Re-Conceptualizing the Law of Nuisance Through a Theory of Economic Captivity

Abstract

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are — although not often allowed in practice by the courts — found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity which embraces the notion that a plaintiff may be constrained, socio-economically, in making choices which restrict options for living accommodations. Because of these constraints, low-income individuals and families may be forced to live in surroundings which may well challenge contemporary standards of habitability or in an environment which interferes unreasonably with the use and enjoyment of their real property. Put directly, an individual’s socio-economic status should not preclude his access, through the law of nuisance, for redress of actions which compromise the enjoyment of his property rights.

The theory of economic captivity allows a plaintiff to, essentially, blunt efforts by a defendant — through use of an affirmative defense — to assert that a plaintiff came to the nuisance and is therefore responsible for this acquiescence or condonation of the very condition for which he is complaining. The defense of economic captivity would serve to fortify the rights of an injured plaintiff and thereby not subject him to assertions that he knowingly came to and accepted the unreasonable living condition of which he now asserts is an unreasonable interference with the use and enjoyment of his property.

The efficacy of various federal programs (e.g., Federal Uniform Relocation Act), together with state and local government initiatives (e.g., managed growth), will be analyzed. These government efforts seek to either move low-income economic captives into more desirable locations, or — alternatively — subsidize these marginal households to remain in their present location. Ideally, programs of this nature should serve as catalysts for incentivizing an ethic of good property use and maintenance both from present and from future property owners. At the same time, the federal programs, in particular, acknowledge the ideal that every citizen — regardless of economic status — should enjoy minimum levels of habitability which are not compromised by conditions which have the effect of restricting, unreasonably, use and enjoyment of their property.