Landlord’s liability for a tenant’s nuisance

Introduction

Imagine that the resident of a nearby flat regularly plays loud music late at night or, perversely, decides to carry out noisy renovation works during the late evening.

These acts may well amount to a nuisance, a failure by your neighbour to exercise their ownership rights in respect of their home in a way that has proper regard for your rights as the owner of your home.

Lord Millett explained in Southwark LBC v Tanner ([2001 1 A.C. 1) that the law of nuisance requires landowners ‘to show the same consideration for his neighbour as he would expect his neighbour to show for him’.

Intrusive noise-making late at night surely fails to live up to this standard of good neighbourliness, even if you write to apologise in advance for the disturbance and distress you plan to inflict on your neighbours.

The victim of nuisance has the right to bring proceedings against their neighbour to force them to discontinue their unlawful actions.

Landlord’s liability for a tenant’s nuisance

If the person causing a nuisance is a tenant, can their landlord also be liable for the actions of their tenant? The landlord may have deeper pockets than the tenant; and liability would incentivize the landlord to use the rights conferred on it by the lease to bring a rogue tenant under control.

This was one of the questions explored in Southwark LBC v Tanner. The House of Lords decided that landlords are liable for a nuisance committed by their tenant if they can be said to have ‘authorised’ that nuisance.

Lord Millett explained that:

‘It is not enough for them to be aware of the nuisance and take no steps to prevent it. They must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property’ (Southwark LBC v Tanner at 22 referring also to Malzy v Eichholz [1916] 2 KB 308).

They must in some way have played a part in the nuisance or else the very fact of entering into the lease must have made the nuisance ‘close to inevitable’ (Coventry v Lawrence (No. 2) at [10]).

So landlords will only be liable for a tenant’s nuisance if they can be said, in some sense or other, to have intended it. Knowing about it, even if they could bring legal proceedings to restrain the nuisance-causing tenant, is not enough.

Another way of putting it is that the essence of a lease is that the landlord gives up possession of (control over) the property to the tenant. If the landlord cannot control what is done, it would be unfair to impose liability on the landlord.

It is different in the case of licensees

Where the problem is caused by a licensee of property, it is much easier to argue that the licensor has retained possession and control of the property.

A licensor will be liable for acts of the licensee if it fails to put a stop to a nuisance that it knew of (or could have discovered with reasonable care).

This is on the basis that the licensor retains possession / control and can bring an end to the problem by terminating the license.

In Cocking v Eacott and Waring, a mother allowed her daughter to live in a house owned by the mother; the mother lived elsewhere. The excessive barking of the daughter’s dog over a prolonged period amounted to a nuisance.

The mother was liable because she knew of the problem and failed to deal with it, which she could have done by making her daughter leave the house.

This may not, however, apply to all licences. Vos LJ alludes to the fact that there may be licences which are ‘akin to a tenancy’ (presumably contractual licenses conferring possession on the licensee) (at [29]). In such a case, it may be more difficult to argue that the liability for the licensor depends on the same criteria as for landlords.

Michael Lower