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Occupation by licensee

Liabilty of property owner

Comparing liability of a landlord

Cocking v Eacott
[2016] EWCA Civ 140

Summary

A property owner was liable in nuisance to her neighbours even though she did not reside at the property. The nuisance had emanated from her daughter who lived at the property under a bare licence. The property owner as licensor remained in possession and control of the property throughout her daughter's residence.

Facts

The owner of a property (W) did not reside there. She had granted her daughter (E) a bare licence to reside there. E had caused a nuisance by shouting and by letting her dog bark excessively from 2009 onwards. In 2009, W became aware that the claimants were alleging that E was creating a nuisance. In September 2010, the claimants wrote a letter before action but W rejected the claim stating that a landlord was not liable for nuisance committed by a tenant and that she was not personally involved in the alleged incidents. When proceedings were issued against W and E, W served a notice to quit on E and obtained a possession order but she did not enforce it.

At first instance the Court held that W was liable in nuisance to the claimant owners of the next door property even though she did not occupy the property from which the nuisance emanated. W had been in possession and control of the property as licensor throughout her daughter's residence which had been on the basis of a bare licence. W had been able to abate the nuisance by obtaining a possession order against E but had chosen not to enforce the possession order. W appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal. A licensor in W's position was correctly regarded as an “occupier” of the property in this scenario as W was in control of the property, notwithstanding that she did not live there. She allowed E to live there and she knew of the nuisance in 2009. She could have abated the nuisance by enforcing the possession order against E, but chose not to. Instead, she defended the instant proceedings, arguing that she had no legal liability for E's nuisance. W was both in possession and control of the property throughout E's residence there, and the judge was right to hold her liable for the nuisance.

There were two possible tests for liability in nuisance: one for those in "occupation" of property and one for "landlords" of property. To be liable for nuisance, a landlord must either participate directly in the commission of the nuisance by himself or his agent, or must be taken to have authorised the nuisance by letting the property. The fact that a landlord did nothing to stop a tenant from causing the nuisance cannot amount to participating in it (Coventry v Lawrence [2014] UKSC 46 applied).

An occupier was in a different position as they would normally be responsible for a nuisance even if they did not directly cause it, because they were taken to be in control and possession of the property. The cases demonstrated that an owner may be regarded as an occupier of property for these purposes even if he or she had allowed others to live or undertake activities on their land. An occupier was liable if she or he continued or adopted the nuisance by failing to abate it without undue delay after he or she became aware of it or with reasonable care should have become aware of it, Sedleigh-Denfield v O'Callagan (Trustees for St Joseph's Society for Foreign Missions) [1940] A.C. 880 applied.


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