Southwark London Borough Council v Tanner (Southwark London Borough Council v Mills)

A residential landlord gives no implied warranty that demised premises are fit for habitation or adequately soundproofed. A repairing covenant ordinarily requires the remedying of disrepair, rather than structural improvement.

The covenant for quiet enjoyment protects lawful possession and ordinary use against substantial interference by the landlord or persons claiming under it. The interference need not be physical, but the covenant is prospective and does not enlarge the subject matter of the grant. It therefore does not require correction of an inherent structural defect existing when the tenancy began.

Ordinary residential activity, carried out with proper consideration for neighbours, is not a private nuisance. A landlord cannot be liable for authorising a tenant’s activity unless that activity is itself actionable.

These conjoined appeals concerned local authority tenants whose homes lacked adequate sound insulation. Normal domestic activity in neighbouring flats was plainly audible and caused serious distress, although the neighbours were not behaving unreasonably.

In the Southwark proceedings, an arbitration tribunal ordered soundproofing for breach of the covenant for quiet enjoyment. Laddie J upheld the award under section 1(2) of the Arbitration Act 1979, but the Court of Appeal set it aside by a majority: [1999] 2 WLR 409. In the Camden proceedings, a county court judge dismissed Miss Baxter’s claims in nuisance and for breach of covenant, and the Court of Appeal unanimously affirmed that decision: [1999] 2 WLR 566.

The central questions were whether normal residential use, when transmitted through inadequately insulated premises, constituted nuisance and whether a common landlord thereby breached the covenant for quiet enjoyment.

1. Disposition. The House unanimously dismissed both appeals. Lord Hoffmann and Lord Millett delivered the substantive speeches. Lord Slynn of Hadley, Lord Steyn and Lord Clyde agreed with both.
2. Condition and fitness. Per Lord Hoffmann and Lord Millett, a residential lease contains no general implied warranty that the premises are fit for habitation or soundproofed. A covenant to keep the structure in repair, including that implied by section 11 of the Landlord and Tenant Act 1985, requires the remedying of disrepair. It does not oblige the landlord to improve the premises beyond their original condition.
3. Quiet enjoyment. Per Lord Hoffmann and Lord Millett, the covenant protects the tenant’s lawful possession and ordinary enjoyment from substantial interference by the landlord or persons claiming under it. Noise may in principle amount to such interference; neither direct physical interference nor an independently actionable nuisance is essential.
4. The covenant is nevertheless prospective and confined to the subject matter of the grant. It does not remedy acts completed before the tenancy or enlarge what was granted. Each tenant took a flat in a building already constructed or adapted for multiple occupation, with inadequate sound insulation. Normal occupation of neighbouring flats was reasonably contemplated. Requiring the landlord to recover possession of those flats or install sound insulation would turn the covenant into an obligation to improve the grant.
5. Nuisance. Per Lord Hoffmann and Lord Millett, private nuisance applies the principle of reasonable user or reciprocal give and take. Acts necessary for ordinary residential occupation are not actionable when conveniently done, meaning with proper consideration for neighbours. The neighbours’ normal domestic activities satisfied both conditions. The serious interference resulted from the building’s inherent construction, not unreasonable use.
6. A landlord may be liable for a nuisance committed by a tenant where the landlord participates in or authorises it. Liability presupposes an actionable nuisance by the tenant. Because normal occupation was not actionable, neither council was liable for permitting it.
7. Per Lord Hoffmann and Lord Millett, imposing soundproofing duties across existing housing stock involved legislative policy and resource allocation. Nothing in the tenancy agreements, existing legislation or common law entitled the tenants to the requested relief.

1. House of Lords: Both appeals dismissed unanimously; the Court of Appeal decisions were affirmed.
2. Court of Appeal—Southwark proceedings: The council’s appeal was allowed by a majority and the arbitration award was set aside: [1999] 2 WLR 409.
3. High Court—Southwark proceedings: Laddie J dismissed the council’s appeal from the arbitration award: [1998] 3 WLR 49.
4. Arbitration tribunal: The tribunal found a breach of the covenant for quiet enjoyment and ordered effective soundproofing.
5. Court of Appeal—Camden proceedings: Miss Baxter’s appeal was dismissed unanimously: [1999] 2 WLR 566.
6. Central London County Court: Judge Green QC dismissed Miss Baxter’s action in nuisance and for breach of the covenant for quiet enjoyment.