Fouladi v Darout Ltd  EWHC 3501 (Ch)
Breach of covenant – nuisance – quiet enjoyment – landlord’s duties- remedies
C was the long leaseholder of Flat 62. D1 was the lessee of Flat 66, which was directly above Flat 62. D2 and D3 lived at Flat 66. D4 was the landlord of the block of flats. All flat leases were substantially the same and required the lessee to cover the floors with material suitable to avoid the transmission of noise (Reg. 14) and to obtain the landlord’s consent for any alterations (Clause 3(f)).
C’s case was that Ds had made extensive alterations, included the installation of new flooring and the removal of carpeting which had resulted in excessive noise transmission to Flat 62. C sought an injunction for reinstatement of all the alterations and for appropriate sound deadening measures and damages against D1-3. C also made a claim against D4 claiming that the landlord had given D1 a licence for alterations in 2010 which rendered the landlord directly responsible for the nuisance and/or breach of quiet enjoyment.
The trial judge HHJ Parfitt at Central London County Court, found that no licence to alter the floors had been obtained by D1, in breach of Clause 3(f) and that the works had given rise to an actionable nuisance on the part of D1 to D3. He ordered that remedial works to the floor be carried out and awarded damages of £40.18 per day until the works were completed. In substitution for an injunction, the judge made an order restraining D2 and D3 from living in Flat 66. The judge dismissed the claim against D4.
D1-3 appealed. C appealed against the order dismissing the claim against D4. The appeals were heard by Mr J Morgan who dismissed all appeals.
A landlord was not liable for a nuisance caused by his tenant merely because he did not take steps to prevent what was being done, unless it participated in or authorised that nuisance. Although D4 could have taken steps to prevent D1 from carrying out the works, as it knew that the works were being carried out in breach of Clause 3(f), there was no finding by the trial judge that D4 knew that the works involved a nuisance. As a result, the landlord was not liable for that nuisance by participation and not in breach of the covenant for quiet enjoyment.
Although there had been no evidence as to the physical nature of the floor before the 2010 works, the judge had been entitled to find the changes made to the floor in 2010 had caused the transmission of the noise as there had been no problem of noise transmission through the floor before 2010. The trial judge’s careful and reasoned approach to the evidence could not be criticised.
Further, in assessing damages for breach of contract, the judge had been correct to assess them on the basis of breach of contract and assess the extent to which the amenity value of Flat 62 was damaged by the nuisance. D1 had not obtained consent for the works to the floor in breach of Cl.3(f) and was in breach of Reg.14. It followed that D1 was liable for damages for breach of contract which should reflect the loss of amenity to Flat 62. The judge had accordingly been entitled to award damages reflecting the effect of the use and amenity of Flat 62 resulting from the floors in Flat 66 falling below the contractual standard being £281.25 per week from the date D2&3 moved into the flat. The judge had also been entitled to make a mandatory order requiring D1 and possibly D2&3 to carry out remedial works to abate the nuisance.
D2 and D3 argued that as they were not parties to the lease, terms of the lease were irrelevant as regards their liability. Mr J Morgan dismissed this argument, noting that this argument was contrary to D2&3’s position at trial. Further, even if this were correct (a point not decided), the trial judge had found as a fact that although D1 was responsible for those works as the lessee, D2 and D3 had chosen what works were to be done. On this basis there is no distinction to be made between the position of the D1 and D2&3 on the facts of this case. D2&3 were therefore liable in nuisance.