Tenant taking shop in mall – Landlord leasing nearby shop to pawnbroker – Tenant claiming pawnbroker’s business interfered with his business and disclaiming lease – Landlord claiming arrears of rent – Whether interference from pawnbroker amounted to nuisance – Whether landlord under duty to abate nuisance – Whether landlord continued nuisance and thereby derogated from grant – Landlord’s claim and appeal dismissed
The landlord was the developer of a site on Bognor Regis High Street, which it converted into a small shopping mall. D wished to start a specialist shop selling puzzles and executive toys and her father, the tenant, took a tenancy of one of the units (the shop) which D occupied. The remaining units were let to a coffee shop, a charity shop, a women’s fashion shop and another clothing shop. Of the two clothing shops one ceased trading after 13 months and the other ceased after 22 months, and thereafter the sites remained empty. The tenant complained about tables which had been placed by the coffee shop on the High Street obstructing access to the shop. When the complaints remained unanswered the tenant withheld part of the rent.
In January 1992 one of the sites previously occupied by one of the clothes shops was let to a pawnbroker. The tenant complained that the pawnbroker’s windows were obstructed and so no light came out from them on to the access to his shop, and that because only one person at a time was allowed into the pawnbroker’s shop, a queue would form blocking the shop’s access and deterring potential shoppers who might have come into the shop. In August 1993 the tenant disclaimed the lease. The landlord issued proceedings for arrears of rent and for an order that the tenant open the shop for business during opening hours. The county court dismissed the landlord’s claim and allowed the tenant’s counterclaim rescinding and/or accepting the landlord’s repudiatory breach of the covenants in the lease. The landlord appealed.
Held The landlord’s appeal was dismissed.
1. The judge had found that the pawnbroker’s business was a substantial interference with D’s business, amounting to a nuisance. However, the real issue was whether the landlord was liable for that conduct and whether it was under any legal obligation to intervene to put a stop to that nuisance.
2. Where a landlord granted a lease in his shopping mall over which he had maintained control and charged a service charge, under a duty to abate any nuisance. The landlord could not simply answer that it was for the tenant protect himself from the nuisance.
3. The landlord could have acted to stop the pawnbroker’s clientele from queuing in the access to the tenant’s shop, and removed the tables and chairs obstructing the access. That could have been done either directly under the lease, or by enforcing the covenant against causing a nuisance, or by making rules ensuring that the passageway was kept clear. However, the landlord did nothing, thereby making the premises less fit for the purposes for which they were let and continuing the nuisance. Therefore the landlord had derogated from its grant.
Michael Driscoll QC and Andrew Bruce (instructed by Hardwick & Co) appeared for the appellants; Derek Wood QC and Philip Glen (instructed by Chamberlain Martin & Spurgeon, of Bognor Regis) appeared for the respondent.
