Readers will recall that for a landlord to be liable for a nuisance committed by its tenant, the landlord must have authorised the nuisance, either by participating actively or directly in the nuisance or by letting the property in circumstances where there was a very high degree of probability that the letting would result in the nuisance (Lawrence v Coventry [2014] UKSC 46). The Court of Appeal has made it clear in Cocking v Eacott and Waring [2016] EWCA Civ 140 that the situation is quite different where the nuisance is committed by a licensee.
Background
Mrs Waring owned, maintained and paid the bills for a property which was occupied by her daughter, Ms Eacott, who did not pay any rent and had no formal agreement in place with her mother. Mr and Mrs Cocking lived in the property adjacent and had complained of nuisance in the form of shouting and barking since 2004. To put this in context, Ms Eacott was in 2011 subject to an ASBO for the shouting (although her mother was unaware of this until 2011).
In February 2012, the Cockings commenced proceedings against Mrs Waring and Ms Eacott claiming damages for nuisance. This led to a breakdown in the relationship between the mother and daughter, which culminated in Mrs Waring serving a notice to quit upon her daughter and a few months later she obtained a possession order for the property, although she chose not to enforce it. The Cockings offered to settle if Mrs Waring permanently evicted her daughter from the property but this offer was rejected and the case went to trial.
At first instance, having found that the arrangement between Mrs Waring and her daughter amounted to a bare licence, the Judge ordered Mrs Waring to pay GBP 1,000 and Ms Eacott to pay GBP 3,500 in damages to the Cockings for the nuisance caused by the barking (but not the shouting as it had stopped following the ASBO). Mrs Waring and Ms Eacott were also found to be jointly and severally liable for the Cockings' costs. Mrs Waring appealed this decision.
The Appeal
The issues on appeal were, as a licensor:
- Could Mrs Waring be liable for a nuisance caused by her licensee?
- Should she be ordered to pay all of the Cockings' costs on a jointly and severally basis with her licensee?
With regards to the first point, the Court found that Mrs Waring had been correctly regarded as the occupier of the property and as such was responsible for the nuisance even if she did not directly cause it. The relevant test is set out in Sedleigh Denfield v O'Callagan & Other [1940] A.C. 880: an owner may be regarded as an occupier of property for the purposes of liability for nuisance if he has allowed others to live or undertake activities on his land. In this instance, Mrs Waring was in control and possession of the property throughout the period in which her daughter resided there and was aware of the nuisance which she had not done anything to abate.
The Court also upheld the costs order as Mrs Waring was the only person who could ultimately abate the nuisance by removing her daughter from the property.
Comment
This case highlights the difference in position between the liability of a landlord and that of a licensor in relation to nuisance. Landlords should therefore take care to abate a nuisance committed by an occupier soon after becoming aware of it where there is a licence in place but also if there is any doubt as to whether the agreement in place is a licence or a tenancy.
It is also worth noting Arden LJ's comment that if a landlord is subject to a repairing covenant to inspect and clean the drains on the demised property at regular intervals and a nuisance is caused by the tenant's use of the drains, the landlord may be able to escape liability even if there is clear a tenancy in place if the landlord has failed to comply with its repairing obligations.
A Licence Can End Up Being A Real Nuisance
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