Landlord and tenant — Nuisance — Caveat lessee principle — Lease of flat — Water ingress caused by defect in light wells in part of building outside tenant’s demise — Defect existing prior to grant of lease — Whether landlord’s repairing covenant imposing obligations beyond mere obligation to repair — Whether landlord liable in nuisance — Whether caveat lessee principle applying to complaints regarding state and condition of parts of building not included in demise
The claimant held a long lease of a basement flat granted in 1996 by the defendant’s predecessor in title; the defendant acquired the reversion in 1997. The lease contained a covenant by the landlord “at all times during the term well and substantially to repair… and maintain… the exterior of the estate… and the entrance ways paths and staircases main walls party walls roof foundations and all structural parts thereof… with all necessary reparations and amendments whatsoever”. Between 1997 and 2002, the claimant’s flat suffered water ingress as a result of defective concrete in the light wells adjoining the flat; these were not within the claimant’s demise, although they were within the control of the defendant. The claimant carried out remedial works to the flat, the cost of which he sought to recoup from the defendant along with damages for inconvenience and/or diminution in the value of the flat. The claimant accepted that the defect dated from the conversion of the building into flats, prior to the grant of his lease, and that, accordingly, there was no breach of any obligation to “repair”. However, he submitted that the relevant covenant imposed more extensive obligations on the defendant. He further argued that a continuing nuisance had been adopted by the defendant. The latter contended that, since the defect pre-dated the lease, the principle of caveat lessee applied. There could have been no liability on the part of the original landlord and, accordingly, no liability for a continuing nuisance could have been created on the assignment to the defendant in 1997.
Held: The claim was dismissed. The defendant was not liable under the repairing covenant in the lease. The wording of that covenant did not create any different and separate obligation going beyond a mere covenant to repair. It contained no obligation, for example, to “keep the structure in good repair”. In the absence of an effective covenant in the lease, the claimant could not rely upon the law of nuisance to impose an obligation to rectify faulty construction work by the defendant’s predecessor in title. The principle of caveat lessee is not restricted only to things that form part of the demise; it applies whether the complaint relates to the state and condition of the demised premises or that of other parts of the building in which the demised premises are located. That principle was fatal to the claimant’s case.
The following cases are referred to in this report.
Cavalier v Pope [1906] AC 428, HL
Cheater v Cater [1918] 1 KB 247, CA
Cockburn v Smith [1924] 2 KB 119; [1924] All ER Rep 59, CA
Crédit Suisse v Beegas Nominees Ltd [1994] 4 All ER 803; (1995) 69 P&CR 177; [1994] 1 EGLR 76; [1994] 11 EG 151 and [1994] 12 EG 189, Ch
Hargroves, Aronson & Co v Hartopp [1905] 1 KB 472; (1905) 92 LT 414; 21 TLR 226, KB
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485; [1980] 2 WLR 65; [1980] 1 All ER 17; (1979) 78 LGR 100, CA
Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055; (1987) 54 P&CR 61; [1987] 1 EGLR 40; (1987) 281 EG 798, CA
Quick v Taff-Ely Borough Council [1986] QB 809; [1985] 3 WLR 981; [1985] 3 All ER 321; [1985] 2 EGLR 50; (1985) 276 EG 452; (1986) 18 HLR 66, CA
Sedleigh-Denfield v O’Callaghan [1940] AC 880; [1940] 3 All ER 349; (1940) 164 LT 72; 56 TLR 887, HL
Southwark London Borough Council v Mills; Baxter v Camden London Borough Council (No 2); sub nom Southwark London Borouch Council v Tanner [2001] 1 AC 1; [1999] 3 WLR 939; [1999] 4 All ER 449; [1999] 3 EGLR 35; [1999] 45 EG 179; (2000) 32 HLR 148, HL, [2001] QB 1; [1999] 2 WLR 409; [1998] 3 EGLR 46; [1998] 45 EG 151; (1999) 31 HLR 187, CA
Tennant Radiant Heat v Warrington Development Corporation [1988] 1 EGLR 41; [1988] 11 EG 71, CA
This was the hearing of a claim by the claimant, Nicholas Jackson, against the defendant, JH Watson Property Investment Ltd, for damages in nuisance.
The claimant appeared in person; Peter Petts (instructed by Last Cawthra Feather LLP, of Bradford) represented the defendant.
Giving judgment, HH Judge Behrens said:
1 Introduction
[1] This is a fast-track trial in a landlord and tenant dispute in relation to a property known as flat 1, Lakeside Apartments, 33 Aigburgh Drive, Sefton Park, Liverpool.
[2] Mr Nicholas Jackson is the tenant of the flat under a long (125-year) lease that was granted to him on 27 September 2006. JH Watson Property Investment Ltd (Watson Property) is the assignee of the reversion. Between 1997 and 2002, there was an ingress of water into the flat. Mr Jackson has carried out works to the flat at a cost of £5,547.13. That ingress was caused by a defect in the concrete to the light wells that adjoin the flat. The light wells are not within Mr Jackson’s demise but are within the control of Watson Property. Mr Jackson has also suffered inconvenience and/or a diminution in the value of the flat over that period, which he assesses at £3,900, and seeks to recover those sums from Watson Property.
[3] Mr Jackson does not suggest (subject to a point that I will deal with later) that there is any breach of the repairing covenants in the lease. He does, however, contend that there was a continuing nuisance adopted by Watson Property and that it is responsible for a failure to take reasonable steps to abate it. Mr Jackson referred me to a number of authorities, including Sedleigh-Denfield v O’Callaghan [1940] AC |page:34| 880, Hargroves Aronson & Co v Hartopp [1905] 1 KB 472, Cockburn v Smith [1924] 2 KB 119 and Tennant Radiant Heat v Warrington Development Corporation [1988]1 EG 71*.
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* Editor’s note: Also reported at [1988] 1 EGLR 41
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[4] There is no issue of fact between the parties. It is in particular accepted that there was water ingress caused by defective concrete laying, and it is further accepted that the costs of repairs and the assessment of general damages are reasonable. However, Watson Property denies that it is liable in respect of these sums.
[5] Mr Peter Petts, on behalf Watson Property, accepted that the defect giving rise to the ingress of water could in some circumstances amount to a nuisance; however, he denied that it did in this case. The crucial feature of this case was that the defect in the concrete was present prior to the granting of the lease in 1996. In those circumstances, the principle of “caveat lessee” applied and there was no liability of the original landlord to Mr Jackson. If there was no such liability on the part of the original landlord, no liability for a continuing nuisance could have been created on the assignment to Watson Property in 1997. Mr Petts also referred me to a number of authorities, including Cheater v Cater [1918] 1 KB 247 and Baxter v Camden London Borough Council (No 2) [2001] QB 1†.
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† Editor’s note: Also reported at [1998] 3 EGLR 46
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[6] The principal issue between the parties is thus whether Watson Property is liable in nuisance. In the event that liability is established, there are minor issues as to the extent that Watson Property is entitled to recoup its outlay under the service charge in the lease.
2 Representation
[7] Mr Jackson is a Chancery barrister practising in Liverpool. He is known to me both professionally and socially. Mr Jackson represented himself in the dispute. Watson Property was represented by Mr Petts instructed by Last Cawthra Feather.
[8] Both parties expressly consented to my dealing with the case, even though I knew Mr Jackson.
[9] I was provided with full and detailed skeleton arguments and a helpful bundle. I am most grateful to the parties and their advisers for their assistance in what is a by no means straightforward legal problem.
3 Facts
[10] As already noted, the facts were not in dispute. No oral evidence was called before me. The bundle contained witness statements from Mr Jackson, and his surveyor, reports, title deeds photographs and pleadings.
3.1 Flat
[11] Lakeside Apartments is a Victorian mansion block built in the mid- to late-19th century, which was converted by Oastdren Developments Ltd (Oastdren), in or around 1996, into 12 flats. Flat 1 is the basement flat. The layout of the flat can be seen from a plan forming para 4 of the particulars of claim. The light wells can be seen on the west, north and east sides of the flat. A photograph of the western light well can be seen at p66. From the photograph, it is possible to see the concrete base and a plastic downpipe leading to a grille marked G on the plan.
3.2 Ingress of water
[12] There is a detailed description of the allegations in paras 4 to 8 of the particulars of claim. These allegations are all admitted in the defence. In those circumstances, it is not necessary to set out the individual allegations in any more detail.
[13] The most serious ingress occurred in the vicinity of the grille in the western light well. It is common ground that the concrete had been laid defectively in the immediate vicinity of the grille and that the concrete was honeycombed in that area. In the result, there were gaps between the concrete and the exterior wall. This allowed water penetration beneath the light wells. This water was eventually forced up internally by hydraulic action. There were other areas of ingress near the grilles in the other light wells, in an area shown on the plan as “void” and under the steps. The extent of the internal damage is shown schematically on the plan and in the photographs.
[14] Mr Jackson accepts that all the defects arose when the conversion work was carried out that is to say, before the commencement of the lease.
3.3 Repairs
[15] In the light of the admissions that have been made, it is not necessary to describe the remedial work in any detail. It is summarised in para 15 of the particulars of claim. In further summary, it comprised waterproofing work to the light wells, the application of zypex to the light wells, the construction of a protective wall and vent to the kitchen and the installation of damp-proofing to the kitchen wall, the en-suite bedroom and the living-room wall. As already noted, the total cost of the remedial work was £5,547.13. It is expressly admitted that this sum was reasonable and that the works were indeed remedial works caused by the water ingress.
4 Lease
[16] The lease is dated 27 September 1996. Under its terms, Oastdren granted Mr Jackson a lease of the flat for a term of 125 years from 24 April 1996. A premium of £63,500 was payable by Mr Jackson, together with annual ground rent of £50.
[17] The demised premises are defined in the first schedule*. It includes the flat and internal walls but plainly does not include areas outside the flat, such as the light wells.
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* There was a variation in a deed of rectification dated 28 February 2001 affecting the void. It is not material to anything I have to decide and I do not mention it further
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[18] Under clause 3(b), Mr Jackson covenanted:
To pay 8.333% (1/12) of the cost of the Landlord complying with its obligations under the Fifth Schedule and the Lessor’s reasonable administrative costs in complying with those obligations…
[19] Under para 2 of the fifth schedule, the lessor covenanted:
at all times during the term well and substantially to repair… and maintain… the exterior of the estate… and the entrance ways paths and staircases main walls party walls roof foundations and all structural parts thereof… and all drains… gutters down pipes and other conduction media belonging thereto respectively with all necessary reparations and amendments whatsoever.
4.1 Construction of the repairing covenant
[20] In their skeleton arguments, both counsel accepted that if the state of the premises was no worse than at the commencement of the lease, there was no want of repair. I expressed some surprise at this and was referred to a passage in Woodfall: Landlord and Tenant, vol 1, in para 13.030. Since reserving judgment, I have looked at the authorities referred to in Woodfall and, in particular, the judgment of Ralph Gibson LJ in Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055†. Having considered that case, I now accept that the skeleton argument accurately reflects the law as binding on me. Thus, at p1063 of the report, Ralph Gibson LJ starts by considering a submission of counsel for the appellant landlord as to the effect of the decision of the Court of Appeal in Quick v Taff-Ely Borough Council [1986] QB 809‡:
The reference in Quick‘s case to deterioration or damage, such as the statement by Lawton LJ that “that which requires repair is in a condition worse than it was at some earlier time”, or that of Dillon LJ that a covenant to repair the structure or exterior “will only come into operation where there has been damage to the structure and exterior which requires to be made good” are not to be taken as applicable to a case of this nature, and their Lordships in Quick’s case did not have such a case as this in mind. In particular, they were not dealing with a case like this where the defective part of the premises is such that it has and may again interfere with the ordinary use and occupation of the premises contemplated by the demise and, having been caused by defective work, was |page:35| “worse” than it was required to be if that part of the premises was to be regarded as in good repair.
For my part I am unable to accept the submission made by counsel for the appellant landlords. The facts of this case seem to me to be, as I have said, highly unusual. I found it at first to be a startling proposition that, when an almost new office building lets ground water into the basement so that the water is ankle deep for some years, that state of affairs is consistent with there being no condition of disrepair under a repairing covenant in standard form whether given by landlord or tenant. Nevertheless, as was pointed out in the course of argument, the landlord of such a building gives no implied warranty of fitness merely by reason of letting it; and neither a landlord nor a tenant, who enters into a covenant to repair in ordinary form, thereby undertakes to do work to improve the demised premises in any way. I see no escape from the conclusion that, if on the evidence the premises demised are and at all times have been in the same physical condition (so far as concerns the matters in issue) as they were when constructed, no want of repair has been proved for which the tenants could be liable under the covenant.
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† Editor’s note: Also reported at [1987] 1 EGLR 40
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‡ Editor’s note: Also reported at [1985] 2 EGLR 50
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[21] Mr Jackson sought to avoid the consequences of this decision by reference to the decision of Lindsay J in Crédit Suisse v Beegas Nominees Ltd [1994] 4 All ER 803*. In that case, the landlord had covenanted to maintain, repair, amend, renew and otherwise keep in good and tenantable condition the structure of the building. Lindsay J felt able to hold that that wording went beyond a mere covenant to repair. He relied upon the obligation to keep the structure in good and tenantable condition coupled with the parallel obligation to “amend” and “renew”.
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* Editor’s note: Also reported at [1994] 1 EGLR 76
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[22] Mr Jackson drew my attention to the word “amendments” in the instant covenant and invited me to follow Lindsay J’s construction. I regret that I cannot accept that submission. The instant covenant has no obligation to “keep the structure in good repair”. Furthermore, the context of the word “amendments” is to my mind a reference to what has to be repaired and does not create a separate obligation different from the obligation to repair.
[23] It follows that there is no liability on Watson Property under the covenant to repair. Any liability must be in tort.
4.2 Covenant to reimburse the landlord under the service charge
[24] In the course of oral argument, Mr Jackson conceded that if Watson Property were liable for the cost of repairs in nuisance, he would be liable to pay 8.333% of those costs under clause 3(b) of the lease. He contended that he would not be liable for any interest recoverable or for any general damages payable. Mr Petts accepted that Watson Property was not entitled to be reimbursed for the general damages, but contended that any interest on the cost of repairs was recoverable.
[25] To my mind, the construction of clause 3(b) is relatively clear. Mr Jackson’s obligations relate only to the cost of Watson Property complying with its obligations under the fifth schedule. If, as I have held, there is no obligation on Watson Property under the fifth schedule, then, in my view, there is no obligation on Mr Jackson (or any other tenant of any of the other 11 properties) to contribute at all.
[26] It follows, in my view, that if Mr Jackson is right and Watson Property is liable to him in tort, it will have to pay him damages and interest without any right of reimbursement at all for any part of the damages.
[27] If, on the other hand, there is no liability in tort, regrettably Mr Jackson is left having to pay for the remedial work himself.
5 Liability in tort
5.1 Mr Jackson’s authorities
[28] Mr Jackson started by referring me to the well-known decision in Sedleigh-Denfield. In that case, a ditch on the respondents’ land had been piped in by the local authority without permission. The respondents became aware of the pipe and cleaned it out twice a year. No proper guard was placed at the entrance to the pipe, which became blocked. Some years later the appellant’s garden flooded. The respondents were held liable on the ground that they had adopted the nuisance (by using the pipe) and suffered the nuisance to continue without taking reasonable and prompt means for its abatement.
[29] In the course of his judgment, Viscount Maughan said, at p891:
if the occupier “adopts” or “continues” the nuisance, he will be liable if damage is caused.
And, at p894:
The statement that an occupier of land is liable for the continuance of a nuisance created by others, eg, by trespassers, if he continues or adopts it which seems to be agreed throws little light on the matter, unless the words “continues or adopts” are defined. In my opinion, an occupier of land “continues” a nuisance if, with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He “adopts” it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance. In these sentences, I am not attempting exclusive definitions.
[30] Lord Wright, at p903, said:
In Cunard v Antifyre (I) Talbot J succinctly defined private nuisances as interferences by owners or occupiers of property with the use or enjoyment of neighbouring property. “Property” here means land, and should be amplified to include rights over or in connection with it. “Occupiers” may in certain cases be used with a special connotation. The ground of responsibility is the possession and control of the land from which the nuisance proceeds.
[31] Mr Jackson submitted that Watson Property was in control of the light wells they were not part of the flat as demised. He submitted that they had sufficient knowledge of the ingress of water to be taken to have continued the nuisance.
[32] It has to be said that there are obvious factual differences between this case and Sedleigh-Denfield. This is not a case of an artificial pipe becoming blocked or diverting the natural flow of water. Rather, it is the failure to ensure that the concrete was contiguous to the wall combined with the lack of proper damp-proofing to the flat.
[33] In Hargroves, the claimant was a tenant in a building of which the defendant was the landlord. A rainwater gutter in the roof became stopped up. The roof was under the control of the defendant. Notice was given to the defendant but he failed to have the gutter cleared out, with the result that the claimant suffered rainwater damage. The Court of Appeal upheld the decision of the county court judge that liability was established. At p477, Lord Alverstone said:
A person who maintains an artificial thing like a gutter, used for the very purpose of carrying off the rain-water from the roof, in an improper condition after notice may be said to be guilty of an act of commission, and he is, in my opinion, under a duty to take care that as a result of that act no damage happens to the occupants of the house.
[34] Again, it may be said that the facts are very different from this case; there was an artificial rainwater pipe under the control of the defendant.
[35] Cockburn was a similar case. The owner of a block of flats let one to the tenant but kept the roof and guttering in his own possession and control. The guttering became defective and the landlord failed to remedy it after notice. Rainwater escaped and caused damage to the claimant. The action succeeded.
[36] In the course of his judgment, at p129, Bankes LJ referred to a “line of authorities to show that a landlord is under an obligation to take reasonable care that the premises retained in his occupation are not in such a condition as to cause damage to the parts demised to others”. He referred expressly to Hargroves and the fact that it had been recognised in other cases such as Cavalier v Pope*.
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* Editor’s note: Reported at [1906] AC 428
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[37] Much of the decision in Tennant is not relevant. Part of the claim involved a claim by the tenant in nuisance against his landlord on the ground that rainwater outlets in unlet units had become blocked. On those facts, Dillon LJ had no doubt that the corporation was liable in nuisance and negligence on the general principles laid down in |page:36| Sedleigh-Denfield and Leakey v National Trust for Places of Historic Interest or Natural Beauty*.
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* Editor’s note: Reported at [190] QB 485
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5.2 Authorities relied upon by Mr Petts
[38] In Cheater, a landlord let a farm to a tenant retaining the adjoining premises on which was a shrubbery containing yew trees. The branches of the yew trees overhung the farm and were within the reach of the tenant’s cattle and horses. The tenant’s mare ate the yew trees and died. The yew trees overhung the land to the same extent as at the beginning of the tenancy. It was held that the landlord was not liable for the loss of the mare. The basis of the judgment can be seen from the judgment of Pickford LJ, at p252:
“…The law of this country is that a tenant, when he takes a farm, must look and judge for himself what the state of the farm is. Just as in the case of a purchaser of a business the rule is caveat emptor, so in the case of taking the lease of property the rule is caveat lessee; he must take the property as he finds it. I never heard that a landlord warranted that the sheep should not eat his yew trees.” That is a distinct statement of the law and not a dictum. It is the second ground given by the Lord Justice for his judgment. If a judge states two grounds for his judgment and bases his decision upon both, neither of those grounds is a dictum. The law so stated by Mellish LJ is in agreement with a series of cases of which Sutton v Temple (1) is an early instance. In a case of this kind the tenant takes the land demised as it is, and therefore if the tenant here took the land with the yew trees growing over it so that his cattle could eat of the branches and they did eat, he cannot complain. Therefore the broad proposition argued on behalf of the plaintiff cannot be maintained.”
[39] There is a full discussion of the principle in the judgment of Tuckey LJ in Baxter. The facts can be taken from the headnote:
In 1975 the defendant council converted a three-storey Victorian terraced house into three one-bedroom flats, one on each floor. The conversion complied with the then current building regulations for London which at that time did not require the provision of sound insulation between the flats. The only noise barriers between the flats were plasterboard ceilings and wooden floors which were in poor condition. Tenants of the ground and second floor flats were already in occupation when the council subsequently let the first floor flat to the plaintiff and her daughter. The plaintiff’s tenancy agreement required the council to prevent the continuation of any nuisance and, although the agreement obliged the council to keep the structure and exterior in repair, it did not require them to carry out internal repairs or improvements. The plaintiff complained about noise from the adjoining flats, but the council refused to improve the sound insulation. The plaintiff brought an action against the council in the county court alleging that the noise generated by the day-to-day living of her neighbours, which entered her flat because of the poor sound-proofing, constituted an actionable nuisance. The judge dismissed the claim. On appeal by the plaintiff the case was remitted to another judge for rehearing. The second judge held that the noise arose from the ordinary use of the flats by the neighbours, that it constituted an undue interference with the plaintiff’s use and enjoyment of her flat, but that the council were not liable because a tenant who took premises in a defective state was not entitled to complain about their condition.
[40] The Court of Appeal upheld the decision of the second judge on two grounds. First, it held that the ordinary use of residential premises could not constitute a nuisance unless the use was unusual or unreasonable having regard to the purpose for which the premises had been constructed. Second, even if nuisance had been established, since the parties were landlord and tenant the plaintiff was deemed, in the absence of any contractual or statutory provision to the contrary, to take the premises as they were, and the principle that it was no defence that a plaintiff came to a nuisance had no application. The second ground is relevant to the present case. The relevant part of Tuckey LJ’s judgment extends over two full pages (pp13-15C) of the report. Tuckey LJ starts, at p13D-H, by setting out the principle making the point that it applied to actions for personal injury caused by defective premises:
But the house had poor sound insulation and the other flats were let at the time when the plaintiff took her flat. Does this, as the judge held, give the council a defence to her claim in nuisance? The answer to this question is again, I think, to be found in a line of authority going back into the last century. This establishes that there is no implied covenant by a landlord that an unfurnished house or flat which he lets is fit for habitation. If it is let in a dangerous or dilapidated condition then the landlord is not liable for injury to the tenant, his family or guests. This principle was stated in Robbins v Jones (1863) 15 CBNS 221, 240 where Erle CJ said:
“A landlord who lets a house in a dangerous state, is not liable to the tenant’s customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house; and the tenant’s remedy is upon his contract, if any.”
It was applied by the House of Lords in Cavalier v Pope [1906] AC 428 to a claim by a tenant’s wife for personal injuries, where the claim was put in a number of ways including nuisance. It has been applied in many cases since to claims in negligence for personal injury. But in such cases a landlord who is a “builder landlord” as opposed to a “bare landlord” does have a liability if the accident is caused by his negligent design or construction of the premises: Rimmer v Liverpool City Council [1985] QB 1. It was applied by this court in McNerny v Lambeth London Borough Council (1988) 21 HLR 188, where the tenant alleged that the council were liable in negligence for condensation dampness in her flat.
[41] Tuckey LJ went on to consider whether the principle applied to an action in nuisance. He started by referring to the passage that I have already cited. He went on to discuss the attempts made in that case to distinguish or limit the principle. The discussion includes the following passages, at p14B-15C:
The court made it clear that this principle only applied where the adjoining occupiers were landlord and tenant. Furthermore the court suggested and subsequent cases have established that if the landlord created the nuisance after the letting he would be liable. Cheater v Cater [1918] 1 KB 247 and Cavalier v Pope [1906] AC 428 were applied in Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577 to defeat a claim which had been put in nuisance and negligence by an employee of a tenant who had been injured by a falling branch from a tree on the landlord’s adjoining land. However there is no recent reported case to which we were referred in which Cheater v Cater [1918] 1 KB 247 has been applied.
Mr Goudie submits that Cheater v Cater is an example of the type of nuisance which involves encroachment onto neighbouring land. Nuisance involving interference with enjoyment of land is of a different kind. The principle laid down in Cheater v Cater should not apply to this kind of nuisance. The applicable principles are those stated in this court in Sampson‘s case [1981] 3 All ER 710 and Baxter v Camden London Borough Council (No 1) 30 HLR 501.
I do not think there is any logical or legal basis for making the distinction contended for by Mr Goudie. Whilst the nature of the interference may be different each arises in a case of this kind from the state of the adjoining premises. Moreover, if there is no liability in cases where physical damage including personal injury is caused by defective premises, there can be no reason why the same rule should not apply to nuisance from noise.
…
Finally, Mr Goudie submits that Cheater v Cater [1918] 1 KB 247 itself was decided per incuriam because Sturges v Bridgman (1879) 11 ChD 852, which establishes the well known principle that it is not a defence that the plaintiff came to the nuisance, was not cited to the court.
I think the short answer to this submission is that this principle has no application to a case where the parties are landlord and tenant. Such cases are decided on the principle of caveat lessee and the fact, albeit a fiction, that the lessee is deemed to take the premises as they are.
[42] Both Otton LJ and Stuart-Smith LJ delivered concurring judgments, in which they considered the principle in some detail. Stuart-Smith LJ made the point that the harshness of the common law has to some extent been ameliorated by statute, and he referred to a number of statutes that in some cases might apply. Mr Jackson does not contend that there is any relevant statute here.
[43] Stuart-Smith LJ, at pp18H-19A, dealt with the attempts to distinguish the principle:
In their further supplemental note counsel for the plaintiff submit that the principle in Cheater v Cater [1918] 1 KB 247 and Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577 are instances of encroachment from neighbouring land and that the same principle does not apply to nuisance involving interference with enjoyment of land. In my judgment this is not a valid distinction. Robbins v Jones 15 CBNS 221 and Cavalier v Pope [1906] AC 428 are cases of physical damage due to defective premises. If the rule applies in those cases, which are |page:37| more serious because they involve personal injury, then I can see no reason why it should not apply to nuisance from noise.
[44] Thus, both Tuckey LJ and Stuart-Smith LJ have held that the principle applies to a nuisance involving interference with the physical enjoyment of land and physical damage owing to defective premises.
[45] There was a further appeal to the House of Lords: see [2001] 1 AC 1*. The appeal was dismissed also on two grounds. The first was that there was no breach by the landlord of the covenant for quiet enjoyment, and the second was that the ordinary and reasonable use of residential premises by an occupier was not of itself a nuisance. Thus, there was no express consideration of the second of the Court of Appeal’s second ground. There are, however, passages in the judgments of both Lord Hoffmann and Lord Millett in the context of the discussion of the covenant for quiet enjoyment that support the reasoning of the Court of Appeal judgments. Thus, at pp7H-8C, Lord Hoffmann said:
Neither tenancy agreement contains any warranty on the part of the landlord 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, 87-88 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, 374 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.
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* Editor’s note: Also reported at [1999] 3 EGLR 35
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[46] At pp17D-18A, Lord Millett said:
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, 222: “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.” Goddard LJ spoke to the same effect in Kiddle v City Business Properties Ltd [1942] 1 KB 269, 274-275:
“[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 which 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.
6 Discussion and conclusion
[47] In his submissions, Mr Petts made the point that his authorities applied directly to this case and were binding on me. He made the point that in each of the cases cited by Mr Jackson the nuisance had been created after the commencement of the tenancy, with the result that the principle of “caveat lessee” did not apply.
[48] Mr Jackson sought to distinguish Mr Petts’s authorities in a number of ways. He referred me to part of the argument in Baxter (at p5G) where counsel for Camden acknowledged that the legal duty could be different where there is physical damage to the property. There are two answers to this. First, the submission was made in the context of whether there was a nuisance at all. The caveat lessee submissions were not made until after the hearing: see p6. Second, and more importantly, the question of physical damage is expressly dealt with in the judgments in the passages that I have cited.
[49] Mr Jackson referred me to the decision in Cavalier. He accepted that, in that case, the House of Lords applied the principle of caveat lessee, but he referred me to the judgment of Lord Atkinson (at p433), where he explained that the basis for the decision rested upon the question of control. As he pointed out, in Hargroves, the landlord retained control of the roof. Mr Jackson submitted that, in this case, Watson Property has retained control of the light wells.
[50] Mr Jackson submitted that the rule applies only to the thing let. In this case, the light wells did not form part of the demise. He accepted that it is not clear from Baxter whether the walls and the ceilings were part of the demise. He submitted that Cheater can be explained on the basis that the branches were overhanging and thus on the demise.
[51] Although I see the force of Mr Jackson’s submissions, I regret that I cannot accept them. I do not, for my part, think that Cheater or Cavalier can be explained solely on the basis that he suggested. In my view, the principle is wider. This seems clear both from Tuckey LJ’s judgment, where he makes the point that the rule arises from the “state of the adjoining property”, and from Lord Millett’s opinion that the rule arises “whether the complaint relates to the state and condition of the demised premises or, as in the cases cited, of other parts of the building in which the demised premises are located”. To my mind, those observations are fatal to Mr Jackson’s submissions.
[52] In my view, the authorities that are recent and plainly binding on me do establish the proposition for which Mr Petts contended. In the absence of an effective covenant to repair in the lease, I do not think that Mr Jackson can rely upon the law of nuisance to impose what is, in effect, an obligation to put right faulty construction work by Watson Property’s predecessor in title.
[53] I accept that this is a result that may appear to be hard on Mr Jackson. However, as I have noted, there is, in my view, no right for Watson Property to be reimbursed any part of the damages from the service charge provision. Thus, it would also have been hard on Watson Property if liability had been established.
[54] In the result, I conclude that Mr Jackson’s claim falls to be dismissed.
Claim dismissed.
