Dealing With That Buzz

Honey bee populations are under siege. Fears of extinction and imploding populations have farmers and climatologists concerned as honey bees play an integral part in the production of virtually all flowering fruits and vegetables. Therefore, protections have been put in place to encourage beekeeping as a hobby. However, apiaries in urban and suburban areas can also be nuisance to neighboring property owners as masses of bees descend upon their neighboring gardens and water sources.

State law protects bees and beekeepers provided that the beekeeper obtain the required license under the Agricultural Code to maintain hives. While some cities and counties impose restrictions on the location and methods of operation of apiaries, few cities or counties do, and those that do rarely enforce them.

So what is the neighbor of a beekeeper to do when the bees become bothersome; when depriving the neighbor of the quiet enjoyment of his or her property; and/or when they cause or threaten to cause injury to person and property, especially to those allergic to bee stings?

First, these people are your neighbors. The prudent thing to do is request that the apiary be moved. If it is not moved, in California you may be able to sue for private nuisance and an injunction to remove the apiary.

California law provides a cause of action for a private nuisance under California Civil Code Section 3479:

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is 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, or unlawfully obstructs the free passage or use, in a customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

Under California law, a private nuisance is generally categorized as nuisances per se and nuisances per accidens. A per se nuisance generally involves an activity that is prohibited or regulated by statute. Since there is scant statutory law regulating urban and suburban apiaries, it is more likely the keeping of an apiary is a nuisance per accidens, which is an unreasonable use or interference, based on the surrounding circumstances.

In order to recover damages in a private nuisance claim, the plaintiff has to prove the defendant interfered with the plaintiff’s use and enjoyment of his or her land. This includes proving the following:

1. The plaintiff owned, leased, occupied, or controlled the property;
2. The defendant, by acting or failing to act, created a condition or permitted a condition to exist that involved one of the following:
3. Was harmful to health; or
4. Was indecent or offensive to the senses; or
5. Was an obstruction to the free use of property, so as to cause loss of enjoyment of life or property; or
6. Unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway; or
7. Was a danger or fire hazard to the plaintiff’s property;
8. That this condition interfered with the plaintiff’s use or enjoyment of his or her land;
9. That the plaintiff did not consent to the defendant’s conduct;
10. That an ordinary person would be reasonably annoyed or disturbed by the defendant’s conduct;
11. That the plaintiff was harmed;
12. That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm; and
13. That the seriousness of the harm outweighs the public benefit of the defendant’s conduct.

Minor annoyances may not rise to the level of a nuisance. The defendant’s action or failure to act must be both harmful to the plaintiff and something that an ordinary person would find annoying or disturbing.

A private nuisance case also includes a balancing-test that weighs the seriousness of harm against the public benefit. Factors involved in determining the seriousness of the harm include:

1. The extent of the harm and how long that interference lasted;
2. The character of the harm in causing impairment of property, personal discomfort, or annoyance;
3. The value that society places on the type of use or enjoyment invaded;
4. The suitability of the type of use or enjoyment to the nature of the locality; and
5. The extent of the burden (such as expense and inconvenience) placed on the plaintiff to avoid the harm.

Factors involved in determining the benefit of the defendant’s conduct include:

1. The value that society places on the primary purpose of the conduct that caused the interference;
2. The suitability of the conduct to the nature of the location; and
3. The practicability or impracticality of preventing or avoiding the invasion.

Every case will differ based on the facts. Hopefully, the parties can work out a solution. However, if they cannot, they should promptly contact legal counsel as there may be a legal basis for seeking removal of the beehives if they are causing a nuisance.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.