The Difference Between Disturbance Damages
and Injurious Affection Damages

The practice of expropriation law contains many nuisances that are not readily apparent to somebody who has only a cursory knowledge of the practice area.  The difference between Disturbance Damages and damages for Injurious Affection have been conflated by lawyers, appraisers, tribunals and courts for the past century.  In this article, we will provide our view of the differences between the two heads of damage and some examples to assist the reader in understanding the differences.

Disturbance Damages are losses incurred by the expropriated landowner for moving from the expropriated land.  They are only available to an owner who is in occupation of the expropriated land during the expropriation process.  This applies to both residential landowners and commercial landowners.  If the landowner was not in occupation of the land they cannot claim disturbance damages. 

Examples of Disturbance Damages for a residential landowner include: the costs of moving to a new residence; the cost of identifying the new residence; the cost of disconnecting and reconnecting services; increased costs of traveling to work (if the new residence is farther away than the expropriated property was located; etc. 

Examples of Disturbance Damages for a commercial property owner include: the cost of moving the business to a new location; increased property taxes; cost of disconnecting and reconnecting services; loss of profits caused by the change of location; cost of advertising the new location; etc.

On the other hand, damages for Injurious Affection relate to the injury to the land and the landowner’s use of the land.  It also applies to both residential and commercial landowners.  Injurious Affection does not require the landowner to be dispossessed of occupation of the land.  A landowner may suffer Injurious Affection Damages if a portion of its land is expropriated and in some cases, even if no land is expropriated at all. 

Examples of Injurious Affection Damages for a residential landowner include: the loss in value of the remaining land caused by a portion of the land having been taken; the cost of moving building from the expropriated portion to the remaining land; the inability to use its land for a significant period of land; the cleanup of dust on the expropriated property; structural damages to buildings caused by the construction of the public work in question; personal injuries; etc.    

Examples of Injurious Affection Damages for a commercial landowner include: 

We suggest that the main question to be answered when trying to determine whether a loss is properly categorized and Disturbance Damages or Injurious Affection Damages is: Did the landowner have to leave the property?  If it did, the losses are most likely Disturbance Damages.  If not, the losses are most likely Injurious Affection Damages.

If you have questions or would like to discuss this topic further, please contact Robert Pineo.

Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.