5. Property disputes update
5.1 Nuisance
There are two recent cases of interest examining aspects of the law on nuisance:
- In Fearn v Tate, the Supreme Court found
that "intense visual intrusion" from the Tate's
viewing gallery can amount to an actionable nuisance. The Court
distinguished this case from "overlooking", meaning a
situation where one property is capable of being seen from a
neighbour's property, which was described as "a minor
annoyance of a kind that neighbouring occupiers have to put up with
under the rule of give and take, live and let live." By
contrast, the Court described how in this case the Tate actively
invites members of the public to visit and look out from the
gallery in every direction, including at the claimants' flats
situated only 30 odd metres away, and permits and invites this
activity to continue without interruption for the best part of the
day every day of the week, with the predictable consequence that a
very significant number of the roughly half a million people who
visit the Tate's viewing gallery each year peer into the
claimants' flats and take photographs of them. The court
rejected reasonableness as a test for whether behaviour amounts to
nuisance and confirmed that the criteria was whether the use being
challenged was a common and ordinary use. Lords Sales and Kitchen
dissented from this view. This remains an area for argument on the
facts in nuisance claims and applies to private nuisance generally
and not just intense visual intrusion. The matter of deciding on a
remedy has been remitted to a first instance court.
- In Davies v Bridgend, the Court of Appeal found that although pure economic loss alone was not a ground for a claim in private nuisance, where there is other nuisance such as the encroachment of knotweed onto neighbouring land, damages for diminution in value can be recovered. The judgment also means that the owner of the infected land was responsible for the residual diminution in value of the neighbour's land (due to perceived blight) even if the knotweed rhizomes had spread to the neighbour's land before the defendant was in breach of its duty. The breach was a continuing breach. This is good news for landowners whose property has been affected by nuisance emanating from neighbouring land, and reminds all landowners to be vigilant in checking that any potential nuisances originating from their own property are investigated and mitigated promptly.
5.2 Unjust enrichment
In Barton v Morris, the Supreme Court held that, although there was an oral agreement between Foxpace and Mr Barton under which Foxpace would pay Mr Barton £1.2 million if he introduced a purchaser for Nash House at a price of £6.5 million, when Mr Barton's purchaser bought it for £6 million, he was not entitled to any payment under the contract. He was entitled to a payment that the court regarded as reasonable of the service he provided, which was £437,000. This is a good reminder that the courts will not step in to interfere with the terms of a commercial agreement, even if the outcome appears unjust.
5.3 Service charges
There have been two recent cases regarding service charge disputes: Aviva Investors Ground Rent GP Ltd v Williams where the Supreme Court held that a service charge clause which required the tenant to pay service charge at a fixed percentage or a proportion to be reasonably determined by the landlord was valid, and Sara & Hossein v Blacks where the Supreme Court held that the service charge certificate is conclusive as to what is required to be paid by Blacks following certification, but payment of the certified sum does not preclude Blacks from later disputing liability for that payment. It is a 'pay now, argue later' regime!
Originally published 10 May 2023
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