Caveat Lessee - Noise Nuisance and the Covenant for Quiet Enjoyment

A CASE COMMENTARY

Last Thursday, 21st October 1999 the House of Lords upheld the decisions of the Court of Appeal in Southwark & Another -v- Mills & Others and Baxter -v- Camden LBC
(1) to the relief of landlords everywhere by confirming that a landlord is neither in breach of its covenant for quiet enjoyment nor committing a common law nuisance by letting a flat with inadequate sound insulation.

Their Lordships made it clear that although they had sympathy with the appellants Mrs Tanner (presumably nee Mills) and Miss Baxter, and the circumstances in which they were forced to live, it was for Parliament, and not the Courts, to make up for the deficiencies of the common law of landlord and tenant in this respect.

The Background

The two appeals heard together were bought by two local authority tenants. The first, Mrs Tracy Tanner was a tenant of the London Borough of Southwark living in a block of flats in Herne Hill which had been purpose built shortly after the end of the first world war. Miss Baxter was a tenant of the London Borough of Camden and lived in a three storey Victorian terraced house in Kentish Town that had been divided into three flats by the Council in 1975.

Both appellants - and indeed other occupiers of the flats - complained of being subjected to the sounds of their neighbours not just when they were being unreasonably noisy, but primarily to the sounds of day-to-day living to such an extent that living in the flats was rendered almost unbearable. It was accepted that this was due to the complete absence of sound insulation.

Mrs Tanner had commenced arbitration proceedings against Southwark Council pursuant to the terms of her tenancy agreement claiming that the Council was in breach of the express covenant for quiet enjoyment expressly contained in the tenancy agreement. The arbitration tribunal at first instance agreed that the Council was in breach of this covenant and ordered the Council to carry out effective sound proofing to the flats. The Council appealed to the High Court and its appeal was dismissed by Mr Justice Laddie. The further appeal to the Court of Appeal, however, was allowed by a majority on the basis that the covenant for quiet enjoyment could not invoke positive repairing obligations that a landlord did not otherwise have to perform.

Miss Baxter had taken a weekly tenancy of a first floor flat which included two clauses in standard form that the Council would not interfere with the tenant’s right to quiet enjoyment during the continuance of the tenancy and that it would take such steps as reasonably practicable to prevent the continuation of any nuisance caused to the tenant, having regard to all the circumstances of the case. Miss Baxter’s County Court claim alleged breach of the covenant for quiet enjoyment and also nuisance arising from the inadequate sound insulation in the flat.

In the County Court His Honour Judge Green QC although finding that the ordinary use of the flats by the tenants above her did interfere with Miss Baxter’s enjoyment of her flat, nevertheless dismissed her claim. Miss Baxter appealed to the Court of Appeal who also dismissed her appeal. The final chapter in both cases has led the parties to the House of Lords.

The Decision

Unlike in the Court of Appeal, the House of Lords were unanimous in their judgment. Although having great sympathy with the tenants’ plight they found that neither a covenant for quiet enjoyment nor the law of nuisance could support a claim that arose out of disturbance caused by neighbours who were simply leading normal lives. Analysing the two elements of the tenants’ claim in turn:

1. The Breach of the Covenant of Quiet Enjoyment (claimed by both tenants): Sandersons -v- Berwick Upon Tweed Corporation in 1884 (2) formulated the scope of a covenant of quiet enjoyment. It has long been accepted that the word “quiet” in such a covenant does not refer to the absence of noise. It means without interference. Both Lord Hoffman and Lord Millett who gave the detailed judgments in the House of Lords reaffirmed the Sandersons test. They were in agreement with the tenants’ claim that a covenant for quiet enjoyment may be broken if the landlord or someone claiming under him does anything that substantially interferes with the tenant’s title to or possession of the demised premises or with its ordinary and lawful enjoyment of the demised premises. The interference need not be direct or physical nor is it a necessary pre-condition of liability for such a covenant that the acts alleged would constitute a breach that would support an action in nuisance. Nevertheless, their Lordships reiterated that in the grant of a tenancy it was fundamental to the common understanding of the parties, objectively determined, that the landlord gives no implied warranty as to the condition or fitness of the premises. It remained, “Caveat lessee” let the lessee beware. At the time of letting, the flats were not used in any other way than that contemplated by the parties. The tenants must reasonably have contemplated that there would be other tenants in the neighbouring flats and if their presence is only a complaint due to the lack of soundproofing, the landlord cannot be required to assume responsibility for such a defect. Here the Council granted and the tenants took tenancies of those particular flats. They could not by virtue of the terms of the tenancy require the Council to give them a different flat;

2. Common Law Nuisance (part of Miss Baxter’s claim only): A claim in nuisance was pursued by Miss Baxter only and was dealt with fairly shortly by their Lordships due to what Lord Hoffman described as “an insuperable difficulty”. The law of private nuisance involves doing something on adjoining or nearby land which constitutes an unreasonable interference with the utility of the complainant’s land. Their Lordships found unanimously that the ordinary use of residential premises, without more, is not capable of amounting to a nuisance. Here the neighbours’ activities were necessarily inevitable incidents of the ordinary occupation of residential property and are unavoidable if the tenants continue to occupy the neighbouring flat. If the neighbours are not committing a nuisance, the Council cannot be liable for authorising it. There is no other basis for holding the landlords liable in nuisance.

Case Comment

Having lived in inadequately sound insulated premises, the writer shares their Lordships’ sympathy with the appellants’ position but equally agrees that the extension of the common law of nuisance and the commonly held ambit of the covenant of quiet enjoyment would be inappropriate methods of addressing the shortcomings of the law of landlord and tenant.

A couple of factors seem to weigh high in their Lordships’ minds:-

Firstly, that Parliament could have addressed the problem of sound insulation in a number of ways and had chosen not to do so. For instance, the Law Commission Report of 1996 entitled “Landlord and Tenant : Responsibility for State and Condition of Property” (3)had, amongst other things, stated that sound insulation was a factor which had been suggested for inclusion in the standard to be adopted in assessing fitness for human habitation to be implied into a lease. However, no recommendation was made in relation to it. By contrast, Parliament has chosen to prevent the future creation of non-sound insulated housing using the Building Regulations 1991 (4). Where the problem had been so addressed, their Lordships felt it inappropriate to interfere.

Second, and more significantly, the cost to social housing providers of bringing properties up to acceptable modern standards would be prohibitive. For instance, the London Borough of Southwark estimates that it would cost £1.271 billion to bring its existing housing stock up to acceptable modern standards. Their budget for 1998/99 for major housing schemes is however a lowly £55 million. Installing sound insulation would cost £8,000.00 per flat. The cost of soundproofing alone for housing stock would be in the region of £37 million. Sound insulation was not a priority need.

Lord Millett summed up their Lordships’ views: “This case raised issues of priority in the allocation of resources. Such issues must be resolved by the democratic process, national and local. The judges are not equipped to resolve them. All that we can do is to say that there is nothing in the relevant tenancy agreements or current legislation or in the common law, which would enable the tenants to obtain redress through the Courts.”

It remains unrealistic that the “caveat lessee” principle applies in practice. In many circumstances, particularly that of social housing, tenants are clearly not in a position to negotiate terms with their landlord prior to entering into a tenancy agreement. That said, however, such an expansion of the civil law because of rising environmental standards, although admirable, would be a step too far.

Footnotes

(1) Baxter -v- Camden LBC (no 2) [1999] 1A11ER 237
Southwark LBC -v- Mills [1998] 3WLR 49, [1999] 2 WLR 566. A full transcript of the House of Lords judgment is available on the Internet on www.open.gov.uk

(2) (1884) 13 QBD547

(3) (Law Com no 238)

(4) SI1999/2768

Should you require further information, please contact Caroline Day on 0171 367 2329 or by e-mail [email protected].