Introduction
Where a single landlord owns an entire building or estate with multiple tenants, are they responsible to their tenants for a nuisance created by one of their number? Can the other tenants, who suffer harm because of the actions of their anti-social neighbour, sue their common landlord? Are they restricted to bringing proceedings in nuisance against the tenant who caused the harm? This is the question addressed in the House of Lords judgment in Southwark LBC v Tanner ([2001] AC 1).
The facts in Southwark
Southwark LBC converted a house into flats. The work complied with the Building Regulations in force at the time but the sound-proofing between the flats was defective. As a result, the tenants could hear all the noises emanating from their neighbours’ flats (the sound of their televisions, the flushing of toilets and so on).
The tenants sued their landlord, Southwark LBC, in nuisance and for breach of the implied covenant of quiet enjoyment even though the problems were, in a direct sense, caused by the daily activities of their neighbours and co-tenants. Their aim was to get the landlord to carry out remedial works to improve the sound insulation in the block.
Nuisance
Nuisance ‘involves doing something on adjoining or nearby land which constitutes an unreasonable interference with the utility of the plaintiff’s land’ (Southwark, Lord Hoffmann at 15). Here, the claim was that the noises produced by the tenants made life unbearable for their neighbours, given the poor sound insulation between the flats.
The tenants’ nuisance claim failed for a variety of reasons. The tenants in the house were using their flats in a normal way and so could not be said to be committing a nuisance; a landlord can only be liable for a tenant’s nuisance if the tenant could also be liable (Southwark, Lord Hoffmann at 15).
Even if the tenants’ acts did amount to a nuisance, their landlord could only be liable if it had authorized the nuisance; that is, if the very act of granting the lease made the nuisance ‘close to inevitable’ (Coventry v Lawrence (No. 2) at [10]) or the landlord factually participated in the commission of the nuisance (Southwark, Lord Millett at 22).
Quiet enjoyment
Where the problem-causing tenant and the tenant suffering harm have the same landlord, the covenant for quiet enjoyment comes into play. The covenant for quiet enjoyment, if not express, is implied into all leases; it can be modified but not excluded entirely.
Lord Hoffmann explains that the covenant is ‘a covenant that the tenant’s lawful possession of the land will not be substantially interfered with by the acts of the lessor or those lawfully claiming under him’ (Southwark at 10).
The nuisance-causing tenant ‘lawfully claims under’ his landlord where the anti-social tenant is using his property in accordance with the terms of his lease; the landlord can then be liable on the covenant for quiet enjoyment to its other tenants harmed by the nuisance
The covenant is infringed when the landlord’s acts interfere with the tenant’s ability to use the property in an ordinary lawful way (Southwark at 10, Lord Hoffmann). The covenant for quiet enjoyment is prospective, landlords can be liable only for actions after the grant of the lease (Southwark, Lord Millett at 23).
Excessive noise for which the landlord is responsible might amount to a breach of the covenant (Southwark at 11, Lord Hoffmann). If the noise is produced by a tenant lawfully claiming under the landlord, the landlord can be liable to other tenants.
The tenants failed in Southwark LBC v Mills, however, because they got the property in the condition to which they were contractually entitled. They took their flats in their physical condition as at the date of their leases. They also entered into their leases in the knowledge that they would have neighbours whose occupation of their flats would generate some noise. The noise of their neighbours did not deprive them of their contractual rights under the terms of their leases.
Could a landlord be liable to tenant (A) for the actions of tenant (B)
Even if the acts of the tenants had amounted to a nuisance why should that trigger liability for their landlord?
Landlords can be liable in nuisance for the actions of their tenants where they authorized those actions, as explained above.
As explained above, a similar principle applies to the covenant for quiet enjoyment. Landlords are liable not only for their own actions but also for those who ‘lawfully claim under them’. They are liable for the actions of their tenants, but only where those tenants are using their property lawfully, that is in accordance with the terms of their lease (Southwark, Lord Hoffmann at 12).
What if the landlord knew of the problem being caused by its tenant, had the means to exercise control over the tenant but failed to do so?
A landlord cannot be said to authorize its tenant’s actions merely because it knew of the problem being caused by its tenant and did nothing to prevent it (Southwark, Lord Millett at 22 referring to Malzy v Eicholz [1916] 2 KB 308). This is a reasonable approach since otherwise neighbouring tenants of a common landlord would be free to bring nuisance proceedings against each other at the landlord’s expense.
Reconciling this approach with Chartered Trust plc v Davies
Southwark, and Malzy before it, say that landlords do not authorize the actions of their tenants (nuisance) nor do tenants claim under them (quiet enjoyment) merely because they knew about them, had the means to control them and took no steps to abate the problem.
Yet in Chartered Trust plc v Davies ((1998) 76 P & CR 396), a landlord granted a lease of a shop unit in a small shopping mall. The shop (Miss Davies was the tenant) was at the bottom of a cul-de-sac. One of the neighbouring tenants ran a café with tables and chairs outside and another ran a pawn-broking business. People waiting to access the pawn broker would congregate outside the café. The effect was to deter people from going to Miss Davies’ shop. She informed the landlord of the mall, but the landlord took no action.
The English Court of Appeal found that this failure to act, when it had notice of the problem, and had the power to make and enforce rules concerning the common parts that would deal with the problem, amounted to breach of the implied covenant of non-derogation from grant (essentially identical to the covenant for quiet enjoyment).
This seems to contradict the statement that landlords do not authorize the actions of their tenants (nuisance) nor do tenants claim under them (quiet enjoyment) merely because they knew about them, had the means to control them and took no steps to abate the problem.
There are two ways of approaching this. One is to say that Chartered Trust does indeed amount to a new approach, one placing a greater burden on landlords to police their tenants. Some of Henry LJ’s comments in Chartered Trust seem to endorse this view and to suggest a break with Malzy.
The alternative (the better approach, I suggest) is to argue that there is no clash here.
Rather, the landlord was directly liable because the actions took place on a common part of the mall which remained under the landlord’s control. The liability was for failure to adequately manage / regulate the use of the common parts. This is not the same as imposing liability on the landlord for actions that emanate from property demised to (under the control of) a tenant.
The idea that the landlord was liable because the problem arose from the common parts over which the landlord had rule-making powers is supported by an important passage in Chartered Trust. It involves no break with Malzy which was, in any event, later endorsed by the House of Lords in Southwark (with no mention of Chartered Trust as having altered the law).
Overlap between nuisance and quiet enjoyment
There is a high degree of overlap between the tort of nuisance and the implied covenant for quiet enjoyment. In Hilton v James Smith & Sons (Norwood) Limited ([1979] 2 EGLR 44), Ormrod LJ said that the ‘label’ (nuisance, quiet enjoyment, non-derogation) made little difference (Hilton at 44).
In Southwark, Lord Millett commented that a landlord’s liability to a tenant in nuisance would be sufficient (but not necessary) to establish liability on the covenant for quiet enjoyment (at 23).
The remedies for breach of the covenant for quiet enjoyment are damages on normal contractual principles but not aggravated damages for distress and inconvenience (Branchett v Beaney [1992] 3 All ER 910). It is doubtful whether the court will award exemplary damages (Perera v Vandiyar [1953] 1 WLR 672).
These limitations do not apply to nuisance claims. Injunctions are available in the case of either type of claim.
Only tenants can sue their landlords for breach of the covenant for quiet enjoyment (since it is a covenant implied into a lease).
Conclusion
Landlords are liable in nuisance for the actions of their tenants when they have authorized the nuisance. Where the ‘victim’ is a co-tenant of the same landlord, the landlord can also be liable for breach of the covenant for quiet enjoyment, but only where the nuisance-causing tenant is acting lawfully (as contemplated by the terms of their lease).
Michael Lower