Summary

It was arguable that a reversioner could sue upon a temporary nuisance before his reversion fell into possession where the nuisance caused injury to his reversion.

Facts

The court was required to determine two competing applications for summary judgment in a claim for nuisance and unpaid rent. The action concerned a six-storey building owed by a company in liquidation. The first and second defendants (X) were the company's administrators. The third defendant (E) held a lease of the ground floor and basement for a term of 30 years but had ceased occupation. The claimant (J) held a concurrent lease of the ground floor and basement for a term of 999 years subject to E's rights under the original sublease. Before its liquidation, the company had intended to redevelop the upper floors and had erected scaffolding around the whole building. X decided to sell the upper floors, and since the development was not complete, they left the scaffolding in place so that the purchaser could complete the building works. E refused to pay its rent to J on the basis that the scaffolding constituted a breach of the covenant of quiet enjoyment and was interfering with its attempts to assign the sublease. J brought an action for rent arrears against E, and E counterclaimed, seeking a set-off for breach of the covenant. J also brought a claim against X for nuisance and for an indemnity in respect of any sum to which E might be entitled as a result of the alleged breach of covenant. As a result of J and X's applications for summary judgment against each other, the court was required to determine whether J could sue upon a temporary nuisance before his reversion fell into possession. J submitted that an action in nuisance was available as a means of redress for interference with the enjoyment of any interest in land, including any incorporeal hereditament such as rent.

Held

(1) Rent was not a purely contractual matter, even in the 21st century. Both the liability to pay and the right to receive rent continued to be incidents of interests in land, passing respectively with the lease and with the reversion and enforceable by privity of estate, rather than merely by privity of contract. Nonetheless, the better view was that the concept of an action in nuisance purely for interference with rent, divorced from the interest in land to which it was attached, was one of those medieval relics which was best returned to the historical scrap heap. However, it was unnecessary to reach a final conclusion on the question because J had a reasonable prospect of success upon an alternative ground. (2) The right to rent was an aspect of the proprietary rights constituted by a landlord's reversion. An interference with the tenant's quiet enjoyment of the demised premises in breach of the landlord's covenant for quiet enjoyment entitled the tenant to set-off damages for that breach against his liability to pay rent, and could therefore constitute an injury to the reversion, as it permanently deprived the landlord of a valuable part of his rights constituted by his reversionary interest. The principal difficulty with that imaginative argument was a trilogy of cases which were treated as authority for an invariable rule that a reversioner could not sue for a nuisance constituted by a mere temporary interference with the land, if it was capable of being terminated by the perpetrator before the reversion fell into possession, without having caused some permanent lasting damage to the land, Mumford and Others v The Oxford, Worcester and Wolverhampton Railway Company 156 ER 1107 Ex Ct, Simpson v Savage 140 ER 143 CCP and Cooper v Crabtree (1881-82) LR 20 Ch D 589 CA considered. However, in those cases the perpetrator of the alleged nuisance was a third party neighbour, the conduct complained of was inherently temporary in nature, and none of the tenants had actually left the premises or ceased to pay rent. Furthermore, it was at least arguable that the supposed rule that a reversioner could not sue upon a temporary nuisance was no more than a logical consequence of the true principle, which was that a reversioner could not sue in relation to a nuisance unless it caused injury to his reversion. There might be unusual factual situations where a temporary nuisance injured the reversion, and it was at least arguable that the assumed facts in the instant case might constitute a permissible exception, Bell v Midland Railway Co 142 ER 462 CCP considered. However, the final resolution of that issue was better carried out when the precise facts had been ascertained at trial.

Applications refused