NUISANCE BY LANDLORDS
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02450.x |
| Date | 01 November 1977 |
| Published date | 01 November 1977 |
| Author | M. J. Russell |
NUISANCE
BY
LANDLORDS
FROM
the earliest days, the leasehold covenant for quiet enjoyment
(both express and implied) protected against interference with the
covenantee’s title or possession. Despite the express reference to
“enjoyment,” it did not extend to acts akin to nuisance-mere
interference with,his enjoyment of the land due to the use of neigh-
bourinp land, when there was nothing to affect his possession or deny
his title. In the second half of the nineteenth century, however, the
courts tended to give
a
wider interpretation to the covenant that
the tenant should “peaceably hold and enjoy
.
.
.
without any
interruption or disturbance,”
so
that it extended to some cases akin
to nuisance, and the Law Commission has recently welcomed this
trend.*
“
SUBSTANTIAL
INTERRUPTION
”
The first case was
Shaw
v.
StantonY3
which concerned a covenant
for quiet enjoyment in the lease of a coal mine. Whilst working
a
quarry above the mine, the lessor negligently bored holes into the
mine and caused it to flood, thereby making it impossible to work
the mine. Counsel for the defendant argued:
“
If
a
man demise
a
house and covenant for quiet enjoyment, and afterwards establish
chemical works
on
his own property some distance off, it may be
a nuisance to the tenant, but it is
no
bresch of covenant.” But Pollock
C.B. said:
“I
am of opinion
. . .
that the covenant for quiet enjoyment
extends to acts of this nature. It is not necessary to say whether
the case of the chemical works, put by [counsel], would be
within this covenant; probably not-but the connection between
these two properties in the present case, the mine and the
quarry, is that one is beneath the other, and
I
think that
the lessor’s covenant that he should do
no
act to disturb the
lessee extended to the injury here complained
of,
and that the
plaintiff is entitled to judgment.”
Watson
B.
used the language of nuisance in referring to
a
“
sub-
stantial interruption or disturbance.” With respect, Pollock C.B. does
not make good the distinction between the chemical works and the
quarry: you cannot distinguish between degrees of proximity,
nor
between vertical and horizontal proximity. The relevant distinction,
surely, is between an act that merely affects the plaintiff’s con-
venience, and one that completely prevents him from using the
property for the purpose for which it was let, and
on
this latter
ground it is suggested that
Shaw
v.
Stanton
was correctly decided.
The trouble with many of these old cases, which seemed
on
the
1
Morgan
v.
Hunt
(1690)
2
Ventr.
213.
2 Report on Obligations
of
Landlords and Tenants
(1975)
Law
Corn.
No.
67,
13.
3
(1858)
30
L.T.(o.s.)
352.
65
1
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