Nuisance claims

1. www.lease-advice.org Nuisance claims

2. www.lease-advice.org Common law nuisance • Use of land in a way that causes an unreasonable interference with the land of another. • Will not assist the abnormally sensitive • Take account of the area • “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”

3. www.lease-advice.org What constitutes a nuisance? • Noise • Smells • Obstruction • Dust • Fumes • Unlikely for a temporary problem • Unless disruption is extreme

4. www.lease-advice.org Noise nuisance • A common problem • Difficult to tackle • Few neighbour-on-neighbour cases • Expensive • Lengthy • On-going relationship • Consider using Environmental Health powers • EPA 1990 • Potential prosecution / confiscation

5. www.lease-advice.org Quiet enjoyment • Protects tenant from interference with the right to exclusive possession • Either • Implied into every lease; or • Express term • Generally not useful in noise cases!

6. www.lease-advice.org What is quiet enjoyment? • Physical interference used to be key • Markham v Paget [1908] 1 Ch 967 – mining • Lavender v Betts [1942] 2 All ER 72 – removing windows and doors •  ‘Physical interference’ does have to mean ‘physical damage’ • Perera v Vandiyar [1953] 1 WLR 672 – cutting off the tenant’s gas and electricity supply

7. www.lease-advice.org What is quiet enjoyment? • Interference with ‘the tenant’s freedom of action in exercising his rights as a tenant’ as per Lord Denning MR in McCall v Abelesz [1976] QB 585 • Kenny v Preen [1963] 1 QB 499 – landlord sending threatening letters, banging on the door and shouting abuse at the tenant • Entrance to undertake repairs will likely not amount to a breach of the covenant, provided efforts are made to minimise disturbance – Goldmile Properties v Lechouritis [2003] EWCA Civ 49

8. www.lease-advice.org ‘Nuisance and annoyance’ • Express covenant in the lease • Broader than just ‘nuisance’ • ‘Nuisance’ will be legal • ‘Annoyance’ is broad • Loud music • Barking dogs • Obstruction in common parts • Does not have to be on the premises • Whitbread v Ward (1952) 159 EG 494 • Alleyway 200m away

9. www.lease-advice.org Limitations on quiet enjoyment • ‘Substantial interference’ with the tenant’s ‘ordinary reasonable enjoyment’ • Acts done by the landlord or their servants / agents, and lawful acts of people deriving title from the landlord • Tenants, not licensees

10. www.lease-advice.org Comparison with nuisance • Long v Southwark LBC [2002] EWCA Civ 403 – a claim for breach of covenant to take reasonable steps to keep the common parts tidy because of narrow rubbish chute • CA considered alternative heads of claim for quiet enjoyment and nuisance. Held: • No disrepair, as the chute was as it was built; • No breach of covenant for quiet enjoyment as the covenant did not apply to the fitness of the premises and will not apply to remedy problems with the building • Nuisance claim allowed, as the landlord had taken no steps to abate the nuisance of the bags being present

11. www.lease-advice.org Landlord liability for tenants’ nuisance • Important to consider the difference between nuisance and negligence • Nuisance: unlawful interference with quiet enjoyment • Negligence: causing reasonably foreseeable loss to another who is sufficiently proximate

12. www.lease-advice.org Landlord liability for tenants’ nuisance • Basic position is • Landlord is likely not liable for a tenants’ nuisance; • Landlord may be liable for a tenants’ negligence • The two can be pleaded jointly or in the alternative • Well-drafted leases and effective management are the best defences

13. www.lease-advice.org Landlord liability for tenants’ nuisance • Authority: Sedleigh-Denfield v O’Callaghan [1940] AC 880, HL • Where a person in possession of land becomes aware that that land is a source of nuisance to a person in possession of adjacent land • That person will be liable in nuisance to their neighbour for diminution in value of the neighbour’s land if they could have taken but failed to take such steps as were reasonable in the circumstances to end or reduce the nuisance

14. www.lease-advice.org Landlord liability for tenants’ nuisance • Leading case: Leading case: Mowan v Wandsworth LBC [2001] EGCS 6 • Tenant complained to the council that the tenant of the flat above • Regularly blocked the toilet, causing the flat below to flood with sewage • Regularly left taps running, causing the property below to flood • Regularly jumped up and down, causing excessive noise • Regularly made noise late at night • Had threatened to kill her • The tenant claimed the council was liable as they were aware of the problem and had failed to do anything about it. The police had advised that the council tenant (who was mentally unwell) should be placed in residential care • Council was not liable in nuisance because the council were not active participants in the actions causing nuisance

15. www.lease-advice.org Conflicting case? • Ribeev Norrie [2000] PLSCS 234 • Fire started by resident in ahouse by lodger dropping a cigarette. The neighbour sued the owner of the house and won. Held, the neighbour could • Reasonably have anticipated that the residents would smoke indoors; • Reasonably have anticipated that the cigarettes would not always have been properly extinguished • Reasonably have anticipated that those who sat on the settee might have dropped a cigarette and left it to smoulder • Reasonably have anticipated the coverings and materials in the settee were flammable • Have regulated smoking in the property to ensure safety • Taken steps to minimise the danger created by smoking in the premises, such as appointing a live-in manager or living in the property himself

16. www.lease-advice.org Can Mowanand Ribee be reconciled? • Nuisance vs. negligence • Was the landlord an ‘occupier’? • Only in negligence • Common parts?

17. www.lease-advice.org The story continues… • Brumby v Octavia Hill Housing Trust [2010] EWHC 1793 (QB) • Nuisance caused by drug dealer’s ‘visitors’ • Claim by tenant that landlord did not act quickly enough • Landlord sought to have the claim struck out • CA refused to strike out and referred the case to trial