Legal notes: Stop that nuisance

Allyson Colby looks at the extent of landowner’s liability where an occupier is interfering with a neighbour’s enjoyment of land Key points The law of nuisance offers a remedy against noisy or disruptive neighbours To establish liability for failing to prevent a nuisance, the person who failed to abate it must have been in a position to bring it to an end   A private nuisance is one that interferes with a person’s use or enjoyment of land, or of rights connected with it. The wrongdoing will, inevitably, originate from land nearby, but what is the position if it is not the owner of the land himself who is causing the nuisance? Can anyone else be liable for the wrongdoer’s actions? Lawrence v Coventry (t/a RDC Promotions) (No 2) [2014] UKSC 46; [2014] 3 EGLR 71 provided us with Supreme Court authority on the rules that apply where land is let to a tenant who is causing a nuisance. It confirmed that, in order to be liable, a landlord must either participate directly in the commission of the nuisance or must have authorised it by letting his property to a tenant in circumstances where the nuisance is, almost inevitably, the result of the letting. Landlords cannot be fixed with liability for nuisances caused by tenants merely because they do nothing about them and do not become liable for their tenants’ actions simply by failing to enforce covenants that would end the nuisance. Licensors Are these same tests applicable to licensors as well? In Cocking v Eacott [2016] EWCA Civ 140; [2016] PLSCS 78, the Court of Appeal was asked whether a landowner was liable for a nuisance caused by a licensee, even though she did not live in the property from which the nuisance was originating. The premises were occupied by the landowner’s daughter, who lived there rent-free and kept a dog that barked incessantly when she was not at home. The neighbours said that they had been driven to distraction by the barking and by abusive shouting over a two-year period (which ceased when the landowner’s daughter became the subject of an anti-social behaviour order). They claimed that the landowner was liable for the nuisance because she had done nothing about it – and had even defended her daughter’s actions. The landowner had tried to persuade the trial judge that she was not liable for the nuisance because she had not been personally involved in any of the incidents. She had written to her daughter asking her to conduct herself in a neighbourly fashion, but had no control over her actions. Furthermore, latterly, she had fallen out with her daughter and the police had warned against contact with her while they were estranged. The judge agreed that the landowner was not liable for the shouting because she had not known about it until late in the day and it had ceased shortly afterwards. However, he ruled that the landowner was liable for the noise caused by the dog, which she did know about, because she had been “in complete control of the property” and had failed to abate the nuisance by removing her daughter and/or the dog from the premises. Court of Appeal After considering authorities dating back to White v Jameson (1874) 18 Eq 303, and more modern cases, including Page Motors Ltd v The Borough Council of Epsom and Ewell (1980) 78 LGR 505 and Winch v Mid-Bedfordshire District Council [2002] All ER (D) 380 (Jul), the Court of Appeal concluded that the law was clear. Wrongdoers, occupiers, and landlords may all be liable in nuisance – and, for these purposes, an occupier is someone who is in possession and control of land. Landlords have limited liability because responsibility for nuisance rests with those who cause it – and a landlord does not possess or control the property from which the nuisance emanates. Occupiers are in a different position. They will normally be responsible for a nuisance, even if they did not directly cause it, because, as was stated in Sedleigh-Denfield v O’Callaghan [1940] AC 880, they possess and control their land. This justifies treating occupiers differently from landlords. Furthermore, a landowner may be regarded as an occupier for these purposes, even though he allows others to inhabit or use his premises. Therefore, landowners will be liable in tort for nuisances caused by their licensees, or indeed trespassers, if they adopt or continue a nuisance by failing to abate it. Furthermore, they are under a duty to put an end to the nuisance, as opposed to taking only reasonable steps to do so, without undue delay after they become aware, or should with reasonable care have become aware, of it. The daughter was required to vacate the property to bring the unhappy neighbourly relationship to a close, and she and her mother were ordered to pay £3,500 and £1,000 in damages respectively. The legal bills will, no doubt, have been considerably higher. Grey areas Vos LJ indicated that some arrangements, described as licences, will actually be tenancies, or so much like a tenancy that the landowner could not properly be regarded as an occupier in the relevant sense. However, this was not the case here; the landowner’s daughter had never had anything more than a bare licence to live in the property. Arden LJ went further. She considered that cases must turn on their own particular facts, and on the terms of the lease or licence. For example, if a landlord has covenanted to inspect and clean his tenant’s drains and a nuisance develops as a result of the tenant’s use of the drains and the landlord’s failure to comply with his obligations, it might be difficult for the landlord to escape liability by arguing that he has parted with possession to the tenant. Allyson Colby is a property law consultant