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NUISANCE CLAIMS
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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”
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What constitutes a nuisance?
• Noise
• Smells
• Obstruction
• Dust
• Fumes
• Unlikely for a temporary problem
• Unless disruption is extreme
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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
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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!
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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
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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
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‘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
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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
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Comparison with nuisance
• Long v Southwark LBC [2002] EWCA Civ 403 – a claim
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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
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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
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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
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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
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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
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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
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Conflicting case?
• Ribee v 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
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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
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Can Mowan and Ribee be
reconciled?
• Nuisance vs. negligence
• Was the landlord an ‘occupier’?
• Only in negligence
• Common parts?
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The story continues…
• Brumby v Octavia Hill Housing Trust [2010] EWHC 1793
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(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