Damages in Real Estate Nuisance Cases
A nuisance lawsuit exists when there is an “unreasonable, unusual, or unnatural use of one’s property so that it substantially impairs the right of another to enjoy his property.” Basham v. City of Cuba, 257 S.W.3d 650, 653 (Mo. Ct. App. 2008).
If there is a nuisance, the measure of damages depends on whether the nuisance is “temporary” or “permanent.” A nuisance is temporary if abatement is “reasonably and practically possible.” Fletcher v. City of Independence, 708 S.W.2d 158, 178 (Mo. Ct. App. 1986). It is permanent when the injury is fixed and goes to the whole value of the estate. Id.
For a temporary nuisance, the measure of damages is the decrease in the property’s rental value during the duration of the nuisance. Peters v. ContiGroup, 292 S.W.3d 380, 385 (Mo. Ct App. 2009). For a permanent nuisance, “the damages are measured by the difference in market value immediately before and after injury.” Id.; Peters v. ContiGroup, 292 S.W.3d 380, 385 (Mo. Ct App. 2009). “Fair market value” means the “price that the property in question would bring when offered for sale by one willing but not obliged to sell it and when bought by one willing or desirous to purchase it but who is not compelled to do so.” See MAI at 16.02, 7th Edition.