I was recently reminded of the House of Lords judgment in London Borough of Southwark and Another v. Mills and Others Baxter v. Mayor etc., of the London Borough of Camden [1999] UKHL 40; [1999] 4 All ER 449; [1999] 3 WLR 939 (21st October, 1999) because it concerns covenants, quite enjoyment, every day noise from adjoining flats and held that the landlord has no duty to install soundproofing. The complaints were of:
“… being able to hear all the sounds made by their neighbours. It is not that the neighbours are unreasonably noisy. For the most part, they are behaving quite normally. But the flats have no sound insulation. The tenants can hear not only the neighbours’ televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.”
Lord Hoffman explained:
“Neither tenancy agreement contains any warranty on the part of the landlord that the flat has sound insulation or is in any other way fit to live in. Nor does the law imply any such warranty. This is a fundamental principle of the English law of landlord and tenant. In Hart v. Windsor (1844) 12 M. & W. 68, 87 Parke B. said:
“There is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let.”
And in Edler v. Auerbach [1950] 1 K.B. 359, 374, Devlin J. said:
“It is the business of the tenant, if he does not protect himself by an express warranty, to satisfy himself that the premises are fit for the purpose for which he wants to use them, whether that fitness depends upon the state of their structure, the state of the law, or any other relevant circumstances.””
“It is true that in each tenancy agreement the Council agreed to keep the structure in repair. Such an obligation would in any case be implied by section 11 of the Landlord and Tenant Act 1985. But the appellants do not rely upon this covenant and cannot do so. Keeping in repair means remedying disrepair. The landlord is obliged only to restore the house to its previous good condition. He does not have to make it a better house than it originally was: see Quick v Taff-Ely Borough Council [1985] EWCA Civ 1 (29 July 1985).”
In Quick the failure to remedy an inherent defect without there existing a failure to repair a matter of ‘disrepair’ does not amount to a failure to keep in repair, even if it rendered the building uninhabitable; the court said, “…there must be disrepair before any question arises as to whether it would be reasonable to remedy a design fault when doing the repair.” [36]
It was therefore held that a covenant for quiet enjoyment does not oblige a landlord to rectify defects that existed upon the entering into of the tenancy, and in particular the law does not either expressly or impliedly oblige a landlord to install sound proofing to an existing property. “The tenant takes the property not only in the physical condition in which he finds it but also subject to the uses which the parties must have contemplated would be made of the parts retained by the landlord.” The lack of sound proofing was found to be “…an inherent structural defect for which the landlord assumed no responsibility.”
Further there was not liability in nuisance either since 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.”
Nigel Davies
2 February 2016
The information & opinions expressed in this article and associated video are not necessarily comprehensive, nor do they represent the trenchant view of the author; in any event this article does not purport to offer professional advice. This article has been prepared as a summary and is intended for general guidance only. In the case of a specific problem, it is recommended that professional advice be sought.
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