Covenant for quiet enjoyment
Covenant for quiet enjoyment
Southwork LBC v. Mills [1998] 45 EG 151
This case was mentioned briefly in the Legal Update contained in Property Management, Vol. 17 No. 1, when as in Baxter v. Camden LBC [1998] 22 EG 150, it was held in effect that the landlord, by letting residential properties with such inadequate sound-proofing that neighbouring tenants could disturb each other simply by carrying on their normal day-to-day activities, could be in breach of the landlords covenant for quiet enjoyment. The decision in the Court of Appeal, dealing with the further issue of nuisance, is noted above.
The decision in Southwork LBC v. Mills has now also been over-ruled by the Court of Appeal, in a majority decision which for technical reasons may still have left the law in a less than satisfactory state.
Put briefly, the facts of the case were as follows: the property in question is described as being ... a block of flats which was jerry-built at the end of the first world war and which falls far short of the standard that would be necessary under present-day building regulations. In particular the soundproofing of the individual flats is wholly inadequate so that the occupants hear pretty well everything... that is said and done by their neighbours. It is intrusive, inconvenient and often embarrassing ...
The case for the tenants was essentially that by letting adjacent flats in such a condition the landlord was in breach of its covenant for quiet enjoyment. The landlord had expressed its willingness to carry out sound proofing works to each of the flats but only as and when they should chance to fall vacant. The tenants wanted the work to be carried out immediately.
Various points of law were taken in the Court of Appeal: was it necessary for there to be an actionable nuisance before the landlord could be held to be in breach of its covenant of quiet enjoyment? Was it possible for the noises inevitable in normal day-to-day living to constitute such an actionable nuisance? Was it right that the landlord should be required to carry out expensive improvements to the demised premises by the back-door so to speak,when it could not be compelled to carry out such works under the terms of the normal repairing covenant? And so on...
The court considered all of the various arguments, and an abundance of legal authority before coming to the conclusion that the landlord was not in breach of its covenant for quiet enjoyment. The principal cases relied on by Mantell LJ would seem to have been Quick v. Taff-Ely B.C. [1986] QB 809; [1985] 2 ELR 50; [1985] 276 EG 452 and Duke of Westminster v. Guild [1985] QB 688; [1983] 2 EGLR 37; [1983] 267 EG 762, both of which in different ways were concerned with liability of the landlord for repairs; the other line of cases to which Mantell LT referred also ended in the Court of Appeal, in this case with Baxter v. Camden LBC [1998] 22 EG 150, but following that line of cases would have led to liability on the part of the landlord. As Mantel LJ observed, ... this is the dilemma. There are two lines of authority, both binding on the court ... try as I might I have been unable to effect a reconciliation ... In the event he said ... I have come to conclusion that the line of authority ending with Guild v. Duke of Westminister is to be preferred, and for that reason I would allow the appeal. Schiemann LJ concurred. Peter Gibson LJ dissented. Leave to appeal to the House of Lords was granted.
