Tenancy — Cockroach infestation — Landlord not in occupation of any part of demised premises — Whether landlord liable in nuisance and/or negligence — First instance decision of no liability on landlord — Appeal dismissed
The appellant was a tenant of 7 Banstead Street, in Nunhead Estate, Southwark, London SE15. No 7 Banstead Street was one of three dwelling units in an integral building. The lease was a complete demise with no part reserved under that agreement for the landlord housing association. A power was reserved for the landlord to carry out repairs. The landlord sued for possession on the grounds of rent arrears and the tenant counterclaimed for breach of repairing covenants, because the flat was infested with cockroaches. Complaints had been made by the appellant as well as other tenants and the premises had been treated on a piecemeal basis. The residents then conducted their own survey and submitted it to the council, which issued an abatement notice under the Public Health Act 1936, section 83, upon the landlord. Thereafter, the entire estate was treated with block treatment and the nuisance was abated.
On the tenant’s counterclaim the judge refused to imply a term that the landlord should have taken reasonable care to abate the nuisance timeously; and that, for that purpose, the landlord should be held as having been in “constructive occupation” of the premises from which the nuisance could then be said to have emanated, because he retained the power to carry out the repairs. The judge also stated that there had to be a nuisance before a duty of care in negligence arose and if there was no nuisance, there could be no negligence. There had also been no breach of the covenant for quiet enjoyment. The housing association argued that there was no duty on the landlord of neighbouring premises, which were wholly demised, to abate a nuisance arising without any fault on his part. The tenant appealed.
Held The tenant’s appeal was dismissed.
1. There could be no term implied into the tenancy agreement that the landlord should take reasonable steps to abate a nuisance. The term lacked clarity and the contract was effective without implying such a term.
2. Because there were no premises of which the landlord could have been said to have been an “occupier”; the tenant relied on analogy with the “highway” cases where a passerby had suffered damage as a result of disrepair to the premises and there was a duty on the part of the person having control of the premises and a right of access to them to maintain them in a safe condition: see Wringe v Cohen [1940] 1 KB 229.
3. However, even assuming that such a principle could be so extended, it was of no assistance to the tenant. It had not been proved that the cockroaches had entered from the property of the landlord. There was also no degree of control for the principle to operate.
4. The power to repair could not be converted into a power for the landlord to step in and conduct a block infestation programme throughout the estate. That could only be done after invoking the public health procedures.
5. The question then arose how far an independent liability in negligence could be established if the claim in nuisance failed. That liability could not arise by importing a duty of care on to a landlord who was powerless to intervene under common law powers. The fact was that those powers could only be supplemented by statutory ones under the Public Health Act.
Robert Latham (instructed by Glazer Delmar) appeared on behalf of the appellant tenant; Nicholas Vineall (instructed by Evans Butler Wade) appeared on behalf of the respondent landlord.
