Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
With over 30 practice areas, we have all bases covered. Find out how we can help
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Regulatory, business information and analytics solutions that help professionals make better decisions
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
Printer Friendly Version
When will a landlord be liable for its tenant's nuisance. The Supreme Court decided a landlord was not liable as it had neither authorised nor participated in the nuisance.
Coventry and others v Lawrence and another (No 2)  UKSC 46,  All ER (D) 226 (Jul)
This judgment covered a number of points arising from the Supreme Court's earlier decision in Coventry v Lawrence  UKSC 13,  2 All ER 622, in which it decided the occupiers of a stadium and a track were liable in nuisance to the owners and occupiers of a residential bungalow, Fenland, 850 yards away. The nuisance arose from the use of the stadium for speedway racing and other motorcar racing and the use of the track for motorcycle racing and similar activities.
The owners of Fenland brought their proceedings not only against the occupiers of the stadium and track, but also against the occupiers' current landlord and a predecessor landlord. The effect of the Supreme Court's decision was to reverse the Court of Appeal's decision and restore the trial judge's order, which was based on his finding that the occupiers of the stadium and track, but not the landlords, were liable in nuisance. The trial judge's decision had been upheld by the Court of Appeal on the ground that there was no nuisance and so no consideration was given to whether the judge's reasons for rejecting the claims against the landlords were justified.
However, now that the Supreme Court had held that the occupiers of the stadium and track were liable in nuisance, the question arose whether the judge was right in holding that their landlords were nonetheless not liable.
By the time of the trial, Fenland was unoccupied due to a fire and is still fire-damaged today.
The order made by the trial judge included:
The effect of the Supreme Court's earlier decision was to restore the orders for an injunction and for damages, as well as the order for costs.
The Supreme Court (Lord Carnwath and Lord Mance dissenting) decided the claim in nuisance against the landlords was dismissed as the landlords had neither authorised nor participated in the nuisance.
The court confirmed the law relating to the liability of a landlord for his tenant's nuisance was 'tolerably clear' in terms of principle. In order to be liable for authorising a nuisance, the landlords must either:
Here, there could be no question of the landlords having authorised the nuisance on the ground that it was an inevitable, or nearly certain, consequence of the letting of the stadium and the track. The intended uses were known to the landlords at the time of the lettings and those uses had in fact resulted in nuisance, but that was not enough to render them liable in nuisance as a result of the letting. It was clear that those uses could be, and could have been, carried on without causing a nuisance to the owners of Fenland.
If the claim in nuisance against the landlords was to succeed, it had to be based on their 'active' or 'direct' participation. There was little authority on the issue. Whether a landlord has directly participated in a nuisance was largely one of fact for the trial judge, rather than of law.
Here, the Supreme Court was in difficulty as the trial judge had made no, or limited, findings on the issue as the landlord had not raised a defence on this basis. In other circumstances, the Supreme Court acknowledged it might be appropriate to remit the matter for further findings on the issue. However, this was not sought by any of the parties, for understandable reasons, given the exorbitant expenditure of time and money already incurred.
The court confirmed the issue of whether a landlord directly participated in his tenant's nuisance must turn principally on what happened subsequent to the grant of the leases, although that may take colour from the nature and circumstances of the grant and what preceded it.
It decided that none of the factors relied on by the owners of Fenland established that the landlords authorised or participated in the nuisance. These were that Mr Waters, one of the landlords:
On the first point, the Supreme Court confirmed the fact a landlord does nothing to stop or discourage a tenant from causing a nuisance cannot amount to 'participating' in the nuisance. As a matter of principle, even if a person has the power to prevent the nuisance, inaction or failure to act cannot, on its own, amount to authorising the nuisance.
The second point was also of very limited force. Absent very unusual circumstances, the fact a landlord takes steps to mitigate a nuisance could scarcely give rise to the inference that he had authorised it. Constructing the wall on land adjacent to Fenland could fairly be regarded as a somewhat aggressive act, but that did not amount to participation in the nuisance.
The last three points were are all based on Mr Waters' leading part in fighting off the risk of nuisance abatement by the local authority and claims in common law. Even taken together, they did not mean that Mr Waters participated in the nuisance. Any landlord, whose premises were being lawfully used for motor car and motorbike racing, would naturally wish to avoid or minimise any restriction on the emission of noise from the premises--whether by the local authority or by the court. Any such restriction would very likely adversely affect the value of his reversionary interest, as it would risk curtailing the racing activities on the premises, and therefore the commercial attraction of the premises. That, in turn, could depreciate the capital and rental values of the premises. On that ground alone, it was hard to accept that, by trying to fight off allegations of nuisance against his tenants, a landlord can be said to be participating or authorising the nuisance.
The points showed that Mr Waters went further than most landlords would have done, but they did not (even together) make good the contention that he authorised or participated in the nuisance.
Lord Carnwath commented that 'participation' was not a term of art, nor a precise definition. What was required was:
'a broad, common-sense judgment, based on the facts as a whole, as to whether there was such active involvement by the landlord in the offending activities as to make him jointly responsible in law for their consequences'.
Here, the issue of participation should be judged against the background history which showed a close involvement by Mr Waters, and later his son, in the activities of the stadium and the track dating back to their inception. Although the precise legal basis of their involvement had varied over the years, their central role in the enterprise had not.
The facts clearly showed that the involvement of Mr Waters and his son had gone far beyond the ordinary role of a landlord protecting and enforcing his interests under a lease. It had involved active encouragement of the tenants' use and direct participation in the measures and negotiations to enable it to be continued. The fact these measures were directed in part to mitigating the problem did not alter the fact of participation nor the consequences for the landlord when the measures proved ineffective. They may have been motivated, at least in part, by their concurrent interests as freeholders, or even, in Mr Waters' case, as local councillor--however, the issue was not why they participated, but whether they did and with what effect.
Lord Mance observed that it appeared to have been the trial judge who, effectively of his own motion, raised at a very late stage a possible distinction between the liability of the occupiers of the stadium and track and their landlords for any nuisance. He misread one of the leases and overlooked the principle that a landlord who 'participates' in a nuisance may be liable, irrespective of the terms of the lease.
He also confirmed it was significant to the issue of liability, that the landlords were prepared to recognise their liability along with other defendants for any nuisance which existed (while denying that it extended to liability for exemplary or aggravated damages).
The Supreme Court decided the injunction imposed by the trial judge against the occupiers of the stadium and track should be suspended until Fenland was fit to be occupied, subject to any party having liberty to apply at any time to vary or discharge the injunction.
Consideration of the contention that the judge's order for costs infringed the rights of the occupiers of the stadium and track under ECHR, art 6 was adjourned for a further hearing after notice had been given to the Attorney-General and the Secretary of State for Justice.
Read more about these implications on the LexisNexis Dispute Resolution blog.
The case largely turns on its facts, but is useful in setting out the legal principles relating to a landlord's liability for its nuisance.
Some - in view of the dissenting judgments - may say the landlord was lucky not to have been found liable.
0330 161 1234