When will a landlord or licensor be liable for any nuisance caused by the person occupying a property? A landlord must normally have participated in or authorised the nuisance but what does that actually mean and does it make a difference if the occupation is on a licence rather than a tenancy or lease?
In the recent case of Brynley John Cocking (1) and Diane Cocking (2) v Kim Eacott (1) and Angela Waring (2) [2016] EWCA Civ 140, the claimants brought a claim against their neighbour and her mother (who was the freehold owner of the property). They claimed Ms Eacott (who lived at the property as a licensee) had caused a nuisance.
The nuisance about which they complained was noise nuisance caused by shouting and the excessive barking of Ms Eacott’s dog. The problems had continued for some years. Ms Waring denied the claims, stating that as a landlord, she was not liable for a nuisance committed by the tenant. She subsequently served a notice to quit on Ms Eacott and three months later, obtained a possession order. Ms Waring chose not to enforce the possession order and allowed Ms Eacott to remain at the property.
At court, Ms Waring argued that as a licensor, she had the same liability as a landlord would have. As a landlord, she would not be liable for the nuisance of a tenant unless she either participated directly in the commission of the nuisance or authorised the nuisance by continuing to let the property in circumstances where the nuisance was a near-inevitable consequence of the letting.
An occupier is liable for a nuisance even if they did not directly cause it as they are in control and possession of the property. An occupier is also considered liable for nuisance if they fail to abate it without undue delay after becoming aware of it or, with reasonable care, should have become aware of it (Sedleigh-Denfeld v O’Callagan (Trustees for St Joseph’s Society for Foreign Missions) [1940] A.C 880).
The question was whether Ms Waring, as licensor, was in the same position as a landlord, or an occupier.
The Court ruled that despite not living at the property, Ms Waring was in occupation of the property and she had allowed Ms Eacott to live there. Ms Waring was therefore an occupier and the test for nuisance of an occupier, not a landlord, applied. Ms Waring had knowledge of the barking nuisance and had done nothing to abate it and that as she was in complete control of the property; she had a duty to put a stop to the nuisance. It was therefore held that Ms Waring was jointly liable for the barking nuisance and she was ordered to pay all of the claimants’ costs jointly and severally with Ms Eacott.
Conclusion
Looking at the facts of this specific case and the fact that Ms Waring had obtained a possession order but failed to enforce it, it may have been that Ms Waring would have been found liable regardless of whether she was considered a landlord or an occupant, as she had effectively continued to “let” the property.
Any property owner who lets property – whether formally on the basis of a lease, tenancy or even a formal licence, or who allows others to live at the property will need to consider what responsibility they have for any nuisance caused by a tenant or licensee although a landlord is unlikely to be liable for the actions of a tenant or lessee.
The position of a property let on a licence is different and given the greater degree of control a licensor is expected to have of a property, the greater the prospect of liability if a nuisance is caused.
The case will be of interest to many property owners from social landlords who use licences, to people who allow relatives or friends to live at their property on an informal basis.
If you have any queries or require any advice in respect of leases and/or licences, please do not hesitate to contact the Property Litigation team on 029 2066 0589.