Landlord and tenant — Covenant for quiet enjoyment — Nuisance — Inadequate sound insulation between flats — Whether breach of landlords’ covenant for quiet enjoyment — Whether landlords liable in nuisance
In each of the two conjoined appeals, the
appellants were tenants of flats in buildings owned by the respective
respondent councils. The tenants had complained of being able to hear all the
sounds made by their neighbours. For the most part, the neighbours were
behaving quite normally, but the flats had no sound insulation. The tenants
brought proceedings against the councils, as their landlords, seeking orders to
remedy the situation. The Court of Appeal in each case decided that the tenants
had no legal remedy ([1998] 3 EGLR 46). The tenants appealed.
the part of a landlord that a flat has sound insulation or is in any other way
fit to live in. There was no breach of the covenant by the landlords for quiet enjoyment.
The covenant for quiet enjoyment is a covenant that the tenant’s lawful
possession of the land will not substantially be interfered with by the acts of
the lessor or those lawfully claiming under him. The covenant cannot be
elevated into a warranty that the land is fit to be used for some special
purpose. The covenant does not apply to things done before the grant of the
tenancy. The tenant takes the property not only in the physical condition in
which he finds it but also subject to the uses that the parties must have
contemplated would be made of the parts retained by the landlord. The word
‘quiet’ in a covenant for quiet enjoyment does not refer to an absence of
noise; it means without interference. Where a tenant’s complaint cannot be
remedied without expensive improvements to the premises, this will require a
clear contractual obligation to be expressed in the agreement; the covenant for
quiet enjoyment is an unsuitable vehicle for such an obligation. The landlords
were not liable under the law of private nuisance. The normal use of a
residential flat cannot possibly be a nuisance to the neighbours. If the
neighbours are not committing a nuisance, the landlords cannot be liable for
authorising them to commit one. A landlord cannot be liable to an action for
authorising his tenant to do something that would not be actionable if he did
it himself.
The following cases are referred to in this
report.
Anderson v Oppenheimer
(1880) 5 QBD 602
Ball v Ray
(1873) LR 8 Ch App 467
Bamford v Turnley
(1862) 3 B&S 62
Baxter v Camden
London Borough Council [1999] 2 WLR 66; [1999] 1 All ER 237; (1999) 31 HLR
356
Broder v Saillard
(1876) 2 ChD 692
Browne v Flower
[1911] 1 Ch 219
Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; [1994] 2 WLR
53; [1994] 1 All ER 53
Carstairs v Taylor
(1871) LR 6 Ex 217
Davis v Town
Properties Investment Corporation Ltd [1903] 1 Ch 797
Dennett v Atherton
(1872) LR 7 QB 316
Edler v Auerbach
[1950] 1 KB 359; [1949] 2 All ER 692; 65 TLR 645; 1 P&CR 10
Hart v Windsor
[1843-60] All ER 681; (1843) 12 M&W 68
Hudson v Cripps
[1896] 1 Ch 265; [1895-99] All ER Rep 917; 12 TLR 102
Hunter v Canary
Wharf Ltd [1997] AC 684; [1997] 2 WLR 348; [1997] 2 All ER 426; (1998) 30
HLR 409, HL
Jenkins v Jackson
(1888) 40 ChD 71
Kenny v Preen
[1963] 1 QB 499; [1962] 3 WLR 1233; [1962] 3 All ER 814, CA
Kiddle v City
Business Properties Ltd [1942] 1 KB 269
Leech v Schweder
(1874) 9 App Cas 463
Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476
Malzy v Eichholz
[1916] 2 KB 308; (1916) 32 TLR 506, CA
McNerny v Lambeth
London Borough Council (1990) 154 LGR 272; [1989] 1 EGLR 81; [1989] 19 EG
77; (1989) 21 HLR 188
Owen v Gadd
[1956] 2 QB 99; [1956] 2 WLR 945; [1956] 2 All ER 28, CA
Phelps v London
Corporation [1916] 2 Ch 255; 14 LGR 746
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
Robbins v Jones
(1863) 15 CB (NS) 221; 33 LJCP 1; 9 LT 523
St Helens Smelting Co v Tipping (1865) 11 HL Cas 642
Sampson v Hodson-Pressinger
[1981] 3 All ER 710, [1982] 1 EGLR 50; (1981) 261 EG 891, CA
Sanderson v Berwick-upon-Tweed
Corporation (1884) 13 QBD 547
Smith v Scott
[1973] Ch 314; [1972] 3 WLR 783; [1972] 3 All ER 645
Southwark London Borough Council v Mills [1999] 2 WLR 409; (1999) 31 HLR 187; [1998] 3 EGLR
46; [1998] 45 EG 151, CA
Southwark London Borough Council v Mills [1998] 3 WLR 409; [1998] 2 EGLR 30; [1998] 22 EG 151
Spoor v Green
(1874) LR Exch 99
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; 267 EG 762, CA
These were conjoined
appeals by Mrs Tracey Tanner and Miss Yvonne Baxter from decisions of the Court
of Appeal, in one case allowing an appeal by Southwark London Borough Council,
and in the other case dismissing an appeal by Miss Baxter, from proceedings in
the High Court and county court respectively.
Kim Lewison QC and Jan Luba (instructed by Anthony
Gold, Lerman & Muirhead) appeared for the appellant in the first case;
Michael Barnes QC and Donald Broatch (instructed by the solicitor to Southwark
London Borough Council) appeared for the respondents; James Goudie QC and Zia
Nabi Anya Proops (instructed by Goldbergs) appeared for the appellant in the
second case; Andrew Arden QC and Christopher Baker (instructed by the solicitor
to Camden London Borough Council) appeared for the respondents.
LORD SLYNN OF
HADLEY said: My lords, I have had the advantage of
reading in draft the speeches of my noble and learned friends, Lord Hoffmann
and Lord Millett. Although I have great sympathy with the tenants, who have to
endure a very disagreeable level of noise, it seems to me impossible to hold
that the landlords can be liable in nuisance for conduct that is not a nuisance
on the part of the tenant. I agree that a breach of a covenant of quiet
enjoyment is not limited to direct and physical injury to land, and that
excessive noise, in principle, may constitute a substantial interference with
the possession or ordinary enjoyment of the demised premises. But it seems to
me that on well established authority it cannot be held in the present cases
that the landlords were in breach of any covenant of quiet enjoyment.
Accordingly, for the reasons given by my noble and
learned friends, I too would dismiss both appeals.
Agreeing, LORD
STEYN said: My lords, I have had the advantage of reading in draft
the speeches of my noble and learned friends, Lord Hoffmann and Lord Millett.
For the reasons they have given, I would also dismiss both appeals.
Giving judgment, LORD HOFFMANN said: My lords, the appellants in these two
appeals, Mrs Tracey Tanner and Miss Yvonne Baxter, are respectively tenants of
Southwark and Camden London Borough Councils. Mrs
of flats on Herne Hill. Miss
converted Victorian house in Kentish Town. They both complain of being able to
hear all the sounds made by their neighbours. It is not that the neighbours are
unreasonably noisy. For the most part, they are behaving quite normally. But
the flats have no sound insulation. The tenants can hear not only the
neighbours’ televisions and their babies crying but their coming and going, their
cooking and cleaning, their quarrels and their love‑making. The lack of
privacy causes tension and distress.
Each of the appellants has brought proceedings
against her council, as landlords, seeking an order that they do something to
remedy the situation. But the Court of Appeal has decided in both cases that
the tenant has no legal remedy. Mrs Tanner and some other tenants in her block
of flats commenced arbitration proceedings against Southwark Council in
accordance with the terms of her tenancy agreement. The arbitration tribunal
made an award ordering the council to install soundproofing. The award was
upheld on an appeal to Laddie J [1998] 3
the Arbitration Act 1979. But his judgment was reversed by the Court of Appeal
(Schiemann and Mantell LJJ; Peter Gibson LJ dissenting) [1999] 2 WLR 409† and
the award set aside. Miss Baxter brought proceedings in Central London County
Court. Judge Green QC dismissed her action and his judgment was affirmed by the
Court of Appeal (Stuart-Smith, Otton and Tuckey LJJ) Both tenants appeal to
your lordships’ house.
*Editor’s note: Also reported at [1998] 2 EGLR 30
†Editor’s note: Also reported at [1998] 3 EGLR 46
Neither tenancy agreement contains any warranty on
the part of the landlords that the flat has sound insulation or is in any other
way fit to live in. Nor does the law imply any such warranty. This is a
fundamental principle of the English law of landlord and tenant. In Hart
v Windsor (1843) 12 M&W 68 at p87 Parke B said:
there is no contract, still less a condition,
implied by law on the demise of real property only, that it is fit for the
purpose for which it is let.
And in Edler v Auerbach [1950] 1 KB
359 at p374 Devlin J said:
It is the business of the tenant, if he does not
protect himself by an express warranty, to satisfy himself that the premises
are fit for the purpose for which he wants to use them, whether that fitness
depends upon the state of their structure, the state of the law, or any other
relevant circumstances.
It is true that in each tenancy agreement the
council agreed to keep the structure in repair. Such an obligation would
in any case be implied by section 11 of the Landlord and Tenant Act 1985. But
the appellants do not rely upon this covenant and cannot do so. Keeping in
repair means remedying disrepair. The landlord is obliged only to restore the
house to its previous good condition. He does not have to make it a better
house than it originally was: see Quick v Taff Ely Borough Council
[1986] QB 809‡.
‡Editor’s note: Also reported at [1985] 2 EGLR 50
In many cases, of course, the tenant does not have
the bargaining power to exact an express warranty as to the condition of the
premises or the freedom of choice to reject property which may not meet his
needs. This is often the case with local authority housing. For this reason,
parliament has in various ways intervened to protect certain tenants from the
bleak laissez-faire of the common law. A number of techniques have been
used. One has been to provide that statutory warranties as to the fitness of
the premises for human habitation should be implied in tenancy agreements of
certain dwellings. Such a term was implied by section 12 of the Housing of the
Working Classes Act 1885 into lettings of houses and flats at annual rents (in
London) of less than £20. For some years the limit was periodically increased
to keep pace with inflation until section 6(1) of the Housing Act 1957 fixed it
at £80 a year. But since then it has remained at that figure. The legislation
remains upon the statute book as section 8 of the Landlord and Tenant Act 1985
but there can now be very few lettings in London to which it can apply. The
existence of the limited statutory implied warranty has, however, inhibited the
courts from developing the common law in this area. In McNerny v Lambeth
London Borough Council (1989) 21 HLR 188§ at p194 Dillon LJ said that the
legislature had ‘conspicuously refrained’ from updating the statutory rent
limit and it was therefore not for the courts to create liabilities that
parliament had not thought fit to enact. Taylor LJ spoke to the same effect.
This seems to me to show a
§Editor’s note: Also reported at [1989] 1
EGLR 81
proper sensitivity to the
limits of permissible judicial creativity and to be no less than constitutional
propriety requires. In 1996 the Law Commission, in its report Landlord and
Tenant: Responsibility for State and Condition of Property (Law Com No 238)
recommended (in para 11.16) that a statutory warranty that a dwelling-house is
fit for human habitation should be implied into any lease for less than seven
years. The commission also recommended (in paras 11.28-29) that the criteria
for determining whether a dwelling-house was fit for human habitation should be
those listed in section 604 of the Housing Act 1985 (as amended). These include
such matters as dampness, adequate provision for lighting, heating and
ventilation, facilities for cooking and effective drains. But they contain no
mention of sound insulation. The commission recorded (at para 4.44) that sound
insulation was a factor that had been suggested for inclusion in the fitness
standard, but made no recommendation.
A second statutory technique has been to confer
powers upon local authorities to make closing orders, which prohibit the
occupation of dwellings unfit for human habitation, or demolition orders, which
require them to be demolished. Such powers are now contained in Part IX of the
Housing Act 1985. They are an incentive to landlords to ensure that their
properties comply with the fitness standards specified in the Act. There are
also less drastic powers contained in section 189 of the Housing Act 1985,
which empowers local authorities to serve notices requiring work to be done in
order to make the house fit for habitation. None of these powers are directly
relevant because they do not apply to local authority housing. The authority
cannot make orders against or serve notices upon themselves. But the
significant point is that the standard of fitness is that to which I have
already referred in section 604 of the Housing Act 1985. It makes no reference
to sound insulation.
A third statutory technique is to prevent the
creation of substandard housing in the first place. This is achieved by the
requirement that new buildings and conversions should conform to standards laid
down in building regulations. Local authorities have had power to make such
regulations or bye-laws since the middle of the last century. Mrs
block of flats on Herne Hill was constructed in about 1919. Miss Baxter’s
terrace house was converted in 1975. Both the construction and the conversion
would have had to comply with bye‑laws made under powers contained in the
London Building Acts. But these contained no requirements concerning sound
insulation. Miss Baxter’s conversion included the replacement of some brick
interior walls with plasterboard on stud partitions and the replacement of the
old plaster-on-lath ceilings with skimmed plasterboard. These changes made the
sound insulation rather worse. But they did not contravene the bye-laws in
force at the time. The Building Act 1984 replaced the previous system of local
bye-laws with nationally applicable regulations made by the Secretary of State
for the Environment. The Building Regulations 1985 (SI 1985/1065) contained for
the first time a requirement that walls and floors that separate one dwelling
from another should resist the transmission of airborne and impact sound: see
Part E of Schedule 1 to the regulations. Similar provisions are now contained
in the Building Regulations 1991 (SI 1991/2768). But the regulations apply only
to buildings erected or converted after they came into force. They are of no
assistance to the appellants.
In the absence of any modern statutory remedy that
covers their complaint, the appellants have attempted to fill the gap by
pressing into service two ancient common law actions. They are the action on
the covenant for quiet enjoyment and the action of nuisance. My lords, I
naturally accept that if the present case falls squarely within the scope of
either of these actions, the appellants must succeed. But if the question is
whether the common law should be developed or extended to cover them, your
lordships must in my opinion have regard to the fact that parliament has dealt
extensively with the problem of substandard housing over many years, but so far
declined to impose an obligation to install soundproofing in existing
dwellings. No doubt parliament had regard to the financial burden that this
would impose upon local authority and private landlords. Like the Court of
Appeal in McNerny v Lambeth London Borough Council (1989) 21 HLR
188 at p194, I think that in a field such as housing law, which is very much a
matter for the allocation of resources in accordance with democratically
determined priorities, the development of the common law should not get out of
step with legislative policy.
I shall consider first the covenant for quiet
enjoyment. This is contained in clause 1 of Mrs Tanner’s tenancy agreement. It
says: ‘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 B4 of Miss
Baxter’s agreement says: ‘The Council shall not interfere with the tenants’
rights to quiet enjoyment of the premises during the continuance of the
tenancy.’ Read literally, these words would seem very apt. The flat is not
quiet and the tenant is not enjoying it. But the words cannot be read
literally. The covenant has a very long history. It has been expressed or
implied in conveyances and leases of English land for centuries. It comes from
a time when, in a conveyancing context, the words ‘quiet enjoyment’ had a
technical meaning different from what they would today signify to a non-lawyer
who was unacquainted with their history. So in Jenkins v Jackson
(1888) 40 ChD 71 at p74, Kekewich J felt obliged to point out that the word
‘quietly’ in the covenant:
does not mean undisturbed by noise. When a man is
quietly in possession it has nothing whatever to do with noise… ‘Peaceably and
quietly’ means without interference — without interruption of the possession.
Likewise, in Kenny v Preen [1963] 1
QB 499 at p511 Pearson LJ explained:
the word ‘enjoy’ used in this connection is a
translation of the Latin word ‘fruor‘ and refers to the exercise and use
of the right and having the full benefit of it, rather than to deriving
pleasure from it.
The covenant for quiet enjoyment is therefore a
covenant that the tenant’s lawful possession of the land will not be
substantially interfered with by the acts of the lessor or those lawfully
claiming under him. For present purposes, two points about the covenant should
be noticed. First, there must be a substantial interference with the tenant’s
possession. This means his ability to use it in an ordinary lawful way. The covenant
cannot be elevated into a warranty that the land is fit to be used for some
special purpose: see Dennett v Atherton (1872) LR 7 QB 316. On
the other hand, it is a question of fact and degree whether the tenant’s
ordinary use of the premises has been substantially interfered with. In Sanderson
v Berwick-upon-Tweed Corporation (1884) 13 QBD 547 the flooding of a
substantial area of agricultural land by water discharged from neighbouring
land occupied by another tenant of the same landlord was held to be a breach of
the covenant. In Kenny v Preen [1963] 1 QB 499 a landlord’s
threats to evict the tenant, accompanied by repeated shouting and knocking on
her door, were held to be a breach. It is true that in Browne v Flower
[1911] 1
to constitute a breach of such a covenant there
must be some physical interference with the enjoyment of the demised premises,
and that a mere interference with the comfort of persons using the demised
premises by the creation of a personal annoyance such as might arise from
noise, invasion of privacy, or otherwise is not enough
and in Phelps v London Corporation
[1916] 2 Ch 255 at p267 Peterson
a nuisance by noise was a breach of the covenant. For my part, however, I do
not see why, in principle, regular excessive noise cannot constitute a
substantial interference with the ordinary enjoyment of the premises. The
distinction between physical interference with the demised premises and mere
interference with the comfort of persons using the demised premises recalls a
similar distinction made by Lord Westbury LC for the purposes of the law of
nuisance in St Helens Smelting Co v Tipping (1865) 11 HL Cas 642.
That distinction was no doubt justifiable in that context on pragmatic grounds,
but I see no reason why it should be introduced into the construction of the
covenant for quiet enjoyment. I would not be willing to say that Kenny v
Preen [1963] 1 QB 499 was
not in itself a reason why their actions should fail.
There is however another feature of the covenant
which presents the appellants with a much greater difficulty. It is prospective
in its nature: see Norton on Deeds (2nd ed 1928) pp612-613. It is a
covenant that the tenant’s lawful possession will not be interfered with
by the landlord or anyone claiming under him. The covenant does not apply to
things done before the grant of the tenancy, even though they may have
continuing consequences for the tenant. Thus in Anderson v Oppenheimer
(1880) 5 QBD 602 a pipe in an office building in the City of London burst, and
water from a cistern installed by the landlord in the roof flooded the premises
of the tenant of the ground floor. The Court of Appeal held that although the
escape of water was a consequence of the maintenance of the cistern and water
supply by the landlord, it was not a breach of the covenant for quiet
enjoyment. It did not constitute an act or omission by the landlord or anyone
lawfully claiming through him after the lease had been granted. The water
system was there when the tenant took his lease and he had to take the building
as he found it. Similarly, in Spoor v Green (1874) LR Exch 99 the
plaintiff bought land and built houses upon it. The houses were damaged by
subsidence caused by underground mining that had taken place before the sale.
The Court of Exchequer held that there was no breach of the covenant for quiet
enjoyment that had been given by the vendor. Cleasby B said at p108:
it seems to me impossible to say that there is a
breach of covenant for quiet enjoyment by reason of the subsidence of the house
in consequence of the previous removal of the coal. This subsidence of the
house is a necessary consequence of the condition of the property bought by the
plaintiff…
The tenant takes the property not only in the
physical condition in which he finds it but also subject to the uses which the
parties must have contemplated would be made of the parts retained by the
landlord. Anderson v Oppenheimer (1880) 5 QBD 602, in which it
was contemplated that the cistern would be used to contain water, demonstrates
this proposition. An even more pertinent case is Lyttelton Times Co Ltd
v Warners Ltd [1907] AC 476. The plaintiff owned a hotel in
Christchurch, New Zealand, next to the premises in which the defendant operated
a printing press. They made an agreement under which the defendant would
rebuild its premises and grant a lease of the upper floors to the plaintiff for
use as additional hotel bedrooms. Unfortunately the noise and vibrations of the
press beneath caused substantial inconvenience to the occupants of the
bedrooms. The plaintiff claimed an injunction to restrain the defendant from
working its press. It said that the defendant knew that it intended to use the
premises as bedrooms and was under an implied obligation not to interfere with
their convenient use. But Lord Loreburn LC, giving the advice of the Privy
Council, said that the plaintiff also knew that the defendant intended to use
its premises for printing. He went on at p481:
When it is a question of what shall be implied
from the contract, it is proper to ascertain what in fact was the purpose, or
what were the purposes, to which both intended the land to be put, and having
found that, both should be held to all that was implied in this common
intention…
[If] it be true that neither has done or asks to
do anything which was not contemplated by both, neither can have any right
against the other.
If one stands back from the technicalities of the
law of landlord and tenant and construes the tenancy agreement in accordance
with ordinary contractual principles, I think that one reaches the same
conclusion. In the grant of a tenancy it is fundamental to the common
understanding of the parties, objectively determined, that the landlord gives
no implied warranty as to the condition or fitness of the premises. Caveat
lessee. It would be entirely inconsistent with this common understanding if the
covenant for quiet enjoyment were interpreted to create liability for
disturbance or inconvenience, or any other damage attributable to the condition
of the premises. Second, the lease must be construed against the background
facts that would reasonably have been known to the parties at the time it was
granted. The tenant in Anderson v Oppenheimer (1880) 5 QBD 602
must be taken to have known that the building had a water system and that the
landlord would therefore keep the cistern supplied with water. The hotel owner
in Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476 must be
taken to have known that the lessor of its bedrooms would be operating a
printing press downstairs. It did not realise that the noise and vibrations
would be a problem, but that was because of the way in which the premises had
been constructed. On that point the landlord gave no warranty. Against this
background, the lease could not be construed as entitling the tenant to close
down the landlord’s business.
In the Court of Appeal in Mrs Tanner’s case (Southwark
London Borough Council v Mills [1999] 2
LJ delivered a dissenting judgment. He said that if the noise made by
neighbouring tenants in the course of their ordinary use of their flats
amounted to an interference with Mrs
she could be estopped from complaining only if she had expressly or impliedly
consented to the noise. In the present case, there was no evidence about what
the tenants had known about the lack of soundproofing before they took their
tenancies. But in my opinion a requirement of consent to the noise goes too
far. It is sufficient that the tenants must reasonably have contemplated that
there would be other tenants in neighbouring flats. If they cannot complain of
the presence of other tenants as such, then their complaint is solely as to the
lack of soundproofing. And that is an inherent structural defect for which the
landlord assumed no responsibility. The council granted and the tenant took a
tenancy of that flat. She cannot by virtue of the terms of that tenancy require
the council to give her a different flat.
It remains only, on this part of the case, for me
to comment on two authorities upon which the appellants strongly relied. The
first is Sanderson v Berwick-upon-Tweed Corporation (1884) 13 QBD
547, to which I have already referred in another context. The corporation let a
farm to Sanderson. It reserved in favour of Cairns, another tenant farmer, the
rights to use a drain across one of Sanderson’s fields and to enter and repair
it. Water discharged by Cairns leaked through the drain and flooded Sanderson’s
land. He sued the landlord on the covenant for quiet enjoyment. Fry LJ, giving
the judgment of the Court of Appeal, said at p551:
[T]he damage here has resulted to the plaintiff
from the proper user by Cairns 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 in damages.
The appellants argue that their neighbouring
tenants are likewise making ‘proper use’ of their flats but the improper
construction of the building, like the improper construction of the drain,
results in an interference with the appellants’ lawful use and possession of
their own premises. In my opinion, however, these parallels are misleading. Fry
LJ, in the passage which I have cited, is not saying that Cairns, in flooding
the plaintiff’s land, was making a ‘proper use’ of the drain as against the
plaintiff. He makes it quite clear that it was not. The reference to ‘proper
use’ is for the purpose of deciding whether the landlord is liable for what
Cairns had done. This depended upon whether Cairns was ‘lawfully claiming
under’ the landlord and that in turn depended upon whether he was using the
drains in a manner authorised by his lease. It is in this sense that he
describes his use of the drains as ‘proper.’
The present case is not concerned with whether the
neighbouring tenants, in using their flats in the ordinary way, are lawfully
claiming under the landlord. They obviously are. The question is rather whether
their conduct amounts to a breach of the covenant for quiet enjoyment at all.
In Sanderson‘s case the flooding of the land by Cairns was improper and
a breach because he had a very limited right to discharge
drains were badly made so that they would not hold the water, it was his or his
landlord’s responsibility to ensure that they did. A right to entry had been
reserved to enable him to do so. But in the present cases, the rights of the
tenants of neighbouring flats to use them in a normal way are not qualified in
any way. As against the appellants, there is nothing improper about their
neighbours’ use of their flats.
In the Court of Appeal in Mrs Tanner’s case (Southwark
London Borough Council v Mills [1999] 2
said that he regarded Sanderson v Berwick-upon-Tweed Corporation
(1884) 13 QBD 547 as indistinguishable from the case before him. But he said
that it was in conflict with the decision of the Court of Appeal in Duke of
Westminster v Guild [1985] QB 688*. In that case, the question was
whether a landlord was obliged to repair a drain serving the demised premises
which passed under the landlord’s retained land. The Court of Appeal held that
no such obligation could be implied and that it did not fall within the scope
of the covenant for quiet enjoyment. Slade LJ said at p703F:
The express covenant for quiet enjoyment and
implied covenant against derogation from grant cannot in our opinion be invoked
so as to impose on…[the plaintiffs] positive obligations to perform acts of
repair which they would not otherwise be under any obligation to perform.
*Editor’s note: Also reported at [1983] 2 EGLR 37
Mantell LJ said that he preferred the latter case
and applied the principle stated by Slade LJ. But I do not regard the two cases
as being in conflict. The landlord in Sanderson was obliged to repair
the drain on Sanderson’s land only if he or his other tenant wanted to use it.
Otherwise they ran the risk of exceeding their right to discharge water onto
the tenant’s land. But the drain in Duke of Westminster v Guild
[1985] QB 688 was on the landlord’s land and he was not using it. Nor was
anyone claiming under him. The tenant wanted it repaired for his own benefit.
This the landlord was not obliged to do. It is a general principle that the
grantor of an easement of way or drainage is not obliged to keep the way or
drain in repair. In my opinion, therefore, Mantell LJ was quite right to apply
the principle stated by Slade LJ in Duke of Westminster v Guild
and need not have been troubled by Sanderson. That principle seems to me
to apply a fortiori to the present appeals. The appellants are
attempting to use the covenant for quiet enjoyment to create not an obligation
to repair but a more onerous obligation to improve the demised premises.
The second authority relied upon by the appellants
is Sampson v Hodson-Pressinger [1981] 3 All ER 710†. The
plaintiff was statutory tenant of a flat (flat 6) in a converted house in
Belgravia. On 31 March 1978 the landlord granted him a lease for 99 years with
the usual covenant for quiet enjoyment. The landlord made alterations to the
flat above (flat 7) which included the construction of a tiled terrace on the
roof over the plaintiff’s living room. On a date which does not appear in the
report, the landlord granted a 99-year lease of the upper flat to a tenant who
took possession on 11 August 1978. The tiles had not been properly laid and as
a result the plaintiff was seriously disturbed in his living room by the impact
noise of people walking about on the terrace. The Court of Appeal held that the
landlord was liable in nuisance. It does not appear that the pleadings placed
reliance on the covenant for quiet enjoyment, but Eveleigh LJ mentioned it in
passing at p714E:
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.
†Editor’s note: Also reported at [1982] 1 EGLR 50
I think with respect that this reasoning, while
possibly correct on the facts, omits some essential steps. At the time when the
plaintiff was granted his lease, it must have been contemplated by the parties
that the flat upstairs would be used for ordinary residential occupation in
accordance with the way it was constructed. It could not therefore have been
intended that such use would be a breach of the covenant for quiet enjoyment.
It could have amounted to a breach only if the cause of the noise was some act
of the landlord, or the tenant of number 7 claiming under him, that could not
fairly have been within the contemplation of the parties when the plaintiff
took his lease. If the terrace had not then been in existence, I can see the
argument for saying that the parties could not have contemplated that the
plaintiff would have people walking about on his roof. As the building then
stood, that may have been an unreasonable use to make of the roof. If people
did so regularly, with the authority of the landlord, in such a way as to cause
substantial interference with his enjoyment of the premises, it could have been
a breach of the covenant for quiet enjoyment. And if the landlord adapted the
roof to enable his tenant and her guests to walk upon it, he would be obliged
to do so in a way which protected the tenant beneath from unreasonable noise.
But this argument depends entirely upon the adaptation of the terrace taking
place after the grant of the plaintiff’s lease. It has no application to the
present case in which the premises were in their present condition when the
appellants took their tenancies.
I turn next to the law of private nuisance. I can
deal with this quite shortly because it seems to me that the appellants face an
insuperable difficulty. Nuisance involves doing something on adjoining or
nearby land which constitutes an unreasonable interference with the utility of
the plaintiff’s land. The primary defendant is the person who causes the
nuisance by doing the acts in question. As Pennycuick V-C said in Smith
v Scott [1973] Ch 314 at p321B:
It is established beyond question that the person
to be sued in nuisance is the occupier of the property from which the nuisance
emanates. In general, a landlord is not liable for nuisance committed by his
tenant, but to this rule there is, so far as now in point, one recognised
exception, namely, that the landlord is liable if he has authorised his tenant
to commit the nuisance.
What is the nuisance of which the appellants
complain? The sounds emanating from their neighbours’ flats. But they do not
allege the making of these sounds to be a nuisance committed by the other
tenants. Mr
necessary he would contend that it was. But I do not think that the normal use
of a residential flat can possibly be a nuisance to the neighbours. If it were,
we would have the absurd position that each, behaving normally and reasonably,
was a nuisance to the other. As Lord Goff of Chieveley said in Cambridge
Water Co v Eastern Counties Leather plc [1994] 2 AC 264 at p299:
liability [for nuisance] has been kept under
control by the principle of reasonable user — the principle of give and take as
between neighbouring occupiers of land, under which ‘those acts necessary for
the common and ordinary use and occupation of land and houses may be done, if
conveniently done, without subjecting those who do them to an action’: see Bamford
v Turnley (1862) 3 B&S 62, 83, per Bramwell B.
Of course I accept that a user which might be
perfectly reasonable if there was no one else around may be unreasonable as
regards a neighbour. As Bramwell B remarked in Bamford v Turnley
(1862) 3 B&S 62 at p83, it may in one sense be quite reasonable to burn
bricks in the vicinity of convenient deposits of clay but unreasonable to
inflict the consequences upon the occupants of nearby houses. Likewise, it may
be reasonable to have appliances such as a television or washing machine in
one’s flat but unreasonable to put them hard up against a party wall so that
noise and vibrations are unnecessarily transmitted to the neighbour’s premises.
But I do not understand how the fact that the appellants’ neighbours are living
in their flats can in itself be said to be unreasonable. If it is, the same, as
I have said, must be true of the appellants themselves.
On this part of the case the appellants again rely
upon Sampson v Hodson-Pressinger [1981] 3 All ER 710, to which I
have already referred. In that case the Court of Appeal held that the use of
the terrace over the plaintiff’s roof was not only a breach of the covenant for
quiet enjoyment by the landlord but also a nuisance committed by the upstairs
tenant for which she and the landlord were both liable. My lords, in my opinion
this decision can be justified only on the basis that having
flat was not a use of the flat above that showed reasonable consideration for
the occupant of the flat beneath. It was not, in Bramwell B’s phrase,
‘conveniently done’. If the upstairs tenant was going to use the roof in that
way, it had to be suitably adapted to protect the plaintiff from noise. I do
not regard it as authority for the proposition that normal and ordinary user,
in a way that shows as much consideration for the neighbours as can reasonably
be expected, can be an actionable nuisance.
If the neighbours are not committing a nuisance,
the councils cannot be liable for authorising them to commit one. And there is
no other basis for holding the landlords liable. They are not themselves doing
anything that interferes with the appellants’ use of their flats. Once again,
it all comes down to a complaint about the inherent defects in the construction
of the building. The appellants say that the ordinary use of the flats by their
neighbours would not have caused them inconvenience if they had been
differently built. But that, as I have said more than once, is a matter of
which a tenant cannot complain.
I would therefore dismiss both appeals.
Agreeing, LORD
CLYDE said: My lords, I have had the advantage of reading in draft
the speeches of my noble and learned friends, Lord Hoffmann and Lord Millett.
For the reasons they have given, I would also dismiss both appeals.
Also agreeing, LORD MILLETT said: My lords, most people in England today
live in cities. Many of them live cheek by jowl with their neighbours. They
live in terraced houses, purpose-built blocks of flats, or flatlets created by
the conversion of houses into separate residential units. Modern building
regulations require proper sound insulation to be installed, but this is often
lacking in older buildings or conversions. In its absence each occupier is
likely from time to time to be disturbed in the enjoyment of his property by
noise caused by the activities of his neighbours, as they are by his. Where the
disturbance is intermittent and relatively slight the parties usually accept
the need to put up with the annoyance they cause each other. But what if it is
continuous and intolerable?
Where the offending noise is occasioned by the
ordinary use of residential premises, so that it cannot be brought to an end
except by leaving them vacant, the only practical solution is to install proper
sound insulation; but that is expensive. Where the sufferer is an
owner-occupier, he must either bear the cost himself or persuade his neighbour,
who is likely to be suffering similar disturbance by noise emanating from his
premises, to share the cost with him. Where the sufferer is a tenant, he would
obviously like his landlord to carry out the work, but there is normally no
legal obligation on him to do so. The law has long been settled that there is
no implied covenant on the part of the landlord of a dwelling-house that the
premises are fit for human habitation, let alone that they are soundproof.
Parliament has intervened in the case of furnished tenancies and tenancies at a
low rent, but subsequent inflation has deprived the legislation of any
practical application to unfurnished tenancies. In its report Landlord and
Tenant: Responsibility for State and Condition of Property (1996) (Law Com
No 238) the Law Commission recommended that a covenant that the premises are
fit for human habitation should be implied in leases of dwelling-houses of less
than seven years, but rejected a proposal that this should cover sound
insulation.
The question in these appeals is whether the
position is different where the tenant and his neighbour share a common
landlord. Can the tenant, who cannot sue his landlord because his own property
admits noise, have an action against him because his neighbour’s emits it? Can
the tenant, who cannot compel his landlord to install sound insulation in his
own property, oblige him to install it in his neighbour’s? And since each
tenant is both the victim of the disturbance caused by his neighbour and the
cause of similar disturbance to his neighbour, can they join forces to compel
their common landlord to install sound insulation to make both their properties
soundproof?
The answer is to be found in the words of Martin B
in Carstairs v Taylor (1871) LR 6 Ex 217 at p222:
Now, I think that one who takes a floor in a
house must be held to take the premises as they are, and cannot complain that
the house was not constructed differently.
Lord Goddard CJ spoke to the same effect in Kiddle
v City Business Properties Ltd [1942] 1 KB 269 at pp274-5:
[The Plaintiff]…takes the property as he finds it
and must put up with the consequences. It is not to be supposed that the
landlord is going to alter the construction, unless he consents to do so. He
would say to his intending tenant: ‘You must take it as it is or not at all.’
The doctrine does not depend on fictions, such as
the ability of the tenant to inspect the property before taking the lease. It
is simply a consequence of the general rule of English law that accords
autonomy to contracting parties. In the absence of statutory intervention, the
parties are free to let and take a lease of poorly constructed premises and to
allocate the cost of putting them in order between themselves as they see fit.
The principle applies whether the complaint relates to the state and condition
of the demised premises themselves or, as in the cases cited, of other parts of
the building in which the demised premises are located. Of course, the tenants
of local authority housing do not negotiate the terms of their tenancy agreements.
They take what they are offered on terms set by the local authority. But the
meaning and effect of contractual arrangements cannot be made to depend on the
parties’ relative bargaining power. If it is thought right to redress any
imbalance by importing terms in favour of the weaker party, this is a matter
for parliament.
The tenants accordingly accept that, in the
absence of a statutory or contractual obligation to such effect, they cannot
compel their landlords to install sound insulation. They invoke the tort of
nuisance and the covenant for quiet enjoyment to obtain indirectly that which
they cannot obtain directly. They complain of the sound emanating from the
adjoining property, allege that it constitutes a legal wrong for which the
landlords are responsible, and seek orders to restrain its continuance. In
theory, the landlords could avoid the cost of installing sound installation by
obtaining possession of the flat where the sound originates and leaving it
vacant; though they might equally well choose to obtain possession of the flat
belonging to the complainant. This solution is not, however, available in
practice, since all the flats are subject to secure tenancies.
Facts
In each of the cases under appeal the landlords
are a local authority. In the first of the two cases they are Southwark London
Borough Council. They own a number of blocks of flats in Herne Hill, built
shortly after the end of the First World War. The individual flats are let to
tenants. The terms of each tenancy are in standard form and include a covenant
in the following terms:
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…
This is an abbreviated version of the conventional
covenant for quiet enjoyment, but it is common ground that it has similar
effect.
Some of the tenants complained of the absence of
adequate soundproofing in their homes. They stated that they wished the matter
to go to arbitration. Between 1994 and 1996 they made applications to the
arbitration tribunal maintained by the council, in accordance with provisions
in that behalf contained in the council’s standard form of tenancy agreement.
The tenants’ evidence was striking. It showed that the ordinary day to day
activities of each household were plainly audible to its neighbours. One of the
tenants testified:
I can hear all the private and most intimate
moments of [my neighbours’] lives — conversations, what TV station they are
viewing, when they go to the toilet, when they make love. Every light switched
on, every door opened or closed, every pot or pan placed on the cooker, all
these I hear.
Her neighbour could presumably have given evidence
to the like effect in relation to the noise emitted from her flat. Life in
these conditions must be intolerable. Unless one or other of adjoining flats is
to be left permanently empty, the only practical solution is to install
soundproofing between them.
The arbitration tribunal’s jurisdiction is limited
to the resolution of disputes arising out of an alleged breach of a tenancy
agreement. It found that the council was in breach of the covenant for quiet
enjoyment and ordered them to carry out effective soundproofing of the flats.
The council appealed to the High Court. Their appeal was dismissed by Laddie J,
but their further appeal to the Court of Appeal was allowed by a majority. On
the tenants’ appeal to your lordships’ house, the parties formulated the
question to be decided as follows:
Where A is the tenant of a landlord (‘L’) of
residential premises (‘Flat 1’) and L lets neighbouring residential premises in
the same building (‘Flat 2’) to B, and the construction of the building is such
that A and B are disturbed by the noise of normal residential use (in the
manner contemplated by each letting) to an extent which substantially
interferes with the reasonable enjoyment of each flat (in the manner
contemplated by each letting), is L, by reason thereof only, liable for breach
of covenant for quiet enjoyment:
(a) to A;
(b) to B;
(c) to both;
(d) to neither?
There is no means of differentiating between A and
B, and the answer must be either (c) or (d).
In the second case the landlords are Camden London
Borough Council. They are the owners of a Victorian terraced house on three
floors. The house was divided into two flats at some time prior to 1975. In
that year the council converted it into three flats, one on each floor. The
conversion had the effect of reducing the sound insulation between the floors
of the house. At that time there was no applicable building regulation
requiring sound insulation between dwelling-houses. Such requirements were not
extended to inner London until 1986.
In 1992 the council let the first-floor flat to
Miss Baxter on a weekly tenancy. The other two flats on the ground and second
floor were already let to the present tenants. Miss Baxter’s tenancy is in the
council’s standard form. This includes two clauses in the following terms:
The Council shall not interfere with the tenants’
rights to quiet enjoyment of the premises during the continuance of the tenancy
(Clause B4)
The Council shall take such steps as are
reasonably practicable to prevent the continuation of any nuisance caused to
the tenant, having regard to all the circumstances of the case. (Clause B5).
Miss Baxter brought proceedings in the county
court against the council alleging that, because of the inadequate sound
insulation in the house, the ordinary day to day activities of her neighbours
in the flats above and below her were clearly audible to her and seriously
interfered with her enjoyment of her flat. She testified:
I can hear… normal conversation, singing,
arguments, the television, snoring, coughing, bringing up of phlegm, sneezing,
bedsprings, footfalls and creaking floorboards, the pull-cord light switch in
the bathroom, taps running in the bathroom and kitchen, the toilet being used…
the vacuum is clearly audible as is any music played on the stereo.
She alleged that this amounted to a nuisance at
common law for which the council were responsible, and that it was also a
breach of the covenant for quiet enjoyment in clause B4. After some earlier
misadventures, the case was heard by Judge Green QC. He found that the noise
suffered by Miss Baxter as a result of the ordinary use of their flats by the
tenants above and below her constituted an unreasonable interference with Miss
Baxter’s enjoyment of her flat. He attributed this to the combination of two
factors, the conversion of the house in 1975 and the continuing occupation of
the flats above and below after she had moved into her flat. He also found that
the sound insulation between Miss Baxter’s living room and the room immediately
above fell below the standards now required by the relevant Building
Regulations and was ‘unacceptable’. Despite these favourable findings of fact,
the judge dismissed the action, and Miss Baxter’s appeal was unanimously
dismissed by the Court of Appeal.
I shall deal first with Miss Baxter’s claim in
nuisance, and then with the claims by the tenants in both cases that their
landlords are in breach of the covenant for quiet enjoyment.
Nuisance
The law of nuisance is concerned with balancing
the conflicting interests of adjoining owners. It is often said to be
encapsulated in the Latin maxim sic utere tuo ut alienum non laedas.
This suggests a strict liability, but in practice the law seeks to protect the
competing interests of both parties so far as it can. For this purpose, it
employs the control mechanism described by Lord Goff of Chieveley in Cambridge
Water Co v Eastern Counties Leather plc [1994] 2 AC 264 at p299 as
‘the principle of reasonable user — the principle of give and take’.
The use of the word ‘reasonable’ in this context
is apt to be misunderstood. It is no answer to an action for nuisance to say
that the defendant is only making reasonable use of his land. As Sir George
Jessel MR insisted in Broder v Saillard (1876) 2 ChD 692 at pp701‑702,
that is not the question. What is reasonable from the point of view of one
party may be completely unreasonable from the point of view of the other. It is
not enough for a landowner to act reasonably in his own interest. He must also
be considerate of the interest of his neighbour. The governing principle is
good neighbourliness, and this involves reciprocity. A landowner must show the
same consideration for his neighbour as he would expect his neighbour to show
for him. The principle that limits the liability of a landowner who causes a
sensible interference with his neighbour’s enjoyment of his property is that
stated by Bramwell B in Bamford v Turnley (1862) 3 B&S 62, at
pp83-84:
There must be, then, some principle on which such
cases must be excepted. It seems to me that that principle may be deduced from
the character of these cases, and is this, viz: that those acts necessary for
the common and ordinary use and occupation of land and houses may be done, if
conveniently done, without subjecting those who do them to an action…There is
an obvious necessity for such a principle as I have mentioned. It is as much
for the advantage of one owner as of another; for the very nuisance the one
complains of, as the result of the ordinary use of his neighbour’s land, he
himself will create in the ordinary use of his own, and the reciprocal
nuisances are of a comparatively trifling character. The convenience of such a
rule may be indicated by calling it a rule of give and take, live and let live.
It is true that Bramwell B appears to justify his
conclusion by the fact that the resulting nuisances are normally of a
comparatively trifling character, and that is not the present case. But he
cannot have intended the defence to be confined to such cases. Trifling
nuisances have never been actionable, and Bramwell B was searching for the
principle which exempts from liability activities which would otherwise be
actionable. His conclusion was that two conditions must be satisfied: the acts
complained of must (i) ‘be necessary for the common and ordinary use and
occupation of land and houses’ and (ii) must be ‘conveniently done’, that is to
say, done with proper consideration for the interests of neighbouring
occupiers. Where these two conditions are satisfied, no action will lie for
that substantial interference with the use and enjoyment of his neighbour’s
land that would otherwise have been an actionable nuisance.
In Ball v Ray (1873) LR 8 Ch App 467
the occupier of a house in a street in Mayfair had many years previously
converted the ground floor into a stable. A new occupier altered the location
of the stable so that the noise of the horses became an annoyance to the
next-door neighbour and prevented him from letting his house as lodgings. Lord
Selborne LC said at pp469-470:
In making out a case of nuisance of this
character, there are always two things to be considered, the right of the
Plaintiff and the right of the Defendant. If the houses adjoining each other
are so built that from the commencement of their existence it is manifest that
each adjoining inhabitant was intended to enjoy his own property for the
ordinary purposes for which it and all the different parts
that can be regarded in law as a nuisance which the other party has a right to
prevent. But, on the other hand, if either party turns his house, or any
portion of it, to unusual purposes in such a manner as to produce a substantial
injury to his neighbour, it appears to me that that is not according to
principle or authority a reasonable use of his own property; and his neighbour,
shewing substantial injury, is entitled to protection. I do not regard it as a
reasonable or as a usual manner of using the front portion of a dwelling house
in such a street as Green Street, that it should be turned into stables for
horses; and, if it is so used, then the proprietor is bound to take care that
it is so used as not to be a substantial annoyance, detrimental to the comfort
and to the value of the neighbours’ property.
The stabling of horses may have been necessary for
the common and ordinary use and occupation of a dwelling‑house in 1873,
but the layout of the premises was so altered that it was no longer
‘conveniently done’.
In my opinion Tuckey LJ [1999] 2 WLR 566, at p574,
was correct in stating that the ordinary use of residential premises without
more is not capable of amounting to a nuisance. As he rightly explained, this
is why adjoining owner-occupiers are not liable to one another if the party
wall between their flats is not an adequate sound barrier so that the sounds of
everyday activities in one flat substantially interfere with the use and
enjoyment of the other.
Counsel for Miss Baxter is prepared to argue if
necessary that the tenants of the other flats could be held liable to her in
nuisance. In this he would be wrong; their activities are not merely
reasonable, they are the necessary and inevitable incidents of the ordinary
occupation of residential property. They are unavoidable if those tenants are
to continue in occupation of their flats. But his primary submission is that
the council is liable in nuisance as the common landlord. In this he is, in my
opinion, plainly wrong.
Once the activities complained of have been found
to constitute an actionable nuisance, more than one party may be held legally
responsible. The person or persons directly responsible for the activities in
question are liable; but so too is anyone who authorised them. Landlords have
been held liable for nuisances committed by their tenants on this basis. 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: see Malzy v
Eichholz [1916] 2 KB 308. But they cannot be held liable in tort for
having authorised the commission of an actionable nuisance unless what they
have authorised is an actionable nuisance. The logic of the proposition is
obvious. A landlord cannot be liable to an action for authorising his tenant to
do something that would not be actionable if he did it himself.
Counsel for Miss Baxter relies on the fact that
the council not only let the adjoining flats for residential occupation but did
so without first installing adequate sound insulation. They thereby authorised
the use of the flats for residential occupation in circumstances that, the
argument runs, inevitably caused a nuisance. But in my opinion this takes the
matter no further. What Miss
they inevitably caused an actionable nuisance. The council have no obligation
to soundproof her property to keep noise out, whether it emanates from her
neighbours or from traffic or aircraft. They are under no positive duty to her
to soundproof the adjoining flats in order to keep the noise in; such a duty
could only arise by statute or contract. They are under no duty to bring the
nuisance to an end, whether by regaining possession of the flats or by soundproofing
the premises, unless it is an actionable nuisance.
My lords, I would not wish to be thought
indifferent to Miss Baxter’s plight. I have the greatest sympathy for her. But
the fact remains that she took a flat on the first floor of a house, knowing
that the ground and second floors were also occupied as residential flats, and
expecting their occupants to live normal lives. That is all that they are
doing. She has no cause to complain of their activities, which mirror her own;
or of the council for having permitted them by letting the adjoining flats. Her
real complaint is, and always has been, of the absence of adequate sound
insulation. Her complaint, however well founded, cannot be redressed by the law
of tort; any remedy must lie in statute or contract.
Breach of the
covenant for quiet enjoyment
The covenant for quiet enjoyment is one of the
covenants of title formerly found in a conveyance of land, and the only such
covenant found in a lease of land. It has long been understood that the word
‘quiet’ in such a covenant does not refer to the absence of noise. It means
without interference. The covenant for quiet enjoyment was originally regarded
as a covenant to secure title or possession. It warranted freedom from
disturbance by adverse claimants to the property: see Dennett v Atherton
(1872) LR 7 QB 316; Jenkins v Jackson (1888) 40 ChD 71; Hudson
v Cripps [1896] 1 Ch 265. But its scope was extended to cover any
substantial interference with the ordinary and lawful enjoyment of the land,
although neither the title to the land nor possession of the land was affected:
Sanderson v Berwick-upon-Tweed Corporation (1884) 13 QBD 547 at
p551.
Despite this there has lingered a belief that,
although there need not be physical irruption into or upon the demised
premises, there must be ‘a direct and physical’ interference with the tenant’s
use and enjoyment of the land. On this ground the courts have dismissed
complaints of the making of noise or the emanation of fumes, of interference
with privacy or amenity, and other complaints of a kind commonly forming the
subject-matter of actions for nuisance. Little harm seems to have been done,
since in cases where a remedy was appropriate the tenant has been able to have
recourse to the landlord’s implied obligation not to derogate from his grant.
But the existence of the limitation has been questioned (see Kenny v Preen
[1963] 1 QB 499) or circumvented by the round assertion that it is satisfied in
what might be thought somewhat doubtful circumstances (see Owen v Gadd
[1956] 2 QB 99), and I think that we should consider whether it is a proper
one.
There is nothing in the wording of the
conventional covenant that would justify the limitation. I do not know whether
it owes its existence to a desire to maintain some connection with the original
scope of the covenant as a covenant securing title or possession, or to the
mistaken notion that actions for nuisance ‘productive of sensible personal
discomfort’ were actions for causing discomfort to the person rather than for
causing injury to the land: see Hunter v Canary Wharf Ltd [1997]
AC 655 at p706. Now that this fallacy has been exposed, however, I can see no
sound reason for confining the covenant for quiet enjoyment to cases of direct
and physical injury to land.
Accordingly, I agree with the tenants that the
covenant for quiet enjoyment is broken if the landlord or someone claiming
under him does anything that substantially interferes with the tenant’s title
to or possession of the demised premises or with his ordinary and lawful
enjoyment of the demised premises. The interference need not be direct or
physical. Nor, in my opinion, is it a necessary precondition of liability on
the covenant that the acts alleged to constitute the breach would support an
action in nuisance. I do not doubt that this will usually be a sufficient
condition of liability, but there is nothing in the language of the
conventional form of the covenant that would justify holding it to be a
necessary one.
Once these artificial restrictions on the
operation of the covenant for quiet enjoyment are removed, there seems to be
little if any difference between the scope of the covenant and that of the
obligation that lies upon any grantor not to derogate from his grant. The
principle is the same in each case: a man may not give with one hand and take
away with the other. Whether a particular matter falls within the scope of the
covenant for quiet enjoyment depends upon the proper construction of the
covenant. As ordinarily drafted, however, the covenant shares two critical
features in common with the implied obligation. The first is that they are both
prospective in their operation. The obligation undertaken by the grantor and
covenantor alike is not to do anything after the date of the grant which will
derogate from the grant or substantially interfere with the grantee’s enjoyment
of the subject-matter of the grant: see Anderson v Oppenheimer
(1880) 5 QBD 602. In the present case the tenancy agreement contained a
covenant on the part of the council that
looks to the future.
The second feature that the implied obligation and
the covenant for quiet enjoyment have in common is that the grantor’s
obligations are confined to the subject-matter of the grant. Where the covenant
is contained in a lease, its subject-matter is usually expressed to be the
demised premises. In an oft-quoted passage in Leech v Schweder
(1874) 9 App Cas 463 at p474 Mellish LJ said:
It is perfectly true that the lessee is ‘to hold
and enjoy without any suit, let or hindrance.’ But what is he to hold and
enjoy? ‘The premises’. What are the premises? The things previously demised and
granted. The covenant does not enlarge what is previously granted, but an
additional remedy is given, namely, an action for damages if the lessee cannot
get, or is deprived of that which has been previously professed to be granted.
Nothing, I apprehend, can be plainer than that at law it would not, in the
least degree, enlarge what was granted.
In Spoor v Green (1874) LR 9 Exch 99
buildings collapsed because of subsidence caused by mining operations that had
taken place before the lease. There was held to be no breach of the covenant
for quiet enjoyment. The subject-matter of the lease, and therefore of the
covenant, was land already liable to subsidence in consequence of the prior
removal of the coal.
In the present cases the covenants guaranteed ‘the
tenant’s right to remain in and to enjoy the quiet occupation of the
dwelling-house’, that is to say the dwelling-house comprised in the tenancy.
This must be identified at the date when the tenancy was granted. In each case
it consisted of a flat in a building constructed or adapted for multiple
residential occupation and having inadequate sound insulation. An undesirable
feature of the flat was its propensity to admit the sounds of the everyday
activities of the occupants of adjoining flats. The landlords covenanted not to
interfere with the tenant’s use and enjoyment of a flat having that feature.
They have not done so. They have not derogated from their grant, nor have they
interfered with any right of the tenant to make such use and enjoyment of the
premises comprised in the tenancy as those premises are capable of providing.
To import into the covenant an obligation on the part of the landlords to
obtain possession of the adjoining premises and not relet them, or to install
sound insulation, would extend the operation of the grant.
The subject-matter of the grant extends, of
course, not only to the demised premises but to everything that is appurtenant
or incident to the grant to which it relates. If the demised premises enjoy a
right to ancient lights over adjoining property, the landlord must not
interfere with the tenant’s enjoyment of the right. This would be a nuisance at
common law, but it would also be a breach of the covenant for quiet enjoyment.
If, however, the demised premises enjoy no such right over adjoining land, the
landlord is free to build upon it without thereby committing an actionable
nuisance or breach of the covenant: Leech v Schweder (supra).
This may have given rise to the notion that it is a necessary condition of
liability on the covenant that the acts complained of would constitute an
actionable nuisance. But this is not the reason for the distinction. The true
reason is that the covenant must be construed by reference to its subject‑matter,
and what amounts to an interference with land that enjoys an easement over
adjoining property may not amount to an interference with the enjoyment of land
that does not. Thus in Davis v Town Properties Investment Corporation
Ltd [1903] 1 Ch 797, the scope of the covenant was limited by the fact that
the owner of land adjoining the demised premises (which did not belong to the
lessor at the date of the lease) might build on it at any time so as to
interfere with the draught from the lessee’s chimneys.
In construing the covenant, therefore, the
location of the demised premises and the use to which adjoining premises are
put at the date of the tenancy agreement, or the use to which they may then
reasonably be expected to be put in future, must always be a material
consideration. In Lyttelton Times Co Ltd v Warners Ltd [1907] AC
476, the parties agreed that the appellant’s printing-house should be rebuilt,
that the respondent should take a lease of the upper floors as additional
bedrooms for its hotel, and that the appellant should use the ground floor for
an engine-house and printing machinery. Both parties believed that the noise
and vibration caused by the operation of the machinery would be so slight that
it might be disregarded. The Privy Council held that the respondent had no
cause of action. In giving the opinion of the Board, Lord Loreburn LC said at
p481:
In this case their Lordships think that both
parties agreed upon a building scheme with the intention that the building
should be used for bedrooms and also for a printing house according to a design
agreed upon. Both parties believed these two uses could co-exist without
clashing, and that was why both of them accepted the scheme. Neither would have
embarked upon it if he had not thought his intended enjoyment of the building
would be permitted, and both intended that the other should enjoy the building
in the way contemplated. They were mistaken in their anticipation. But if it be
true that neither has done or asks to do anything which was not contemplated by
both, neither can have any right against the other.
The case was argued in nuisance and the implied
obligation not to derogate from the grant, but the reasoning is equally
applicable to the covenant for quiet enjoyment. This is why it is important to
bear in mind that the subject-matter of each of the tenancies in the present
case was not merely a residential flat, but a flat in a building constructed or
adapted for multiple occupation. The adjoining flats appear to have been
already let at the date of each of the tenancy agreements in question; but it
would make no difference if they were not. It must have been within the
contemplation of the prospective tenants that the adjoining flats would be let
to residential tenants, and that the occupiers would live normally in them.
Neither landlord, and none of the occupiers of adjoining properties, has done
or asks to do anything since the tenancy agreements were entered into that was
not contemplated by everyone concerned.
In the Court of Appeal Mantell LJ found it
impossible to distinguish the facts of Sanderson v Berwick-upon-Tweed
Corporation (where the action on the covenant succeeded) from those of the
present case or to reconcile the decision with Duke of Westminster v Guild
[1985] QB 688 (where the action failed). I think that the two cases are quite
different. They are not only not irreconcilable, but are complementary.
In Sanderson v Berwick-upon-Tweed
Corporation, the action was brought by the lessee of the servient tenement,
being land which was subject to an easement of drainage. The drain was
defectively constructed and the plaintiff’s land was flooded. He brought an
action against his landlord who had retained the ownership of the dominant
tenement. The key to an understanding of the case is that it is for the grantee
of an easement, and not the grantor, to maintain and repair the subject-matter
of the easement, with a duty to do so if by his neglect the servient tenement
suffers damage: see Robbins v Jones (1863) 15 CB (NS) 221 at p244.
The occupier of the dominant tenement was accordingly liable to an action, and
his landlord was rightly held to be in breach of the covenant for quiet
enjoyment contained in the lease of the servient tenement.
Duke of Westminster
v Guild was the converse case. There the claim was made by the lessee of
the dominant tenement. His land was flooded because a drain that passed
under adjoining land belonging to his landlord became blocked. He sought to use
the covenant for quiet enjoyment in his lease to transfer to his landlord his
own obligation as occupier of the dominant tenement to maintain the drain. This
would enlarge the grant, and the claim rightly failed.
Any tenant who complains of the state and
condition of his property is right to consider whether the tenancy agreement,
possibly modified by statute, provides him with a remedy. Where the complaint
cannot be remedied without expensive improvements to the premises, this will
require a clear contractual obligation to be expressed in the agreement. The
covenant for quiet enjoyment is an unsuitable vehicle for such an obligation.
Conclusion
My lords, these appeals illuminate a problem of
considerable social importance. No one, least of all the two councils
concerned, would wish anyone to live in the conditions to which the tenants in
these appeals are exposed. For the future, building regulations will ensure
that new constructions and conversions have adequate sound insulation. But the
huge stock of pre-war residential properties presents an intractable problem.
Local authorities have limited resources, and have to decide on their
priorities. Many of their older properties admit damp and are barely fit for
human habitation. Southwark London Borough Council have estimated that it would
cost £1.271bn to bring their existing housing stock up to acceptable modern
standards. Their budget for 1998-99 for major housing schemes was under £55m.
The average cost of installing sound insulation in the flats in Casino Avenue
is £8,000 per flat. There are 34 similar flats in the estate, so that the total
cost would be about £272,000. The borough-wide cost could be of the order of
£37m. The relevant local residents’ association has considered that the
installation of sound insulation is not a priority need.
These cases raise issues of priority in the
allocation of resources. Such issues must be resolved by the democratic
process, national and local. The judges are not equipped to resolve them. All
that we can do is to say that there is nothing in the relevant tenancy agreements
or current legislation, or in the common law, which would enable the tenants to
obtain redress through the courts.
I would dismiss both appeals.
Appeals dismissed
