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Southwark LBC v Mills (House of
Lords)
Introduction
A landlord is not liable to a tenant who is disturbed by the ordinary
and reasonable activities of a neighbouring tenant because of inadequate
sound insulation between the properties. So decided the House of Lords
on 21 October 1999 in the cases of London
Borough of Southwark v Mills and Baxter v London Borough of Camden. Beyond
that narrow issue the decision is also important because it clarifies the
extent of the covenant for quiet enjoyment.
The leading speeches were made by Lord Hoffman and Lord
Millett.
Except where otherwise indicated the quotations below are from the speech
of Lord Hoffman.
Gary
Webber
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The
facts
In each case the tenant lives in a block of flats. "They both
complain of being able to hear all the sounds made by their neighbours.
It is not that the neighbours are unreasonably noisy. For the most
part, they are behaving quite normally. But the flats have no sound
insulation. The tenants can hear not only the neighbours' televisions
and their babies crying but their coming and going, their cooking and cleaning,
their quarrels and their love-making. The lack of privacy causes
tension and distress".
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Caveat
lessee
The tenants complained about the lack of sound insulation. However,
they could not rely upon any express term in the agreement to assist them
in their claim against the landlord to remedy the situation.
"Neither tenancy agreement contains any warranty on the part
of the landlord that the flat has sound insulation or is in any other way
fit to live in. Nor does the law imply any such warranty. This
is a fundamental principle of the English law of landlord and tenant ...
Caveat Lessee."
Whilst recognising the inequality of bargaining power between the parties,
Lord Millett was quite blunt about it. He quoted Lord Goddard in
Kiddle
v City Business Properties Ltd (1942): "The Plaintiff takes the
property as he finds it and must put up with the consequences". Lord
Millett continued:
"The doctrine does not depend on fictions, such as the ability
of the tenant to inspect the property before taking the lease. It
is simply a consequence of the general rule of English law which accords
autonomy to contracting parties. In the absence of statutory intervention,
the parties are free to let and take a lease of poorly constructed premises
and to allocate the cost of putting them in order between themselves as
they see fit".
Nor could the tenants rely upon any duty on the part of the landlord to
repair.
"Keeping in repair means remedying disrepair. The landlord
is obliged only to restore the house to its previous good condition.
He does not have to make it a better house than it originally was".
Further, the statutory duty to provide premises that are fit for habitation
was of no use because that only applies where the rent is exceptionally
low. Faced with all these difficulties the tenants sought to rely
upon:
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Covenant
for quiet enjoyment
It is a popular misconception that the purpose of the covenant is to
prevent the landlord from causing a nuisance by noise:
"Read literally, these words would seem very apt. The
flat is not quiet and the tenant is not enjoying it. But the words
cannot be read literally. The covenant has a very long history.
... It comes from a time when, in a conveyancing context, the words "quiet
enjoyment" had a technical meaning different from what they would today
signify to a non-lawyer who was unacquainted with their history...
The covenant for quiet enjoyment is therefore a covenant that the tenant's
lawful possession of the land will not be substantially interfered with
by the acts of the lessor or those lawfully claiming under him".
Having said all that, this does not mean that noise cannot be so severe
as substantially to interfere with the tenants enjoyment of the premises.
It has been suggested from time to time that some physical interference
is required before the covenant can be said to have been broken.
However, the House of Lords has now confirmed that this is not the case:
"For my part, however, I do not see why, in principle, regular
excessive noise cannot constitute a substantial interference with the ordinary
enjoyment of the premises".
Thus, although the fundamental purpose of the covenant is much wider it
can in certain cases be used to prevent disturbance by noise. The
decision in Kenny v Preen [1963] 1 QB 499, that a landlord's threats
to evict the tenant, accompanied by repeated shouting and knocking on her
door, was a breach of the covenant was, correctly decided.
The fact that the tenants in Southwark and Camden were complaining of
noise was not therefore of itself a reason why their claims failed before
the House of Lords. They failed under this head because the covenant
is prospective in nature.
"It is a covenant that the tenant's lawful possession will
not be interfered with by the landlord or anyone claiming under him.
The covenant does not apply to things done before the grant of the tenancy,
even though they may have continuing consequences for the tenant."
It could not therefore apply to the physical condition of the flats, a
state in which they existed prior to the grant of each tenancy. The
tenants must reasonably have contemplated that there would be other tenants
in neighbouring flats. They were not therefore entitled to complain
of the presence of other tenants as such.
"If they cannot complain of the presence of other tenants as
such, then their complaint is solely as to the lack of soundproofing. And
that is an inherent structural defect for which the landlord assumed no
responsibility. The Council granted and the tenant took a tenancy
of that flat. She cannot by virtue of the terms of that tenancy require
the Council to give her a different flat."
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Nuisance
Nuisance involves doing something on adjoining or nearby land which
constitutes an unreasonable interference with the utility of the claimant's
land. The primary defendant is the person who causes the nuisance
by doing the acts in question. The landlord will only be liable if
the landlord authorises the tenant to commit the nuisance.
However, in these two cases the neighbouring tenants were not committing
a nuisance by the normal use of their respective flats. The landlord's
could not therefore be liable under this head.
"If the neighbours are not committing a nuisance, the Councils
cannot be liable for authorising them to commit one. And there is
no other basis for holding the landlords liable. They are not themselves
doing anything which interferes with the [tenants'] use of their flats.
Once again, it all comes down to a complaint about the inherent defects
in the construction of the building".
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Public
policy
This decision also demonstrates how the judges will not develop the
common law to remedy a social situation where it considers that Parliament
is the proper body to do so.
"... Parliament has dealt extensively with the problem of substandard
housing over many years but so far declined to impose an obligation to
install soundproofing in existing dwellings. No doubt Parliament
had regard to the financial burden which this would impose upon local authority
and private landlords. In a field such as housing law, which is very
much a matter for the allocation of resources in accordance with democratically
determine priorities, the development of the common law should not get
out of step with legislative policy."
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Conclusion
Perhaps the most significant aspect of this decision is that it confirms,
at the highest judicial level, that the covenant for quiet enjoyment is
not confined to cases of direct and physical injury to the land.
Noise can give rise to a breach of the covenant if it gives rise to a substantial
interference with the ordinary enjoyment of the premises.
Finally, the decision does not affect the position where neighbouring
tenants commit a nuisance in the legal sense of the word (i.e. by unreasonable
behaviour) and the landlord positively authorises the interference (see
generally Woodfall, vol. 1, 11.275). Where the victim of the
nuisance is also the tenant of the landlord he will be able to rely upon
the covenant for quiet enjoyment. Where he is not a tenant himself
he will seek to rely upon the law of nuisance. However, simple failure
to take steps to stop to prevent the nuisance will not make the landlord
liable (Hussain v Lancaster City Council [1999] 4 All ER 125, CA).
"It is quite a novel doctrine to me that permission by a lessee
to use demised premises for a purpose which may or may not involve or create
a nuisance is a wrong act on the part of the landlord, and that the landlord
can be rendered liable merely because a person does carry on that business
in such a manner as to create a nuisance. It would be different,
of course, if it were let for a purpose which necessarily involved a nuisance,
but this letting did not necessarily involve a nuisance" (Malzy v Eicholz
[1916] 2 KB 308, per Cozens-Hardy MR - cited with approval in Hussain).
All in all, it is difficult to establish that a landlord is liable for
nuisance or annoyance resulting from the behaviour of his other tenants.
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