What A Nuisance - Owner Liability For Other Persons

As an owner of commercial real estate, could you ever be liable for nuisance committed on the property by someone other than you? The recent decision of the Court of Appeal in Cocking & Anor v Eacott & Anor [2016] EWCA Civ 140 confirms that, in certain cases, the answer is yes. In this article, we describe the decision of the Court, consider its implications, and note the practical steps that property owners may take to prevent the imposition of liability.

The Facts

The case involved the law of nuisance and concerned a dispute between neighbours. The claimants in the case, the Cockings, alleged that their neighbour, Ms Eacott, had committed two acts of nuisance. The first was allowing her dog to bark excessively, and the second was excessive and abusive shouting. In each case the nuisance was committed over a long period of time. Ms Eacott was, in fact, living in the relevant property. However, she was neither the owner of the property nor a tenant. Rather, she was a licensee, living in the property under a licence granted by her mother, Mrs Waring. Mrs Waring did not live in the relevant property. The claimants' action was brought not just against Ms Eacott, but also against Mrs Waring. The judge in the court of first instance found Mrs Waring liable for the nuisance caused by the barking on the basis that she had knowledge of the barking and did nothing within a reasonable period to abate it, despite having "complete control" of the property. However, Mrs Waring was not liable for the excessive and abusive shouting, as she was not aware of it at the relevant time.

Mrs Waring appealed to the Court of Appeal. The basis of her appeal was that, as a licensor, her position was more akin to that of a landlord and, as licensor, she did not have control and actual possession of the property, as she did not actually reside there.

The Legal Analysis

The judge in the court of first instance recognised that the test of a landlord's liability for nuisance is different from the test of a licensor's liability for nuisance. A landlord has no possession of, or control over, a property, having given possession and control to the tenant. Accordingly, a landlord will only be liable for nuisance if either he or his agents actually, actively or directly participate in the relevant acts, or he expressly authorises the nuisance by letting the property (for example, if the nuisance is certain to result from the purposes for which the letting has been made). A...