Highlights

  1. What is nuisance in Malaysia
  2. The examples of nuisance under Malaysian law
  3. Malaysian legal position with regard to the private nuisance
  4. How to handle/ deal with nuisance neighbours
  5. Elements of the private nuisance

Neighbours Disputes – What Can We Do Against The Noisy And Nuisance Neighbours?

Q1. What is nuisance?

Nuisance is an unlawful interference with a person’s use or enjoyment of land or some right over in connection with it. It involves a substantial, unreasonable and repeated or continuous interference by the person with the use or enjoyment of property, which cause inconvenience to either individuals or public. There are two types of nuisance i.e. public nuisance and private nuisance. Nuisance can include noxious smells, noise, burning, misdirection of water onto other property, illegal gambling, unauthorized collections of rusting autos, indecent signs and pictures on businesses and a host of bothersome activities.

Q2.What is public nuisance?

Public nuisance occurs when there is an interference in the enjoyment of public rights. Public nuisance arises when the action or activities by the Defendant interfere with the comfort and convenience of public within a particular community. It is sufficient to show that there is a class of people from that community who have suffered the consequences of the said nuisance.

Q3.What is private nuisance?

Private nuisance occurs when there is a dispute between two parties whereby there has been an unlawful, substantial and unreasonable interference with a person’s use, comfort, enjoyment and any interest that a person may have over his land.

Q4.What are the examples of nuisance under Malaysian law?

There are few common disputes which constitutes as “nuisance” according to the decided Malaysian cases such as: –

  1. Encroachment of land whereby building structures extend beyond individual’s land;
  2. Ongoing construction/ renovation work which causing damage to the adjoining properties;
  3. Causing obstruction whereby vehicle(s) were parked in front or near the neighbours’ home entrance;
  4. Making excessive noise or causing a racket during wee hours. These include noises made near public roads, public places, business premises, or places which adjoin public roads;
  5. Land trespassing;
  6. Open-air burning;
  7. Inter-floor leaking issue in strata properties.

The above list is non-exhaustive. However, even though the person might be doing one or more of the above activities, it does not automatically rendered their action as a nuisance. The burden of proof is on the person who brings the claim where he has to show that he has been seriously affected and inconvenienced with the person’s actions.

Q5.What is noise nuisance?

Noise nuisance is defined as noise which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life and impair the reasonable enjoyment of his habitation, is a nuisance to him. If his neighbour makes such a noise as to interfere with the ordinary use and enjoyment of his place, so as to cause annoyance and disturbance, the occupier of the place is entitled to be protected from it.

Q6.What are the elements need to be established for private nuisance?

To establish an action under the tort private nuisance against the alleged wrongdoer, the burden of proof lies on the person who bring the claims whereby he has to prove the following elements: –

  1. That there is a substantial interference with the enjoyment or use of his property;
  2. That such an interference was unreasonable; and
  3. That the interference had caused him damage/ severe inconvenienced.

Basically, such interference must be a result of a repeated/ an on-going action rather than a one-off incident. It must be regarded as unreasonable to the extend it ‘goes beyond the normal bounds of acceptable behaviour’.

Hence, whether such interference amounts to a nuisance is always a question of degree whereby the acts complained as ‘nuisance’, such as noise or smells, will usually be lawful acts which only become wrongful from the circumstances under which they are being performed, such as time, place and the manner of performance. No precise or universal formula is possible, but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society.

The Courts will take into account all the circumstances and various factors such as the time of the commission of the act complained of, the place of the action took place, the manner of committing such action whether it is done recklessly or in the reasonable exercise of rights and the effect of its commission whether it is transitory or permanent, occasional or continuous in determining whether the alleged nuisance really existed or not. 

Q7.Can we report noisy and nuisance neighbours?

Noisy and nuisance neighbours which disturb the comfort and peace of neighbourhood can be reported to the local authorities or call in to lodge a complaint. Under the Local Government Act 1976, local authorities are responsible for taking necessary steps to resolve certain types of nuisances.

As for the residents and owners of stratified properties, they are bound by the laws and regulations set out in the Strata Management (Maintenance & Management) Regulations 2015. They are also bound by the Deed of Mutual Covenants whereby there are rules and regulations that all residents must follow and adhere to.

The residents of the stratified properties can always raise their complaints about nuisance nuisance with the management body of their property. The management body is empowered under the Strata Management Act 2013 to enforce by-laws which prohibits against nuisance acts. However, if the management body refuses to act upon the complaint, you can file a complaint or claim with the Strata Management Tribunal to hear and decide upon the issue.

Q8.What are the available remedies/ legal relief against the noisy and nuisance neighbours?

A person who suffers interference with the enjoyment of his land or property due to the actions of another person can sue the wrongdoer to put an end to the interference and to also claim damages against that wrongdoer. The most common remedies/ legal reliefs available for nuisance are: –

  1. Permanent injunction to stop the wrongdoer from carrying on the interference activities;
  2. Monetary compensation for damages suffered.

If an individual feels that his public rights have been violated by a party, he is also entitled to claim for injunction and damages under the law of public nuisance by bringing forth a civil suit. However, we have always to be mindful that whether the Courts find the activities and/or actions by the wrongdoer is a nuisance or not ultimately depends on the facts and circumstances of the case.

 

Footnotes

  1. Gerald N Hill and Kathleen Hill. 2002. The People’s Law Dictionary. New York, NY: MJF Books
  2. Attorney General v PYA Quarries [1957] 2 QB 169
  3. Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ 360
  4. Chin Lih Lih & Ors v Sunrise Alliance Sdn Bhd & Anor [2011] MLJU 1437
  5. Ong Koh Hou v Perbadanan Bandar & YBR Management Sdn Bhd [2009] 8 MLJ 616
  6. Strata Management (Maintenance & Management) Regulations 2015
  7. Local Government Authorities Act 1976
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

Nur Amalin Shahida Sabidi  (Associate)
Generate Disputes Resolution
Commercial Retail Tenancy Disputes
Contractual, Land and Commercial Disputes
Matrimonial Disputes

Nabila Zakariah(Associate)
General Dispute Resolution
Appellate Division
Contractual, Land and Commercial Disputes
Matrimonial 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

Leave a Reply