• In the case of Cocking v Eacott [2016] E.W.C.A. Civ 140, it was held that a property owner was liable in nuisance to her next-door neighbours even though she did not reside at the property and the nuisance emanated from her daughter, who lived there under a bare licence.

Facts of the Case

  • C lived for many years in the adjoining house to D’s house. Neither property was apparently insulated against sound.
  • While D left the property, she granted her daughter a bare licence to live in the property without rent while D covered bills and maintenance.
  • D became estranged from her daughter in 2012 and did not visit the property.
  • D’s daughter had a dog that excessively barked between 5 and 10 times per month. C first complained of this in 2004 and began detailed logs in August 2008.
  • From 2009 to 2011, D’s daughter created another alleged nuisance of intentionally abusive shouting.
  • On 16th September 2010, C’s solicitors wrote a letter before action. D rejected the claim, saying a landlord was not liable for a nuisance committed by a tenant.
  • On 21st March 2012, D served a notice to quit on her daughter. On 18th June, D obtained a possession order on the house which would have taken effect on 16th July, but D chose not to enforce it.
  • On 7th May 2013, C’s solicitors wrote to D’s solicitors ‘without prejudice save as to costs’ offering a drop hands settlement if D permanently evicted her daughter from the property. That offer was not accepted.

Issues

  • Could D be liable for nuisances emanating from her property while she was not resident?
  • Had D adopted/continued the nuisance by failing to enforce the possession order against her daughter?

Held by the Court of Appeal (Civil Division)

  • Finding for C, that D as the owner could be regarded as the occupier for purposes of nuisance due to retaining control and possession, even if D allowed others to live or undertake activities on the property.
  • D choosing not to enforce the possession order represented a failure to take reasonable care to abate the nuisance without undue delay once it became known. D was thus liable for the nuisance continuing.

Lord Justice Vos

  • There are two possible tests regarding liability for nuisance in the circumstances: one for those in ‘occupation’ of property and one for ‘landlords’ of property.
  • The landlord has limited liability because the tort looks to blame the person causing the nuisance. After a tenancy starts, a landlord has neither control nor possession of the property from which the nuisance emanates.
  • In contrast, an occupier will normally be held responsible for a nuisance even if they did not directly cause because they are in control and possession of the property.
  • Even if D was a licensor rather than a resident, she retained control and possession of the property. Her daughter had no right to exclude her from the property.
  • “In my judgment, D was, in the requisite sense, both in possession and control of the property throughout her daughter’s residence there, and the judge was therefore right to hold her liable for the nuisance as he did. The judge did indeed decide that D had been able to abate the nuisance but chose to do nothing ‘notwithstanding her daughter’s unreliability.’ He found that the nuisance could easily have been abated ‘by removal of the dog or the occupier, both of which were easily achievable.’ The judge determined that an allowance of 9 months from the date of the letter before action was sufficient to allow D to abate the nuisance. I agree” [28].

Lady Justice Arden

  • “In this case, the licence was a bare licence. It was probably also a non-contractual licence given the family relationship. But no-one argued that it was a tenancy…
  • Licence and tenancy are not, however, watertight concepts. I associate myself with Vos LJ’s coda that the terms of the licence in a particular case might lead to a different result from the result in the present case” [42].

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