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Generally, only an occupier of land who causes nuisance is liable for that nuisance. So, if the occupier is a tenant, generally only the tenant and not the landlord, is liable. However, there is an exception to this general rule where the landlord has expressly or impliedly authorised the actions causing the nuisance. In that case, the landlord can be liable as well as the tenant.
When will a landlord be liable?
It is not enough for the landlord to be aware of the nuisance and then to take no steps to prevent it. The landlord must either participate directly in the commission of the nuisance or have authorised it by letting the property knowing the nuisance would occur.
Most modern leases contain covenants prohibiting the tenant from causing a nuisance. However, landlords cannot escape liability simply by including covenants against nuisance in their leases. Nor do landlords become liable for their tenants’ nuisances simply by failing to enforce covenants that would stop the nuisance.
In July 2014, in Lawrence v Coventry  UKSC 46, the Supreme Court considered whether the landlord was liable for the tenant’s nuisance. The court applied established principles in deciding whether the landlord was liable for nuisance and this case provides a rare Supreme Court authority on to what extent landlords should be liable for nuisance caused by their tenants.
In the case, the landlord had granted a lease of a stadium and adjoining track to tenants who used the premises for motor sports. The stadium was in a rural area surrounded by agricultural land. The Claimants, who had purchased a bungalow approximately 850 yards away from the track, were disturbed by the noise from the track and issued a claim against the landlord and tenant in nuisance seeking an injunction and damages.
At the time of the letting, was the nuisance an inevitable, or nearly certain, consequence of the letting?
The court said that:
The fact that the landlord knew what the intended use was and that the use did in fact result in nuisance was not enough to make the landlord liable in this case. However, if the nuisance had been inevitable, tenant covenants against nuisance in the lease would not have affected whether or not the landlord was liable.
Had the landlord participated “actively” or “directly” in the nuisance?
The court considered what had happened after the grant of the lease. The majority said that, in this case, the following steps by the landlord did not amount to the landlord participating in the nuisance:
- Doing nothing to stop or discourage a tenant from causing a nuisance;
- Trying to mitigate the nuisance;
- Taking a leading role in defending the nuisance claims.
The court therefore dismissed the claim in nuisance against the landlord.
Landlords should bear in mind that if it is likely that a tenant’s use of property will result in nuisance claims, if the landlord can be said to have either expressly or impliedly authorised the actions causing the nuisance, they may be held liable. A landlord can consider including in the lease a clause prohibiting the tenant from causing a nuisance, although it should be noted that this will not in itself necessarily ensure the landlord is able to successfully evade liability. The court will consider each case on its individual facts and it is therefore difficult to predict with any certainty what actions by a landlord would constitute direct participation in or authorisation of the nuisance.
Practical steps that can be taken to avoid liability:
Landlords should consider whether the proposed use of the property is likely to amount to a nuisance and if so, they should ensure they are neither authorising nor directly participating in any nuisance.
For further information please contact a member of our Commercial Property department.
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