Covenant for quiet enjoyment


Property Management

ISSN: 0263-7472

Article publication date: 1 May 2000



Waterson, G. and Lee, R. (2000), "Covenant for quiet enjoyment", Property Management, Vol. 18 No. 2.



Emerald Group Publishing Limited

Copyright © 2000, MCB UP Limited

Covenant for quiet enjoyment

Southwark LBC v. Mills; Baxter and Camden LBC (1999) EG 179

Well, this long-running legal saga has finally reached the House of Lords. For the benefit of any readers who may somehow have missed the various twists and turns in the courts, the basic facts are set out in the judgement of Lord Hoffmann:

My lords, the appellants in these two appeals, Mrs Tracey Tanner and Miss Yvonne Baxter, are respectively tenants of Southwark and Camden London Borough Councils. Mrs Tanner lives in a block of flats on Herne Hill. Miss Baxter occupies the first-floor flat in a converted Victorian house in Kentish Town. They both complain of being able to hear all the sounds made by their neighbours. It is not that the neighbours are unreasonably noisy. For the most part, they are behaving quite normally. But the flats have no sound insulation. The tenants can hear not only the neighbour's televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making. The lack of privacy causes tension and distress.

The problem for the court was to decide whether the tenants were entitled to insist that their respective landlords took steps to remedy the situation by installing proper sound insulation. There was no express warranty that the properties had sound insulation or were in any other way fit for habitation. The properties were not in a state of disrepair and their lordships held that the situation was not such as to amount in law to an actionable nuisance. This left only the possibility of involving the landlords' covenant for quiet enjoyment.

The court considered the relevant legal authorities at considerable length before coming to the conclusion that the landlords were not in breach of their obligation under the tenancy agreements, and that the tenants therefore had no legal remedy. To quote from the judgement of Lord Millett:

My lords, these appeals illuminate a problem of considerable social importance. No one, least of all the two councils concerned, would wish anyone to live in the conditions to which the tenants in these appeals are exposed. For the future, building regulations will ensure that new constructions and conversions have adequate sound insulation. But the huge stock of pre-war residential properties presents an intractable problem. Local authorities have limited resources, and have to decide on their priorities. Many of their older properties admit damp and are barely fit for human habitation. Southwark London Borough Council have estimated that it would cost £1.271bn to bring the existing housing stock up to acceptable modern standards. Their budget for 1998-99 for major housing schemes was under £55m. The average cost of installing sound installation in the flats in Casino Avenue is £8,000 per flat. There are 34 similar flats in the estate, so that the total cost would be about £272,000. The borough-wide cost could be in the order of £37m. The relevant local residents' association has considered that the installation of sound insulation is not a priority need. These cases raise issues of priority in the allocation of resources. Such issues must be resolved by the democratic process, national and local. The judges are not equipped to resolve them. All that we can do is to say that there is nothing in the relevant tenancy agreements or current legislation, or in the common law, which would enable the tenants to obtain redress though the courts.

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