If a tenant in a residential block of flats has noisy neighbours, a common law nuisance claim could be pursued against the noisy neighbour. However, because it is not always easy to establish a nuisance based on the everyday levels of noise that are associated with normal day-to-day living in a flat, it can be difficult to succeed. Therefore, can a landlord also be joined into one tenant’s nuisance claim against another tenant, for breach of its quiet enjoyment covenant in the lease?

Landlords are under an implied obligation to allow their tenants “quiet enjoyment” of the demised premises, meaning that they must ensure that there is no interference with the tenant’s possession and enjoyment of their property. Often, residential leases will contain an express quiet enjoyment covenant, stating that a tenant shall have the benefit of quiet enjoyment of their property without any interruption by the landlord or anyone acting on behalf of the landlord – save where necessary for the landlord to discharge its own obligations (such as entering the tenant’s property to undertake works etc). But, even if a residential lease does contain an express quiet enjoyment covenant, to what extent could a tenant seek to rely on it if their neighbour, also being a tenant of the same landlord, is guilty of some sort of noise nuisance, given that there is no ‘privity’ (contractual relationship) between the neighbours?

This question has been addressed in several cases over the years, including more recently the case of Fouladi v Darout Ltd and Others [2018] EWHC 3501 (Ch).

In Fouladi v Darout the Claimant had a long residential lease of her property. The basis of her claim was that in 2010 the floor in the property above hers had been re-laid by the owner and, since then, the noise nuisance coming from the occupiers of that property had made living in her own property insufferable. The Claimant duly issued a claim against both the owner and the occupiers of the property above hers for nuisance, and also against her landlord for alleged breach of its quiet enjoyment covenant. It is only the claim issued against the landlord that will be considered in further detail below.

The Claimant’s claim against her landlord was that it was liable alongside the other defendants for participating in the creation of the nuisance being complained of and that this amounted to a breach of the quiet enjoyment covenant contained in her lease. In support of her claim, the Claimant alleged that the floor in the property above hers should only have been re-laid with the consent of the landlord, but no such consent was ever sought by the owner. However, and in any event, the landlord had apparently known those works were taking place and failed to raise any enquiry about why they were taking place without its consent having been first obtained.

At first instance, and then subsequently on appeal, the Claimant’s claim against her landlord for breach of the quiet enjoyment covenant was dismissed, meaning that the Claimant lost her claim against the landlord.

When dismissing the Claimant’s appeal, Morgan J relied on longstanding legal principals handed down in the case of Malzy v Eichholz [1916] 2 KB 308.

It was held that the judge at first instance had been correct in finding that what the landlord had failed to do, by not preventing the floor from being re-laid in 2010, did not in turn make the landlord liable for the nuisance that was created. This was because the actions or omissions of the landlord did not amount to a participation in the nuisance itself. Therefore, and as a direct consequence of such a finding, the alleged interference with the enjoyment of the Claimant’s property did not amount to an interruption by the landlord themselves, so as to breach the landlord’s covenant.

Following the appeal decision in Fouladi v Darout, and Morgan J’s application of Malzy v Eichholz, it currently remains the position that a landlord will not be held liable for nuisance caused by its tenant merely because it failed to take steps (which were available to it) to prevent what is being done, even when the landlord knows that its tenant is causing a nuisance. Instead, a tenant with noisy neighbours must show that their landlord has expressly, or impliedly, authorised the actions that are shown to be causing the nuisance and/or that their landlord has participated directly in the commission of the nuisance by its tenant. Then, and only then, might it be held that the actions of the landlord amount to an interference with its tenant’s enjoyment of their property and a breach of the landlord’s quiet enjoyment covenant.