Private nuisance is where a person does something on their own land which causes an interference with another’s enjoyment of their neighbouring land. A nuisance can be caused by carrying out a perfectly legal act and will generally fall within one of the following three categories: encroachment onto neighbouring land (e.g. encroachment by overhanging trees or tree roots); interference with another’s land (e.g. creating noise or noxious smells); or physical damage (e.g. flooding).

I’m a landlord so it’s not my responsibility right?

Liability for causing a nuisance tends to only fall on the occupier of the land; therefore if the land or property is held under a lease the tenant, as the occupier, will be responsible. However this does not guarantee that a landlord will be automatically protected.

There is an important exception to the rule which all landlords should be aware of – if the landlord expressly or impliedly authorises the tenant’s actions causing the nuisance then the landlord can be held liable for the tenant’s actions.

Have I authorised the nuisance?

In determining whether a landlord has authorised a tenant’s actions the Court will consider whether, at the time the lease was entered into, the nuisance was inevitable or a nearly certain consequence of the letting. Simply showing that the landlord knew the tenant’s intended use and that use resulted in the nuisance is not enough to establish liability.

The Court will also consider what happened after the lease was granted to determine whether a landlord participated in the nuisance.

In Fouladi v Darout Ltd [2018] the Court considered that a landlord’s involvement in a tenant’s nuisance could be classified on the following sliding scale:

  • the landlord is not aware of the nuisance;
  • the landlord is aware of the nuisance but fails to take steps to prevent it;
  • the landlord authorises the nuisance; or
  • the landlord participates in the nuisance.

Ultimately it would appear from the decisions of the Court that the bar is set very high in order to establish that a landlord is liable for a tenant’s nuisance. Nevertheless a prudent landlord should be aware of the risks to them of a tenant’s actions causing a nuisance and the potential liability if they are deemed to have authorised or participated in it. This is particularly so where the nuisance is caused by a tenant in common areas still under the landlord’s control.