Nuisance: landlord cannot evade liability by granting a lease

A full repairing lease requires the tenant to put right anything that has gone wrong with the physical condition of the demised premises that falls short of renewal or improvement. When addressing whether required works fall on the ‘repair’ side of the dividing line, it may be appropriate to look at several items of required work together where there is some link between them and to ask whether, collectively, they amount to repair or renewal. Would the landlord be getting back something wholly different from what had been demised? A landowner who would be liable for nuisance cannot escape liability by granting a lease, even a full repairing lease.

In Brew Brothers Ltd v Snax (Ross) Ltd ([1970] 1 Q.B. 612, CA (Eng)) L granted T a full repairing lease of a building at the end of a terrace. The drains serving the building had been damaged (perhaps by a bomb dropped nearby during the Second World War). The result was that water caused damage to the foundations. As a consequence the flank wall had bulged and threatened to collapse onto the neighbouring petrol station. The wall had to be shored up and this shoring up impeded access to the forecourt of the petrol station. The tenant acknowledged that it was liable in nuisance to the owner of the petrol station. The questions were whether the landlord was jointly liable for the nuisance with the tenant and whether the required works fell within the scope of the repairing covenant.

The Court of Appeal held that the landlord was liable in nuisance. The shoring up works had been carried out under the joint instructions of the landlord and the tenant and so they were jointly liable for the ensuing obstruction. Phillimore L.J. said:

‘What of the landlords? In this case they had effective control of this building before letting it to the tenants in June 1965. On the judge’s findings, they ought to have known, as ought the tenants, of the dangerous state of this wall at that time: on his findings it already constituted a nuisance to the plaintiffs.

Is the fact that they took a full repairing covenant to excuse the landlords unconditionally of all liability? If so, a lease to a man of straw, or, if the landlord is a company, to a penniless subsidiary, would suffice, providing it was signed before the wall actually fell.’ (at 644)

By a majority, Harman LJ dissenting, the English Court of Appeal decided that the required works did not fall within the terms of the repairing covenant. The majority thought that the work to the drains, foundations and wall should be looked at as a composite whole. Looked at in that way, they were works of renewal and not of repair. The landlord was liable.

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