Landlords, Management Companies and their Agents will often face complaints of nuisance being caused by neighbours in a block or development. This most often involves noise but can also include other forms, such as smells, dust and vibrations from works. Nuisance can also take a physical form, such as damage to property. However, establishing whether a private nuisance has been caused is far from simple and a Court will consider multiple factors when determining whether a nuisance has been committed. This week’s update will consider the elements that are required to establish a nuisance claim, and what Landlords and Agents alike should look out for.

Reasonableness is the overriding principal in establishing a private nuisance claim (as distinct from a public or statutory nuisance, generally administered by the Local Authority). The Courts will consider how reasonable the alleged perpetrator’s activity is as against the impact that such an activity has had on the complainant’s property rights. If the perpetrator is deemed to be using their property reasonably, then there is nothing which can be considered a nuisance.

When considering whether the activity complained of is reasonable, the following factors must be taken into consideration :

·         The Locality of the Nuisance;

·         Nature, Duration and Extent of the Nuisance;

·         The Complainant’s use of the Land;

·         The Alleged Perpetrator’s Conduct;

·         The Benefit to the Public.

The Locality of the Nuisance

This factor considers whether it would be reasonable to expect the alleged perpetrator’s action occurring in that locality. As the leading case in 1878 sums up; “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” In other words, the alleged nuisance must be considered in context.

Nature, Duration and Extent of the Nuisance

For a nuisance claim to succeed, the action complained of needs to be more than temporary. Isolated incidents can give rise to a nuisance claim only if the use causing the risk nuisance is a continuing use. For example, a one-off anti-social behaviour incident may amount to nuisance, if sufficiently serious, where the alleged perpetrator continues to reside at the premises where the incident took place. The Courts will consider when the nuisance occurs, depending on what the nuisance is, for example whether it is happening during the day time or the night time. The Courts will consider the number and type of the occurrences of the nuisance as well.

The Complainant’s Use of the Land

As well as considering whether the alleged perpetrator’s use of their property is reasonable, it is important to consider whether the complainant’s use of their land is also reasonable. The action will not succeed if the complainant is particularly sensitive to a certain type of nuisance that would not be considered a nuisance by a reasonable person. This means that a claim will not succeed if the complaint is directly as a result of the complainant’s hypersensitivity to that particular nuisance.

The Alleged Perpetrator’s Conduct

This will be a relevant consideration where the nuisance complained of has stopped. The Court will look to assess the fault of the alleged perpetrator in causing the nuisance and other factors, such as the foreseeability of the nuisance being caused, along with the costs of taking preventative action. The particular type of damage complained of to those affected must be foreseeable.

The Court, where relevant, will also consider whether any element of malice existed and whether the nuisance was caused simply to annoy the complainant.

Public Benefit

Finally, the Courts will also consider if there is any benefit to the public resulting from the alleged perpetrator’s actions against the interests of the complainant when considering a nuisance claim, although it is important to recognise that the complainant should not always bear the cost of any public benefit.  In other words, just because the nuisance does benefit the public, does not per se mean that it would not amount to an actionable nuisance.

Conclusion

In most cases nuisance complaints will be considered neighbour disputes for those concerned to take their own advice on, but in appropriate cases a Landlord or Management Company may need to step in and take action (particularly where an indemnity for costs is offered, if provided for under the terms of the lease or transfer). Landlords, Management Companies or their Agents should always take advice when faced with such complaints, in order to determine what action, if any, they are able or obliged to take in the circumstances.

We hope that this week’s Legal Update has been informative and helpful.  As always, should you have any questions or wish to suggest any topics for future updates please let us know. For any queries relating to this update please contact us on 01435 897 297 or info@kdllaw.com.

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