No liability to tenant in nuisance where landlord lacks possession or control of neighbouring property

In Habinteg Housing Association v James ((1995) 27 HLR 299, CA (Eng)) HHA owned an estate. J was HHA’s tenant in a flat on the estate. The flat had its own separate entrance and there were no common parts. HHA covenanted to keep the structure and exterior in repair. J covenanted to give HHA access if necessary for the purposes of complying with the repairing covenant. J’s property suffered from an infestation of cockroaches for around six years until HHA took remedial action. J suffered damage valued at GBP 10,0000.

It was held, however, that there was no basis on which HHA was liable to J.

J sought to rely on the principle in Wringe v Cohen ([1940] KB 229). Waite LJ accepted that it was possible that the principle could be extended to read:

‘If a person suffers injury to their person or property as a result of a nuisance of any kind emanating from premises in the ownership of another person, that owner will be liable, notwithstanding that his premises may be let to, and occupied by, a tenant, if the owner has retained sufficient control under the terms of the tenancy to give him the power to step in and abate the nuisance.’ (at 305).

Even then, however, it would not apply to the facts of the case since (a) it had not been shown that the cockroach infestation had started in any property of the landlord’s and (b) the landlord did not have a sufficient degree of control over the rest of the estate for the principle to operate.

Michael Lower

 

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