“An inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain an sober notions among English people” (Walter v Selfe (1851)).
A landlord is liable for any mischief that arises from the natural and necessary result of what he has authorised and required. He will be held to know or be presumed to know what the natural and necessary result will be, and will be equally liable if his reason for not having that knowledge was failure to use reasonable care to ascertain it. However, a landlord is generally not responsible for nuisance caused by third parties, such as that arising from neighbouring properties or passers-by.
In order to bring a claim in nuisance, a person must have a legal interest in the property affected. The main nuisance that tenants will encounter are likely to be noise or flooding arising from neighbouring properties.
Noise is probably the most common form of nuisance for landlords and their residential occupiers. It can include loud music, shouting and arguments, barking dogs, loud banging and knocking, vehicles outside the home, and car and house alarms.
All tenants are entitled to quiet enjoyment of the property; even if this is not expressly included in their tenancy agreement it is implied at common law. However, this relates to their right not to be bothered by the landlord, rather than their right to peace and quiet.
Where a tenant suffers noise nuisance arising from a third party, such as a neighbour’s home, a local business or stationary vehicles and equipment in the street, the starting point is to talk directly to the person or company responsible for the noise and point out the problem. They may be carrying on normal domestic activities and unaware that their actions are causing a significant disturbance.
The landlord will not be liable to a tenant for nuisance caused by another of his tenants, unless he has authorised the nuisance. It will be the other tenant who may be liable for nuisance.
Landlords are also not generally liable to tenants for the noise nuisance of another tenant which is due to a lack of sound-proofing between flats, unless they are liable under a repairing covenant for the lack of sound-proofing. Although most tenancy agreements include a clause entitling the tenant to quiet enjoyment of the property, this generally means that the tenant is entitled not to be disturbed or interfered with, rather than that the landlord will ensure them peace and quiet!
Where the noise is caused by the tenant or a visitor of the tenant, the landlord will generally have authority to deal with the problem under the terms of the tenancy. This landlord may be able to bring proceedings to recover possession as the ultimate sanction.
Where a tenancy is an assured shorthold tenancy, notice requiring possession under section 8 of the Housing Act 1988 may be served on the tenant pursuant to Ground 14 of the grounds for requiring possession. This enables the landlord to recover possession of the property during the fixed term of the tenancy if the tenant or a visitor of the tenant is guilty of conduct that might cause a nuisance or annoyance to neighbours.
Around five million people – in two million properties – live in flood-risk areas in England and Wales.
In many cases of flooding of rented property, the flooding will have occurred as a result of natural causes (such as a swollen river), and it is therefore unlikely that there will be a responsible party or a cause of action.
However, in other cases the flooding may be due to some act or omission of the landlord, which may give rise to a claim in nuisance against the landlord. Although the tenant has a common law duty to act in a tenant-like manner in his occupation of the property, which therefore requires him not to abuse the drainage system, the landlord is generally responsible for preventing nuisance arising from disrepair of the property.
The landlord will be responsible for paying for maintenance and clearing of drains unless he can show that:
- the blockage was the fault of the tenant,
- usage was not normal for the property (this will depend on the age and type of property), and
- the drains were in good order at the start of the tenancy.
Where the landlord has given permission for a specific use of the property such as where part of a home is used as children’s nursery then special instructions regarding disposal of non-biodegradable material will be necessary. This avoids an implied assumption that the drainage system is fit for the intended heavy or commercial use – which it may not be.
In certain cases, a claim in nuisance may arise where a property falls into disrepair. A tenant will rarely bring an action in nuisance, however, because where their lease is for a duration under seven years, they will generally prefer to use the statutory duties implied into their tenancy agreement by s. 11 Landlord and Tenant Act 1985. This provision imposes duties on the landlord to keep the structure and exterior of the property in repair, and also to maintain installations for the supply of electricity, heating, water and sanitation. It is therefore easier to base an action against the landlord on breach of at least one of these duties than on the law of nuisance, as the latter can be harder for the tenant to establish.
For more information, see Disrepair.
Where proceedings for nuisance are successful, the court may award the claimant monetary damages to compensate them for their loss. Where damages are not sufficient the court may award an injunction, which orders the person against whom it is granted to stop, remove, or restrict a nuisance or abandon plans for a threatened nuisance. Breach of an injunction is a criminal offence. Abatement is a self-help remedy that is available in certain circumstances.