London Borough of Southwark and Another v. Mills and Others; Baxter v. Mayor etc of the London Borough of Camden

The House of Lords dismissed the tenants' appeals. The court held that (1) the conventional covenant for quiet enjoyment and the related obligation not to derogate from grant are prospective in nature and confined to the subject matter of the grant as it existed at the date of the tenancy; (2) there is no general implied landlord warranty that premises are soundproof or fit for a particular purpose unless conferred by statute or contract; (3) ordinary residential use by neighbouring tenants, even if audible because of inadequate sound insulation, will not ordinarily constitute an actionable private nuisance or a breach of the covenant for quiet enjoyment where the condition pre-existed the grant and the use was within the contemplation of the parties; and (4) liability in nuisance or for authorising a nuisance requires that the acts authorised would themselves be actionable nuisances. The decision relied upon statutory context (including the scope of the Landlord and Tenant Act 1985 and building regulations) and the allocation of social and budgetary priorities to Parliament and local authorities.

Background and parties:

• Two appellants, tenants of local authorities (Southwark and Camden), complained that ordinary residential activities of neighbouring tenants were plainly audible in their flats due to lack of sound insulation, causing substantial interference with enjoyment.
• Relief sought: orders requiring the councils, as landlords, to remedy the situation (for example by installing soundproofing) and declarations/relief for breach of the covenant for quiet enjoyment and nuisance.

Procedural history:

• In the Southwark case arbitration tribunals ordered soundproofing; Laddie J. in the High Court upheld one such award but the Court of Appeal set it aside ([1999] 2 W.L.R. 409).
• In the Camden case the county court judge found the noise amounted to unreasonable interference but dismissed the action; the Court of Appeal affirmed.
• Both cases were appealed to the House of Lords.

Issues framed by the House of Lords:

1. Whether a landlord can be liable in nuisance or for breach of the covenant for quiet enjoyment where neighbouring tenants' ordinary residential use (contemplated at the date of letting) produces noise because of deficient sound insulation;
2. Whether, as a matter of common law, the covenant for quiet enjoyment extends to obliging a landlord to improve or alter premises (for example by installing sound insulation) to prevent such noise;
3. Whether the landlord, by letting neighbouring flats without soundproofing, authorises an actionable nuisance.

Court's reasoning and subsidiary findings:

• The court reiterated the long-standing principle that there is no general implied warranty by the landlord that premises are fit for a particular purpose; obligations to repair under section 11 of the Landlord and Tenant Act 1985 relate to remedying disrepair and restoring the property to its previous condition, not to improving or upgrading sound insulation.
• The covenant for quiet enjoyment is prospective and tied to the subject matter of the grant at the grant date; a tenant takes the premises as he or she finds them and cannot use the covenant to require the landlord to alter or improve neighbouring premises.
• The court accepted that excessive noise can in principle amount to a substantial interference with enjoyment, but where the state of construction pre-existed the tenancy and the ordinary residential use by neighbours was within the parties' contemplation, neither nuisance nor breach of covenant arises against the landlord.
• Liability in nuisance requires conduct amounting to an unreasonable user; ordinary residential activities that are mutual and inevitable in multi-occupied buildings are generally protected by the 'give and take' principle and will not amount to actionable nuisance. A landlord cannot be liable for authorising conduct that would not be actionable in itself.
• The court noted the role of statute and building regulations (including later requirements for sound insulation) and emphasised that social and budgetary priorities about remedial measures are matters for Parliament and local authorities, not the courts.

Disposition:

• Both appeals dismissed for reasons that the complaints arise from pre-existing structural defects and from ordinary residential use within the contemplation of the parties; no common-law remedy was available against the landlords in these circumstances.

Appeals dismissed. The House of Lords held that (1) neither nuisance nor the covenant for quiet enjoyment, as properly construed, required the landlords to install sound insulation for conditions that existed at the date of letting and were within the parties' contemplation; (2) there is no general implied landlord warranty of soundproofing; and (3) ordinary residential use of neighbouring flats is not ordinarily an actionable nuisance so as to make the landlords liable for authorising a nuisance.

Arbitration Tribunal award ordering Southwark to install soundproofing; Laddie J. (High Court) upheld the award ([1998] 3 W.L.R. 49); Court of Appeal set the award aside in Southwark v. Mills ([1999] 2 W.L.R. 409). In Baxter (Camden) the county court dismissed the action (His Honour Judge Green Q.C.) and the Court of Appeal affirmed. Appeals were heard by the House of Lords ([1999] UKHL 40).