Martin Callan, Bowling & Co Solicitors - www.bowlinglaw.co.uk
Under English Law, most tenancies will contain a covenant from the Landlord regarding repairs to defects in the property. There are many different types of repairing covenant which are either expressly stated in the tenancy agreement or are implied by statute and the common law. When there are problems relating to defects in the property, the tenant will normally try to obtain redress through the repairing covenant, either directly with the landlord, or by way of exercising their rights under the tenancy agreement through the courts.
However, in some cases it is not always the best way forward for the tenant to seek to enforce the tenancy agreement. It is sometimes possible to bring an action for nuisance against a landlord who fails to take action. Under the common law, persons in possession of property (including tenants) are entitled to ‘quiet enjoyment’. If a neighbour interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance.
This is exactly what happened in the case of Jackson v JH Watson Property Investment Ltd., [2008]. In this case, the tenant took action against his landlord for nuisance relating to the ingress of water into his flat. The tenant alleged that this ingress of water interfered with his ‘enjoyment of the property’. Whilst this in legal terms, does not relate to noise levels alone, this covenant is in essence the grant by the landlord to the tenant of the possession of the property. Where the tenant is unable to ‘enjoy’ possession for one reason or another then the landlord may be liable for derogation of the grant of the tenancy as well as in nuisance. In other words, having granted the tenancy, if the tenant is unable to enjoy the premises in a lawful way the landlord may be deemed to have withdrawn the grant of the tenancy, which would normally be unlawful before the expiry of the term.
However, in this case, the problem had existed before the tenant leased the flat, and this was the tenant’s undoing. The court held that the landlord could not be liable in nuisance for damage that pre-dated the grant of the lease. The moral for prospective tenants is ‘tenant beware’. This does not mean that a landlord could not be liable in nuisance for damage that does not pre-date the grant of the lease. However, because of the cost of legal action, it often transpires that tenants, particularly of assured shorthold tenancies would often take no action at all. If you have any questions relating to this article or the issues raised in it please email martin.callan@bowlinglaw.co.uk.
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