Landlord and tenant — Covenant for quiet enjoyment — Inadequate noise insulation — Whether landlord obliged to carry out effective soundproofing of flats
The appellant
council own premises which contain flats let to the respondent tenants. The
tenancy agreements are in a standard form and incorporate provisions for
arbitration in relation to certain disputes. The premises, built in 1919, have
inadequate sound insulation by modern standards. Following complaints by the
tenants, Southwark Arbitration Tribunal held that the council remained obliged
to carry out effective soundproofing of the tenants’ flats. The council
appealed the award.
enjoyment, contained in the tenancy agreements, had the same effect as an
implied covenant. In accordance with the decisions of the Court of Appeal in Sampson
v Hodson-Pressinger [1982] 1 EGLR 50 and Baxter v Camden
London Borough Council [1998] 22 EG 150, a landlord could be in breach of a
covenant for quiet enjoyment in respect of inadequate soundproofing in
accordance with the principles in the Baxter case.
This was an
appeal with leave by Southwark London Borough Council against the award of
Southwark Arbitration Tribunal in proceedings by the respondent tenants, Mrs
Mills and 18 others, against the council for breach of their tenancy
agreements.
Donald Broatch
(instructed by the solicitor to Southwark London Borough Council) appeared for
the appellants; Jan Luba (instructed by Anthony Gold Lerman & Muirhead)
represented the respondents.
Giving
judgment, Laddie J said:
This is an appeal, with leave of the Vice-Chancellor, arising out of an award
by Southwark Arbitration Tribunal (the tribunal) dated August 1 1997. The
appellants are Southwark London Borough Council (the council). The respondents
are certain of their tenants who occupy premises owned by the council in Casino
Avenue, London SE24. The tenancy agreements are all in standard form and
incorporate provisions for arbitration in relation to certain categories of
dispute which may arise between the tenants and the council.
The Casino
Avenue premises were built in 1919. They have, by modern standards, inadequate
sound insulation. The tenants have complained about noise coming from adjoining
premises. The nature of the complaints is illustrated by the following extract
from one of the applications made to the tribunal in this case:
The
sound-proofing, such as it is, is useless. I can hear all the private and most
intimate moments of their (my neighbours’) lives — conversations, what TV
station they are viewing, when they go to the toilet, when they make love.
Every light switched on, every door opened or closed, every pot or pan placed
on the cooker, all these I hear.
The tribunal
determined that the council ‘remain[ed] obliged to carry out effective sound
proofing of the tenants’ flats’. It ordered the council to carry out certain
soundproofing works. That order applied to 19 flats in Casino Avenue. However,
its ramifications could be extensive. The council have a very substantial housing
stock in relation to much if not all of which they use substantially identical
tenancy agreements. Their concern was expressed in the following way in an
affidavit of Monica Daley sworn on behalf of the council:
The matter is
of very considerable importance for the Council. The Council have to budget for
the annual costs of its housing repair. The administration of housing within
the Borough is organised by local housing areas. I am advised by Mr Christopher
Thomas, the Housing Services Manager employed by the Council, and verily
believe that the costs of carrying out the work ordered by the Tribunal would
be in the region of £60,000. The expenditure of such a sum would have a
substantial impact on the repairs budget for this particular housing area of the
Borough. The Borough’s Housing Department are concerned that funds ‘earmarked’
for routine repairs would have to be expended on works of improvement.
Moreover, the
Council has within its area a number of elderly blocks of flats of similar age
to Casino Avenue, which the Borough ‘inherited’ from the former London County
Council and Greater London Council. If this Tribunal award is upheld, claims
for better sound proofing from occupants of other similar properties may well
be expected. The Council might then be obliged to spend money on similar works
on other blocks. This might well have a substantial effect on the Council’s
annual repair budget for several years to come.
It is also to
be noted that all tenants of the London Borough of Southwark have tenancy
agreements incorporating the Arbitration Clause. If it were to be established
that the Arbitration Tribunal can make awards effectively awarding improvements
of properties, this would have a substantial effect upon the administration of
housing within the Borough, and upon its funding.
Tenancy
agreements
Clause 1 of
the agreements provides:
The tenant’s
right to remain in and to enjoy the quiet occupation of the dwelling house
shall not be interfered with by the Council except as set out in clauses 2(2),
16 and 27.
It is not in
dispute that this has the same effect as a standard covenant whereby the tenant
‘shall have and enjoy quiet possession’ of the premises. The other clauses to
which clause 1 refers are in the following terms:
Clause 2(2)
So long as
the tenancy is a secure tenancy, the Council can only terminate the tenancy and
obtain possession of the dwelling house in accordance with Law.
Clause 16
(1) The
tenant must allow Council officers, agents or workers to enter the dwelling
house to inspect the state of repair, carry out all treatment in association
with pest eradication and to carry out its duties under any part of this
Agreement or as required by law.
(2) The
Council shall give the tenant the option of making an appointment for a visit
by its officers, agents or workers for the purpose of carrying out inspections
or work but the tenant must understand that this may result in delay.
(3) Council
officers and agents, in the presence of a Council officer or management agent
may enter the dwelling house without notice if, in the opinion of the Director
of Housing or her/his authorised representative, such entry is necessary
because of an emergency from which personal injury or damage to property is
likely to result.
(4) Council
officers and agents, in the presence of a Council officer or management agent,
may enter the dwelling house in the event of a tenant failing to keep a second
notified appointment during a programme of pest eradication treatment. The
Council will then be responsible for leaving the dwelling in a secure
condition. The Council shall be entitled to recover any costs associated with
gaining access or making the dwelling secure under this clause from the tenant,
unless the tenant can show reasonable excuse for failing to provide access.
(5) In the
event of Council officers, agents or workers failing to keep an appointment to
gain access to the dwelling house, the Council shall pay the tenant
compensation of a minimum of £30.
(6) In the
event of the tenant failing to allow access for an appointment, the Council
shall have the right to claim compensation from the tenant of a minimum of £30
unless the tenant can show reasonable excuse for failing to provide access.
The flavour of
clause 27 can be gathered from its title and its first few subclauses:
Major Works
(1) Major
works means works, whether of repair, improvement or conversion, which by their
extent or nature require either the removal of the tenant while they are being
carried out or, if they are carried out with the tenant in occupation, would
substantially restrict or disrupt living conditions within the dwelling house.
The period of time which the works are likely to take is to be agreed with the
tenant, failing which the matter may be referred to Arbitration.
(2) In such
instances the Council may, according to the circumstances and after
consultation with the tenant, require the tenant to:
(a) move from
the dwelling house while the works are being carried out, or
(b) remain in
occupation of the dwelling house while the works are being carried out.
(3) Where the
tenant is required to move for more than seven days while the works are being
carried out, the tenant may choose:
(a) to be
transferred to suitable accommodation while the works are being carried out and
to return to the dwelling house on contractual completion of the works, or
(b) to be
transferred permanently to suitable accommodation as defined in Schedule 4 of
the Housing Act 1985.
The only other
clause which was referred to in argument is clause 20, which provides:
Council’s
Obligation for Repair of the Dwelling House
20. (1) The
Council shall keep in repair the structure and exterior of the dwelling house
(including drains, gutters and external pipes).
(2) The
Council shall keep in repair and proper working order the installations whether
inside or outside the dwelling which were installed at the commencement of the
tenancy, or if installed later, were installed by the Council, and either
directly or indirectly serve the dwelling house for:
(a) the
supply of water, gas and electricity to, and for sanitation at the dwelling
house (including basins, sinks, baths and sanitary conveniences);
(b) heating
the dwelling house and for heating water in the dwelling house.
Mr Donald
Broatch, who appears on behalf of the council, puts his argument as follows. He
says that the tribunal could only have come to the conclusion and made the
order it did if there was material before it on which to base its award. The
award itself does not explain what covenant in the tenancy agreement the
tribunal was purporting to enforce, but the only possible candidate is clause
1. Mr Jan Luba, who appears on behalf of some of the tenants, agrees with this.
So, Mr Broatch says, the effect of the award is that a covenant for quiet
possession imposes on the landlords an obligation to carry out a program of
effective soundproofing of the tenants’ flats. Furthermore, this obligation is
not limited to an obligation to soundproof flats against unreasonable or
unusual noise. As Mr Broatch says, and Mr Luba does not dispute, there is no
suggestion in this case that any of the neighbours is using his premises in an
unreasonable or unduly noisy manner. The complaints are that the tenants can
hear their neighbours in the ordinary instances of domestic life. Therefore, if
the tribunal is correct, a standard covenant for quiet possession imposes on
the landlord an obligation to improve the property to meet modern building
standards which are more stringent than they were when premises like those in
Casino Avenue were built. If this is so, the ramifications feared by the
council are likely to apply to a large number of landlords, both local
authority and private.
Mr Broatch
says that the tribunal’s award is based on a fundamental error. He says that
the award amounts to forcing the council to improve the premises. There is no
contractual obligation on them to do so. Although clause 20, referred to above,
imposes an obligation on the council to repair the structure of the Casino
Avenue flats, it does not oblige the council to improve them. In any event, it
is not argued that clause 20 has any application in this case nor is it argued
on this appeal that the council have failed to maintain the flats in good
repair. He says a covenant for quiet possession cannot be pressed into service
to impose such an obligation on the landlord.
He says that a
covenant for quiet enjoyment has a well established meaning and effect. It is
concerned only with protecting the tenant’s occupation of the premises. It
gives him security against having his occupation challenged by the landlords or
anyone else claiming under them. He says that this is confirmed, if any
confirmation is necessary, by the provisions of clauses 2(2), 16 and 27, each
of which is concerned with qualifications on the tenant’s right to unchallenged
possession of the property. None relates to improving the property. In any
event, a standard covenant for quiet possession has nothing to do with freedom
from the noise of normal domestic activities. In relation to this Mr Broatch
draws my attention to Jenkins v Jackson (1888) 40 ChD 71, Phelps
v London Corporation [1916] 2 Ch 255 and Hudson v Cripps
[1896] 1 Ch 265. For example in Jenkins, Kekewich J said:
He has a
lease, and in that lease there is a covenant in the usual terms. Those terms
vary very little in one lease from another, but it is a covenant that he ‘and
his executors, administrators, and assigns shall and may peaceably and quietly
possess and enjoy the hereby demised premises during the said term without any eviction
or disturbance by the said JE Jackson and CJ Jackson,‘ or any
persons lawfully claiming under them. It is in the ordinary form; and before
passing further let me observe, lest there should be a mistake, that ‘quietly’
does not mean undisturbed by noise. When a man is quietly in possession it has
nothing whatever to do with noise, though the word ‘quiet’ is frequently used
with reference to noise. ‘Peaceably and quietly’ means without interference —
without interruption of the possession. It may be called a covenant for title,
and it is to be found with other covenants for title in deeds of conveyance.
Similarly in Hudson,
North J said:
A covenant
for quiet enjoyment is a covenant for freedom from disturbance by adverse
claimants to the property.
Further,
relying on Robinson v Kilvert (1884) 41 ChD 88 (CA), Mr Broatch
says that a covenant for quiet possession cannot be invoked against the
ordinary use of neighbouring premises. If that is right, it follows that the
tribunal’s award cannot be supported.
As against
this, Mr Luba relied on two recent decisions of the Court of Appeal. The more
recent is Baxter v Camden London Borough Council, an unreported
decision of June 20 1997*. The court consisted of Butler-Sloss LJ and Sumner J.
The plaintiff was a tenant of the defendants. The premises she resided in was a
converted Victorian property. Her case was that there was insufficient sound
insulation between her flat and the flats above and below her. She claimed that
she could hear all the normal domestic activities of the occupants in the other
flats. She sued the defendants for breach of an implied covenant of quiet
enjoyment. Although that was how the claim was framed, it appears that before
the county court both parties and the judge had proceeded on the basis of a
claim in nuisance. In the Court of Appeal, Sumner J said that the difference in
that case between breach of covenant and nuisance was not significant and then
proceeded as follows:
*Editor’s note: Reported at [1998] 22 EG 150
We were
referred to a number of authorities, in particular Harris v James
[1874–1880] All ER Rep 1142; Brew Bros Ltd v Snax (Ross) Ltd
[1970] 1 QB 612; Sampson v Hodson-Pressinger [1981] 3 All ER 710;
Toff v McDowell (1993) 25 HLR 650; and Habinteg Housing
Association v James (1994) 27 HLR 299.
I draw from
them the following conclusions. A landlord is liable for any mischief that
arises from the natural and necessary result of what he has authorised and
required. He is held to know or presumed to know what the natural and necessary
result will be, and he is equally liable if his reason for not having that
knowledge was failure to use reasonable care to ascertain it. It is no defence
to a claim in nuisance that the premises are being used in a normal way if the
premises are not fit to be used in a normal way without interfering with the
reasonable enjoyment of adjoining occupiers. Equally the landlord will be held
liable for breach of the implied covenant of quiet enjoyment where the
contemplated use for which the landlord let, for instance the adjoining flat,
was one which interfered with the reasonable enjoyment of the premises in
question. The date of actual or presumed knowledge is the date of the letting
to the plaintiff.
The questions
that therefore may arise to be determined on the rehearing, which must be
subject to further argument to the trial judge, in my judgment are:
1. Has the
plaintiff proved that the level of noise transmitted to the plaintiff’s flat
from the ordinary use of the adjoining flats was, at the date when the
proceedings were commenced, such as to interfere with her reasonable enjoyment
of her flat? That question is to be determined as a matter of fact and degree
on all the circumstances of the case.
2. If the
answer to the first question is ‘yes’, has the plaintiff also proved that the
defendants knew or should be presumed to have known that the level of noise
transmitted to the plaintiff’s flat would be such as to have that effect when
they let the flat to her in 1992?
3. If the
answer to the second question is also ‘yes’, to what damages or other relief is
the plaintiff entitled?
The second
authority is Sampson v Hodson-Pressinger [1981] 3 All ER 710*.
The first defendant, who occupied the flat above the plaintiff, had tiled over
the flat roof above the plaintiff’s sitting room, hall, kitchen and bathroom so
as to turn it into a terrace. When people walked on the terrace in normal shoes
and when they engaged in conversation there a ‘nagging’ noise was transmitted
to the plaintiff’s flat, particularly the sitting room. The plaintiff sued
successfully in nuisance. In finding for the plaintiff, the Court of Appeal
said that the original landlord, who was not a party to the action, would have
been liable in nuisance to the plaintiff. Eveleigh LJ explained this as
follows, at 713j:
*Editor’s note: Also reported at [1982] 1 EGLR 50;
(1981) 261 EG 891
He let the
premises to be used for residential purposes and those purposes … 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 7 would walk on
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.
Basing itself
on that, the court then considered the parties’ respective positions under the
covenant for quiet enjoyment. It said, at p714e:
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 flat 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.
Although in
relation to the covenant for quiet enjoyment the decision in Sampson
appears to be obiter, it is consistent with the later Baxter
decision.
Mr Luba argues
that based on these authorities the law now is that a landlord of two adjoining
tenants can be in breach of the usual covenant for quiet enjoyment owed to each
by reason of the fact that each tenant’s reasonable enjoyment of his home is unduly
interfered with by the noise of the normal and ordinary user of the premises by
the other tenant in the manner contemplated in the letting. He says that the
earlier authorities relied on by Mr Broatch no longer adequately define the
extent of the covenant. In fact he says that the Robinson v Kilvert
decision reinforces the point. There Lindley LJ, having noted that the covenant
for quiet enjoyment had been enlarged by more recent authorities, said, at p96:
In Sanderson
v Mayor of Berwick-upon-Tweed Lord Justice Fry, in delivering the
judgment of the Court of Appeal says: ‘In coming to this conclusion we have not
lost sight of the observations on the nature of such a covenant which were made
by Willes, J., in Dennett v Atherton. But it appears to us to be in
every case a question of fact whether the quiet enjoyment of the land has or
has not been interrupted; and, where the ordinary and lawful enjoyment of the
demised land is substantially interfered with by the acts of the lessor, or
those lawfully claiming under him, the covenant appears to us to be broken,
although neither the title to the land nor the possession of the land may be
otherwise affected.’
Mr Luba does
not deny that in many cases the covenant as construed in accordance with these
cases will give the tenant greater rights than the covenant to repair. In many
cases it will become in effect a covenant to improve. But he says that the
wider obligations on the landlord only apply once he knows of the disturbance
caused by noise. His obligation to improve soundproofing only applies to
tenants occupying under subsequent demises. The obligation on the landlord is
therefore only to keep in step with modern soundproofing standards between
lettings.
Since both
parties accept that clause 1 has the same effect as a standard covenant for
quiet enjoyment, the fact that in this particular tenancy agreement it refers
to subclauses 2(2), 16 and 27 takes the matter no further. Furthermore,
although those subclauses are consistent with Mr Broatch’s argument as to the
scope of the covenant, they are not inconsistent with the covenant covering
challenges to the tenant’s possession — such as those dealt with in those
subclauses — and other things as well.
Mr Broatch
seeks to avoid the problems created by the Sampson and Baxter
decisions by arguing that both were arrived at per incuriam or should be
confined to their own facts. In the case of Baxter he goes through each
of the cases relied upon by the court and argues that they do not support a
broad interpretation of the covenant. He also argues that in Sampson a
number of important decisions, including Jenkins v Jackson, Robinson
v Kilvert and two slightly more recent Court of Appeal decisions, Malzy
v Eichholz [1916] 2 KB 308 and Matania v National Provincial
Bank [1936] 2 All ER 633, were not cited to the court.
I do not read
either of the latter decisions as being central to the issues considered by the
Court of Appeal in Sampson and Baxter. Furthermore, it is
difficult to see how a court of first instance could possibly ignore them on
the basis that they are per incuriam. Baxter in particular was
argued by leading and junior counsel and many of the authorities put before me
by Mr Broatch, including Malzy, were in the list of authorities for use
before the court.
Although I can
see the force in Mr Broatch’s arguments and, in particular, in relation to the
practical consequences which flow from the widened interpretation of a covenant
for quiet enjoyment, I am bound to follow the recent decisions of the Court of
Appeal. As Lord Simon said in Miliangos v George Frank (Textiles) Ltd
[1976] AC 443, at p477F:
A previous
decision of the same appellate court is not binding if it is given per incuriam:
Young v Bristol Aeroplane Co Ltd [1944] KB 718. But this
exception to the rule of stare decisis is one which must be most modestly
invoked. It is not applicable merely because the authority in question does not
mention some relevant rule (judge-made or statutory or regulatory); still less
merely because that authority appears to be open to practical or policy
objections which have not apparently been envisaged or sufficiently weighed;
and least of all, of course, because the judge otherwise bound merely considers
the otherwise binding judgment to be wrong. A court should only hold a judgment
to have been given inadvertence to some authority (judge-made, statutory or
regulatory) apparently binding on the court giving such judgment and, secondly,
that, if the court giving such judgment had been advertent to such authority,
it would have decided otherwise than it did — would, in fact, have applied the
authority.
It appears to
me that if the scope of the covenant for quiet enjoyment is to be returned to
the scope which found favour with Kekewich J in Jenkins, that is a
matter for a higher court than this.
For these
reasons I will dismiss this appeal.
Appeal
dismissed.
