Landlord liability for nuisance

The extent to which a landlord can be liable for the acts of his tenants is a vexed topic, which we've discussed on a number of occasions before. The cases rather lean against liability. It is, therefore, very interesting to find Mackay J allowing a claim in nuisance to proceed in Brumby v Octavia Hill Housing Trust [2010] EWHC 1793 (QB).

Private nuisance is, as you all know, a tort involving the unlawful interference with the enjoyment of land. A landlord is not usually liable for acts of nuisance by his tenants unless he has, for example, encouraged to approved of the nuisance behaviour: see Smith v Scott [1973] Ch 314; Hussain v Lancaster CC [2000] 1 QB 1 and Mowam v LB Wandsworth [2001] 33 HLR 56. It is, however, possible for a landlord to adopt the nuisance of a third party if, with actual or constructive knowledge of the nuisance, he fails to take reasonable steps to abate the nuisance: Sedleigh-Denfield v O'Callaghan [1940] AC 880.

Ms Brumby was the assured tenant of Octavia Hill Housing Trust, living in a flat in a block. She alleged that visitors to another tenant in another flat were responsible for nuisance in the common parts (the approach to the flats, the communal stairs and stairwell, etc). Those common parts were retained by the landlord. The landlord had notice of the nuisance and had failed to take steps to abate it within a reasonable time. Accordingly, she argued that the landlord had adopted the nuisance and issued proceedings for nuisance and breach of the covenant for quiet enjoyment.

The landlord applied to strike the claim out, arguing (a) that Mowam, Hussain et al made clear that it was only in exceptional circumstances that a claim for nuisance could be maintained against a landlord in respect of acts by third parties and (b) Southwark LBC v Tanner [2001] 1 AC 1 prevented the court from imposing obligations on the landlord that went above and beyond the terms of the contract or statutory obligations. In the county court, the claim for breach of the covenant for quiet enjoyment was struck out, but the claim in nuisance was allowed to proceed; the case was entirely factual and would have to be determined at trial and the rule in Sedleigh-Denfield was not affected by Mowam et al.

The landlord appealed, unsuccessfully, to the High Court. Mackay J agreed with HHJ Gibson. Whether or not the landlord had adopted the nuisance was a question of fact that had to be determined at trial. Whether or not the nuisance had been adopted was governed by the Sedleigh-Denfield decision, which had not been affected by Mowam, Hussain etc. The case would have to proceed to trial.

Now, I'm no fan of Hussain, Mowam etc and would gladly see them overruled, but, in the meantime, this is a very encouraging way of getting round the problem. Not in all cases, admittedly, but it's a start. Fingers crossed that Ms Brumby can succeed at trial as well.

Finally, hat tip to Ian Loveland, counsel for Ms Brumby, who has been pushing this argument for some time in various articles. It's good to see him finally getting a chance to run it, and successfully. Also, the NL team doffs its collective cap to Miles and Partners, solicitors for Ms Brumby. That's two interesting High Court cases in a week (Poplar Harca v Howe, below) and, as they only have 3 housing lawyers (according to their website), that's a pretty good showing.

Posted in ASB, FLW case note, Housing law - All, Nuisance and tagged , , .

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.

39 Comments

  1. I think that is actually one housing solicitor and a couple of no doubt very capable paralegal/trainee people at Miles & Partners, so particular hat doffing to Simon Marciniak, the housing solicitor and his team.

  2. hat tip indeed.

    looking at the blognote

    one infers that the key point is the claim is not for acts
    committed by a tenant or others in demised parts but for acts committed by persons on land in the possession of the defendant

  3. It clearly states in Octavia Housing’s Tenants Hand Book and on the TSA Website, firstly Octavia are responsible for the security of their properties and tackling ASB ( That is why they have an ASB policey?) The TSA state the landlord is responsible for the safety of Communal Areas in and out and tackling ASB in ‘the neighbourhood’ of their properties. And to demonstrate ‘preventative measures’.
    Surely Octavia Housing should be spending funds on tackling ASB rather than funding albeit expensive appeals, to stop their tenant having her case fairly heard.

    • E, with respect, you have not grasping the point, which is that the general rule from previous case law is that landlords are not liable to their tenants for the acts of third parties. Octavia relied on that rule and this is why this case is potentially important not just for Ms Brumby but also for many other tenants and many other landlords.

      The issue on the appeal was, quite simply, whether Ms Brumby actually had a case that could be heard. Now it will be.

    • Simple answer, probably – post Weaver. I’ve seen it done against local authorities on the basis of failure to take steps under ASB policy. Difficulty in this case would be that the nuisance was from third parties not other tenants, so Octavia’s ASB policy is arguably not relevant.

  4. Dear NL,
    I get the point in law thank-you. My point relies on good old common sense, humanity and the polices of the TSA and Octavia’s tenancy agreement. These are clearly visable to everyone on their websites. Does this mean tenants agreements and the TSA mean nothing? I would have thought this was more of a ‘land-mark’ case if they don’t, in law, than the ASB one. Again just common sense talking.
    Any way times seem to be a changing…
    Good luck to Mr Brumby and his legal support.

  5. I don’t know what type of tenancy the offending flat had in this case, but I think most flats have assured tenancy these days. In that Octavia agreement it says-
    ‘You must be a good neighbour and tenant, making sure that
    everyone in your household, as well as your visitors, behaves
    considerately in and around your home’
    Again just common sense.

    • E, again you miss the key issue. The offenders committing the nuisance were not tenants of Octavia and the nuisance did not take place in another tenant’s property or, as I understand it, demonstrably associated with another property. And, I’m afraid, it isn’t a matter of commonsense but of legal liability.

  6. Is a key issue not the offending tenant to whom the visitors came, was breaking his/her tenancy agreement and Octavia were breaking the tenancy agreement of other Tenants in the block, by not tackling it. I think in this case soon enough ( If the evidence pertains to that) I understand your legal liability, but again does it mean Tenancy Agreements mean nothing—surley that is pretty serious. Is it of no consequence Octavia are ignoring the TSA’s’preventitive measures’. If so what is the point of the TSA? Don’t Octavia have to answer for any of that.
    Hopefully this case will bring some common sense into legal liabilty. Good there is a case to be heard.

  7. OK, a quick outline of why commonsense doesn’t get one anywhere in this situation.

    I don’t know if the people causing the nuisance were established as being vistors to a particular flat – I beleive not, but even if I’m wrong, it makes little difference to Ms B’s position. That tenant may have been in breach of her tenancy, but the landord is not liable to a tenant for another tenant’s breach of their agreement.

    I’ve looked through Octavia’s tenants handbook, just to check if there was something extraordinary in there. There isn’t. They do not say as a part of the tenancy agreement that they are responsible for recitfying ASB by other tenants/third parties and that they undertake to do so. They do set out ‘what you can expect from us’in responding to ASB and that they expect people to sort out low level ASB themselves. That is not the same thing as undertaking to sort out ASB..

    Ms B could not bring a private law claim against Octavia for Octavia’s failure to act on another tenant’s breach of their tenancy agreement. A judicial review for failure to take reasonable steps MAY now be possible, as Octavia are now arguably a public body, but that is not what is happening here.

    Ms B’s claim in this case does not rely on anybody else having breached their tenancy agreement.

  8. OK we obviously have a differant understanding,I thought from what I have read here and elsewhere in publications,the visitors were very much established to the offending flat. And it was not ‘low level.’ It was likely to do with drug dealing from the offending flat and the tenant claiment was subject to years of intimidation (See Emsleys)Octavia’s assured agreement(again presuming this is the right one) has an ASB policey.I totally understand your points, but if common sense means nothing, it makes this case even more important, which I think is a point we agree on.
    Thanks for pointing out aspects of the liability. It has made me realise how tenacious Miss Brumby and her legal team have had to be.

    • E – no dispute that this was not low level ASB. And the nuisance may indeed have been associated with another flat/tenant. But frankly, it would make no odds – to Ms B – whether it was attached to another tenant’s flat or not. I’m sure that Octavia’s tenancy agreement has an ASB clause and certainly they do have an ASB policy. The point is that none of this would make them liable to Ms B for that other tenant’s breach.

      Ms B certainly has a good legal team!

  9. By way of an update, Octavia have now lodged an appeal against Mackay J’s decision, which means the whole issue of Brumby’s compatibility with Hussain and Mowan will now be looked at by the Court of Appeal.

      • Have Octavia got permission to appeal, or just lodged an application? The HMCS website says the latter but I’m not entirely convinced that what HMCS says is always right!

        • They haven’t got permission yet. The appeal was lodged just over 2 weeks ago with no request for expedition. I’ll post any news that I receive straightaway.

  10. The CA has just refused permission to appeal. This is what Aiken LJ said:

    “It is not a case that involves a general point of principle. The law is well established and I do not accept that the fact that a social housing landlord is involved makes it any different. Even if the judge got the law wrong (which I do not accept) that does not make this a case of general principle. There is no other compelling reason for the Court of Appeal to hear this appeal. The attempt at a second appeal is totally without merit.”

    So not even the chance of an oral permission hearing. Whether this reflects the Court’s views about satellite litigation in general, who knows?

  11. Watching this intently!! I am far from a legal expert, although I could really do with one right now!! ha ha – neighbours (council tenants from hell, just watched their out of control dog attack and kill another neighbours cat. While the out of their heads on drugs owners shared the beating of the cat over the head with a brick(to put it out of it’s misery!) while the other pummeled the dog for killing the cat!!) From what I can gather this could be a milestone case? We have been trying to sell and have reduced the price by £20,000 but who will want to live here, nobody does. Most people arrive for a viewing and leave before even coming inside!! We are stuck. Lots of other private residents have just let their homes get reposessed after trying the right route with the council and getting no-where!! Drugs are rife and it seems no-one cares!

    Thanks for giving me the opportunity to follow this and hopefully biuld up some case history.

    Glenda x

    Anyway, sorry didn’t mean to whinge just wanted to show my vested interest!!

    • Glenda, without knowing any more details of your situation (and I’m not asking, because we couldn’t advise), I’d say it is far from clear whether Brumby would actually assist in your situation. It isn’t about landlord liability for neighbour nuisance, where the neighbour is their tenant…

      Besides, whether Ms Brumby succeeds in the trial of her case or not would not mean that the general principle at issue was invalid – the High Court has set it is.

      Good luck

  12. Does anybody know when Ms Brumby’s case will be heard in court? I have a similar situation in that my social landlord have done nothing about noise nuisance from problem tenants inside the block of flats where I live for almost a decade now. In contrast to Ms Brumby’s case, the tenants themselves are directly responsible rather than their visitors. The housing association have failed to take action against the offending tenants or make any attempt to soundproof the communal areas of the building which adds to the problem.

    • Audrey

      Ms Brumby’s case may not make any difference to your situation, I’m afraid. I would guess it depends on the use being made of the common parts. It remains the case that it is only in exceptional situations that a landlord is liable to a tenant for another tenant’s nuisance. The difference in Ms Brumby’s case is that the nuisance was, in part, taking place on the landlord’s property (common stairs and walkways), involving third parties, and the landlord had done nothing to stop that. I’m not sure what happened to Ms Brumby’s claim, which should have been heard by now. But I know someone who should do. I’ll ask.

    • Caroline

      I’ve heard that the case settled, but the terms of the settlement aren’t public. The High Court judgment is all we are going to get. We won’t speculate on the outcome.

  13. If they settled out of court, I can only assume that it was in Ms Brumby’s favour since she clearly had the housing association on the ropes after the High Court judgment against them. It’s a shame we’ll never know to what extent though.

  14. Been reading this with interest, any info or cases on landlords being prosecuted under the Environmental Protection Act 1990 for failure to comply with a Noise Abatement Notice?

    • Why would there be? It isn’t up to the landlord, the noise abatement notice is served on the person responsible for the noise.

      • My thoughts exactly, but that’s what’s happened. Its short term holiday lets so the ‘tenants’ are long gone. Seems a novel approach from the council, can’t find much precedent.

  15. Mackay’s remarks on the non-applicability of Hussain are a bit gnomic – “the claim is not shut out by the category of case exemplified by Smith v Scott and Hussain v Lancaster City Council”. I’m not at all sure what distinction he’s making; it seems to me that both Hussain and Mowan would have had just as good a case as Brumby that their respective landlords had adopted the relevant nuisance.

    Where a landlord has announced their intolerance of ASB in and around their premises, and where – in the case of LAs – they’re legally obliged to work towards reduced levels of crime and disorder (not to mention racism, per Race Relations Amendment Act 2000), couldn’t this be taken to create a very broad range of duties to an even broader range of people – and potential breaches of duty to go with them? I guess Hussain could be understood as closing the door on what could be an unmanageably large volume of claims against LAs.

    • Hang on, I think I’ve got it – Sedleigh-Denfield was about trespassers, and the nuisance in Brumby was caused by unspecified third parties, so Mackay could claim that the case law about landlord responsibility for tenants didn’t apply.

      That’s neat but strikes my non-lawyer’s brain as a bit casuistical – one of Thorpe’s arguments for striking out Hussain was precisely that the people responsible for the nuisance weren’t tenants! I guess it all depends on what grounds the case is brought.

      • Phil, the issue is where the nuisance is coming from. In Brumby, the nuisance arising from land retained by the landlord (common balcony/walkway). If the nuisance hd been arising from land demised to another party (e.g. a tenant), it would probably fall under Hussain, Mowan etc. – the tenant would be responsible for the nuisance, and not the landlord’s liability.

  16. Hi. I have done a lot of research on this case Brumby v Octavia. [Edited by J – you may well have done a lot of research but, unless you can point me to a judgment, I’m not going to let you tell people what you think the facts are, no-matter how much research you have done. This isn’t being difficult, I just don’t ever want to be sued].

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