Judgments - London Borough of Southwark and Another v. Mills and Others (A.P.)
Baxter (A.P.) v. Mayor etc. of the London Borough of Camden

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    My Lords, I would not wish to be thought indifferent to Miss Baxter's plight. I have the greatest sympathy for her. But the fact remains that she took a flat on the first floor of a house, knowing that the ground and second floors were also occupied as residential flats, and expecting their occupants to live normal lives. That is all that they are doing. She has no cause to complain of their activities, which mirror her own; or of the Council for having permitted them by letting the adjoining flats. Her real complaint is, and always has been, of the absence of adequate sound insulation. Her complaint, however well founded, cannot be redressed by the law of tort; any remedy must lie in statute or contract.

Breach of the covenant for quiet enjoyment.

    The covenant for quiet enjoyment is one of the covenants of title formerly found in a conveyance of land, and the only such covenant found in a lease of land. It has long been understood that the word "quiet" in such a covenant does not refer to the absence of noise. It means without interference. The covenant for quiet enjoyment was originally regarded as a covenant to secure title or possession. It warranted freedom from disturbance by adverse claimants to the property: see Dennett v. Atherton (1872) L.R. 7 Q.B. 316; Jenkins v. Jackson (1888) 40 Ch. D. 71; Hudson v. Cripps [1896] 1 Ch. 265. But its scope was extended to cover any substantial interference with the ordinary and lawful enjoyment of the land, although neither the title to the land nor possession of the land was affected: Sanderson v. Berwick-upon-Tweed Corporation (1884) 13 Q.B.D. 547, 551.

    Despite this there has lingered a belief that, although there need not be physical irruption into or upon the demised premises, there must be "a direct and physical" interference with the tenant's use and enjoyment of the land. On this ground the Courts have dismissed complaints of the making of noise or the emanation of fumes, of interference with privacy or amenity, and other complaints of a kind commonly forming the subject matter of actions for nuisance. Little harm seems to have been done, since in cases where a remedy was appropriate the tenant has been able to have recourse to the landlord's implied obligation not to derogate from his grant. But the existence of the limitation has been questioned: (see Kenny v. Preen [1963] 1 Q.B. 499) or circumvented by the round assertion that it is satisfied in what might be thought somewhat doubtful circumstances: (see Owen v. Gadd [1956] 2 Q.B. 99), and I think that we should consider whether it is a proper one.

    There is nothing in the wording of the conventional covenant that would justify the limitation. I do not know whether it owes its existence to a desire to maintain some connection with the original scope of the covenant as a covenant securing title or possession, or to the mistaken notion that actions for nuisance "productive of sensible personal discomfort" were actions for causing discomfort to the person rather than for causing injury to the land: see Hunter v. Canary Wharf Ltd. [1997] A.C. 655, 706. Now that this fallacy has been exposed, however, I can see no sound reason for confining the covenant for quiet enjoyment to cases of direct and physical injury to land.

    Accordingly, I agree with the tenants that the covenant for quiet enjoyment is broken if the landlord or someone claiming under him does anything that substantially interferes with the tenant's title to or possession of the demised premises or with his ordinary and lawful enjoyment of the demised premises. The interference need not be direct or physical. Nor, in my opinion, is it a necessary precondition of liability on the covenant that the acts alleged to constitute the breach would support an action in nuisance. I do not doubt that this will usually be a sufficient condition of liability, but there is nothing in the language of the conventional form of the covenant that would justify holding it to be a necessary one.

    Once these artificial restrictions on the operation of the covenant for quiet enjoyment are removed, there seems to be little if any difference between the scope of the covenant and that of the obligation which lies upon any grantor not to derogate from his grant. The principle is the same in each case: a man may not give with one hand and take away with the other. Whether a particular matter falls within the scope of the covenant for quiet enjoyment depends upon the proper construction of the covenant. As ordinarily drafted, however, the covenant shares two critical features in common with the implied obligation. The first is that they are both prospective in their operation. The obligation undertaken by the grantor and covenantor alike is not to do anything after the date of the grant which will derogate from the grant or substantially interfere with the grantee's enjoyment of the subject matter of the grant: see Anderson v. Oppenheimer (1880) 5 Q.B.D. 602. In the present case the tenancy agreement contained a covenant on the part of the Council that "the tenant's right . . . shall not be interfered with . . ." That form of words clearly looks to the future.

    The second feature that the implied obligation and the covenant for quiet enjoyment have in common is that the grantor's obligations are confined to the subject matter of the grant. Where the covenant is contained in a lease, its subject matter is usually expressed to be the demised premises. In an oft quoted passage in Leech v. Schweder (1874) 9 Ch. App. 463 at p. 474 Mellish L.J. said:

    "It is perfectly true that the lessee is 'to hold and enjoy without any suit, let or hindrance.' But what is he to hold and enjoy? 'The premises'. What are the premises? The things previously demised and granted. The covenant does not enlarge what is previously granted, but an additional remedy is given, namely, an action for damages if the lessee cannot get, or is deprived of that which has been previously professed to be granted. Nothing, I apprehend, can be plainer than that at law it would not, in the least degree, enlarge what was granted."

    In Spoor v. Green (1874) L.R. 9 Ex. 99 buildings collapsed because of subsidence caused by mining operations which had taken place before the lease. There was held to be no breach of the covenant for quiet enjoyment. The subject matter of the lease, and therefore of the covenant, was land already liable to subsidence in consequence of the prior removal of the coal.

    In the present cases the covenants guaranteed "the tenant's right to remain in and to enjoy the quiet occupation of the dwelling house", that is to say the dwelling house comprised in the tenancy. This must be identified at the date when the tenancy was granted. In each case it consisted of a flat in a building constructed or adapted for multiple residential occupation and having inadequate sound insulation. An undesirable feature of the flat was its propensity to admit the sounds of the every day activities of the occupants of adjoining flats. The landlord covenanted not to interfere with the tenant's use and enjoyment of a flat having that feature. It has not done so. It has not derogated from its grant, nor has it interfered with any right of the tenant to make such use and enjoyment of the premises comprised in the tenancy as those premises are capable of providing. To import into the covenant an obligation on the part of the landlord to obtain possession of the adjoining premises and not relet them, or to install sound insulation, would extend the operation of the grant.

    The subject matter of the grant extends, of course, not only to the demised premises but to everything that is appurtenant or incident to the grant to which it relates. If the demised premises enjoy a right to ancient lights over adjoining property, the landlord must not interfere with the tenant's enjoyment of the right. This would be a nuisance at common law, but it would also be a breach of the covenant for quiet enjoyment. If, however, the demised premises enjoy no such right over adjoining land, the landlord is free to build upon it without thereby committing an actionable nuisance or breach of the covenant: Leech v. Schweder (supra). This may have given rise to the notion that it is a necessary condition of liability on the covenant that the acts complained of would constitute an actionable nuisance. But this is not the reason for the distinction. The true reason is that the covenant must be construed by reference to its subject matter, and what amounts to an interference with land which enjoys an easement over adjoining property may not amount to an interference with the enjoyment of land which does not. Thus in Davis v. Town Properties Investment Corporation Ltd. [1903] 1 Ch. 797 the scope of the covenant was limited by the fact that the owner of land adjoining the demised premises (which did not belong to the lessor at the date of the lease) might build on it at any time so as to interfere with the draught from the lessee's chimneys.

    In construing the covenant, therefore, the location of the demised premises and the use to which adjoining premises are put at the date of the tenancy agreement, or the use to which they may then reasonably be expected to be put in future, must always be a material consideration. In Lyttleton Times Co. Ltd. v. Warners Ltd. [1907] A.C. 476, the parties agreed that the appellants' printing-house should be rebuilt, that the respondents should take a lease of the upper floors as additional bedrooms for their hotel, and that the appellants should use the ground floor for an engine-house and printing machinery. Both parties believed that the noise and vibration caused by the operation of the machinery would be so slight that it might be disregarded. The Privy Council held that the respondents had no cause of action. In giving the opinion of the Board, Lord Loreburn L.C. said at p. 481:

    "In this case their Lordships think that both parties agreed upon a building scheme with the intention that the building should be used for bedrooms and also for a printing house according to a design agreed upon. Both parties believed these two uses could co-exist without clashing, and that was why both of them accepted the scheme. Neither would have embarked upon it if he had not thought his intended enjoyment of the building would be permitted, and both intended that the other should enjoy the building in the way contemplated. They were mistaken in their anticipation. But if it be true that neither has done or asks to do anything which was not contemplated by both, neither can have any right against the other."

The case was argued in nuisance and the implied obligation not to derogate from the grant, but the reasoning is equally applicable to the covenant for quiet enjoyment. This is why it is important to bear in mind that the subject matter of each of the tenancies in the present case was not merely a residential flat, but a flat in a building constructed or adapted for multiple occupation. The adjoining flats appear to have been already let at the date of each of the tenancy agreements in question; but it would make no difference if they were not. It must have been within the contemplation of the prospective tenants that the adjoining flats would be let to residential tenants, and that the occupiers would live normally in them. Neither landlord, and none of occupiers of adjoining properties, has done or asks to do anything since the tenancy agreements were entered into which was not contemplated by everyone concerned.

    In the Court of Appeal Mantell L.J. found it impossible to distinguish the facts of Sanderson v. Berwick-upon-Tweed Corporation (where the action on the covenant succeeded) from those of the present case or to reconcile the decision with Duke of Westminster v. Guild [1985] Q.B. 688 (where the action failed). I think that the two cases are quite different. They are not only not irreconcilable, but are complementary.

    In Sanderson v Berwick-upon-Tweed Corporation, the action was brought by the lessee of the servient tenement, being land which was subject to an easement of drainage. The drain was defectively constructed and the plaintiff's land was flooded. He brought an action against his landlord who had retained the ownership of the dominant tenement. The key to an understanding of the case is that it is for the grantee of an easement, and not the grantor, to maintain and repair the subject matter of the easement, with a duty to do so if by his neglect the servient tenement suffers damage: see Robbins v. Jones (1863) 15 C.B. (N.S.) 221, 244. The occupier of the dominant tenement was accordingly liable to an action, and his landlord was rightly held to be in breach of the covenant for quiet enjoyment contained in the lease of the servient tenement.

    Duke of Westminster v. Guild was the converse case. There the claim was made by the lessee of the dominant tenement. His land was flooded because a drain which passed under adjoining land belonging to his landlord became blocked. He sought to use the covenant for quiet enjoyment in his lease to transfer to his landlord his own obligation as occupier of the dominant tenement to maintain the drain. This would enlarge the grant, and the claim rightly failed.

    Any tenant who complains of the state and condition of his property is right to consider whether the tenancy agreement, possibly modified by statute, provides him with a remedy. Where the complaint cannot be remedied without expensive improvements to the premises, this will require a clear contractual obligation to be expressed in the agreement. The covenant for quiet enjoyment is an unsuitable vehicle for such an obligation.


    My Lords, these appeals illuminate a problem of considerable social importance. No one, least of all the two Councils concerned, would wish anyone to live in the conditions to which the tenants in these appeals are exposed. For the future, building regulations will ensure that new constructions and conversions have adequate sound insulation. But the huge stock of pre-war residential properties presents an intractable problem. Local authorities have limited resources, and have to decide on their priorities. Many of their older properties admit damp and are barely fit for human habitation. The London Borough of Southwark has estimated that it would cost £1.271 billion to bring its existing housing stock up to acceptable modern standards. Its budget for 1998-9 for major housing schemes was under £55 million. The average cost of installing sound installation in the flats in Casino Avenue is £8,000 per flat. There are 34 similar flats in the estate, so that the total cost would be about £272,000. The Borough wide cost could be of the order of £37 million. The relevant local residents' association has considered that the installation of sound insulation is not a priority need.

    These cases raise issues of priority in the allocation of resources. Such issues must be resolved by the democratic process, national and local. The judges are not equipped to resolve them. All that we can do is to say that there is nothing in the relevant tenancy agreements or current legislation, or in the common law, which would enable the tenants to obtain redress through the Courts.

    I would dismiss both appeals.


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