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Liability of landlords for anti-social behaviour: Octavia Hill Housing Trust v Brumby (2010), High Court

The recent decision of Mackay J in Octavia Hill Housing Trust v Brumby (2010), High Court may provide some cause for concern for landlords and particularly those concerned with the letting and management of social housing.

Facts

The claimant, Ms Brumby, was an assured tenant of the defendant Housing Association, Octavia and lived on the lower ground floor of a block of flats. On the top floor of the same block lived a Ms Walker. According to Ms Brumby, over a period of nearly four years, visitors to Ms Walker's flat indulged in anti-social behaviour. Ms Brumby alleged that she made her concerns about these activities known to the defendant but it failed to take any reasonable steps to abate them.

Ms Brumby brought a claim in nuisance against the defendant, alleging that it was liable for failure to prevent the nuisance occurring. The claim was initially pleaded to encompass nuisance emanating from Ms Walker's flat itself but was later amended only to include nuisance emanating from the common parts of the flats, over which the defendant retained control. This included the stairwells, entrance area to the flats (which was directly above Ms Brumby's flat) and an outside paved area directly outside her reception room.

The defendant applied to strike out the claim on the basis that there had to be something more than the mere existence of anti-social behaviour on its land and a mere failure to abate the nuisance was not enough. It argued that it is only in exceptional circumstances that a landlord can be held liable for the nuisance of its tenants and in the cases where that had occurred, some positive step had been taken by the landlord to continue the nuisance.

HHJ Gibson at first instance refused to strike out the claim holding that the...