Friday Law Report: Council was not obliged to soundproof flats

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The Independent Culture
2 October 1998

Southwark London Borough Council v Mills and others

Court of Appeal (Lord Justice Peter Gibson, Lord Justice Schiemann and Lord Justice Mantell) 29 July 1998

A COVENANT of quiet enjoyment in a lease did not oblige the landlord to alter or improve the demised premises.

The Court of Appeal allowed the appeal of Southwark London Borough Council against the decision of Mr Justice Laddie in the Chancery Division, dismissing its appeal against an order of the Southwark Arbitration Tribunal requiring it to carry out soundproofing works on a block of flats of which it was the owner.

The block of flats had been "jerry-built" at the end of the First World War, and fell far short of the standard which would be necessary under present day building regulations. In particular the soundproofing of the individual flats was wholly inadequate, so that the occupants could hear virtually everything said or done by their neighbours, which was intrusive, inconvenient and often embarrassing.

Some of the tenants, having individually approached the council with regard to their dissatisfaction with the lack of soundproofing to no avail, had engaged the arbitration clause in the tenancy agreement. The Southwark Arbitration Tribunal held that the council was obliged to carry out effective soundproofing of the flats, and that the relevant orders might be made under clause 1 of the tenancy agreement, which provided that:

The tenant's right to remain in and enjoy the quiet occupation of the dwelling house shall not be interfered with by the council . . .

On the council's appeal to the High Court the judge held that a landlord of two adjoining tenants might be in breach of the usual covenant for quiet enjoyment owed to each, by reason of the fact that the reasonable enjoyment of his home by each tenant was unduly interfered with by noise generated by ordinary use of the premises, by the other tenant, in the manner contemplated by the letting. The council appealed.

Patrick Elias QC and Donald Broatch (the Head of Legal (Contract) Services, Southwark London Borough Council) for the council; Kim Lewison QC and Jan Luba (Anthony Gold, Lerman & Muirhead) for the tenants.

Lord Justice Mantell said that the grounds of appeal posed the following question of law:

Whether, where A was a tenant of L of residential premises, and L let neighbouring like premises in the same building to B, and the construction of the building was such that A and B were disturbed by the noises of normal ordinary life generated by each other to an extent which interfered with reasonable enjoyment of each flat, L was, by reason thereof only, in breach of the usual covenant of quiet enjoyment owed to the tenants, in respect of either or both of them.

In the present case it had been conceded on behalf of the tenants, and acknowledged by the judge, that the construction of clause 1 of the tenancy agreement for which the tenants contended would have the practical effect of imposing upon the landlord an obligation to alter or improve the premises. The tenants were not complaining about the noise made by their neighbours but rather that they were not shielded from it, and that the covenant of quiet occupation included a promise by the landlord to provide adequate soundproofing.

Unencumbered by authority, his Lordship would be reluctant to construe a covenant of quiet enjoyment as encompassing a promise to alter or improve the demised premises. The covenant had to be read in the context of the agreement, which sought to define the landlord's obligations to repair and maintain, and which also fixed the rent, presumably, in part at any rate, by reference to the condition of the premises.

There were, however, two conflicting lines of authority, both binding on the court. One, terminating in Baxter v Camden London Borough Council (1998) 30 HLR 501, fully supported the decision of the judge in the present case. The other, culminating in Duke of Westminster v Guild [1985] QB 688, coincided with his Lordship's own view, and was to be preferred.

Accordingly, the judge had erred in holding that the council were obliged to carry out soundproofing of the flats, and the appeal would be allowed.

Kate O'Hanlon, Barrister