Odors and Pollution: Suing for Diminished Value of Your Home or Property

You purchased your dream home several years ago, but over the last several months a strong odor has begun to linger over your property. You learn that the neighborhood landfill has expanded its operations, and unfortunately its odors too! Thus you begin to ponder, “If odors from an identifiable source such as a landfill, pollute my property and home, can I sue for the diminution in value of my home and property?” If you can establish that the odor comes from an identifiable source, like the landfill, and that the odor has resulted in actual damages, then you can sue the owner of the landfill for nuisance.

“ Nuisance” is a serious and unreasonable interference with the use and enjoyment of your property. If the community as a whole is being affected by the pollution, this would be a public nuisance. If you are the only property owner affected by the pollution from the landfill, this would be a private nuisance. As a private nuisance, you can file your lawsuit to against the landfill owner for nuisance. Your damages (the amount you are seeking to recover in the lawsuit) would be the permanent diminution in the value of your property (home and land).

In order to recover damages, you must show that the damages are a specific, quantifiable amount. If the permanent diminution in the value of your home and land can be determined, your damages would be recoverable as being sufficiently specific. Even if your damages are specific, monetary damages may not address the continuing nature of the odors or pollution. Damages may be an inadequate remedy because the continuing nature of the pollution from the landfill may result in multiple lawsuits being filed. Another problem with damages in nuisance cases is that land is unique and therefore damages are inadequate.

A factor that could influence the amount of your damages or injury is the timing of the nuisance. If the landfill and its pollution or odors existed prior to your purchase of the property, then the landfill owner could potentially argue that you were aware of the proximity of the landfill and the odors when you purchased the property. If that was the case, this may adversely affect the amount of damages you can recover for permanent diminution of your property because the condition when you purchased the property. If this situation, you will have to show a change in the use of the landfill, thereby changing the impact of the nuisance.

If you can establish that damages are an inadequate legal remedy, you can seek an injunction. An injunction is an equitable remedy to enjoin or prevent the landfill from operating in a way that harms your use of your home or property. Some courts may require posting a bond in order to proceed with an injunction which could be very expensive. However, the court has the discretion to waive the bond requirement due to financial hardship or other factors. If you pursue an injunction, the injunction should be framed in the negative so the court will not have to deal with enforcement problems regarding language that requires a party to do something. Language in the negative would not present an enforcement problem because a party would simply be required to refrain from a particular act. For example, if the injunction says that the landfill shall not emit sulfur dioxide instead of saying the landfill shall take measures to limit pollution to 3 ppm (parts per million) of sulfur dioxide, the 3 ppm would require enforcement and measurement of the emission whereas the prior language shall not emit sulfur dioxide would not present this enforcement problem. Contact an attorney who specializes in tort law to assist you with drafting the appropriate language.

In order to determine whether or not to grant an injunction, the court will balance the burden placed on the landfill owner against the benefit to the property owner. The burden to the landfill owner would be the cost of abatement measures to halt the pollution. Another burden to the landfill would be the economic impact if costly abatement measures result in a loss of jobs or business. These factors are balanced against the benefit to the landowner if the injunction is granted. The landowner would benefit from not having his or her property value adversely affected. The landowner would also benefit by not having health and safety endangered by the ongoing pollution. Health and safety is usually a stronger argument in favor of the injunction than an adverse, monetary impact on the value of the landowner's property.

Despite the health and safety issue, the landowner may still have an uphill battle in obtaining an injunction. If the injunction would shutdown the landfill, it is unlikely that the court would grant the injunction when only one landowner is adversely affected. The court will consider whether the landfill owner or property owner could each take protective measures to limit exposure to the odors.

The three phases of the injunction are: temporary restraining order, preliminary injunction and permanent injunction. A temporary restraining order would be in effect for a short duration until a hearing at which time the court will decide whether or not to issue a preliminary injunction. The preliminary injunction would be in effect until trial at which time the court will decide whether or not to make the injunction permanent.

Because valuing property and damages can be subjective, contact an attorney.