No liability in nuisance for the ordinary use of residential premises. The principle of caveat lessee.

There is no liability in nuisance for the ordinary use of residential premises. Landlords are not liable to tenants in nuisance in respect of a state of affairs that existed at the date of the lease.

In Baxter v Camden LBC (No 2) ([2001] Q.B. 1, CA (Eng)) the council had converted a house into three flats (one flat on each floor). The work had been done in accordance with the building standards of the time but these standards did not require the installation of adequate sound insulation between the floors. The tenant of the middle floor complained of the noise from the flats above and below her. These noises were occasioned by the ordinary use of the flats but the lack of sound insulation meant that they could be heard clearly and were a source of great stress to the tenant. She brought proceedings in nuisance against the council.

These failed because the noises were the result of the ordinary use of residential premises and this could not amount to a nuisance. ‘Ordinary use may only give rise to a nuisance if it is unusual or unreasonable having regard to the purpose for which the premises were constructed.’ (per Tuckey L.J. at 12). The claim also failed because the cause of the problem existed at the date of the lease. While it is normally no defence to say that the plaintiff came to the nuisance, this does not apply in the case of landlord and tenant. Here there is a principle of caveat lessee when it comes to the state of the property (per Tuckey LJ at 12 – 13). It would have been different if the inadequate conversion works had taken place after the date of the lease.

On the facts, the landlord was not liable in negligence. The work had been done properly according to the standards of the time.

Tuckey L.J. provided this general statement of the law of nuisance:

‘The essence of the tort is undue interference with the use or enjoyment of land and the right of the plaintiff not to be interfered with. In striking this balance in the case of noise nuisance, and other nuisances of this type, the court will obviously have to consider the locality, age and physical characteristics of the premises in question. Occupiers of low cost, high density housing must be expected to tolerate higher levels of noise from their neighbours than others in more substantial and spacious premises.’ (at 10).

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