Cocking v Eacott [2016] EWCA Civ 140

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.

• 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?

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. 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.

A non-resident owner who retains possession and control through a bare licence may be responsible for continuing a nuisance after learning of it. Cocking distinguishes that position from a landlord who has transferred possession under a tenancy and has more limited responsibility for a tenant's acts.

Cocking demonstrates that occupation for nuisance purposes turns on control and possession rather than where a person sleeps. The mother retained the ability to end the bare licence or require removal of the dog. Her failure to abate the known nuisance was therefore legally significant. Compare Coventry v Lawrence on landlords: the different result reflects a different relationship with the land, not a rule that all property owners answer for every occupier's behaviour.