Mark Pawlowski asks: to what extent can a landlord who holds a reversionary interest sue in trespass or nuisance affecting the demised property?
A reversioner cannot bring proceedings for trespass during the currency of the lease unless it has caused permanent damage to the land, leading to a reduction in the value of the reversioner’s interest.
In Mayfair Property Co v Johnston [1894] 1 Ch 508, the occupiers of a house and garden (37) pulled down and rebuilt a wall which separated the garden from that of the adjoining house (36) and, in doing so, they trespassed on the garden of 36 by extending the foundations of the new wall into the garden. The house at 36 was in the occupation of a tenant under a lease. It was held that the owners of the reversion could, though the tenant made no complaint, maintain an action in respect of the permanent trespass to the garden at 36.
Similar principles will apply where the injury consists not of a trespass, but a nuisance affecting the demised property. Here again, a reversioner, who is not in occupation, will not be entitled to sue unless they can prove permanent injury to the reversionary interest: Meux’s Brewery Co v City of London Electric Lighting Co [1895] 1 Ch 287. In such circumstances, their right will be co-existent with that of the occupier and the damages will be apportioned between the two parties according to the relative interests of reversioner and occupier: Hunter v Canary Wharf Ltd [1997] EGCS 59. Examples of permanent injury include infringement of rights to light, vibrations causing structural damage, blocking a right of way, physical damage to the building and permanent projection of eaves causing discharge of rainwater.
Temporary interference
An interference of a temporary nature, which is capable of being ended before the reversion falls into possession and which does not cause any lasting damage to the land, has been held not to suffice even if this causes the tenant to leave or reduces the letting value of the demised property: Simpson v Savage (1856) 1 CB (NS) 347, Mumford v The Oxford, Worcester and Wolverhampton Railway (1856) 1 H&M 34 and Cooper v Crabtree (1882) 20 Ch D 589.
Thus, the emission of smoke or the erection of a temporary hoarding or causing a temporary annoyance do not permit the reversioner to sue in nuisance for lack of any permanent injury to the reversion. By contrast, in Bell v Midland Railway Co (1861) 10 CB (NS) 287, the reversioner permanently lost the right to royalty payments caused by a temporary obstruction to the tenant’s access rights on the land. Significantly, the court held that the loss of these payments constituted a sufficient (permanent) injury to the reversion, enabling the claimant to sue in nuisance – although the interference was temporary, the injury to the reversion was lasting and permanent.
The decision in John Smith & Co (Edinburgh) Ltd v Hill and others [2010] EWHC 1016 (Ch); [2010] PLSCS 132 is also noteworthy in suggesting that a reversioner may claim in nuisance even where the interference complained of is only temporary, provided they can show permanent injury to the reversion. In that case, the dispute concerned a six-storey building owned by a company (Urbis Freehold) in liquidation. The first and second defendants were the administrators of the company. The third defendant held a sublease of the ground floor and basement of the property for a term of 30 years but had ceased occupation.
The claimant held a concurrent lease of the ground floor and basement, thereby becoming the immediate landlord of the third defendant. Both the sublease and concurrent lease enabled the respective landlords to erect scaffolding around the building for the purpose of redevelopment, with the proviso that the scaffolding should be completed and removed “as quickly as reasonably possible, causing as little nuisance, inconvenience, annoyance or disturbance to the tenant as reasonably possible” without committing a breach of the covenant for quiet enjoyment.
The redevelopment, however, ran into difficulties and work ceased on the building, with the consequence that the scaffolding remained in place for almost a year until the freehold was sold to a third party. The primary issue before the court was whether the temporary interference caused by the continued presence of the scaffolding could qualify as the basis for a claim in nuisance by the claimant as reversioner on the third defendant’s sublease.
Applying the reasoning in Bell, Mr Justice Briggs concluded that it was at least arguable that a temporary interference with the third defendant’s quiet enjoyment could be actionable by the claimant because the former’s right of equitable set-off for damages against rent in respect of the interference (albeit temporary) would amount to a permanent deprivation of the rent and, hence, constitute an actionable injury to the claimant’s reversionary interest.
In this connection, rent was an aspect of the proprietary rights constituted by a landlord’s reversion. A set-off against rent triggered by the retention of the scaffolding, therefore, affected the reversion as it “permanently deprive[d] the landlord of a valuable part of his rights constituted by his reversionary interest”.
No damage to reversionary interest
In Walton Family Estates Ltd v GJD Services Ltd [2021] EWHC 88 (Comm), the freehold owner of an aerodrome sought summary judgment on its claim for an order requiring the defendants to remove certain aircraft which were parked there or, in default of removal, an order permitting the claimant to sell, remove or scrap the aircraft.
There were a number of aircraft parked at the aerodrome. The freeholder had granted a 35-year lease of the part of the aerodrome where the aircraft were parked to a company which carried on an automotive business and used the runway to park cars. Under the lease, the freeholder had the right to retain the aircraft and certain scrap at the aerodrome and had covenanted in the lease that it would remove them from the property by no later than 31 December 2020. Under the lease, it was entitled to access to the aerodrome for that purpose with its workers and contractors.
The fifth defendant owned six Lockheed Tristar aircraft that had been parked at the aerodrome since 2014. The eighth defendant owned two Boeing 747-300 aircraft that had been parked at the aerodrome since 2012. The aircraft were not airworthy and work needed to be done to them before they could be removed.
On the primary issue, the High Court held that the freeholder had established a sufficient interest in the aerodrome to sue for trespass, assuming that no right for the aircraft to remain on the aerodrome was established. The lease, properly interpreted, gave it the right to occupy the land within the aerodrome on which the aircraft were parked and to have access to the property for the purpose of fulfilling its obligations to remove them.
However, the alternative basis, namely, damage to the reversionary interest, was not made out. The continued presence of the aircraft, which on any view was not going to be for a lengthy period, could not be regarded as “permanent” so as to entitle the freeholder to sue for trespass.
The case was distinguishable from the earlier case of Jones v Llanrwst Urban District Council [1911] 1 Ch 393, which concerned the rights of a riparian owner on the banks of a natural stream, where a local authority was committing a trespass by permitting faecal matter under its control to escape.
There, Mr Justice Parker stated: “In my opinion, what is complained of in the present case is of a permanent nature within the rule. The sewage of Llanrwst will continue to be turned into the Conway unless and until something is done to divert it elsewhere.”
Conclusion
The decision in John Smith is significant because it does lay open the possibility for a claim in nuisance by a reversioner even where the interference complained of is only temporary. In that case, however, the claim hinged on the premise that the tenant had a valid set-off for damages against his liability to pay rent. It was the permanent deprivation of that rent which caused lasting injury to the landlord’s reversion.
The decision in Walton is also noteworthy in highlighting that a reversioner cannot bring proceedings for trespass during the currency of the lease unless it has caused permanent damage to the land, leading to a reduction in the value of the reversioner’s interest.
Mark Pawlowski is a barrister and professor emeritus of property law, School of Law, University of Greenwich
Photo © Matt Seymour/Unsplash
Share your feedback
