Liability of landlords for anti-social behaviour: Octavia Hill Housing Trust v Brumby (2010), High Court

The recent decision of Mackay J in Octavia Hill Housing Trust v Brumby (2010), High Court may provide some cause for concern for landlords and particularly those concerned with the letting and management of social housing.

Facts

The claimant, Ms Brumby, was an assured tenant of the defendant Housing Association, Octavia and lived on the lower ground floor of a block of flats. On the top floor of the same block lived a Ms Walker. According to Ms Brumby, over a period of nearly four years, visitors to Ms Walker's flat indulged in anti-social behaviour. Ms Brumby alleged that she made her concerns about these activities known to the defendant but it failed to take any reasonable steps to abate them.

Ms Brumby brought a claim in nuisance against the defendant, alleging that it was liable for failure to prevent the nuisance occurring. The claim was initially pleaded to encompass nuisance emanating from Ms Walker's flat itself but was later amended only to include nuisance emanating from the common parts of the flats, over which the defendant retained control. This included the stairwells, entrance area to the flats (which was directly above Ms Brumby's flat) and an outside paved area directly outside her reception room.

The defendant applied to strike out the claim on the basis that there had to be something more than the mere existence of anti-social behaviour on its land and a mere failure to abate the nuisance was not enough. It argued that it is only in exceptional circumstances that a landlord can be held liable for the nuisance of its tenants and in the cases where that had occurred, some positive step had been taken by the landlord to continue the nuisance.

HHJ Gibson at first instance refused to strike out the claim holding that the determination of the claim was entirely factual. The defendant appealed to the High Court.

Appeal

Mackay J upheld the finding at first instance and refused the appeal. He agreed that it would be possible for the defendant to be liable for the continuation of the nuisance. This was in accordance with the principle established by the House of Lords in Sedleigh Denfield v O'Callaghan (1940), whereby a person in possession of land may adopt the nuisance of a third party if, with actual or constructive knowledge of the nuisance, he fails to take reasonable steps to abate it. Whether the tort could be established was a matter for the trial judge to determine on the facts.

Comment

  • This is a potentially worrying decision for housing associations and local authorities, both of which may be concerned about potential liability for unruly tenants.
  • However, it must be remembered that the case only concerned potential liability regarding the common parts of the building over which the defendant retained control.
  • The key reason that there was potential liability in this instance was because it concerned the use of land rather than the behaviour of the actual individuals and it should be possible to distinguish it in many cases.
  • Further, this was of course an Interim Application and the claimant will still be required to prove her case on the facts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.