Civil Litigation
Experience and Results
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Texas Nuisance

© 2014 Mark Courtois

A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011); Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004). For example, such conditions as foul odors, dust, noise, and bright lights, if sufficiently extreme, may constitute a nuisance. Schneider Nat'l, at 269. The limitations period for a private nuisance claim is two years from the date the cause of action accrues. Tex. Civ. Prac. & Rem. Code § 16.003. When a nuisance claim accrues depends on whether the nuisance is permanent or temporary. Schneider Nat'l, at 269. The Texas Supreme Court has determined that "an injury to real property is considered permanent if (a) it cannot be repaired, fixed, or restored, or (b) even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated." Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 57 Tex. Sup. J. 1465, 2014 LEXIS 767, *11 (August 29, 2014). Conversely, an injury to real property is considered temporary if (a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty." Id. Whether an injury is permanent or temporary is a question of law for the court to the decide. Id. at *10.

With respect to damages, the general rule is that in cases involving permanent injury to real property the measure of damages is the loss of fair market value, while the cost to repair or restore is the proper measure in temporary nuisance cases. Id. Although, in cases of temporary injury, when the cost to repair or restore exceeds the diminution in the property's market value to such a high degree that the repairs are no longer economically feasible, then the injury may be deemed permanent and damages are awarded only for the loss of market value. Id.