Residential property — Flat conversions — Plaintiff purchasing basement flat — Freehold company being struck off — Property vesting in Crown — Crown not disclaiming lease — Plaintiff pursuing claim for noise nuisance — Whether Crown as landlord authorising nuisance — Whether ceiling between basement and ground-floor flat forming part of main structure — Judgment for landlord — Damages for plaintiff
In 1975 the freeholder converted 114 Lordship Lane, London N16, into four flats. In 1982 the freeholder company was struck off, but the second and third defendants presented themselves as such and were paid ground rent. In 1988, the plaintiff acquired the basement flat on a 99-year lease. The plaintiff put up with a high degree of noise from the flat above because of his own restorative works. By the middle of 1990 the noise level had become much worse as the first defendant, the leaseholder of the ground-floor flat, had removed carpet, underlay and hardboard. In July 1990, the first defendant left and the flat was let to tenants who also behaved in an unacceptable way. They left and the flat was let to a succession of other tenants.
When the plaintiff issued a writ, it became clear that the freehold had vested in the Crown as bona vacantia. In October 1991, the Crown acknowledged that they were landlords, but took no steps to disclaim the lease within 12 months. The first defendant played no part in the proceedings and the second and third defendants withdrew by compromise, so the claim proceeded against the Crown for breach of landlord’s covenant to repair and breach of quiet enjoyment.
Held Judgment for the Crown; damages for plaintiff against the first defendant.
1. The landlord was obligated by the lease to repair the main structure. The question was whether the floor between the flats was part of the main structure. The submission for the Crown was accepted that the words were to be given a restricted meaning and that they were not a term of art. By the lease the lessees’ covenant to repair extended to walls and party walls and the landlords’ covenant to repair was defined in particular for the roof, chimney stacks, gutters and rain water pipes (para 1 (a) of Schedule 4).
2. The pattern of leases showed that each tenant was obligated “to keep the flat … and all … party walls … in good and tenantable repair and condition” so that they were responsible for the walls contiguous to the flats and for the floor and ceiling where they separate one flat from another.
3. Clause 10 (c) underlay the correctness of the Crown’s submission where the word “repair” included, for the lessee of the basement flat, the making good of any defect in the foundations or structure of the building notwithstanding that it was inherent or due to a fault in design.
4. With regard to the breach for quiet enjoyment, the authorities showed that there had to be a sufficiently positive act by the landlord, amounting to authorisation of the nuisance, before the landlord could be said to be in breach: see Matania v National Provincial Bank [1936] 2 All ER 633 and Sampson v Hodson Pressinger [1981] 3 All ER 710.
5. There was no such action on the part of the Crown. The fact that it did not disclaim the lease was so limited an action as not to be capable of authorising a nuisance, which had existed long before the Crown became landlord.
6. With regard to the first defendant, ordinary user could cause actionable nuisance to a neighbour. Damages assessed accordingly.
David Neuberger QC and Michael Sullivan (instructed by Cordell Tibber & Co) appeared for the plaintiff; Joseph Harper QC (instructed by the Treasury Solicitor) appeared for the Crown. The first defendant did not appear and was not represented.
