Landlord and tenant — Problems created by nuisance to lower flat from excessive noise emanating from use of upper flat — Respective responsibilities of tenant of upper flat, previous landlord and present landlord — Both flats occupied by long leaseholders — Noise resulted from construction of a terrace on a flat roof which had been tiled and on which a decorative wall had been built, with access to the roof from french windows in the upper flat — Nuisance resulted from persons, such as visitors to the upper flat, treading on the tiled roof and causing an aggravating noise — Construction had taken place in the time of the previous reversioner and subsequently the reversion was purchased by the present landlord knowing of the complaints made by the tenant of the lower flat — This tenant, plaintiff in the county court action, sued the tenant of the upper flat and the present landlord — County court judge awarded plaintiff damages against the present landlord, who appealed — Previous landlord not a party to the proceedings — Held that the present landlord was in law in no better position than the previous landlord would have been and was liable both in nuisance and for breach of covenant of quiet enjoyment — Question of remedies discussed — Grant of injunctions unsatisfactory in the circumstances — Plaintiff had withdrawn claim for damages against upper tenant and preferred to uphold judgment against present landlord — Held that in the circumstances the right course was to uphold the award of damages against the present landlord and dismiss his appeal — As between the upper tenant and the present landlord the former was an innocent party despite her liability to the plaintiff
This was an
appeal from a decision of Deputy Judge Raw at West London County Court. The
plaintiff in the action was Robert Hamilton Sampson, tenant of flat 6 at 4
Lyall Street, London SW1. The first defendant was Miss A Hodson-Pressinger, the
tenant of flat 7, the flat above the plaintiff’s. The second defendant was D M
Betts, the present owner of 4 Lyall Street and landlord in relation to the two
flats. The deputy county court judge held that the first defendant was not
liable in nuisance proceedings, but that the second defendant was liable. The judge
refused an injunction but ordered the second defendant to pay the plaintiff
£2,000 damages. The second defendant appealed.
R G Lamb
(instructed by Franks, Charlesly & Co) appeared on behalf of the appellant:
Roderick Cordara (instructed by Stoneham, Langton & Passmore) represented
the respondent plaintiff; James Meston (instructed by Joynson-Hicks & Co)
represented the respondent (first defendant).
Giving
judgment, EVELEIGH LJ said: The plaintiff is the tenant of flat no 6 situated
at 4 Lyall Street, London SW1, which he holds for a term of 99 years from June
24 1977 granted by a lease dated March 31 1978. He had previously been a
statutory tenant of the flat. At one time immediately above the plaintiff’s
sitting-room, inner hall, kitchen and bathroom there was a flat roof which gave
access to a fire escape and two water tanks.
The flat above
the plaintiff’s, no 7, was empty from 1974 until August 11 1978, when the first
defendant moved in under a 99-year lease in similar terms to that of the
plaintiff. It was granted by the same landlord. Between 1974 and 1978
conversion work was done to flat no 7. French windows were put in the wall of
the sitting-room so that it opened on to the flat roof to which I have
referred. That roof was tiled and a decorative wall was built using Californian
bricks, so that flat no 7 had an attractive tiled terrace of some 30 ft x 19
ft.
Unhappily for
the plaintiff, whenever anyone walked upon the terrace the noise of treading
feet penetrated the plaintiff’s flat and in particular his sitting-room. The
first defendant regarded the terrace as a most desirable feature of her flat.
As one would expect, she invited friends on to the terrace. She occasionally
gave a party there. She was a thoroughly desirable neighbour on good terms with
the plaintiff, but she insisted on the right to use the terrace in the way that
any reasonable person would who was ignorant of any particular detrimental
effect upon the occupier of the flat below. When she learned that the plaintiff
was disturbed by the noise from the terrace she still took the view none the
less that she should not be obliged to modify her use of the terrace or to put
any insulating covering on it. The plaintiff complained to the first defendant
and to the landlords.
In about March
1979 the second defendant showed an interest in acquiring the building no 4
Lyall Street. The plaintiff had told him about the noise from the terrace and
had shown him an architect’s report in which the noise was described as
excessive and in which remedies were advocated. The second defendant, however,
bought the property in April or May 1979 from the landlords. Thereafter he
denied any responsibility for the noise resulting from the use of the terrace.
The noise
complained of is that of people using the terrace, particularly when treading
upon the roof. The county court judge visited the premises and heard the noise
for himself. He said that, however ‘pleasantly’ the terrace was used by the
first defendant, the plaintiff could hear what was going on. He could hear
conversations as a result of the tiles being improperly laid. He said that the
noise was a nagging noise and interfered with the plaintiff’s use and enjoyment
of his premises, particularly the sitting-room. However, he held that the first
defendant was not liable because she had nothing to do with the construction of
the terrace. He regarded her as an innocent party in nuisance proceedings. He
found the second defendant liable for the nuisance. He refused an injunction
but ordered the second defendant to pay to the plaintiff £2,000 damages. These
he assessed on the basis of the diminution in value of the plaintiff’s flat as
a result of being exposed to noise from above.
The appellant
contended that the noise from flat no 7 was not sufficient to amount to a
nuisance. I find this an impossible contention. The learned judge visited the
premises and concluded that the noise did in fact interfere with the reasonable
enjoyment of the plaintiff’s flat. The appellant’s contention was largely based
upon the number of decibels recorded when readings were taken of the noise by
an expert witness; but volume is not the sole test. The judge found the noise
to be aggravating and irritating and was, in my opinion, entitled, on the
evidence he heard, to reach the opinion he did.
It was also
contended that the appellant could not be guilty of a nuisance, because the
first defendant was using residential property in a normal way. The flaw in
this argument, in my opinion, is that the property itself was not fit to be
used in a normal way in so far as the terrace was concerned. It could not so be
used without interfering with the reasonable enjoyment by the plaintiff of his
flat. The use of the terrace put a strain upon the plaintiff that normal use in
a normal building would not have done.
The first
landlord is not a party to these proceedings. However, it is helpful to
consider what his position would have been had he continued to be the landlord.
He clearly would have been liable in nuisance to the plaintiff. He let the premises
to be used for residential purposes and those purposes, in my opinion, included
the use of the terrace in the way in which the first defendant used it. It must
have been contemplated by the landlord that the tenant of flat no 7 would walk
upon the terrace wearing ordinary footwear and that she would invite others to
do so and to converse while there. He had himself been responsible for the
condition of the premises which were not in fact suitable for use in the manner
contemplated without causing a nuisance. It seems to me that the position of
the first landlord falls
had let the premises to a tenant for the purpose of doing an act likely to
cause a nuisance. In that case the premises were let for burning lime. Any
hesitation that might be felt in applying the principle to the present case
lies in the fact that burning lime very plainly carries with it the risk of
causing a nuisance and using a flat for residential purposes does not, at least
not to the same extent. Nevertheless, the possibility of nuisance caused by
treading on the floor is readily appreciated and indeed the lease in the
present case contained a provision requiring the tenant to carpet the
floorboards. By way of contrast, however, it was clearly envisaged that the
tiles would not be covered.
The appellant
relied upon the case of Rich v Basterfield (1847) 4 CB 783. I do
not think that that case assists the appellant for the reasons stated by
Goddard J (as he then was) in Wilchick v Marks and Silverstone
[1934] 2 KB 56 at p 65: ‘Rich v Basterfield was a case of a
tenant himself creating a nuisance (in that case by smoke) by the manner in
which he used the premises, which could have been used without creating a
nuisance. The landlord therefore had done nothing wrong’. The tenant in that
case could have burned coke. He had not been authorised specifically to use the
fuel he in fact used. In the present case it is clear that the use made of the
terrace was the very use contemplated by the landlord and the tenant when the
lease was granted and not a use for which the tenant was solely responsible.
Apart from the
question of common law nuisance, the plaintiff’s lease contains the usual
covenant for quiet enjoyment, that is, that the tenant may use the premises
without interference by the landlord or those claiming under him. The
contemplated use for which the original landlord let no 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. The plaintiff’s enjoyment of the demised
premises was unlawfully interrupted by the first defendant, a person lawfully
claiming under the lessor. The plaintiff has not pleaded the case on this basis
but it is a relevant consideration when I later come to consider contribution.
It has been
argued on behalf of the second defendant that even though the original landlord
might be liable the second defendant is not because, it is said, he was not
responsible for the construction of the roof terrace and he is unable to
control the use of the first defendant’s flat. I cannot accept this contention.
The second defendant knew that the terrace was so constructed that its use
would cause a disturbance to the plaintiff. It is a disturbance which the judge
has held to amount to a nuisance. With that knowledge the second defendant has
taken an assignment of the reversion and therefore taken over the role of the
original landlord. He took over that landlord’s responsibility for the
condition of the premises and their use. I have expressed my view as to the
liability of the original landlord. I cannot see that the second defendant is
in any different position. He is in receipt of rent which is payable to him on
the basis that the first defendant, his tenant, is allowed by him to occupy and
use the premises in the same way as she was permitted so to do by the original
landlord. The second defendant is himself authorising the nuisance. He, too, is
in breach of the covenant of quiet enjoyment. He is liable in nuisance and for
breach of covenant.
Having reached
this conclusion, I find it unnecessary to consider the effect of other terms in
the two leases which have been referred to in argument. They were by no means
in the forefront of the plaintiff’s case.
In these
circumstances, what remedies are available?
There could be an injunction against the first and second defendants.
Alternatively, it is possible to award damages for prospective nuisance in
exercise of the court’s power first introduced by the Chancery Amendment Act
1858 (Lord Cairns’ Act). In addition, damages could be granted to cover the
period up to the date of trial. It is not clear upon what precise legal basis
the learned judge awarded the sum of £2,000. I do not think it matters for the
purpose of this appeal, provided this court is satisfied that the award can be
justified in law.
To grant an
injunction against both defendants is likely to produce a situation which will be
very unsatisfactory from the first defendant’s point of view and probably
unfair to her. If the court were to grant an injunction against her an
injunction against the landlord would be unnecessary. However, the first
defendant would then no doubt consider whether or not she had any remedy
against the second defendant or against the original landlord. She did serve a
notice in the present case claiming contribution against the second defendant
in respect of any damages and costs which she might be ordered to pay to the
plaintiff and in respect of her own costs of defending the action. In the event
the plaintiff withdrew his claim for damages against the first defendant,
hoping to remain on good terms with her, but the judge did grant her an
indemnity in respect of her costs of defending the action. The contribution
notice, however, is not in such a form as would enable the court to resolve
such problems as might arise under the terms of the first defendant’s lease if
the court were to grant an injunction against the first defendant. For example,
there might be a contention that, as the injunction resulted from the act of a
person claiming under the landlord (ie the plaintiff himself), the landlord was
in breach of his covenant with the first defendant for quiet enjoyment.
Moreover, the court has been told that the plaintiff would prefer to uphold the
judgment which he has obtained rather than to seek injunctions. The figure of
£2,000 may not be enough to carry out the necessary remedial works, but, while
the court has not been given any details, it does appear that, at least as
between the plaintiff and the first defendant, something can be done to remedy
the situation. As we are told that, it seems to me that this really is a case
where an award of damages would produce a satisfactory result and achieve
finality. However, on behalf of the landlord, it was contended that the court
should not make such an award. It was said that the court should only grant
damages for a prospective nuisance in exceptional circumstances and in very
simple cases, which it was said this case was not.
A common
argument against the award of damages as opposed to an injunction is that to do
so would legalise or license the commission of future torts. In my opinion,
while this argument may have merit when submitted by the plaintiff, it has much
less strength when invoked by a defendant. In Leeds Industrial Co-operative Society
Ltd v Slack [1924] AC 851 at p 861 Viscount Finaly quoted from the
judgment of Buckley J in Cowper v Laidler [1903] 2 Ch 337 at p
341: ‘The court has affirmed over and over again that the jurisdiction to give
damages where it exists is not so to be used as in fact to enable the defendant
to purchase from the plaintiff against his will his legal right to the
easement’. In the present case we would not be granting damages against the
will of the plaintiff. That is an important consideration. In the above case
the House of Lords held that it was right to grant damages as opposed to an
injunction where the plaintiff’s right to light was threatened by the
construction of a building which had not yet reached such a height as to
deprive the plaintiff’s premises of light. That case also established that the
power to award damages was available although Lord Cairns’ Act had been
repealed. I for my part then would regard the present case as an appropriate
one in which to award damages in lieu of an injunction. It is unnecessary to
state a specific figure in respect of the nuisance for the period preceding the
trial and to give detailed reasons to justify any particular figure in respect
of prospective nuisance. This is because the evidence establishes, as the learned
judge himself thought, that an appropriate figure would exceed that which could
be awarded in the county court.
Strictly
speaking, there could be an award in damages against both defendants. Had the
plaintiff not withdrawn his claim against the first defendant I would have made
an award against her. However, I regard this as a case in which she would have
been entitled to a complete indemnity from the original landlord. The original
landlord had let to her premises which could not be used in the manner
contemplated by the lease. These are matters which are relevant, in my opinion,
when considering a claim for contribution between tortfeasors when the court in
its discretion is deciding what is just as between the parties. As between
these defendants I regard the first defendant as an innocent party in spite of
her liability to the plaintiff.
As I would
uphold an award of damages against the second defendant it follows that it
would be inappropriate to grant an injunction against the first defendant. The
plaintiff is accepting damages in lieu of his right to complain of nuisance in
the future. There is, therefore, no basis upon which an injunction can be
granted against the first defendant. I would dismiss this appeal.
BRANDON LJ: I
agree.
O’CONNOR LJ: I
agree.
The appeal
was dismissed with costs against the appellant in favour of the two
respondents. Leave to appeal to the House of Lords was refused.
