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Abating the nuisance

Abbahall v Smee
[2002] EWCA Civ 1831

Facts

Flying freeholds. A owned freehold of the ground floor. R owned freehold of the upper floor. No covenants regulating the use of the property. R neglected the upper parts and water leaked through the roof to the ground floor. A obtained an injunction, gaining access to the upper parts in order to carry out repairs. A then claimed the cost of the repairs.

First instance

The judge found that R did owe A duty of care but, having regard to the parties respective financial means, only awarded A one-quarter of the costs of repair.

Decision

On appeal held that A was entitled to recover some of the costs. In determining the proportions account should be taken of the concept of reasonableness as between neighbours. On the particular facts it was reasonable that the cost of repairing the roof should be shared equally because both parties would benefit. Lack of means was not relevant.
    "In my judgment there are therefore three broad principles which emerge from the authorities:

    (i) First, the duty of Miss Smee was .. to do what was reasonable in all the circumstances.

    (ii) Secondly, in determining how the burden of meeting the cost of the repairs is to be borne by or as between Miss Smee and Abbahall, the court must strive to reach a result which is fair, just and reasonable...

    (iii) Thirdly, in determining what is reasonable, or what is fair just and reasonable, the key to the solution is [the] concept of 'reasonableness between neighbours'.

    ... In a case such as this, where the roof serves equally to protect both the claimant's premises and the defendant's premises, common sense, common justice and reasonableness as between neighbours surely suggest that those who are to take the benefit of the works ought also to shoulder the burden of paying for them. On what basis ought the costs to be shared? ...[I]f the claimant and the defendant will derive equal benefit from the works they should each, other things being equal, contribute equally to the cost. If they will derive unequal benefit from the works then, as it seems to me, they should each contribute to the cost in the same proportion as they will each derive benefit.

    .. Having got to this point in the analysis one can now correctly identify the true nature of the duty owed by the owner of a flying freehold in Miss Smee's position. It is not .. a duty to prevent the ingress of water into the claimant's property. It is not a duty to repair the roof. It is not even a duty to pay the claimant a sum equal to the defendant's share of the work. It is, in my judgment, a duty to make the appropriate contribution to the cost of the appropriate works, always assuming, that is, that the works are actually carried out."
(Munby J at paras 36 to 43 - see further paragraphs 44 to 46 in relation to the grant of injunctions).


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