Reconceptualizing the Law of Nuisance through a Theory of Economic Captivity

By Smith, George P., II; Saunig, Matthew | Albany Law Review, Fall 2011 | Go to article overview

Reconceptualizing the Law of Nuisance through a Theory of Economic Captivity


Smith, George P., II, Saunig, Matthew, Albany Law Review


I. INTRODUCTION: COMING TO THE NUISANCE OR BECOMING AN ECONOMIC CAPTIVE?

Ann and Conrad Riedi lived in the same rent-controlled apartment in Manhattan for forty years. (1) Despite this long-term entrenchment, the Riedis and many of their neighbors are being forced to move to make way for a new subway construction. (2) Due to their relatively low income and inability to pay typical Manhattan rent because of their age and status as retirees, the Riedis may very well be forced to relocate out of the neighborhood and out of a borough in which they have lived most of their lives. (3) The Riedis have, in essence, become "economic captive[s]" for, put simply, their economic situation severely limits their choices as to where to relocate. (4) An economic captive, then, is someone whose housing choices are determined detrimentally by his socio-economic status, providing him with extremely limited options for places to live. (5) Further, the housing available to an economic captive is often in poor repair, in blighted and/or high crime areas, and far from the person's current neighborhood. (6)

The classical situation defining the forces of economic captivity is illustrated when relocation by a landowner thereby subjects the mover directly to a nuisance or a nuisance-like activity. For example, acquisition of real property in an industrial area may almost necessarily burden, significantly, the new owner with smog or noise, while relocation to an agricultural community may subject other homeowners to putrefying odors. (7) If the economic captive asserts a nuisance claim, the defendant may then raise an affirmative defense that the plaintiff came to the nuisance; in other words, the defendant and the injurious activity were established prior to the plaintiffs arrival. (8) Whether the plaintiffs status should be considered a countervailing factor or argument to the defendant's affirmative defense that the plaintiff actually came to the nuisance is the central policy issue which must be resolved: specifically, the manner in which society (be it governmental units or private entities) deals with these inherent conflicts presented by a recognized theory of economic captivity.

The phenomenon of the economic captive is a reality of modern capitalistic society. (9) Notwithstanding this reality, the question still remains whether a person's socioeconomic status can serve as an effective counter to the defense that the plaintiff came to the nuisance. An examination into how the law should treat economic captives whose presence in a location is inconsistent with a higher use for the land will yield the answer to this question. Examining the efficacy of a variety of approaches leads to the conclusion that the best approach is through the working of managed growth and bonus zoning in tandem in order to achieve some level of harmony amongst a range of demographic groups. (10) The employment of amortization provisions, where the economic captive is allowed to remain in his home for a reasonable period of time, is a necessary component of this solution. (11) Concluding that this approach is the most efficacious leads to the determination that one's status as an economic captive deserves to be included as a factor in the requisite balancing under which a nuisance cause of action is tested initially. (12) However, such a status is not automatically dispositive in dealing with a coming to the nuisance defense and must be viewed in light of the desired goal of protecting the common good. (13) The fact remains, importantly, that there is a place for the economic captive and that individual is not left defenseless in the world of nuisance law. If recognized, the plaintiffs' status as an economic captive should offset, or at least neutralize, the fact that he came to a nuisance and thereby provide him with an avenue for relief.

This article will begin with an analysis of nuisance law and its purpose. At the heart of a nuisance action is a fact-specific balancing of competing interests that this article will organize into a general framework for nuisance inquiries. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Reconceptualizing the Law of Nuisance through a Theory of Economic Captivity
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.