25. Which of the following responses would best express the applicable law?

A nuisance is a tortious harm that interferes with either private property rights or public rights. A private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that is offensive, inconvenient, or annoying to an average person in the community. To prevail on a private nuisance claim, a plaintiff must demonstrate that the nuisance is an unreasonable interference, by showing that the injury outweighs the utility of the defendant's conduct.

C is correct. The most accurate and complete response to the buyer would be to advise her that she might have a nuisance claim, but that her damages might be decreased and her claim potentially defeated based on the fact that she was fully aware of the noise from the nearby fraternity when she purchased her home. To qualify as a private nuisance, an interference must substantially and unreasonably interfere with a plaintiff's use and enjoyment of property. Substantial interference is an objective standard, defined as offensive or annoying to the average person in the community. Under the facts here, the buyer potentially has a valid private nuisance claim. The noise from the fraternity's parties interfered with her use and enjoyment of her home, and the details about the frequency and extent of the noise suggests that this interference would be considered substantial and unreasonable to the average member of the community.

However, the fact that the buyer was fully aware of the fraternity's reputation before purchasing the house could weigh against her. Although ordinarily, coming to a nuisance is not by itself a bar to recovery, so long as the plaintiff purchased the property in good faith and not for the sole purpose of bringing a harassing lawsuit. There are various defenses to nuisance, including assumption of risk. Because the plaintiff was fully aware of the fraternity's reputation for loud parties and, in fact, benefited from it by her home's low purchase price, her chances of recovering on a nuisance claim would decrease. A court might deny her damages on the basis that she assumed the risk.

A is incorrect. Although the buyer's chance of recovery would be decreased because of her knowledge prior to purchase of the fraternity's reputation for noise, her recovery would not be barred on the basis that the fraternity members have the right to use their property as they please. All property owners have a right to the use and enjoyment of their property, and when considering nuisance claims and deciding remedies, courts will weigh the differing interests of the plaintiff and will consider whether the defendant's use and enjoyment substantially and unreasonably interferes with that of the plaintiff. To this end, even though the fraternity would have a right to using and enjoying its property, the buyer would as well, and neither party's right inherently carries more weight.

B is incorrect. Although the buyer came to the nuisance, this would not be an inherent bar to her claim, because in general, so long as a plaintiff purchased property in good faith and not for the sole purpose of bringing a harassing lawsuit, and otherwise satisfied the elements of a nuisance claim, she can still recover damages. However, under the facts here, the buyer's claim may not be successful, since she both came to the nuisance and was fully aware of it prior to her puchase. Consequently, a court could find that she assumed the risk and was not entitled to damages.

D is incorrect. It would not be the most accurate and complete advice to advise the buyer that she would be able to recover damages in a nuisance action, because the late-night activities of the fraternity violated her right to the quiet enjoyment of her property. Assuming that as suggested by the facts, the interference from the fraternity on her use and enjoyment was substantial and unreasonable, the buyer could indeed recover damages under a nuisance claim.

However, this would not end the inquiry. The buyer's chance of recovery would be lessened because she was fully aware of the fraternity's reputation before purchasing her home. Although «coming to a nuisance» does not in itself bar later recovery, because of the buyer's foreknowledge here, a court could accept a defense by the fraternity that the buyer had assumed the risk and was therefore not entitled to damages. Consequently, the best guidance for the buyer would be that she had a potentially cognizable nuisance claim, but that her chance of recovery decreased because she came to the nuisance.