HUNTER v CANARY WHARF LTD

The tortious claim for nuisance, and the rights of those in occupation of land have for many years, been exclusively limited in the preservation of common law sensibility.

On this occasion, a collective suit for both nuisance and negligence by local residents against that of corporate rights, produced an unexpected outcome.

After the demise of dockland trading in London, the areas once frequented by countless importers and exporters, fell foul of disuse and neglect.

After lengthy consideration, both immediate and future plans for the site were subject to the Secretary of State who, recognising the need for both housing and commercial exploitation, took advantage of sections 134(1) and 135(1) of the Local Government, Planning and Land Act 1980, in order to commission urban regeneration of the London docklands area under the formation of the London Docklands Development Corporation (LDDC).

In line with the need for such redevelopment, the 1980 Act allowed the Minister to override typical planning permission requirements, as laid down in the Town and Country Planning Act 1971.

This resulted in the construction of the 800ft tall Canary Wharf Tower by nominated contractors Olympia and York Canary Wharf Ltd, along with interlinking roads to the surrounding city over a four-year period.

This ambitious project resulted in two tortious claims by 500-700 local residents; the first of which, centred around the interruption and in some cases, total disruption of television broadcast signals after the completion of the tower, and excessive amounts of materials dust invading the homes of the claimants throughout the construction period.

The case itself drew mixed, and yet keen attention of the the courts, primarily because the history of nuisance and negligence were to some extents, intertwined, and thus dependant on the principles found within property law.

In the first matter, the rights of those wishing to build upon their land stem from the long-standing principle that in the exception of easements or restrictive covenants, every man has the freedom to build as he pleases, as was stressed by Hardwicke LC in Attorney-General v Doughty, when he said:

“I know no general rule of common law, which warrants that, or says, that building so as to stop another’s prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . .”

Attorney-General v Doughty

Furthermore, in a recent German case G v City of Hamburg, the Supreme Court had ruled unequivocally that where a resident had suffered diminished television broadcast signals following the construction of a nine-storey hospital, such effects were not subject to the powers of their Civil Code; and so, no claim for nuisance could stand.

This reflected the stance of the English courts; therefore, support for such a claim would not be found, despite the large numbers of complaints.

Turning to the issue of dust, the principles of property law were again invoked, inasmuch as established academic precedent argued that:

“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.”

However, this definite founding for claim had seen its critics, when in Foster v Warblington Urban District Council, the Court of Appeal had ruled that a person in exclusive possession of land could sue, despite no evidence of title.

This principle was further promoted in Khorasandjian v Bush; in which, a young girl had been subjected to continuous phone calls from a spurned former partner while living with her parents; and where, Dillon LJ had also remarked that it was:

“[R]idiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls.”

Khorasandijian v Bush

Here, the court followed Canadian case Motherwell v Motherwell, where it was held by the Appellate Court, that not only was the legal owner entitled to remedy for nuisance, but the wife too, despite her having nothing more than occupational rights.

Unfortunately, the problems facing the claimants was that a large majority of them were spouses, children and in some instances, extended family.

This placed the courts in a difficult position when recognising the need to consider expanding upon private claimant rights in nuisance cases beyond that of land owners, especially with similar changes to spousal rights in both the Matrimonial Homes Act 1983 and the Family Law Act 1996.

When first heard, the court held that television signal interference was a claimable right under nuisance, and that exclusive possession of land was the qualifying criteria for claim in both instances.

However, the Court of Appeal reversed the decision; and so, the original defendants appealed to the House of Lords, while the claimants cross-appealed.

With forbearance of the seemingly inextricable limitations of both tort and property laws, it was (after lengthy discussion) unanimously held that the despite the changes in modern society and the family units, the strict rule of exclusive possession remained steadfast; not on grounds of unreasonableness, but in the prevention of arbitrary awards for complainants having little to no proprietary rights.

Hence the House reversed the Court of Appeal’s findings, while reminding the parties that:

“Nuisance is a tort against land, including interests in land such as easements and profits. A plaintiff must therefore have an interest in the land affected by the nuisance.”

MARCOU v DA SILVAESA

Due to similarity of circumstance and the nature of the positions argued, this appeal hearing involved two separate, but inextricably linked, claims for tenancy under the pretence of sham agreements.

While both sharing the same fundamental contracts, there were deviations both within and without the documents, that deserved enquiry, if at least to clarify the terms of occupancy. 

Markou v Da Silvaesa

Having entered into an agreement displaying the hallmarks of a licenced residency, it was argued that after being requested to leave the premises following a change in property ownership, the two parties in occupancy were legally entitled to remain so under the assumption of a tenancy.

This was largely reliant upon the poorly worded contract, insomuch as clauses 1 and 2 were at no point enforced, and where the latter clause defied logic and reason when providing for a practical living arrangement.

Clause 1 required that each day, the appellants were expected to vacate the premises between 10.30am and noon for the duration of the contract, while clause 2 reserved a right for the landlord to remove and/or substitute items of furniture as deemed necessary.

What became of concern, was that the contract also required that the claimants not only vacated the property, but took their personal possessions too; a stipulation that by all accounts, was impossible to execute.

Likewise, the right to remove furniture rendered the appellants powerless to prevent beds or other essential items, from being taken away should the respondent see fit to do so.

Upon the respondent’s application for possession under Order 113 of the Rules of the Supreme Court (RSC), the appellants challenged its validity, on grounds that the agreement signed was nothing less than a sham, and that when applying the principles of Street v Mountford there could be no right to remove them.

In the first hearing, the judge ruled that despite vagaries in the terms of the contract, there was insufficient evidence to suggest sham intentions, particularly when the majority of the terms were clear and concise as to the engaging parties occupancy as licensees; and when later asked for the matter to be dealt with in the County Courts for the purposes of trial rather than summary judgment, the option was also dismissed.

When presented to the Court of Appeal, any contention that the agreement constituted a sham was, despite clearer presentation of the facts, further dismissed on grounds that echoed the previous judge.

However, the complications arising from the oddly drafted clauses raised significant issue around the right to allow possession when so much certainty lingered as to the exactness of the relationship shared between landlord and licensees.

This concern sustained the appeal in favour of new proceedings under trial, before any conclusive findings could be reached.

Crancour Ltd v Merola

Operating under identical contracts, the appellants relied upon oral agreements between themselves and the resident housekeeper, when challenging the presumption of licensee over what they believed to be exclusive possession leading to tenancy.

Prior to the change in ownership, the appellants had engaged in conversation with the domestic help, whereupon the offer to clean the room in accordance with the contract was turned down in favour of privacy while in occupancy.

Alternately, the appellants left their bed linen and waste outside the door in order to benefit from the services provided by the landlord.

It was for this reason, that the claim for tenancy was argued, along with the issues raised in the first case.

As was agreed above, the lack of certainty for clauses 1 and 2, coupled with a need for witness testimony with regard to the orally agreed terms, meant that just as before, the issue of possession orders could not be sustained without renewed appreciation of the full facts.

And so, the appeal was upheld in conjunction with the directions cited, while the court reminded the parties that:

“[P]ossession of rooms for occupation as ordinary residential accommodation must, from its nature, be intended by both parties to be exclusive except where, as stated, the landlord requires unrestricted access for the provision of services or attendance.”

ASLAN v MURPHY

In order to enjoy the protective nature of exclusive possession from the powers of the Rent Act 1977, it must first be established what type of contractual arrangement has been agreed.

In this instance, the Court of Appeal decided upon two cases where landlords seeking possession were subject to examination.

Aslan v Murphy (No 1 and No 2)

Having entered into a living arrangement with the landlord of a hotel, the appellant was granted use of a basement room, while deprived of many freedoms in lieu of strict usage controls.

The extent of those restrictions included a ninety-minute window, where the appellant was denied access to the room, as well as having to surrender the room keys to the respondent when leaving the room.

It was thus argued that the contract was between a licensor and licensee, as opposed to that of landlord and tenant.

This alteration of rights prevented the appellant from retention of occupancy under the Rent Act 1977; and so, having sought repossession of the room, the matter went to court, whereupon the necessary order was granted prior to an appeal, where the Court found that tenancy rights did exist.

Around the same time, the local authority served a closing order against the respondent upon grounds that the room was unfit for human occupancy and therefore unable to stand as chargeable for rents, as per section 266 of the Housing Act 1985.

This led to a second possession order in favour of the respondent; however, in order to secure alternative accommodation through the local authority, the appellant requested that the courts declared the actual nature of the contract as no notice to quit had been served, and that the appellant was now protected through exclusive possession until such time as notice was given.

Relying upon section 276 of the 1985 Act, the respondent countered that the power of the closing order negated any right to exclusive possession, while under section 277 of the same Act, it was further contended that any continued occupancy by the appellant constituted a criminal offence, subject to occupancy penalties. 

Put before the Court of Appeal, it was held that until clarification of the contract could be ascertained, there could be no effect to the possession order, despite the powers claimed under the Housing Act 1985; and that until such time, neither party could pursue their own ends.

Duke v Wynne

In this case, the relationship was that between a homeowner and a family in need of accommodation, while the contract entered into was one where the respondent reserved the right to terminate the arrangement on or around a two-year period.

Due to the generous size of the property, there was also express denial of exclusive possession within the terms of the contract, due to a provision for additional parties to share the home at the privilege of the respondent.

During the two years in which they remained in occupancy, the appellants used the whole of the house; and at no point, did any new occupiers enter the property, despite such prohibition.

At the point in which the respondent sought possession following her decision to emigrate, it was contested by the appellants that with no alternate means of accommodation, and having had free reign of the house, they were now entitled to remain in occupancy with exclusive possession under the terms of the Rent Act 1977.

Having considered the wording of the contract and the manner in which the appellants had been allowed to reside, it was held by the Court that without any evidence of shared occupancy, the appellants had by virtue of their liberties, enjoyed exclusive possession of the home for the duration of the time passed; and that vacant possession was not legally enforceable, failing any notice to quit, while reminding the parties that:

“[T]here are materials from which it is possible to infer that the occupier is a lodger rather than a tenant. But the inference arises not from the provisions as to keys, but from the reason why those provisions formed part of the bargain.”

AG SECURITIES v VAUGHAN

As discussed in Aslan v Murphy, the protection of exclusive possession under the Rent Act 1977 is under scrutiny when another two cases are subject to judicial wisdom.

In the first instance, the collective arguments of four individuals rally against the wishes of a landlord looking to remove them in favour of longer-term arrangements; while in the second case, the needs of two cohabiting parties are contested before a landlord seeking their departures for similar reasons.

AG Securities v Vaughan

Situated near the very popular West End of London, the building in question was a four-bedroom flat that had been apportioned to accommodate four individual residents at any one time.

The nature of the arrangements were unique to each party, so subsequently there were four separate contracts precluding the right to exclusive possession on grounds that each licence was for a six-month period, before commencing as a rolling one-month contract, prior to predetermined notices to quit from either landlord or licensee.

Over a period of around three years, the appellants had by grant of the respondent, enjoyed intrusion free use of the flat, and were eventually left to determine (through interviews and group discussion) who would replace those vacating their rooms during the passage of time.

Each party also paid differing amounts of rent, and had acquiesced to the terms of their agreements when becoming part of the group in occupation.

When the time came for the landlord to reassess how he wished to lease the flat, it was decided that long-term sub-leases were preferred; at which point, notice to quit was served upon the four remaining occupiers.

This prompted the local authority to establish through the rent officer, whether the appellants were in fact considered tenants under section 68 of the Rent Act 1977, and not licensees (as suggested by the respondent and indicated in the terms of their individual contracts), and thus how best to determine a fair market rent.

The landlord contested the application, and sought to apply an injunction against the local authority, while seeking payment of rent arrears by the appellants, while on this occasion, the judge found in favour of the respondent, and declared the appellants licensees.

Upon appeal, three of the appellants were successful in reversing the previous decision by the court, thereby granting the appellants powers of joint tenancy, whereupon the respondent appealed. 

With a verdict of two to one for the now appellants, the principles of exclusive possession and joint tenancy were examined, within which the rights determined in Street v Mountford require exclusive possession in lieu of payable rents for a determinable period.

On this occasion, although the contract contradicted the nature of the living arrangements, the four appellants had enjoyed uninterrupted possession of the flat, and were subject to finite durations of contract prior to the respondent’s remuneration for  privilege of occupancy.

With regard to joint tenancy and the principles of unity of possession, interest, title and time, it was held that at one point the four appellants were equal in their period of residency, and while each resident held separate contracts, their duration was of the same length; therefore, unity of term applied, despite disparate cessation of each agreement.

While title must be held under the same Act, there was by implication, a single agreement that bound each resident to the same conditions; and although the contractual periods overlapped, each was determinable in duration, and therefore valid in terms of ascertainment.

This somewhat overreaching of the principles of tenancy, amounted to judgment in favour of the appellants and award of costs.

Appealed again in the House of Lords, it was quickly concluded that to allow a joint tenancy to exist would be an affront to the four unities, when no one person was granted exclusive interest in the property; but instead, were merely sharing a right to occupancy under licence; and that when compelled to enforce their legal rights, the technicalities of the contracts denied them tenancy powers, regardless of how hard they tried to collaborate. 

Antoniades v Villiers

In this matter, an experienced property manager took the steps to observe the legal principles held in Somma v Hazelhurst; where it was held that two parties sharing the same room while under separate contracts can enjoy the rights of exclusive possession, and thus those of the Rent Act 1977, despite signing licence agreements.

It was after openly discussing the respondent’s preference to licence agreements, that the appellants willingly co-signed separate, yet identical agreements on the same day, before commencing their occupancy as contracted.

Part of the agreement stipulated that at the luxury of the respondent, there was a possibility that additional residents may be added to the house; and that until such time, the appellants were to cohabit as husband and wife (even though they were just boyfriend and girlfriend).

Little over a year later, the respondent issued them with a month’s notice to vacate the property, following disputes over non-payment of rent.

It was then that the appellants asserted themselves as tenants and not licensees; after which, the rent officer upheld their claim and registered a lower rent than had been previously agreed.

Having taken them to court, it was found by the judge that while the terms of the agreement were reflective of the outcome of Somma, the recent decision taken by the House of Lords in Street had in essence, reversed that position back in favour of the appellants, when Templeman LJ said:

“Although the Rent Acts must not be allowed to alter or influence the construction of an agreement, the court should, in my opinion, be astute to detect and frustrate sham devices and artificial transactions whose only object is to disguise the grant of a tenancy and to evade the Rent Acts.”

Street v Mountford

This translated that those once considered licensees under similar circumstances to the one created by the respondent’s draft, were now deemed tenants under protection of the Rent Act 1977; and so, by following verbatim the minds of the judges, the court found in favour of the appellants, and dismissed the possession order.

In the Court of Appeal, the two judges agreed that great lengths had been taken by the respondent to act inside the legalities of occupancy rights, and that the transparent nature of the relationship both before and after the signing of the agreements, dictated how no efforts were made to conceal the limitation of rights ascribed the two parties.

For this reason, the appeal was upheld and possession procedures left to recommence.

Further appealed and evaluated in the House of Lords, the meaning of the agreements (while appearing legitimate) were now held to be nothing short of manipulative and misleading.

It was also agreed that by the two appellants signing mirroring contracts and paying the same amounts each calendar month, they had by extension, been afforded the same rights and freedoms provided for tenants under the very Act the respondent had looked to avoid.

It was also agreed that aside from clause 16, which allowed the respondent to reside himself, or introduce another occupier, there was nothing to suggest that a joint tenancy based upon interdependence did not exist; hence, the House allowed the appeal while reminding the parties that:

“Since parties to an agreement cannot contract out of the Rent Acts, a document which expresses the intention, genuine or bogus, of both parties or of one party to create a licence will nevertheless create a tenancy if the rights and obligations enjoyed and imposed satisfy the legal requirements of a tenancy.”