Disrepair – Liability in tort

british landlords associationDisrepair – Liability in tort

Negligence and nuisance Landlords do not owe a general duty of care to tenants with regard to the condition of the premises when they are let: ‘A landlord who lets a house in a dangerous state is not liable to the tenant’s customers or guests for accidents happening during the term: for, fraud apart, there is no law against letting a tumbledown house and the tenant’s remedy is upon his
contract, if any’. (Cavalier v Pope [1906] AC 428, HL) The courts have, however, held that a landlord does have a duty of care in some prescribed circumstances. Furthermore, a landlord who designs and builds a premises may be liable in that capacity (see Rimmer v Liverpool CC (P7.13)). Section 4 of the Defective Premises Act 1972 also places a statutory duty of care on a landlord in defined circumstances Landlords are liable for any common-law nuisance arising from ancillary property owned by them, including common parts, impinging on the tenant’s dwelling-house.
House of Lords

D & F Estates Ltd v Church Commissioners [ 989] AC 77; [ 988] WLR 8; [ 988] 2 All ER 992; [ 988] 2 EGLR 2 , HL Builder not liable for negligence of subcontractor

A long leaseholder claimed damages for the cost of repair work to wall plaster in an action for negligence against the building contractor who built his home. The contractor had subcontracted the plastering work. The House of Lords held that (a) in the absence of any contractual relationship, the contractor was not liable for any negligence committed by an independent subcontractor and (b) in any event, the cost of the repairs was irrecoverable as pure ‘economic loss’.

Delaware Mansions Ltd v City of Westminster [200 ] UKHL ; [2002] AC 2 ; [200 ] WLR 007; [200 ] 4 All ER 7 7 Council as highway authority liable for damage caused by roots of trees

A five-storey block of flats was let on long leases. There was structural cracking and other disrepair caused by the roots of a large plane tree growing in the pavement of the street outside the block. The tenant management company and the freeholders claimed damages from the council as the highway authority responsible for the pavement and the tree. The Court of Appeal awarded damages of £835,000 – the cost of remedial works. The House of Lords dismissed the council’s appeal. Lord Cooke said that ‘the concern of the common law lies in working out the fair and just
incidents of a neighbour’s duty rather than affixing a label [such as “nuisance” or “negligence”] and inferring the extent of the duty from it’. Where a tree owner was notified of root damage, he was entitled to a reasonable opportunity to abate the nuisance. The council had had both notice and opportunity but failed to prevent further damage and so was liable for the full cost of the subsequent remedial work.

Hunter v Canary Wharf Ltd [ 997] AC ; [ 997] 2 All ER 42 ; ( 998) 0 HLR 409; [ 997] En LR 488; 24 April 997, HL Disruption to television reception not a nuisance; exclusive possession of land necessary to sue in nuisance.

Residents claimed that the construction of the Canary Wharf Tower interfered with their television reception. The House of Lords held that (a) the creation or presence of a building between a television transmitter and other properties was not capable of constituting an actionable private nuisance and (b) ordinarily, only a person with a right to exclusive possession of land may bring an action in private nuisance.

Southwark LBC v Mills; Southwark LBC v Tanner; Baxter v Camden LBC [200 ] AC ; [ 999] WLR 9 9; [ 999] 4 All ER 449; [2000] LGR 8; [ 999] 4 EG 79; (2000) 2 HLR 48; [2000] L&TR 9; ( 999) Times 22 October, HL (see P4.2)

Normal use of residential flat cannot be a nuisance to neighbours; landlord cannot be liable in nuisance for conduct of neighbouring tenants, which is not a nuisance on their part Court of Appeal

Adams v Rhymney Valley DC (200 ) HLR 44 , CA

Council not in breach of duty of care in installing windows according to standards at time of installation

Boateng v Camden LBC ( 999) HLR 4 ; May 998 Legal Action 22, CA

Landlord not liable for burns to baby caused by hot pipes

Boldack (minor) v East Lindsey DC ( 999) HLR 4 ; May 998 Legal Action 22, CA

Landlord not liable in negligence for injury to non-tenants

Habinteg Housing Association v James ( 99 ) 27 HLR 299, CA No liability for cockroach infestation where no common parts retained by landlord

In February 1986 the plaintiff took a tenancy of the middle flat of three flats stacked vertically in a single block. She claimed that from spring or summer 1986 her flat had been infested by cockroaches. Some temporary remedial treatment was undertaken by the pest control service of the local council, but that ceased in 1990. Following a residents’ association survey, the council served notice on the landlords to abate the nuisance and then undertook its own survey and block treatment programme which eradicated the cockroaches in 1991. The tenant sought damages from her landlord. Recorder Lipton dismissed her claim, but indicated that, if she had succeeded, he would have awarded damages of £10,000. The Court of Appeal dismissed the tenant’s appeal. Waite LJ held that:
1) There was no implied term that the landlord should take reasonable care to abate an infestation, even if block treatment would be the only effective treatment.

2) There was no liability in nuisance because:
a) there were no common parts retained by the landlords and no conclusive evidence about the source of the infestation;
b) the reserved rights of entry over tenanted flats did not give the landlords sufficient control over them to be liable for failure to treat any infestation emanating from them.

3) There was no liability in negligence because there is no duty of care on the part of lessors to block-treat infestations where there are no legal means for the lessors to force others on the estate to participate.

P7.9 Hawkins v Dhawan ( 987) 9 HLR 2 2; [ 987] 2 EGLR 7; ( 987) 28 EG 88, CA Tenant owed duty of care to neighbour but not breached by unexpected overflow

Water penetrated the ceiling of the tenant’s flat, causing damage to possessions. The problem was caused by a blocked overflow pipe to the bathroom basin of the tenant on the floor above. The tenant’s claim for damages against the landlord was dismissed and he continued with the action against the neighbouring tenant. Since he was unable to base a claim in contract, nuisance or the rule in

Rylands v Fletcher (1868) LR 3 HL 330, the plaintiff was forced to rely on negligence.

Although the Court of Appeal held that the upstairs tenant owed a duty of care to the downstairs tenant, it was not prepared to find any breach of that duty unless it could be shown that the circumstances should have alerted the upstairs tenant to the possibility of a blockage. In the absence of any such circumstances (such as a previous incident), no liability arose from a first, unexpected overflow.

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