Sat | Apr 29, 2017

Can a landlord be liable for his/her tenant's nuisance?

Published:Monday | July 28, 2014 | 7:00 AM

On March 10, 2014, I published an article entitled 'Noise Nuisance', in which I wrote about the United Kingdom's Supreme Court decision in the case of Coventry v Lawrence [2014] UKSC 13.

In that case, the occupiers of a stadium, the respondents, Coventry, were held liable in nuisance to Lawrence and Shields, the owners and occupiers of a house, 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.

Further issues arose as a result of that judgment, and on July 23, 2014, the UK Supreme Court delivered its ruling on those issues. Of those four issues, I will focus on the one that is likely to have general applicability - whether Coventry's landlords were also liable in nuisance. Three of the five Judges found in favour of the landlords and some of the interesting parts of the reasons for judgment follow:

Generally, in the law of nuisance, "the ... persons directly responsible for the activities in question are liable; but so too is anyone who authorised them." In relation to the landlord's liability for a tenant's nuisance, "[i]t is not enough for them to be aware of the nuisance and take no steps to prevent it." In order to be liable for authorising a nuisance, the landlords "must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property".

Even if the landlord authorised the activity that creates the nuisance, "[a]uthority to conduct a business is not an authority to conduct it as to create a nuisance, unless the business cannot be conducted without creating nuisance."

In this case, although the intended uses of those properties were well known to the landlords at the time of the lettings, and those uses have in fact resulted in nuisance, that is not enough to render the landlords liable in nuisance as a result of the letting.

Although the lease was said to have included a prohibition against nuisance by the tenant, it was subject to the premises being used as a motorcycle track. The landlords could, therefore, be said to have accepted the risk that the use of the premises would create nuisance, but effectively deprived themselves of the power to do anything about it. Despite that, the landlords had no 'active' or 'direct' participation in the activities, and failure or inaction to prevent the activities does not amount to authorising nuisance, so they escaped liability.

To test that required level of participation by the landlord that would make him liable, one must not only look at the terms of the lease, but to what is actually done after the lease is signed, to see the level of the landlord's participation.

Many Jamaicans who face the daily challenges with noise and other forms of nuisance from their neighbours might have craved a different outcome that could easily fix landlords with liability for the nuisance created by their tenants. It seems that if the law had moved in that direction, more responsible use of rented premises might have been the result. Unfortunately, this highly persuasive decision has not led to that conclusion. But it would be interesting to see how our local courts would handle a similar issue, especially in areas where the demarcation between commercial and residential properties have blurred.

Sherry-Ann McGregor is an attorney-at-law and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send comments and questions to lawsofeve@yahoo.com, lifestyle@gleanerjm.com or on twitter @lawsofeve.