Highlights

  1. Everyone has the right to enjoy their own property.
  2. We can initiate action against anyone who interfere or infringe with your right of enjoyment to your own land.
  3. Elements that need to be fulfilled to prove nuisance.
  4. Damages that could be sought from the Court.
Is Your Neighbour Disturbing Your Quiet And Peace At Your Own Property? To What Extent That Is It Too Much?

 

Q1. What kind of action can be initiated if any party interfere with your own property?

Answer:

As a property owner, you have the right to enjoy your property. Hence, when a party interfere with your right to enjoy your property, you can initiate a civil action for cause of action of nuisance under the law of tort.

Q2. What kind of interference can be considered as nuisance?

Answer:

There are 3 ways to identify if there is nuisance1:-

a). nuisance by encroachment on a neighbour’s land;

b). nuisance by direct physical injury to a neighbour’s land; and

c). nuisance by interference with a neighbour’s quiet enjoyment of his land.

Q3. What are types of nuisance?

Answer:

There are three (3) type of nuisance which are2:-

a). Public;

b). Private; and

c). Statutory

Q4. What is private nuisance?

Answer:

Private nuisance is when there is unreasonable interference with another’s use or enjoyment of land. In determining what is reasonable, the court will balance each party’s right to use the land as they wish.3

Q5. What is public nuisance?

Answer:

The public nuisance is a criminal offence, and is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property or comfort of the public are obstructed in the exercise or enjoyment of any right common to all.4

Q6. How can we prove a private nuisance action?

Answer:

To prove a case of private nuisance, the following elements must be fulfilled5:-

a). indirect interference with the enjoyment of the land;

b). that such an interference was unreasonable; and

c). that the interference had caused damage to the claimant.

Q7. How interference can be considered as unreasonable?

Answer:

An interference which goes beyond the normal bounds of acceptable behaviour will be unreasonable.

Q8. How can I prove damage to the Court if the interference is not physical interference, for example nuisance by way of noise?

Answer:

In a case where the Claimant’s enjoyment to the land is being infringed, Claimants are not required to prove actual damage or loss to the Claimants’ Premises. The damages can be satisfied by proving “non physical” damage such as disturbance6.

Q9. How will the Court assess my damages?

Answer:

The test for the Court to consider in assessing whether there is damage is such case of nuisance is one of a reasonable man7. The Court must ask itself whether a reasonable man feels stressed or worried by the conduct of the Defendant. By asking the said question, the Court can determine what kind of damages suffered by the Claimant and asses the award accordingly.

Q10. What kind of relief that we can seek from the Court to avoid the same nuisance from recurring?

Answer:

You may seek for injunctive relief to prevent the same nuisance temporarily (pending disposal of the suit) or permanently.8

FOOTNOTES 

[1] UDA Holdings Bhd v Koperasi Pasaraya (M) Bhd and other appeals [2009] 1 MLJ 737

[2] Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ 360

[3] Chai Yon Len & Anor v Kamarul Jaman bin Mydin & Anor [2020] MLJU 498

[4] Koperasi Pasaraya Malaysia Bhd V Uda Holdings Sdn Bhd & Ors [2002] 7 Mlj 174

[5] Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ 360

[6] Chai Yon Len & Anor v Kamarul Jaman bin Mydin & Anor [2020] MLJU 498

[7] Lai Kong Loke & Anor v Ting See Leng [2017] 7 MLJ 548

[8] Section 50 of Specific Relief Act 1950

THIS FAQ IS PREPARED AND PUBLISHED BY GENERAL LITIGATION, CORPORATE INSOLVENCY AND APPELLATE DEPARTMENT OF THE DISPUTES RESOLUTION OF MESSRS GAN & ZUL, ADVOCATES & SOLICITORS.
Prepared by:

Ben Lee Kam Foo (Partner)
Head of Dispute Resolution
Arbitrator & Adjudicator
Fellow of ADR, AIAC
Cross Border Taxation Planning

Shafihani Binti Md Ali
(Senior Associate)
General Dispute Resolution
Appellate Division
Contractual, Land and Commercial Disputes
Pre and Post Liquidation Disputes

Gan & Zul is an established legal firm in Malaysia which consists of experienced litigation lawyers. Our firm provides a wide spectrum of legal services covering various aspects of laws includes dispute resolution, debt recovery, land, bankruptcy, insolvency and corporate dispute. We are also a firm construction lawyers based in Kuala Lumpur.
If you have any queries or require additional information, kindly email us at kul.litigation@ganzul.com or call us at 03-2242 3836

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