11 April 2016

Lease or licence and the liability for Nuisance

The recent Court of Appeal case of Cocking v Waring ([2016] EWCA Civ 140), which centres around a dog's tenacious barking, has highlighted a key difference between entering into a lease verses a licence to occupy. While a licence can seem an attractive prospect for a landowner in terms of flexibility, there are potential downsides because, amongst other things, a licensor retains more control of the property than a landlord.

In summary, the main difference between a lease and a licence to occupy is that a lease is the grant of a right to the exclusive possession of land for a certain period of time. A person has exclusive possession if it can exercise the rights of the landowner and exclude both the landlord and third parties from the land, whilst a licence to occupy is a personal right or permission and does not create an estate in land. A licensee cannot call the land its own.

In this case, Angela Waring (Waring), allowed her daughter, Kim Eacott (Eacott), to live in her Victorian cottage in Hereford, rent free and without a lease. The judge held the occupancy to be on the basis of a bare licence to occupy, and it was not argued by Waring that her daughter occupied by virtue of a lease.

During the time she lived in the cottage, Eacott created two types of private nuisance. (A private nuisance being actionable in tort and caused by a person doing something on his own land, which he is lawfully entitled to do but, which becomes a nuisance when the consequences of his act extends to the land of his neighbour.) First, the excessive barking of her dog, Scally, from August 2008 onwards, and, secondly, largely intentional abusive shouting from July 2009 to July 2011. Waring was not held liable for the shouting since she did not know of it until late 2010, and it stopped after Eacott was granted an ASBO in June 2011. Waring was, however, held liable for the barking nuisance from July 2011 onwards, of which she was found to have had knowledge, and did nothing to stop.

Waring appealed on the basis that it was not right to hold that she was liable for the barking nuisance when, although she had licensed her daughter to live at the property, she was not living there herself. Mrs Waring argued that the position of a licensor should be treated as that of a landlord. Case law has established that only the occupier of land causing a nuisance is liable for that nuisance (Rich v Basterfield (1847) 4 CB 783) and if the occupier is a tenant, only the tenant, and not the landlord, is liable, as the Landlord neither has control nor possession of the property. This is different from a licensor, who is liable for a nuisance created by persons occupying the licensor's land, as a licensor is treated as in occupation of the property.

The Court of Appeal made it clear that a licence could be so similar to a lease that the licensor could not be treated as an occupier but instead would be closer to a landlord. However, in this instance, the court ruled that Waring was jointly liable for the nuisance to neighbours caused by her daughter's dog. This was despite the fact that she was not physically in occupation of the property and because, as licensor (rather than landlord), she should be treated as in occupation of the property and therefore liable in tort.

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