An acoustics professional can provide sound measurement reports and expert witness testimony to prove a noise problem in court. In a civil dispute, the burden of proof is on the plaintiff to prove that the noise caused by the defendant is creating a public nuisance or violates the noise ordinance.

The consultant surreptitiously measures the sound using a decibel meter and specialized recording equipment. A written report is later submitted to the court and additional expert testimony as required.

Because many jurisdictions have a subjective nuisance code, a professional measurement can demonstrate that the noise violates the sound level limits of the code.


Environmental Health

Regardless of existing community standards for noise levels, proving a case is often more than measuring the volume, duration and intensity of sound coming into the property. It's proving how the noise is impacting the use and enjoyment of the property itself, such as being able to open a window, sit in the backyard, and to sleep at night.

A psychologist can provide expert research and testimony in describing the adverse effects on noise and help interpret noise measurements attributed to the specific case.

In proving a case, affidavits or depositions from other affected neighbors is obtained.

Case Study

A Montana family was dealing with a neighbor that installed a motocross track. The noise levels and dust from the motorcycles were so great that the family had to abandon their home during race meets. The neighbor chose to ignore complaints about the track.

The family filed a lawsuit against the neighbor. In addition to hiring an attorney, the family also hired a consultant to create a report that included statements of individuals affected by the property, photographs of the offending property and noise measurements.

In district court, the judge found for the plaintiff. The conclusions of law were that the operation of the motocross track was determined to be a public nuisance. The defendant was prohibited from the operation of any type of motocross track in the vicinity and required to remove the track from the property. That included restoring the original contours of the property by removing the hills and jumps that were constructed as part of the track.

Motocross Track Ruling in Flathead, Montana


Conclusion

The best possible outcome is a settlement in which the defendant, after weighing the time and expense involved in having to go to court, may offer to negotiate the matter to solve the noise problem. This type of settlement can also be made through mediation.

If the case goes to court, a judge can determine if the noise problem is a public nuisance. A favorable ruling can force the defendant to abate the noise by court order. If the defendant does not follow the ruling within the prescribed time, they can be subject to financial penalties or charged with contempt of court.

It is important to discuss with your attorney additional strategies if the case is not successful. If you lose the case, not only does it give the defendant free reign to continue causing noise problems, but it may adversely affect the property value of your residence if you later decide to move.

In cases where neighbors have fought in court, the anger and resentment often continues long after the legal outcome.