Where activities constitute a nuisance, the landowner who is directly responsible for the activities in question is liable for the nuisance. But what is the position if it is not the landowner himself who is causing the problem?
Lawrence v Coventry (t/a RDC Promotions) (No 2) [2014] UKSC 46; [2014] PLSCS 223 provided us with Supreme Court authority on the rules that apply where land is let to a tenant. As a result, we know that landlords cannot be fixed with liability for nuisances caused by tenants simply because they do nothing about them. In order to be liable, a landlord must either participate directly in the commission of the nuisance or have authorised it – and the fact that a landlord does nothing to stop a tenant from causing a nuisance cannot amount to participating in it. Therefore, landlords do not become liable for their tenant’s actions simply by failing to enforce covenants that would put an end to the nuisance.
In Cocking v Eacott [2016] EWCA Civ 140; [2016] PLSCS 78, the Court of Appeal had to consider the position where land is occupied by a licensee. Are these same tests applicable to licensors as well?
The claimants argued that the owner of a Victorian terraced house was responsible for a longstanding nuisance caused by a dog kept by their neighbour, who, as the owner’s daughter, lived in the house rent-free, as a licensee. Was the landowner liable for the nuisance, even though she did not live on the premises herself, because she could have ended the barking that was causing the problem by removing the dog, or both her daughter and the dog, from the property?
The Court of Appeal upheld the claim. The landowner had allowed her daughter to live in the house and knew about the nuisance. Furthermore, she had actually obtained a possession order against her daughter, after falling out with her, but had chosen not to enforce it.
Their Lordships explained that a licensor is not in the same position as a landlord who has parted with possession of the property: see White v Jameson (1874) 18 Eq 303, Page Motors Ltd v The Borough Council of Epsom and Ewell (1980) 78 LGR 505 and Winch v Mid-Bedfordshire District Council [2002] All ER (D) 380 (Jul). Licensors have a right to immediate possession and are in a position in law, and in fact, to control their property. Consequently, there was every justification for treating licensors differently from landlords.
The trial judge had held the landowner liable with effect from July 2011, which was nine months after the delivery of the claimants’ letter before action. The judge had considered that this was sufficient to enable the landowner to abate the nuisance – and their Lordships agreed.
However, Lord Justice Vos and Lady Justice Arden suggested that cases must turn on their own particular facts – and on the terms of the lease or licence in question. For example, if a landlord had covenanted to inspect and clean his tenant’s drains at regular intervals and a nuisance developed because of the tenant’s use of the drains and the landlord’s failure to comply with his covenant, it might be difficult for the landlord to escape liability by arguing that he had parted with possession to the tenant.
Allyson Colby is a property law consultant
