Cal. Civ. Code §§ 3479–3481; Cal. Code Civ. Proc. § 731; CACI Nos. 2020, 2021
Nuisance: whether it is continuing or permanent decides everything
A claim in California superior courts · Last verified August 26, 2026
Nuisance is interference with the use and enjoyment of land — noise, odour, smoke, light, vibration, water, an obstruction, a dangerous condition next door.
The doctrine that decides these cases is not liability. It is accrual.
A permanent nuisance gives you one claim, and it is barred three years after the nuisance was created — even if the harm continues for thirty years afterward. A continuing nuisance gives you a new cause of action every day, so it can never be wholly time-barred, though you recover only for the period preceding suit.
Same facts, same defendant. One characterisation is worth nothing and the other is worth a recurring claim.
What the claim is
Something is interfering with your use and enjoyment of your property, or with a right common to the public.
Private nuisance is a substantial and unreasonable interference with your use and enjoyment of land you own or occupy.
Public nuisance affects an entire community or neighbourhood, or any considerable number of people, at the same time — though the extent of the annoyance need not be equal on everyone.
Where the right comes from
Civil Code § 3479 defines nuisance broadly: anything injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property.
Section 3480 defines public nuisance. Section 3481 defines private nuisance as everything else.
CCP § 731 authorises the action and abatement.
What a plaintiff has to prove
Private nuisance — CACI No. 2021:
- The plaintiff owned, leased, occupied, or controlled the property.
- The defendant created a condition or permitted one to exist that was harmful to health, indecent or offensive to the senses, or an obstruction to the free use of property.
- The condition interfered with the plaintiff's use and enjoyment of the land.
- The plaintiff did not consent.
- An ordinary person would be reasonably annoyed or disturbed.
- The seriousness of the harm outweighs the public benefit of the conduct.
- The plaintiff was harmed, and the conduct was a substantial factor.
Public nuisance — CACI No. 2020, with the additional requirement that the condition affected a substantial number of people at the same time.
CACI No. 2022 supplies the balancing factors for element six, and CACI No. 2030 covers the limitations defense.
Element six is a real filter. Nuisance is not strict liability for annoyance. The interference must be both substantial and unreasonable, and the utility of the defendant's conduct is weighed against the gravity of the harm.
A private plaintiff suing on a public nuisance needs something extra
Civil Code § 3493. A private person may maintain an action on a public nuisance only if it is "specially injurious to himself."
The injury must differ in kind, not merely in degree, from that suffered by the general public. Being more annoyed than your neighbours is not enough. Suffering a different sort of harm — physical injury, damage to your specific property, loss of access to your own land — is.
That requirement is where most private public-nuisance claims fail, and it is why the same facts are usually pleaded as a private nuisance as well.
How long you have to file — and the election that governs it
Three years, under CCP § 338(b), for injury to real property.
But the period runs differently depending on the characterisation:
A permanent nuisance is one whose harm is expected to continue indefinitely and whose damages can be assessed once and for all. The claim accrues when the nuisance is created, one action recovers past and future damages, and three years later it is barred forever.
A continuing nuisance is one capable of being discontinued or abated. Each day's continuation is a separate wrong giving rise to a new cause of action. The claim is never wholly barred, but recovery is limited to harm suffered in the three years before suit — and a successful plaintiff may sue again later.
The test is the type of harm, not the defendant's intent to continue it. In Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, the Supreme Court held the distinction turns on whether the nuisance may be discontinued or abated — and that where the question is in doubt, the plaintiff may elect which theory to pursue.
That election is a strategic decision with real consequences. Permanent gives you one large recovery including future damages, and a hard deadline. Continuing gives you repeated smaller recoveries, no ultimate bar, and the ability to seek abatement.
And there is no time bar at all on a public nuisance. Civil Code § 3490 provides that no lapse of time can legalise a public nuisance.
What has to happen before you file
Nothing.
Unless a public entity is a defendant — most often on a dangerous condition of public property — in which case the Government Claims Act six-month presentation requirement applies, and it will expire long before the three years.
Who can be sued — and who can sue
Anyone who created the nuisance, or who owns or controls the property and permits it to continue. A successor owner who allows a continuing nuisance to persist can be liable for it.
A landlord may be liable for a nuisance created by a tenant where the landlord had knowledge and the ability to abate.
To sue on a private nuisance you must have an interest in land — ownership, a lease, or lawful occupancy. A guest or visitor has no private nuisance claim.
Public entities may abate a public nuisance directly, and public prosecutors may sue on one without showing special injury.
Common defenses
The interference was not substantial or not unreasonable — element six, and the main battleground.
Statutory authorisation, Civil Code § 3482 — nothing done under the express authority of a statute can be a nuisance. It is construed narrowly: general regulatory approval of an activity is not the same as authorising the specific manner in which it was conducted, and a permit is rarely enough.
The right to farm, Civil Code § 3482.5 — an agricultural activity operating for more than three years, and not a nuisance when it began, does not become one because of changed conditions in the surrounding area. This protects established farms from encroaching residential development.
"Coming to the nuisance" is a factor, not a defense. Buying property next to an existing problem does not bar the claim in California, but it weighs in the reasonableness balance.
The limitations period, with the continuing/permanent characterisation contested.
Consent, and prescriptive rights where the interference has run long enough to ripen into an easement.
What the claim pays
Damages — diminution in the property's value for a permanent nuisance; the loss of use and enjoyment, plus discomfort and annoyance, for a continuing one.
Discomfort and annoyance damages are recoverable by an occupant, and they are not the same as emotional distress damages — a lower threshold, tied to the interference with living on the land.
Abatement, and an injunction to stop the interference.
Punitive damages under Civil Code § 3294 on clear and convincing proof of oppression, fraud, or malice.
No fee-shifting under the nuisance claim itself, though CCP § 1021.5 can supply fees where a public nuisance action vindicated an important public right.
Jury trial: split, and that matters. The damages claim is legal and carries a jury right. The abatement and injunction claims are equitable and are tried to the court. A case seeking both is routinely divided, with the court resolving the equitable claims and the jury the damages.
What people get wrong
"It's been going on for years, so I'm too late." Not if it is a continuing nuisance — that gives you a new claim every day.
"I can sue over a public nuisance because it bothers me." Only if your injury differs in kind from the public's, not merely in degree.
"My neighbour is harassing me, so I'll sue for nuisance." Personal harassment is not a nuisance claim. The remedy is a civil harassment restraining order under CCP § 527.6.
"They have a permit, so I can't sue." A permit is rarely the express statutory authorisation § 3482 requires, and the section is narrowly construed.
"I moved in knowing it was there, so I lose." Coming to the nuisance is a factor, not a bar.
"Any annoyance is a nuisance." The interference must be substantial and unreasonable, weighed against the utility of the conduct.
"I'll get a jury." On damages, yes. On abatement, no.
Where it came from
Nuisance is one of the oldest actions in the common law, and California codified it in 1872 in language broad enough that it has needed almost no amendment since — § 3479's definition still governs.
What the courts have built is the accrual architecture, and they built it to solve a fairness problem running in both directions. A rule that every nuisance was permanent would let a defendant acquire a right to pollute by outlasting three years. A rule that every nuisance was continuing would expose defendants to perpetual liability for a single completed act.
Baker (1985) drew the line at abatability and, unusually, gave the choice to the plaintiff where the answer is unclear — an allocation that reflects how hard the question often is at the outset.
The Legislature has intervened mainly to protect specific activities. The right-to-farm provision at § 3482.5 responded to suburban growth reaching established agricultural operations, and it is the clearest example of the statutory-authorisation principle being extended by statute rather than by courts.
Common questions
What is the difference between a continuing and a permanent nuisance?
A permanent nuisance is one whose damages can be assessed once and for all; it accrues when created and is barred three years later. A continuing nuisance is one that can be abated, and it gives rise to a new claim every day — so it is never wholly time-barred, though you recover only for the three years before suit.
Can I choose which one to call it?
Where the question is in doubt, yes. Baker v. Burbank-Glendale-Pasadena Airport Authority holds the plaintiff may elect, and the choice is strategic: one recovery including future damages, or repeated recoveries with no ultimate bar.
Can I sue over something that affects the whole neighbourhood?
Only if your injury is different in kind from everyone else's — Civil Code § 3493. Being more affected than your neighbours is not enough. Most plaintiffs plead a private nuisance alongside it.
My neighbour keeps harassing me. Is that a nuisance?
No. Nuisance concerns interference with the use and enjoyment of land. Personal harassment is addressed by a civil harassment restraining order under CCP § 527.6.
The business has a permit. Does that end it?
Rarely. Civil Code § 3482 protects what a statute expressly authorises, and it is read narrowly — a permit to operate is not authorisation to operate in a way that harms neighbours.
Will a jury decide my case?
Partly. Damages are legal and carry a jury right; abatement and injunctive relief are equitable and are decided by the judge.