Where activities constitute a nuisance, the persons directly responsible for the activities in question are liable. So too is anyone who authorised or participated in them, but there is very little judicial guidance as to the practical application of this rule in circumstances where a landlord’s involvement in his tenant’s activities goes beyond the mere receipt of rent.
We know that landlords cannot be fixed with liability for nuisances caused by their tenants simply because they do nothing about them. In order to be liable for authorising a nuisance, a landlord must either participate directly in the commission of the nuisance, or must be taken to have authorised it by letting the property to the tenant. Malzy v Eichholz [1916] 2 KB 308 established that authority to conduct a business is not an authority to conduct it in such a way as to cause a nuisance, unless the business cannot be carried on without doing so. In addition, landlords do not become liable for their tenant’s nuisance simply by failing to enforce a covenant that would put paid to the nuisance.
The question whether a landlord has participated in a nuisance is a question of fact, not law. However, Lawrence v Coventry (t/a RDC Promotions) (No 2) [2014] UKSC 46; [2014] PLSCS 223 provides us with rare Supreme Court authority on the application of the rules. The case concerned noise emanating from a stadium used for motor sports. The Supreme Court had already decided that the promoters of the racing activities that took place in the stadium were liable in nuisance: [2014] UKSC 13; [2014] PLSCS 68. Were their landlords liable too?
The landlords had not authorised the nuisance as a result of the letting itself because the use could have been – and had previously been – carried on without creating a nuisance. However, the complainants relied on a combination of factors, which, they claimed, showed that the landlords had participated in causing it. One of the landlords had constructed the stadium, and one of the planning permissions for racing, which was still operative, was, and remained, personal to the other. The complainants also relied on the fact that the landlords had erected a hay-bale wall around their property to discourage complaints and reduce noise, but had not tried to get the tenant to address the problem. The landlords had also co-ordinated all dealings with the local authority, and any other complainants, on noise issues and had appealed against the noise abatement notice served by the local authority.
Even so, the Supreme Court decided (but by a bare majority) that the landlords were not liable for the tenant’s actions. The majority accepted that the landlords had gone further than most landlords would have done, but found it hard to accept that, by trying to fight off allegations of nuisance against its tenants, a landlord could be said to be participating in the nuisance. They observed that any landlord, whose premises were being lawfully used for motor racing, would wish to avoid, or minimise, any restriction on noise emissions to preserve the value of the reversionary interest. They drew a parallel with participants, spectators, and third parties with an economic interest in the activities, who might try to persuade the local authority not to take any action to curtail them. Such persons would not be causing or participating in the nuisance. Similarly, it would be illogical to hold the landlords liable for trying to protect their economic interests.
Allyson Colby is a property law consultant
