Landlord and tenant — Covenant for quiet enjoyment — Flats with inadequate soundproofing — Whether landlords obliged to provide soundproofing works
The appellant
landlords own a block of flats erected after the first world war. The
soundproofing of the individual flats is wholly inadequate. Pursuant to an
arbitration clause in their tenancy agreements, the tenants sought a resolution
of the soundproofing problem. In its final award, the local arbitration tribunal,
acting under the arbitration clause that allowed the reference of disputes
arising out of breach of the obligations of the tenancy agreements, considered
the covenant for quiet enjoyment and ordered the landlords to carry out
soundproofing works. In the court below Laddie J decided he was bound by
authority to hold that there was a breach of the covenant for quiet enjoyment
because each tenant was unduly interfered with by noise generated by ordinary
use of the premises by other tenants in the manner contemplated by the
lettings. He upheld the decision of the tribunal. The landlords appealed.
not a precondition to an action for breach of covenant of quiet enjoyment.
There were two conflicting lines of authority binding on the court: Duke of
Westminster v Guild [1985] QB 688 is to be preferred. The express
covenant for quiet enjoyment cannot be invoked to impose positive obligations
to perform acts of repair that the landlord would not otherwise be under an
obligation to perform. There was not an abstract standard of quietness to which
every tenant with a covenant for quiet enjoyment was entitled irrespective of
the circumstances in which he executed the lease and the location of the
property.
The following
cases are referred to in this report.
Baxter v Camden London Borough Council [1998] 22 EG 150; (1997) 30
HLR 501
Boys v Chaplin [1968] 2 QB 1; [1968] 2 WLR 328; [1968] 1 All ER
283, CA
Chartered
Trust plc v Davies [1997] 2 EGLR 83; [1997]
49 EG 135
Hilton v James Smith & Sons (Norwood) Ltd [1979] 2 EGLR 44;
(1979) 251 EG 1063
Hunter v Canary Wharf Ltd; Hunter v London Docklands Development
Corporation [1997] AC 655; [1997] 2 WLR 684; [1997] 2 All ER 426, HL
Investors
Compensation Scheme Ltd v West Bromwich Building
Society [1998] 1 WLR 896; [1998] 1 All ER 98, HL
Miliangos v George Frank (Textiles) Ltd [1976] AC 443; [1975] 3 WLR
758; [1975] 3 All ER 801; [1976] 1 Lloyd’s Rep 201, HL
O’Leary v Islington London Borough Council (1983) 9 HLR 81
Owen v Gadd [1956] 2 QB 99; [1956] 2 WLR 945; [1956] 2 All ER 28,
CA
Queensway
Marketing Ltd v Associated Restaurants Ltd
[1988] 2 EGLR 49; [1988] 32 EG 41
Queensway
Marketing Ltd v Associated Restaurants Ltd
[1984] 2 EGLR 73; (1984) 271 EG 1106
Quick v Taff-Ely Borough Council [1986] QB 809; [1985] 3 WLR 981;
[1985] 3 All ER 321; (1985) 84 LGR 498; [1985] 2 EGLR 50; 276 EG 452, CA
Sampson v Hodson-Pressinger [1981] 3 All ER 710, [1982] 1 EGLR 50;
(1981) 261 EG 891, CA
Sanderson v Mayor of Berwick-on-Tweed (1884) 13 QBD 547
Smith v Scott [1973] Ch 314; [1972] 3 WLR 783; [1972] 3 All ER 645
Sturges v Bridgman (1879) 11 ChD 852
Welsh
Development Agency v Redpath Dorman Long Ltd
[1994] 1 WLR 1409; [1994] 4 All ER 10
Westminster
(Duke of) v Guild [1985] QB 688; [1984] 3
WLR 630; [1984] 3 All ER 144; (1983) 48 P&CR 42; [1983] 2 EGLR 37; [1983]
EGD 541; 267 EG 762, CA
Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1944] 2 All ER
293
This was an
appeal by the landlords, Southwark London Borough Council, from a decision of
Laddie J, who had dismissed their appeal against a decision of Southwark
Arbitration Tribunal in proceedings brought by the tenants, Mr Mills and
others.
Patrick Elias
QC and Donald Broatch (instructed by the solicitor to Southwark London Borough
Council) appeared for the appellants; Kim Lewison QC and Jan Luba (instructed
by Anthony Gold Learman & Muirhead) represented the respondents.
Giving the
first judgment, MANTELL LJ
said: The appellants are the housing authority for Southwark. As such they own
a large number of tenanted properties, including a block of flats in Casino
Avenue. The block was ‘jerry-built’ at the end of the first world war and falls
far short of the standard that would be necessary under present-day building
regulations. In particular, the soundproofing of the individual flats is wholly
inadequate, so that the occupants hear pretty well everything (and I mean
everything) that is said or done by their neighbours. It is intrusive,
inconvenient and often embarrassing.
So it was that
some of the tenants engaged the arbitration clause in the tenancy agreement,
and on February 8 1994 wrote to the appellants’ chief executive in the
following terms:
We, the
tenants of the flats 38–84 even nos Casino Avenue, Herne Hill, have signed this
petition because we are totally dissatisfied with the non-existence of any form
of soundproofing in our homes. This has caused the break down of relations
between neighbours. As individuals we have approached Southwark Council many
times all to no avail. We now wish the matter to go to arbitration so that our
complaint may be suitably resolved.
The matter
first came before Southwark Arbitration Tribunal on April 8 1994 when, by way
of interim award, the tribunal ordered the council to provide a surveyors’
report within 30 days on the work necessary to soundproof the structure. By a
further interim award of July 15 1996, the council were required to produce at
a still later hearing a copy of the building regulations that, to quote from
the award, ‘permits the continuation of the present unreasonable situation’,
and also to provide an update on the cost of installation of soundproofing in
respect of the different types of dwelling. The final award came on August 1
1997, by which the tribunal reviewed the evidence on the tenants’ and the
landlords’ side; remarked upon the fact that it had been the tribunal’s
experience on a site visit that the noise levels were unacceptable; rejected
the appellants’ suggestion that soundproofing should be carried out as and when
flats became vacant; observed that the cost of carrying out soundproofing would
be in the order of £8,000 per flat; and finally held that the council ‘remains
obligated to carry out effective sound proofing of the flats’, which were then
identified. The order was in the following terms:
1. That the
Council decant the tenants in phases and carry out the work to minimise
disruption.
2. Carry out
the work as outlined in ‘Casino Avenue — sound installation work’ paragraph 2
p2 of the bundle.
3. Check that
sound proofing already carried out complies with John Pellings’ (a surveyor’s)
recommendation.
In making its
award the tribunal was acting under clause 30(5)(a), which allowed reference to
the tribunal in case of a dispute ‘arising out of alleged breach by either the
Council or the tenant of her/his obligations under this agreement’ and clause
30(6)(i)(c), which gave the tribunal power ‘to order either the Council or the
tenant to do or refrain from doing anything in order to secure compliance with
the obligations of this Agreement’. In the course of the interim award of July
15 1996 the tribunal recorded that ‘all the tenants had complained that the
unreasonable sound interference arising from mutual activities constitutes a
violation of their Tenancy Agreement with the Council especially clause 1’. And
in para 4 of the interim award: ‘It is our view that relevant orders can be
made by the Tribunal under clause 1 of the Tenancy Agreement’. Clause 1 of the
standard terms and conditions provides:
The tenant’s
right to remain in and enjoy the quiet occupation of the dwelling house shall
not be interfered with by the Council except as set out in clauses 2(2), 16 and
27.
The exceptions
cover the right in law to recover possession and the right to enter in certain
specified circumstances, and are not material for present purposes. In short,
therefore, the tribunal found that the appellants were in breach of the
covenant for quiet occupation by reason of their failure to provide adequate
soundproofing.
The appellants
were dissatisfied with the tribunal’s decision. They sought and obtained leave
to appeal to the High Court. The grounds relied upon as set out in the amended
notice of originating motion were as follows:
1. The
tribunal acted outside its jurisdiction, as set out in the arbitration clauses
of the Southwark tenancy agreement, in granting the respondents relief in
respect of alleged inadequate soundproofing.
2. The dispute
giving rise to the award challenged herein was not a dispute falling within
clause 30(5) of the agreement, and the tribunal had no power or jurisdiction to
make an award relating to the matter.
3. The
allegation of lack of adequate soundproofing did not amount to an allegation of
a breach of any of the landlords’ covenants under the agreement, in particular
the landlords’ repairing obligations, whether arising by virtue of the covenant
in the tenancy agreement or by virtue of the statutory covenant under section
11 of the Landlord and Tenant Act 1985.
4. The
tribunal erred and acted without jurisdiction in purporting to grant relief in
respect of alleged noise nuisance. The noise complained of was that generated
by tenants in neighbouring flats in the normal course of daily living, and did
not (and was not alleged to) amount to
could not, amount to a nuisance in law.
5. Further,
and in any event, a landlord is not, without more, liable in respect of a
nuisance generated by a tenant within the tenant’s demise: see Smith v Scott
[1973] Ch 314; O’Leary v Islington London Borough Council (1983)
9 HLR 81.
The appeal
came before Laddie J on February 25 1998. It was argued for the appellants that
the effect of the tribunal’s award was to treat the covenant for quiet
possession as imposing on the landlords an obligation to carry out a programme
of effective soundproofing of the tenants’ flats. It was submitted that it
would be bizarre if the standard covenant for quiet possession imposed on a
landlord a greater obligation than he had undertaken through the repairing
obligations in the lease so as to require the landlord to keep the property up
to the standards of the present day, and, further, that the law did not permit
a covenant for quiet possession to be pressed into service for such a purpose.
Against that
submission, counsel for the tenants drew the judge’s attention to the decision
of this court in Sampson v Hodson-Pressinger [1981] 3 All ER 710*
and the very recent decision, also of this court, in Baxter v Camden
London Borough Council (1997) 30 HLR 501. It was said that those two
authorities, and, in particular, the second, were directly in point. Counsel
for the tenants argued that the law had now become such that a landlord of two
adjoining tenants may be in breach of the usual covenant for quiet enjoyment
owed to each by reason of the fact that the reasonable enjoyment of his home by
each tenant is unduly interfered with by noise generated by ordinary use of the
premises by the other tenant in the manner contemplated by the letting. Counsel
did not deny that to construe the covenant for quiet possession in such a way
would, in some cases, give the tenant greater rights than under the covenant to
repair and, in many cases, it would become indistinguishable from a covenant to
improve. The judge accepted that the two authorities cited were to the point
and binding upon him. He upheld the tribunal.
*Editor’s
note: Also reported at [1982] 1 EGLR 50
Once again the
appellants were unimpressed and now seek to have the decision reversed by this
court. The grounds of appeal pose the following question of law:
Where A is a
tenant of a landlord L of residential premises (flat 1), and L lets
neighbouring like premises in the same building (flat 2) to B and the
construction of the building is such that A & B are disturbed by the noises
of normal ordinary life generated by each other to an extent which interferes
with reasonable enjoyment of each flat, is L by reason thereof only, in
breach of the usual covenant of quiet enjoyment owed to the tenants, either in
respect of A, or in respect of B, or in respect of both?
In the grounds
it is contended that the judge was wrong to follow the cases of Baxter
and Sampson in preference to other Court of Appeal authority, and the
appellants resurrect the arguments presented to the judge that the covenant of
quiet enjoyment cannot be employed to secure structural improvements. Then the
appellants raise a ground that does not seem to have been argued before the
judge, to the effect that the activities of a neighbouring tenant of a common
landlord can only amount to the breach of the covenant of quiet enjoyment if
those activities: (a) amount to nuisance at common law; and (b) have been
authorised by the landlord. In this court the appellants’ submissions have
focused on the second ground, though the only live issue is (a), it being
accepted, for the purposes of the submission, that the conduct complained of
was authorised.
The argument
proceeds. Clause 1 is simply an idiosyncratic version of the traditional
covenant of quiet enjoyment as interpreted by the courts on innumerable
occasions in the past. That is uncontroversial. Breach of the covenant may
occur not only where possession or title to the land is interfered with but
also where the ordinary and lawful enjoyment of the demised land is
substantially interfered with by the acts of the lessor or those claiming under
him. That too is uncontroversial. However, we are not on common ground for the
next two propositions which are, first, that the acts alleged to constitute the
breach must be such as would support an action in nuisance and, second, that an
action in nuisance will not lie in respect of ordinary and reasonable user of
land. Whereas authority is put forward in support of the second proposition,
none is cited for the first, save as examples of concurrent liability in tort
and for breach of covenant, namely Hilton v James Smith & Sons
(Norwood) Ltd [1979] 2 EGLR 44, Sampson v Hodson-Pressinger
[1981] 3 All ER 710 and Chartered Trust plc v Davies [1997] 2
EGLR 83.
Mr Kim Lewison
QC, for the tenants, responds by saying that nuisance is not a precondition to
an action for breach of covenant of quiet enjoyment, though it may be that the
acts complained of would coincidentally support an action in tort.
I find myself
in total agreement with Mr Lewison’s submission. It may very well be the case
that one would be hard pressed to find examples of breach of covenant arising
out of the use to which neighbouring land has been put that would not also
constitute an actionable nuisance: but, as a matter of legal principle, the
question of breach is to be judged by reference to the scope of the covenant
and the acts or omissions of which complaint is made. In my opinion, the
introduction of any other consideration is unwarranted.
So I would
reject the appellants’ first and main submission, without regard to whether or
not the conduct complained of in this case would support an action in tort, and
I concentrate instead on the issue that occupied the judge.
Before Laddie
J it was accepted that clause 1 is indistinguishable from the usual covenant of
quiet enjoyment. It seems to have been conceded on behalf of the tenants and
acknowledged by the judge that the construction for which the tenants contended
would have the practical effect of imposing upon the landlords an obligation to
improve the demised premises. With that I agree; but, being careful to guard
against confusing the scope of the covenant with any remedy available for its
breach, one should look closely to see precisely what the tenants’ case was and
is. A way of doing that is to see what it is the tenants complain about — in
other words to identify the alleged breach. They do not complain about the
noise that their neighbours make: they complain that they are not shielded from
it. So, it seems plain to me that the tenants in reality are contending that
the covenant of quiet occupation includes a promise by the landlords to provide
adequate soundproofing. Any alternative analysis would be wholly artificial and
inconsistent with the approach that was adopted by the tribunal.
Unencumbered
by authority I would be reluctant to construe a covenant of quiet enjoyment as
encompassing a promise to alter or improve the demised premises. The covenant
has to be read in the context of the agreement, which seeks to define the
landlords’ obligations to repair and maintain, and which also fixes the rent,
presumably, in part at any rate, by reference to the condition of the premises.
Also, as a matter of English usage, the traditional wording of the covenant not
to ‘interrupt’ or ‘interfere with quiet enjoyment’ would seem to imply something
done or not done by the landlords after the tenancy has been granted.
When I turn to
authority I find some support for that first impression. In general, at common
law, there is no implied covenant by the lessor of an unfurnished house or flat
that the house or flat is or shall be reasonably fit for habitation or
occupation. Moreover, the courts have been reluctant to impose a duty to repair
under an express covenant if the effect of doing so would be to import an
implied covenant to improve. In Quick v Taff-Ely Borough Council
[1986] QB 809* the housing authority had let a house with such poor insulation
and inadequate heating that the resulting condensation had caused decorations,
woodwork, furnishings, bedding and clothing to rot. The living conditions were
described as appalling. The plaintiff brought proceedings in the county court
alleging that the housing authority were in breach of their covenant implied
under the Housing Act 1961,
order for specific performance of the covenant. The county court judge found
for the plaintiff. His decision was reversed on appeal. The court, consisting
of Dillon, Lawton and Neill LJJ, held that an implied covenant to repair could
not be invoked to require works that would involve improvement of the
structure. Although that case was not concerned with the scope of a covenant of
quiet enjoyment, the principle involved would seem to be of general
application. Lawton LJ said at p821F:
*Editor’s
note: Also reported at [1985] 2 EGLR 50
The standard
of repair may depend on whether the house is in a South Wales valley or in
Grosvenor Square; but, wherever it is, the landlord need not do anything until
there exists a condition which calls for repair. As a matter of the ordinary
usage of English, that which requires repair is in a condition worse than it
was at some earlier time. This usage of English is, in my judgment, the
explanation of the many decisions on the extent of a landlord’s or a tenant’s
obligation under covenants to keep houses in repair. Broadly stated, they come
to this: a tenant must take the house as he finds it; neither a landlord nor a
tenant is bound to provide the other with a better house than there was to
start with; but, because almost all repair work requires some degree of
renewal, problems of degree arise as to whether after the repair there is a
house which is different from that which was let.
A case that
was not cited before us or to Laddie J, or the court in Baxter, but
which does seem to have a direct bearing on the question, is Duke of
Westminster v Guild [1985] QB 688*. The plaintiffs had demised
premises to the defendant and retained the adjoining land. A drain passing
under the retained land, but which only served the demised premises, was
discovered to be defective as a result of becoming blocked in that part where
it passed under the retained portion. In an action to recover arrears of rent
the defendant claimed to set off the expense of constructing a new drain. On
the trial of a preliminary issue as to whether the plaintiffs were liable to
repair and maintain the drain, the judge held that the plaintiffs had an
obligation under the lease to keep the drain in good repair and a duty to take
reasonable care to keep the drain, where it was not subadjacent to the demised
property, in repair and unobstructed. The plaintiffs appealed. The appeal was
allowed, the court holding that there was no implied covenant that the lessor
was under an obligation to carry out the works of repair and, further, in the
words of Slade LJ at p703F:
*Editor’s
note: Also reported at [1983] 2 EGLR 37
The express
covenant for quiet enjoyment and implied covenant against derogation from grant
cannot in our opinion be invoked so as to impose on them [the plaintiffs]
positive obligations to perform acts of repair which they would not otherwise
be under any obligation to perform.
However, on
the other side of the argument there are three cases, two of which I have
referred to already. The third and most venerable has not yet been mentioned: Sanderson
v Mayor of Berwick-on-Tweed (1884) 13 QBD 547. It is, incidentally,
authority for the proposition that the covenant of quiet enjoyment may be
breached when the ordinary and lawful enjoyment of the demised land is
substantially interfered with by the acts of the lessor or those claiming under
him. But it is also important for its facts. The defendant had separately let
adjoining farms, A and B, which shared a common drainage system. Surplus water
from farm A was taken off through drains on farm B. The tenant of farm A
overloaded the drains passing through his land so as to cause flooding to field
O on farm B. However, flooding to field Q also occurred without overloading as
a result of the drains in field Q not having been properly constructed. The
tenant of farm B sued the common landlord in respect of both occasions when his
land had been flooded. He failed in respect of the first, but succeeded in
respect of the second. The reason why he failed in respect of the flooding
caused by overloading was that the damage had been caused by the independent
and unauthorised act of the other tenant. The reason for his succeeding in
respect of the damage caused by the proper use of the badly constructed drains
is set out in the judgment of Fry LJ at p551:
As regards
the damage in the field Q different considerations apply, because the damage
here has resulted to the plaintiff from the proper use by Cairns [the
neighbour] of the drains passing through the plaintiff’s land which were
improperly constructed. In respect of this proper user Cairns appears to us to
claim lawfully under the defendants by virtue of his lease, and to have acted
under the authority conferred on him by the defendants. The injury caused to
the field appears to us to have been, within the meaning of the covenant in
that behalf contained in the lease to the plaintiff, a substantial interruption
by Cairns, who is a person lawfully claiming through the defendants, of the
plaintiff’s enjoyment of the land, and so to constitute a breach of the
covenant for quiet enjoyment for which the defendants are liable for damages.
Although the
mischief complained of in that case was very different in all other respects, I
find it impossible to distinguish the facts from the case under consideration.
In Sampson
v Hodson-Pressinger the defendant was the owner of a Victorian house
that had been converted vertically into apartments and had been let to tenants
under agreements containing the usual covenant of quiet enjoyment. One of the
upper-storey apartments had made use of the flat roof of the apartment below as
a terrace. The terrace had been laid with tiles and when walked upon caused
noise that was of considerable annoyance to the tenant of the apartment below.
He sued both the landlord and the neighbour. His claim was framed in nuisance.
He succeeded in the county court and successfully resisted the appeal. In the
course of giving judgment in this court, Eveleigh LJ said at p714:
Apart from
the question of common law nuisance, the plaintiff’s lease contains the usual
covenant for quiet enjoyment, that is that the tenant may use the premises
without interference by the landlord or those claiming under him. The
contemplated use for which the original landlord let flat 7 to the first
defendant was one which interfered with the reasonable enjoyment of the
plaintiff’s flat. Consequently that landlord was, in my opinion, in breach of
the covenant for quiet enjoyment. The plaintiff’s enjoyment of the demised
premises was unlawfully interrupted by the first defendant, a person lawfully
claiming under the lessor. The plaintiff has not pleaded the case on this
basis, but it is a relevant consideration when I later come to consider
contribution.
It is not
entirely clear from the report whether the plaintiff had taken his lease before
the terrace was constructed, but it does not seem that the court considered the
order of events to be of any real significance.
The passage
cited from Sampson is obiter, but once again the case lends
powerful support to the respondents’ argument.
Sampson‘s case was cited to this court in Baxter v Camden London
Borough Council. The plaintiff lived in a flat that was on the first floor
of a three-storey converted terrace house. The conversion had been carried out
by the housing authority prior to the plaintiff taking up occupation. The
conversion complied with building regulations, but the sound insulation between
the flats was so bad that the plaintiff could hear all the normal domestic
activities of her neighbours. She claimed damages for breach of the covenant of
quiet enjoyment. She failed at first instance, but succeeded on appeal. The
court, consisting of Butler-Sloss LJ and Sumner J, agreed. It seems that the
county court judge had thought that the lack of any duty on the part of the
borough council to improve the premises had some bearing on the question of
nuisance. Sumner J considered that the judge was wrong in so thinking. Being
directed to the question of nuisance, that observation has no immediate
relevance to the case that this court has to consider, unlike the following
passage at p504, which clearly has. Having referred to a number of authorities,
including Sampson v Hodson-Pressinger, Sumner J said:
I draw from
them the following conclusions. A landlord is liable for any mischief that
arises from the natural and necessary result of what he has authorised and
required. He is held to know or presumed to know what the natural and necessary
result will be, and he is equally liable if his reason for not having that
knowledge was failure to use reasonable care to ascertain it. It is no defence
to a claim in nuisance that the premises are being used in a normal way if the
premises are not fit to be used in a normal way without interfering with the
reasonable enjoyment of adjoining occupiers. Equally the landlord will be held
liable for breach of the implied covenant of quiet
the adjoining flat, was one which interfered with the reasonable enjoyment of
the premises in question. The date of actual presumed knowledge is the date of
the letting to the plaintiff.
On any fair
reading Baxter cannot be distinguished on its facts from the instant
case. If correctly decided or binding upon us, it puts an end to the argument.
So this is the
dilemma. There are two conflicting lines of authority, both binding on the
court. One, culminating in Duke of Westminster v Guild, coincides
with the conclusion that my own powers of reasoning, such as they are, have
allowed me to reach. The other terminates in Baxter and fully supports
the conclusion of the judge in the instant case. Try as I might, I have been
unable to effect a reconciliation. Nor can I avoid the confrontation by reason
of Baxter being a decision of a two-judge Court of Appeal. The exception
to the general rule only applies where the decision of the two lord justices is
on an interlocutory appeal: see Boys v Chaplin [1968] 2 QB 1 per
Lord Denning MR at p23C–G, Lord Upjohn at p30B and Diplock LJ at p36B–C, and Welsh
Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409 per
Glidewell LJ at p1423B. In any event, the court in Sanderson v Mayor
of Berwick-on-Tweed consisted of Brett MR and Bowen and Fry LJJ. In Young
v Bristol Aeroplane Co Ltd [1944] KB 718 Lord Greene MR identified the
only exceptions to the rule that the Court of Appeal is bound to follow
previous decisions of its own as well as those of courts of co-ordinate
jurisdiction, the first such exception being that the court is entitled and
bound to decide which of two conflicting decisions of its own it will follow. I
am very conscious of the fact that Duke of Westminster v Guild
was not referred to in argument before this court. I have reminded myself of
what was said by Lord Simon of Glaisdale in Miliangos v George Frank
(Textiles) Ltd [1976] AC 443 at p478C:
First, where
a ‘court does its own researches itself’, as it often will and sometimes must,
it should proceed with special caution since it is thereby acting without the
benefit of adversary argument. Secondly, where such research throws up an
authority or argument which is material (even if only to be finally
distinguished or rejected), it is better that it should be mentioned in the
judgment, for the benefit of those who have subsequently to consider the
judgment. Thirdly, although certainly a case is not decided per incuriam
merely because it is argued on one side only … the absence of a contrary
argument will sometimes make it easier to establish a per incuriam
exception, and in any case a judgment in undefended proceedings or a decision
on an uncontested issue tends to have less authority than one given after
argument on both sides.
In the end,
however, I have come to the conclusion that Duke of Westminster v Guild
is to be preferred and, for that reason, I would allow this appeal.
Additional
judgment
Since
completing and distributing my judgment, Mr Lewison has asked for leave to
raise some points relating to my interpretation of Duke of Westminster v
Guild, which, as he rightly discerns, formed one of the foundations for
my judgment.
He takes four
points. He says, first of all, that that case was concerned with the escape of
water from the demised premises and not the irruption of noise into the demised
premises. Although factually that may be a distinction, it does not seem to me
to be a distinction of any great weight. In fact Guild was concerned
with a blocked drain that was causing water to back up into the demised
premises and consequently just as liable to interfere with the enjoyment of the
demised premises as would have been the case had it originated elsewhere.
His second
point is that the dictum that I cited from the case of Guild is
concerned with remedy. I do not read it in that way. What the court was
concerned with in Guild was the scope of the covenant of quiet
enjoyment. That, I hope, has been my concern also. The question is whether or
not the covenant of quiet enjoyment includes a promise on the part of the
landlord to do something to the demised premises.
The third
point that he takes is the one that I find most troubling. He says that Sanderson
v Mayor of Berwick-on-Tweed, which I have allowed to be a binding
precedent subject to any contradictory authority, was not cited in the case of Guild;
nor was it. However, in Guild the various propositions put forward on
one side, as it happens by Mr Lewison, were argued very fully and the court
considered all the questions that seemed to be raised by the facts in that case
at considerable length, and the judgment that was delivered in respect of those
matters was in itself of some length and very carefully constructed. I am not
persuaded that I am wrong to follow the case of Guild rather than the
authority from the last century.
The fourth
point that Mr Lewison takes is really another way of expressing his first,
namely that Sanderson was dealing with liability for irruptions on to
the demised premises and Westminster with escapes from it. I think that
in this short additional judgment I have dealt sufficiently with that matter.
I adhere,
therefore, to my original view that this appeal should be allowed.
Agreeing, SCHIEMANN LJ said: I have had the
advantage of reading in draft the judgments of Peter Gibson and Mantell LJJ. I
agree with the latter that this appeal ought to be allowed, but I would like to
express my reasoning in my own words.
This is an
appeal from a decision of the tribunal, which only had jurisdiction in relation
to breach by the council of their obligations under the tenancy agreement. The
tenants had appeared before the tribunal in person and it is not surprising
that the tribunal’s decision contains no discussion of the law. The tribunal
had no jurisdiction to make awards in respect of nuisance. The tribunal held
that the council were in breach of their covenant and were obliged to ‘carry
out effective soundproofing of the tenants’ flats’. The only obligation that
could have been relied on by the tribunal is the covenant for quiet enjoyment.
The question before the judge and before us is whether the tribunal was
entitled as a matter of law to come to that conclusion on the facts before it.
The council appealed to the judge on the basis that the lack of adequate
soundproofing did not amount to an allegation of a breach of any of the
landlords’ covenants. Their counsel submitted before the judge that ‘a standard
covenant for quiet possession has nothing to do with freedom from the noise of
normal domestic activities’. That argument the judge rejected.
For my part,
putting aside for one moment the question of whether we are bound to reach a
contrary conclusion, I find that submission attractive. One must remember that
the covenant is not primarily directed at such intangible interferences with
quiet possession as noise. It is only at the fringes that difficult things to
measure, such as noise, come into the domain of this covenant. Its primary
purpose is to ensure that the tenant gets what he appears to be getting; that
corresponds with what the tenant must be presumed to be wanting to obtain from
the lease: if he wants more he should bargain for it and be prepared to pay the
extra rent.
As it seems to
me, much turns on whether one construes a covenant for quiet enjoyment as
entitling the tenant to some abstract standard of peace and quiet, subject only
to transient reasonable interferences, or whether it only entitles him to the
broad level of peace and quiet that appeared to appertain at the time when he
took the lease. I prefer the latter in principle. It is implicit in adopting
the former approach that if a would-be tenant knows perfectly well that the
sound insulation in this block is appalling, but goes on to take a lease, he
can immediately sue the landlord so long as the landlord has not done anything
that gives rise to an estoppel. If one considers the common case of a farmer
with a cottage in his fields who lets it with an express or implied covenant
for quiet enjoyment, it cannot be right that the tenant is thereafter entitled
to sue him for breach of contract in respect of the noise of the cows
perambulating in the surrounding fields.
Each of the
respondent tenants took a tenancy of a flat in a block of flats owned by the
appellant council. As the council’s building inspector put it in one of his
reports, ‘… in properties of this age which were built to low standards and
with little regard to occupant
what comfort can reasonably be expected by persons living in flats have been
raised in the course of this century. It is implicit in the tribunal’s findings
that the soundproofing does not meet current standards. The council have powers
to rehouse the tenants and to do substantial soundproofing works, but the
question that arose in the present case is whether the council were under a
contractual duty to each tenant under his contract of tenancy to prevent the
transference of the noise of which he complained.
The crucial
questions in the present case were: (1) what was the quality of enjoyment that
the landlord when signing the lease undertook to safeguard; and (2) whether the
landlord failed to safeguard that quality of enjoyment.
I agree with
my lords that, as a matter of legal analysis, the question of whether the law
of tort gives a right of action in any particular circumstances to a person
suffering from noise generated by his neighbour is not, as such, relevant to
the question of whether, under his contract with his landlord, a tenant has
such a right in the identical circumstances. That latter question must depend
on the proper construction of the contract. The position is similar to that of
a person who buys food that is not up to his expectations. The same
shortcomings in the food may entitle him to sue in negligence and also to sue
in contract. But they are different causes of action and he may succeed in the
one and fail in the other. There is nothing in principle to prevent a tenant
from expressly contracting with his landlord that the latter will ensure that
the tenant is not subjected to activities that would give rise to an action in
nuisance against the creator of those activities. However, the tenants in the
present cases did not do so. So we may put nuisance on one side.
The conditions
of tenancy are in a standard form running to 31 printed pages setting out many
obligations on each side. The only clause that is said on behalf of the tenants
to impose a relevant obligation on the council is clause 1. This appears with
clause 2 in a section of the conditions headed ‘Security of tenure and
termination of tenancy’. Clause 1 reads: ‘The tenant’s right to remain in and
to enjoy the quiet occupation of the dwelling house shall not be interfered
with by the Council … ‘. Clause 2 deals with termination of the tenancy and is
of no present relevance.
Clause 1 is a
form of a covenant that is known as a covenant for quiet enjoyment. Such a
covenant may be express, as here. But even where it is not expressed the law
will imply such a covenant whenever a landlord demises property to a tenant. It
is not a covenant that is primarily concerned with absence of noise. It is a
covenant by which the landlord undertakes that neither he nor those claiming
under him will disturb the tenant in the possession of what he has obtained by
the lease. It is not a covenant to improve or provide anything.
Breaches of
such a covenant can take many forms. One is where the tenant is physically
ousted from the premises. But there is no need that there be any physical
interference. If the landlord blows a trumpet for hours every day outside the
tenement, that would normally amount to a breach of the covenant of quiet
enjoyment. Not because there is a lack of quiet, but because the quality of
enjoyment of possession that the tenant contracted with the landlord to obtain
has been interfered with by the landlord.
A lease is a
contract and the rules for construing contracts are applicable. It is common
ground that in construing the lease the court should try to find the meaning
that the clause would convey to a reasonable person having all the background
knowledge reasonably available to the parties and that this meaning is what the
parties using its words against the relevant background would reasonably have
been supposed to mean: see Investors Compensation Scheme Ltd v West
Bromwich Building Society [1998] 1 WLR 896.
Mr Patrick
Elias QC submitted that at the time when each tenant took the flat he knew that
there were neighbours with identical leases and must be taken, having looked
round the flat and seen the type of block in which it was, to have known that
their activities might be audible by him and his activities might be audible by
them. The tenant would expect not to be sued by his landlord if the tenant were
living a normal life in the flat and he would expect not to be able to sue the
landlord if the landlord’s other tenants led normal lives. He submitted that a
covenant by the landlord for quiet enjoyment was a covenant not to interfere or
permit interference with what the tenant appeared to be getting. If a tenant
takes a tenancy of an old flat, which does not comply with modern expectations,
he will, no doubt, absent other special factors, be paying a low rent. He
cannot, having agreed the rent, then move in and complain of the very factors
that led to the low rent.
A contract
regulates the legal position between the parties to that contract. Where a
landlord owns a block of flats with very poor noise insulation — so that the
inhabitants of flat A can hear all that goes on in the neighbouring flat B —
there is nothing in our law that prevents that landlord from offering flat A to
a tenant on terms that he will pay rent for it. They can discuss the question
of noise. The landlord can expressly agree to make sure no disturbing noises
came from flat B. Equally, the tenant can expressly agree that he will not be
entitled to complain of such noise as, at the time of his entering into the
tenancy, is coming or is likely to come from the flat next door.
In the present
cases there is nothing to suggest that there were any such discussions. In any
event, there is no express clause specifically dealing with noise.
I accept that
a covenant for quiet enjoyment can imply the right to limit the amount of noise
that can come into the subject property by reason of the activities of the
landlord or those claiming under him. However, as it seems to me, there is not
an abstract standard of quietness to which every tenant with a covenant for
quiet enjoyment in his lease is entitled, whatever may have been the
circumstances in which he executed the lease and wherever the property may be
situated. In order to discover to what standard of quietness the tenant is
entitled, one must look at the situation as it was at the time of the demise.
In the context
of the present case it is clear that, while there were in the lease various
covenants by the landlords, including a covenant to repair, there was no
covenant to install soundproofing. I accept that the installation of sound
insulation would, on the facts of the present cases, amount to an improvement
rather than a repair of the flats. I agree with Mantell LJ that the landlords
have not covenanted, either expressly or impliedly, that they will improve any
tenant’s flat.
I agree with
Peter Gibson LJ that the question of what remedy is available to landlord or
tenant to deal with any breach of covenant is logically irrelevant to the
question of whether or not there has been any such breach. However, it seems to
me that it helps analysis to separate out two questions: (1) what is the
breadth of the obligation assumed by the landlord in the covenant for quiet
enjoyment; and (2) has that obligation on the facts of the present case been
broken? It is relevant to the solution of the first question to consider what
was the situation on the ground when the parties entered into the covenant.
That situation included the physical block of flats, one of which was the
subject of the contract, and the fact that all the other tenants of all the
other flats were likely to be holding under similar contracts. In those
circumstances I find it inconceivable that either the tenant or the landlords
thought that they were entering into a contract under which the landlords
agreed to prevent neighbouring tenants from leading normal lives or to evict
them or to install soundproofing. Had the officious bystander interrupted the
negotiations to suggest such a thing they would both have turned on him and
told him that, of course, this was not what they contemplated.
What the
tribunal had to do in the present case was first to consider what was the
breadth and nature of the obligation undertaken by the landlord council when
they signed the leases. This, so far as one can tell, it never did. They did no
more than to accept the decision of a previous tribunal that ‘the present situation
remains unreasonable’ and decide that the ‘relevant orders can be made under
clause 1 of the Agreement’.
It is clear
that the judge reached his conclusion because he felt he ought to follow what
was said in Sampson and Baxter. I understand that and do not
criticise him for it. However, in my judgment, there is
It is not clear from the facts in Sampson that the tiles had been
improperly laid at the time the plaintiff took the lease of his flat, nor is
there anything in the case that leads to the conclusion that, at the time of
the execution of the lease to the plaintiff, he should have been aware of the
fact that the normal use of the flat upstairs would be audible by him. So that
case does not inhibit any finding in the present case that the parties did not
understand the covenant for quiet enjoyment to entitle the tenant to a higher
quality of enjoyment than appertained when the lease was signed and thus to
compel his landlords either to evict his neighbour or install soundproofing.
The fact that the plaintiff in Sampson had not even pleaded breach of
the covenant of quiet enjoyment strengthens the case for saying that it should
not lead us to a conclusion in relation to such a covenant to which we would
not otherwise have come.
As for Baxter,
that was a case where the county court judge had made a number of errors in the
way he had approached the case, and this court decided that the appropriate
course was to send the case back to the county court for a rehearing. That, if
I may respectfully say so, was clearly the right thing to do. The court
hesitated before doing so, because it wondered whether it would be possible to
come to a safe conclusion in law from the facts that had been found and came to
the conclusion that it could not. The submissions to the county court judge had
been made on the basis of nuisance. In the Court of Appeal they were made on
the basis of a breach of the implied covenant for quiet enjoyment. Sumner J,
sitting in the Court of Appeal with Butler-Sloss LJ, whose judgment consisted
of ‘I agree’, stated in a short judgment that his ‘preliminary view’ in the
absence of full argument was that ‘in this instance the difference between
breach of covenant and nuisance is not significant’. Such an expression of a
preliminary view does not bind this court. Sumner J then went on to say:
The questions
which may arise to be determined on the re-hearing (which must be subject to
further argument to the trial judge) in my judgment are —
1. Has the
plaintiff proved that the level of noise transmitted to the plaintiff’s flat
from the ordinary use of the adjoining flats was, at the date when the
proceedings were commenced, such as to interfere with her reasonable enjoyment
of her flat. The question is to be determined as a matter of fact and degree on
all the circumstances of the case …
As it seems to
me, the Court of Appeal in that case was not seeking to develop or declare the
law in a new way, but rather giving a tentative expression of opinion as to how
the judge might approach the case. What the court in that case did not address,
let alone determine, is whether when judging what was ‘reasonable enjoyment of
the flat’ one must take into account the situation as it was at the time of the
demise in order to establish the quality of enjoyment that the landlord
undertook to safeguard. For my part, I do not regard that decision as obliging
me to come to the view that this appeal ought to be dismissed.
Nor do I find Sturges
v Bridgman (1879) 11 ChD 852 has that effect. That case establishes that
where there is a nuisance by noise it is not a defence for the person creating
the nuisance to be able to assert that the activity complained of has been
going on for many years and that the plaintiff did not experience it as a
nuisance until he built a consulting room at the bottom of his garden. It was
held that an easement to commit a nuisance by noise could not be acquired by
prescription. We are not here dealing with nuisance and I see no reason why the
rules governing actions in nuisance and on the covenant for quiet enjoyment
should be identical in the relevant regard.
As for Sanderson
v Mayor of Berwick-on-Tweed (1884) 13 QBD 547, that case is authority
for the proposition that where water coming from the upper field held by tenant
A escapes by reason of drains that had been improperly constructed (sc
by the landlord) under the lower field held by tenant B, their mutual landlord
can be held liable for breach of the covenant of quiet enjoyment. I see force
in the point that there is an analogy with the present case where it could
perhaps be said that the walls separating the flats were improperly
constructed. However, it seems clear that in that case tenant B had no means of
knowing that the drains had been improperly constructed. Moreover, in the
present case there is no suggestion that the party walls were improperly
constructed by the standards of the day. So the decision in the case is not
inconsistent with my reasoning, although I accept that it does nothing to
support it.
In the present
case there is no hint in the papers, let alone any finding, that the situation
has changed one whit for the worse since the demise. In those circumstances, I
think that the tribunal was wrong to hold that the landlords had breached the
covenant of quiet enjoyment. I would accept the submission made by the council
before the judge that ‘a standard covenant for quiet possession has nothing to
do with freedom from the noise of normal domestic activities’. On the facts of
the present case, as it seems to me, it must have been expected by the tenants
signing the leases, and by the landlords, that the tenants would be exposed to
whatever noise would emanate from their neighbours while those neighbours were
living normal lives.
That
proposition seems to me to be substantially the same as that which has been
advanced by the council throughout these proceedings and is one that should
have prevailed before the tribunal.
I hope that
the council will be able to improve the situation for their tenants, but I do
not consider that they are obliged to do so as a matter of contract. I would
allow the appeal.
Dissenting, PETER GIBSON
LJ said: Where A and B are adjoining occupiers of residential premises and
both are tenants of the same landlord, can that landlord be in breach of the
usual covenant for quiet enjoyment by reason only of the fact that each
tenant’s reasonable enjoyment of his home is interfered with by noise from the
normal and ordinary use (in the manner contemplated by the letting) of the
other tenant’s home? This is the question to which this appeal gives rise and
it is obviously one of general importance to both landlords and tenants. If a
landlord can be in breach in that way, it is likely to impose a substantial
burden on him: the evidence is that the cost of carrying out the work ordered
by the arbitration tribunal in this case would be in the region of £60,000. If
the landlord cannot be in breach in that way, tenants will have to put up with
interference that might be thought intolerable. As one tenant explained in her
application to the arbitration tribunal:
I can hear
all the private and most intimate moments of … my neighbours’ lives —
conversations, what TV station they are watching, when they go to the toilet,
when they make love. Every light switched on, every door opened and closed,
every pot or pan placed on the cooker, all these I hear.
Three issues
arise:
1. Is an
actionable nuisance a precondition of a breach of the covenant for quiet enjoyment?
2. If so, can
the ordinary use of a dwelling-house amount to a nuisance?
3. What is the
appropriate remedy for a breach of the covenant?
Before I
consider these issues in turn, I should record certain points that are not
taken on this appeal.
(a) Although
clause 1 of the conditions of tenancy is not in the conventional form of a
covenant for quiet enjoyment but takes the form of a statement that the
tenant’s right to enjoy the quiet occupation of the dwelling-house is not to be
interfered with by the landlords (with immaterial exceptions), it is not
suggested by either side that the landlords did not, in effect, give an
ordinary covenant for quiet enjoyment.
(b) No point
is taken by the landlords as to whether the neighbours, the noise from whom is
alleged to interfere with the quiet enjoyment of the respondent tenants, became
tenants of their premises before or after the commencement of the tenancies of
the respondent tenants (though Mr Elias, for the landlords, reserves the right
to challenge in the House of Lords the correctness of the decision of this
court in Sturges v Bridgman (1879) 11 ChD 852 that a plaintiff
coming to a nuisance can complain of it).
(c) It is not
suggested by the landlords that a breach of the covenant for quiet enjoyment is
limited to protecting the tenant from challenges to his occupation and to
physical interference; it is accepted in this
that the tenant is protected by the covenant from any activity created or
authorised by the landlord on neighbouring premises that amounts to an
actionable nuisance. I should add that I did not understand Mr Elias to argue
that if he was wrong on issue 1, the landlords were not liable under the
covenant, even though the activity created or authorised by the landlord on the
neighbouring premises, viz, the ordinary user of the premises as a
dwelling-house, did not amount to an actionable nuisance. Plainly the noise
from neighbouring tenants did interfere with the quiet enjoyment of the
premises of the complaining tenants.
Is a
nuisance a precondition of a breach of the covenant for quiet enjoyment?
Mr Elias
submitted that there will be no breach of the covenant unless there has been an
actionable nuisance. He prayed in aid three cases.
In the first, Hilton
v James Smith & Sons (Norwood) Ltd [1979] 2 EGLR 44, the plaintiff
tenants sued the defendant landlord because a right of way and a parking space
had been interfered with by other tenants of the landlord. The trial judge
found for the plaintiffs for breach of the covenant for quiet enjoyment,
derogation from grant and nuisance. Ormrod LJ at p44G said that the label of
the cause of action did not matter very much, if at all. While in that case
that was no doubt true, it does not establish that in every case it will be so.
In the second
case, Sampson v Hodson-Pressinger [1981] 3 All ER 710, the
plaintiff tenant of a flat sued the first defendant, who was the tenant of the
flat above that of the plaintiff, and the second defendant, the landlord, in
nuisance because the noise from the ordinary use by the first defendant of a
tiled terrace, part of her flat, interfered with the plaintiff’s reasonable use
and enjoyment of his flat. The trial judge found the first defendant not liable
because she had nothing to do with the construction of the terrace, the tiles
of which had been improperly laid, but he upheld the claim in nuisance against
the landlord. On appeal by the landlord, Eveleigh LJ said at p714e:
Apart from
the question of common law nuisance, the plaintiff’s lease contains the usual
covenant for quiet enjoyment, that is that the tenant may use the premises
without interference by the landlord or those claiming under him. The
contemplated use for which the original landlord let flat 7 to the first
defendant was one which interfered with the reasonable enjoyment of the plaintiff’s
flat. Consequently that landlord was, in my opinion, in breach of the covenant
for quiet enjoyment. The plaintiff’s enjoyment of the demised premises was
unlawfully interrupted by the first defendant, a person lawfully claiming under
the lessor.
However,
Eveleigh LJ noted that the plaintiff had not pleaded the case on that basis.
Those remarks were therefore obiter. They do not in any event make good
Mr Elias’ proposition. On the facts of that case, what was held to constitute a
nuisance was also a breach of the covenant for quiet enjoyment.
The third case
is Chartered Trust plc v Davies [1997] 49 EG 135. In that case
the defendant tenant withheld rent from the landlord and disclaimed his lease,
complaining that the landlord had derogated from its grant by failing to
control the nuisance caused by another tenant of the landlord. Henry LJ at p137
stated the finding of the trial judge that there had been a nuisance, although
that had not been pleaded, and said that in such cases there were three possible
causes of action: breach of the covenant of quiet enjoyment, derogation from
grant and nuisance. He referred to what Ormrod LJ said in the Hilton
case as providing some authority that, in appropriate cases, the label attached
to the cause of action did not matter. Again, those remarks do not establish Mr
Elias’ submission.
What these
three cases show is that, as Mr Lewison, for the tenants, neatly put it, an
actionable nuisance is a sufficient condition for a breach of the covenant for
quiet enjoyment. They do not decide that it is a necessary condition. Nor is
there any reason in principle why it should be a necessary condition. The
existence of a nuisance is not dependent on a contractual relationship between
the plaintiff and the defendant. A breach of the covenant for quiet enjoyment
is dependent on a contract between landlord and tenant, and it is hardly
surprising that the tenant should be given greater protection than that
afforded at common law. That, to my mind, is the complete answer to the point
taken by Mr Elias that a breach of the covenant cannot depend on whether the
tenant’s neighbour is or is not a tenant of the landlord.
The object of
the covenant for quiet enjoyment is to protect the tenant against the acts of
the landlord himself, whether rightful or wrongful, and the rightful acts of
persons claiming under him or authorised by him: see Queensway Marketing Ltd
v Associated Restaurants Ltd (1984) 271 EG 1106*, affirmed [1988] 2 EGLR
49. The tenant has the right to rely on the covenant for quiet enjoyment
against the landlord who has authorised another to do that which interferes
with the tenant’s quiet enjoyment.
*Editor’s
note: Also reported at [1984] 2 EGLR 73
I accept Mr
Lewison’s submission that there is no room in a covenant for quiet enjoyment of
the demised premises for importing any condition that there can be no breach resulting
from the reasonable or normal user of the other land from which the
interference with the quiet enjoyment arises. That would be to confuse
nuisance, to which considerations of that sort may be relevant, with a breach
of the covenant. The true scope of the covenant was stated by Fry LJ (giving
the judgment of this court, which included Sir Balliol Brett MR and Bowen LJ)
in Sanderson v Mayor of Berwick-on-Tweed (1884) 13 QBD 547 at
p551:
where the
ordinary and lawful enjoyment of the demised land is substantially interfered
with by the acts of the lessor, or those lawfully claiming under him, the
covenant appears to us to be broken, although neither the title to the land nor
the possession of the land may be otherwise affected.
As Fry LJ said
immediately before that, in every case it is a question of fact whether the
quiet enjoyment of the demised land has or has not been interrupted.
That case, the
facts of which have been set out by Mantell LJ, supports Mr Lewison’s
submission. The proper use by the landlord’s tenant, Cairns, of the improperly
constructed drains passing through the plaintiff’s land did not prevent the
plaintiff from succeeding in his claim against the landlord for the
interruption to the plaintiff’s enjoyment of the land demised to him by the
landlord. So does the decision of this court in Owen v Gadd
[1956] 2 QB 99. In that case, a landlord, in erecting scaffolding outside his
tenant’s shop, acted reasonably in a way that would have prevented a nuisance
arising at common law. Nevertheless, this court held that there was an
interference with the tenant’s quiet enjoyment of the premises demised to him
for the purpose for which they were demised, and the landlord was liable for
breach of the covenant for quiet enjoyment. While it is true that in both those
cases, as Mr Elias points out, there had been a physical interference with the
demised premises, I cannot accept that that constitutes a material point of
distinction from the present case where the interference with the quiet
enjoyment of the tenants was by noise. That does not appear to me to constitute
a reason in principle for treating the two types of interference differently
(compare also the rejection by the House of Lords in Hunter v Canary
Wharf Ltd [1997] AC 655, especially at pp705–707 per Lord Hoffmann,
of an attempted distinction in the law of nuisance between material injury to
property and sensible personal discomfort, both types of nuisance being part of
the single tort of causing injury to land).
The obiter
remarks of Eveleigh LJ (with whom Brandon and O’Connor LJJ agreed) in the Sampson
case, which I have cited, provide clear support for the tenants’ case. They
were applied by this court in Baxter v Camden London Borough Council
(1997) 30 HLR 501. That too was a case where the plaintiff tenant brought
proceedings against the defendant landlords for breach of the covenant for
quiet enjoyment because, as a result of inadequate sound insulation, she could
hear all the normal domestic activities of her neighbours. The trial judge
decided the case against the plaintiff on the ground that there was no
nuisance. This court was satisfied that he came to a
LJ agreed) being at p504:
3. He was
wrong to consider that the plaintiff’s duty to keep the premises in repair and
the lack of any duty to improve them had a bearing upon the question of
nuisance.
The court
remitted the case to the county court, but Sumner J set out certain
propositions and the questions that might arise on them for decision on the
remitted hearing. He expressed a preliminary view that in that case the
difference between breach of covenant and nuisance was not significant and,
after referring to a number of authorities, including the Sampson case,
said at pp504–505 that he drew from them the following conclusions:
A landlord is
liable for any mischief that arises from the natural and necessary result of
what he has authorised and required. He is held to know or presumed to know
what the natural and necessary result will be, and he is equally liable if his
reason for not having that knowledge was failure to use reasonable care to
ascertain it. It is no defence to a claim in nuisance that the premises are
being used in a normal way if the premises are not fit to be used in the normal
way without interfering with the reasonable enjoyment of adjoining occupiers.
Equally the landlord will be held liable for breach of the implied covenant of
quiet enjoyment where the contemplated use for which the landlord let, for
instance the adjoining flat, was one which interfered with the reasonable
enjoyment of the premises in question. The date of actual or presumed knowledge
is the date of the letting to the plaintiff.
As a matter of
ratio, therefore, the only relevant point is what I have cited as Sumner
J’s third ground and that relates to nuisance on which the trial judge had
based his decision, though what Sumner J said might be thought to be no less
pertinent to a breach of the covenant for quiet enjoyment. The obiter
remarks on the covenant for quiet enjoyment are directly in point, and I
respectfully agree with them. I say nothing on the obiter remarks
relating to nuisance.
To summarise
the position, therefore, as I see it as established by the authorities, the
question of whether there is a breach by the landlord of the covenant for quiet
enjoyment is one of fact: has the quiet enjoyment by the tenant of the demised
premises been substantially interfered with by the acts of the landlord or
those claiming under the landlord and authorised by him to do those acts? To
that question it is irrelevant whether the interference is caused by the
landlord or others claiming under him using other land in a normal and
reasonable way. The substantial interference is the breach, and it matters not
whether it amounts to a nuisance.
Schiemann LJ
has suggested an exception to the position that, in my view, is established by
the authorities. That exception is that there is no breach of the covenant for
quiet enjoyment where the interference claimed to amount to such a breach
exists at the time the tenant takes the tenancy, and the tenant was or should
have been aware at that time of that interference. That is a point that has
emerged in this form for the first time in this case when taken by members of
this court. That it was not taken by the landlords before then is not
surprising given that the landlords’ contention was that there had to be a
nuisance for there to be a breach of the covenant for quiet enjoyment, and given
the obstacle imposed by Sturges v Bridgman in courts short of the
House of Lords. I have already noted Mr Elias’ reservation of his right to
challenge Sturges v Bridgman. Mr Elias said:
An
alternative way of looking at the issue is to identify what in the particular
circumstances the covenant of quiet enjoyment protects. It is submitted it
would not extend to interference with enjoyment resulting from any ordinary use
of adjoining premises particularly in circumstances where the tenant is aware
when entering the tenancy that adjoining properties are being used for
residential purposes.
Mr Elias did
not suggest that the awareness of the tenants extended beyond that.
The
arbitration tribunal did not consider what actual or constructive knowledge
each of the complaining tenants had of the noise interference from his
neighbours before entering their tenancies, nor whether noise from neighbours
had any effect on the level of the rents charged by the landlords for flats in
that block, nor what the parties had in contemplation at the time of the
tenancy agreement by including clause 1. None of these points was taken before
the arbitration tribunal nor, I think, before Laddie J. In the absence of
factual evidence relating to these matters, in my judgment, these points cannot
now be taken on appeal: see Supreme Court Practice 1997 para 59/10/6. Nor, in
my judgment, can factual points that might have been but were not taken by the
landlords (such as what noise interference should have been obvious to the
tenants when entering into their tenancies) be assumed to be answered
favourably to the landlords.
But, in any
event, I respectfully question whether in law there is an exception such as has
been suggested, save where an estoppel can be established. If, for example, the
landlord draws attention to the noise problem before the tenancy commences, but
the tenant nevertheless takes the tenancy, the tenant will no doubt not be
allowed to complain subsequently of a breach of the covenant for quiet
enjoyment. But estoppel is not asserted here. No authority whatever has been
referred to as supporting the suggested exception, even though the problem must
have arisen repeatedly. As a matter of policy I do not see that the law should
be astute to recognise such an exception. If it is now to be held to exist, it
would create serious practical problems for would-be tenants, whose ability to
rely on the covenant for quiet enjoyment would depend on their actual or deemed
knowledge of the noise interference at the date when entering into their
tenancies and the extent to which the measure of interference is subsequently
exceeded. Should the prudent would-be tenant insist on inspection by day and
night, at hours when any noise from neighbours might be expected to be at its
most intrusive, before taking the tenancy?
No one would
suggest that there is any abstract standard of quietness to which every tenant
is entitled in his own home. Those who live in a block of flats or in a
terraced house must expect some noise from their neighbours, and the location
of the demised premises, for example if they are close to a busy street or to a
railway line or to an airport flight path, may indicate that the level of
ambient noise for which the landlord cannot be held responsible, and which the
tenant must in any event tolerate, is higher than where there is a more
favourable location. I stress that the interference must be substantial for
there to be a breach of the covenant. In the present case the substantial
interference, of which the tenants complained, with the enjoyment of the
demised premises does not appear to have been disputed and must have been the
factual foundation on which the arbitration tribunal made its order. What
constitutes a substantial interference will depend on all the circumstances and
is a matter of fact and degree for the tribunal of fact to assess. That matter,
until the hearing in this court, has not been in issue and, for the reasons
that I have given, ought not to be in issue in this case at this stage.
Can the
ordinary use of a dwelling-house amount to a nuisance?
This question
therefore does not arise and I prefer to say nothing on it.
Remedy for
breach of the covenant
I could have
added a fourth point to the three points not taken on this appeal and listed
above, namely that the landlords do not dispute that if there has been a breach
of the covenant for quiet enjoyment, they will do what the arbitration tribunal
has ordered them to do. In other words, the remedy in this case is not being
challenged. But, in view of Mantell LJ’s judgment, I should address the
question of remedy.
In my
judgment, it is important to keep separate the question of whether there is a
breach of the covenant from the question of the remedy for the breach. They are
logically distinct questions. The remedy, as Mr Lewison said, is not to be
confused with the right.
That is not to
say that the remedy directed in this case is the remedy to which a tenant
complaining of a breach of the covenant for quiet enjoyment is entitled as of
right. I accept without qualification that the covenant cannot impose, as a
matter of law, a positive obligation to repair or improve the demised premises.
The landlord in breach of the covenant is normally liable only in damages. If
he wishes to avoid
something about the other premises giving rise to the interference, whether by
vacating and keeping empty those premises or by improving the soundproofing of
those premises, or he can improve the soundproofing of the demised premises.
But that is a matter for him to decide.
What, in my
judgment, is impermissible is to argue that because in this case the practical
and sensible solution has been recognised by the landlords to be or to include
the soundproofing of the complaining tenants’ own premises, and because that
has the undoubted effect of improving those premises when the tenants have no
contractual right to such improvement, therefore there cannot have been a
breach of the covenant for quiet enjoyment. That is simply wrong in logic and
in law.
For these
reasons, I, for my part, would have dismissed this appeal. But because of the
conclusions reached by my lords this appeal will be allowed.
Appeal
allowed. Leave to appeal to the House of Lords allowed.
