Abbahall Ltd v Smee

In a flying freehold, the owner of the upper premises owes a measured duty in nuisance and negligence to take what is reasonable in all the circumstances to prevent or minimise known risks to the lower premises. The duty is not absolute and does not require repair at the neighbour’s sole expense.

Where a common roof benefits both properties, fairness, justice and reasonableness between neighbours normally require the cost of necessary works to be shared in proportion to benefit. Equal benefits ordinarily require equal contributions. The owner’s relative poverty does not alter that apportionment in this setting. A claimant who carries out the works may recover the defendant’s proper contribution, but must bear its own share.

The claimant owned the ground floor of a building, while the defendant owned the upper floors and roof as a flying freehold. There were no covenants regulating the relationship between the freeholders. Disrepair to the roof caused water penetration and created a risk of falling masonry.

The county court held that the defendant owed a duty of care, but ordered her to contribute only one quarter of the past and future repair costs. The claimant appealed, seeking the full cost. The central issues were the content of the duty, the proper apportionment of repair costs, and whether the defendant’s financial circumstances were relevant.

1. Appeal allowed. Mr Justice Munby gave the leading judgment, and Lord Justice Chadwick agreed with his analysis and conclusions. The damages award was increased from £1,296 to £2,592, and the order for future works was amended so that each party bore one half of the cost. The costs order below was replaced by an order giving the claimant 50 per cent of its costs below and of the appeal.
2. The modern law of nuisance and negligence applies to the relationship between owners of a flying freehold. The absence of covenants and the vertical arrangement of the properties do not prevent a duty of care. The earlier observations in Bond v Nottingham Corporation [1940] Ch 429 and Phipps v Pears [1965] 1 QB 76 remain relevant to easements, but do not determine the content of modern nuisance and negligence.
3. Following Goldman v Hargrave [1967] 1 AC 645, Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 and Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836, the duty is measured. It requires what is reasonable in all the circumstances to prevent or minimise the known risk. Relevant considerations include the extent and foreseeability of the risk, the likely damage, practicability, the nature and cost of preventive works, and the time available for action.
4. Under Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2002] 1 AC 321, reasonable remedial expenditure incurred in abating a continuing nuisance may be recovered. In a flying freehold where the common roof benefits both properties, reasonableness between neighbours requires the burden to be shared according to the benefit obtained. Equal benefits ordinarily justify equal contributions, assessed broadly rather than by fine calculation. Jones v Maynard [1951] Ch 572 supported equality as the default basis where no other basis is shown.
5. The defendant’s duty is not a duty to repair the roof or to pay the whole cost. It is a duty to make the appropriate contribution to the cost of appropriate works, assuming that the works are carried out. A claimant seeking a mandatory injunction must pay, or undertake to pay, its own proper share. Where the claimant obtains access and carries out the works, it may recover the defendant’s unpaid contribution as damages.
6. Although Goldman v Hargrave and Leakey recognise that financial resources may matter in some cases, relative poverty did not justify reducing the defendant’s share here. The obligation to contribute to maintaining a common roof was an ordinary incident of ownership. The defendant’s acquisition of title by adverse possession and arguments based on public nuisance did not alter the private nuisance and negligence analysis. The decision was confined to the common-roof flying-freehold situation; other property arrangements and substantially greater repair costs were left open.

• Court of Appeal: Allowed the appeal to the extent stated in the leading judgment. The claimant and defendant were each made liable for one half of the relevant repair costs.
• West London County Court: Judge Cotran held that the defendant owed a duty of care, awarded £1,296, and ordered the defendant to bear one quarter of the past and future repair costs.