Ventilation vexation: when nuisance isn’t the landlord’s problem

Summary

Relevant to both landlords, tenants and anyone suffering a nuisance from adjoining land in England and Wales, this is a case which demonstrates the importance of careful drafting of a demise (i.e. the definition of “the Property”) in a lease. In this case there was enough room for the drafting to be challenged such that there was a dispute as to whether ventilation ducting fell outside of the demise or within it. The ramifications were significant: if it was within the demise the tenant would be responsible for any nuisance that the ventilation ducting caused, but if it didn’t the landlord would be liable. 

The nuisance

One form of private nuisance is when one party unreasonably interferes with the use and enjoyment of another party’s land. 

In this case, a nuisance was held to have occurred when a business run by the Claimant called “Pinks Gentlemen’s Club” was found to have been unreasonably affected by noise and grease leaks emanating from ventilation ducting attached to a neighbouring property called “Gourmet Grill”. 

Who was liable?

The point which came before the Chancery Division on appeal was the question of who was liable for the nuisance; the landlord or the tenant of the Gourmet Grill?

It seems that it was accepted that if the ducting fell within the demise under the lease to the Tenant, the tenant was liable. If not, and instead the ducting was owned by the landlord and not part of the demise to the tenant, it was the landlord’s liability. 

The Chancery Division had to examine the precise wording of the demise in the Lease to determine the answer, and it was particularly relevant to the litigation as the tenant was not party to the claim. 

The demise included “fixtures of every kind that are in or on that land” except “any fixtures installed by the tenant… that can be removed from the land without defacing it”. 

The Judge held at first instance, and on appeal, that the demise included the ventilation ducting that was causing the nuisance. The ducting was a fixture and did not fall within the exception. As such the Landlord of “Gourmet Grill” was not liable.  

Takeaways

• when bringing a claim in nuisance, in cases where the property causing the nuisance is let, it is important to consider whether the claim should properly be brought against the landlord or the tenant. Issuing a claim against the wrong party risks the claim being struck out and payment of the defendant’s costs
• fixtures can cause tricky issues; they do though generally form part of a demise and a nuisance emanating from them will therefore generally be the fault of the tenant
• further, whilst the question of whether the cause of the nuisance (ventilation ducting in this case) was within or outside the demise was the determining point in this case, there are other factors as to who is liable – i.e. the landlord or the tenant. For example, if a landlord lets premises for the purpose of doing an act that is likely to cause a nuisance, the landlord will be liable
• it is also possible for both the landlord and the tenant to have liability