Can someone be liable in nuisance to the owners of a next door property even though they do not occupy the property from which the nuisance emanates?
A landlord has restricted liability for nuisance since the tort blames the person or persons who cause(s) the nuisance. Where nuisances arise after the tenancy has begun, a landlord will not cause the nuisance unless he directly participates in it, or must be taken to have authorised it. He neither controls nor possesses the property from which the nuisance comes. The fact that he could, but did not, bring proceedings against the nuisance is not a ground for holding the landlord liable.
To be liable for nuisance, a landlord or their agent must participate directly in the act of nuisance, or the landlord must be taken to have authorised the nuisance by letting the property. The mere fact that a landlord does nothing to stop a tenant from causing the nuisance cannot be equated with participating in it, or authorising it.
An occupier is in a different position. Usually they will be responsible for a nuisance even if they did not directly cause it, since they are in control and possession of the property. Here a non-occupying owner may be regarded as an occupier of property if they have allowed others to live or carry out activities on their property, as licensees.
In Cocking & Anor v Eacott & Anor  a Mother had allowed her Daughter to live in a house she owned, but did not live in. The barking of the Daughter’s dog caused a nuisance to neighbours. The Daughter never had more than a bare licence to occupy the property. She had no right to exclude her Mother from the property, Was the Mother “an occupier” for these purposes?
The Court of Appeal acknowledged that there might be cases where an arrangement might be called a “licence” but was in fact either a tenancy, or so much like a tenancy that the owner was not an “occupier” in the relevant sense. But this was not one of them.
Here the Mother was in possession and control of the property throughout her daughter’s stay there. The Mother could have abated the nuisance but chose to do nothing. The nuisance could readily have been abated by the Mother removing the dog and the occupier. The 9 months the neighbours allowed the Mother to abate the nuisance had been sufficient. The Mother was therefore liable for the nuisance.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.