In the well-known case of Lawrence v Coventry [2014] UKSC 46, the Supreme Court held that to be liable for a nuisance committed by its tenant, a landlord must have authorised the nuisance, either by participating actively or directly in the nuisance or by letting the property in circumstances where there was a very high degree of probability that the letting would result in the nuisance.

The Court of Appeal in the recent case of Cocking v Eacott [2016] EWCA Civ 140, had cause to consider whether a licensor was liable for a nuisance committed by her daughter, to whom she had granted a bare licence to occupy a residential property that she owned but did not herself occupy.

The neighbours of the property in which the daughter resided were disturbed over a number of years by the incessant barking of the daughter’s dog and in addition by abusive shouting. In July 2009 the mother became aware of the neighbours’ complaint that the daughter was creating a nuisance and she wrote to them denying the allegations. In September 2010 the mother received a letter from the neighbours’ solicitor stating their intention to bring a claim in nuisance against both the mother and daughter. On 22 February 2012 (no action having been taken to abate the nuisance) the neighbours duly issued proceedings against both mother and daughter, seeking damages in nuisance. It was only on 21 March 2012 that the mother finally gave the daughter notice to quit and on 18 June 2012 she obtained a possession order against her. However, she did not seek to enforce it.

At trial, the Court held that both mother and daughter were liable for the nuisance in respect of the excessive barking, although not for the abusive shouting which had ceased in July 2011 after the daughter was made the subject of an ASBO (the mother only becoming aware of this in late 2010). The mother appealed the Court’s decision.

She argued that her situation was analogous to that of a landlord, therefore the test set out in Lawrence v Coventrywas applicable and she should not be held liable for a nuisance committed by her daughter. The Court of Appeal rejected this argument. It held that as a licensor, the mother retained sufficient possession and control over the property so that she could (and should) have taken steps to abate the nuisance within a reasonable time of becoming aware of it.

The Court held that the mother became aware of the nuisance when she received the letter before action from the Claimants’ solicitors in September 2010 and should have taken steps to abate the nuisance within a reasonable time by either removing the dog or evicting her daughter. In this case, 9 months from the date of the letter before action was considered to be a reasonable time for the mother to obtain a possession order and enforce it. However, the mother failed to do so until June 2012 and even then she took no steps to enforce it.

This case distinguishes between the liability of a landlord and that of a licensor in the law of nuisance. However, just because an agreement is on the face of it a tenancy, it could in practice be a licence. If there is any doubt, care should be taken to abate a nuisance being committed by an occupier within a reasonable time after becoming aware of it.

Even if you are confident that a tenancy is exactly what it says on the tin, it is important to also note the comments of Arden LJ who said that if a landlord is subject to a repairing covenant to inspect and clean the drains on the demised property at regular intervals and a nuisance developed because of the tenant’s use of the drains and the landlord’s failure to perform its covenant, the landlord may not escape liability in those circumstances.