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

Fearn v Trustees of the Tate Gallery

Introduction

The Trustees of the Tate Gallery created a viewing gallery on the top floor of the Blavatnik Building, part of the Tate Modern Museum. Visitors to the viewing gallery could see into some of the flats in a nearby development called Neo Bankside. Some visitors to the viewing gallery even brought binoculars, waved to the occupants of the Neo Bankside flats or took photos, some of which were posted to social media. The Neo Bankside residents were distressed by this intrusive behaviour. They brought proceedings in nuisance against the Trustees of the Tate Gallery (Fearn v Trustees of the Tate Gallery).

The Trustees argued that there was nothing objectionable about the installation of a viewing gallery. What’s more, to a significant extent the problem was caused by the unusual design of the Neo Bankside flats. The walls were made of glass from floor-to-ceiling. Clearly, this rendered the Neo Bankside residents unusually vulnerable to visual intrusion. In any event, the Neo Bankside residents could protect their privacy by, for example, using the solar blinds or having their windows treated to stop people being able to see through them from the outside. Further, the Trustees obtained planning permission from the local authority and this ought to be relevant to the question as to whether or not the viewing gallery created a nuisance.

The Supreme Court decision

The majority of the Supreme Court found that the Tate Gallery was liable in nuisance to the affected Neo Bankside residents. Lord Leggatt said:

‘It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo … it is beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimant’s properties.’ ([48]).

The Supreme Court remitted the case to the High Court for the determination of the appropriate remedy ([133]).

Nuisance

The law of nuisance balances the sometimes-clashing rights of neighbouring property owners to use their properties as they see fit. Nuisance protects ‘the utility and amenity value’ of land; it does not seek to protect occupiers from personal discomfort ([11]). Lord Leggatt pointed out that the concept of reciprocity lies at the heart of nuisance; the law balances the conflicting rights of landowners ([18]); the governing principle is good neighbourliness ([35]). The interference complained of must be substantial ([22]). Visual intrusion can be a nuisance ([16]).

The common and ordinary use of land

Lord Leggatt emphasised the central importance of asking whether the acts of the landowner complained of, and the neighbour’s rights that are interfered with, fall within ‘the common and ordinary use of land’. A landowner can’t complain if the use interfered with is not an ordinary use ([25]). The common and ordinary use if to be decided on having regard to the character of the locality ([38]).

Application to the facts

The construction and operation of the Tate’s viewing gallery did not fall within a common and ordinary use of its land ([50]). This was not like a case of people looking out of the windows of their own property and happening to see into the property of their neighbours. The Neo Bankside Residents could not complain if the residents of nearby flats, acting normally, could see them ([63]).

Here, however, the Tate constructed a viewing gallery, expressly for the purpose of looking out and then invited hundreds of thousands of people to do so. Lord Leggat observed: ‘the nature and extent of the viewing of the claimant’s flats goes far beyond anything that could reasonably be regarded as a necessary or natural consequence of the common and ordinary use and occupation of Tate’s land’ ([74]).

Did the flat owners bring it on themselves?

The unusual design of the Neo Bankside flats (with their floor-to-ceiling glass walls) was relevant ([61]). The Neo Bankside residents have no claim in nuisance against the residents of nearby flats, acting normally, who look into the Neo Bankside flats ([63]). But the design of the Neo Bankside flats was no defence for the Trustees of the Tate Gallery when they were not using their land ‘in a common and ordinary way’ ([65] and [69]). There was no basis ‘for regarding the glass walls of the claimants’ flats as unusual, either in the context of modern high-rise blocks of flats generally or in the particular locality’ ([79]).

Should the Neo Bankside residents be required to take protective measures?

The Trustees argued that there were simple steps that the Neo Bankside residents could take which would allow the continued operation of the viewing gallery while protecting the residents from the distress caused by visual intrusion. The windows had solar blinds which could be lowered or covering them with a privacy film would do the trick as might having lace curtains. Lord Leggat, however, rejected the notion that the burden should be on the Neo Bankside residents to mitigate the impact ‘of the special use’ of the Blavatnik Building ([84]).

The relevance of planning consent

The fact that the Trustees of the Tate Gallery had planning consent for the viewing gallery is not a defence to an action in nuisance. Planning law and private nuisance have different aims ([109] – [110]).

The public interest

While the fact an activity confers a public benefit is not a defence to an action in nuisance ([121]), public benefit can be relevant when it comes to deciding on the remedy (injunction or damages) ([126]).

Outcome

The Trustees of the Tate Gallery were liable in nuisance. The case was remitted to the High Court for the determination of the appropriate remedy ([133]).

Michael Lower