Robinson v Kilvert
Court of Appeal
Citations: 1888 R 5655; (1889) 41 Ch D 88.
The defendant let out the upper floor of his property to the claimant. Both parties knew that the claimant intended to store paper and twine in the property. However, the claimant did not inform the defendant that he intended to use the floor to store a kind of brown paper which was particularly vulnerable to heat.
The defendant began using the basement of the property for manufacturing, which increased the temperature of the upper floors. The increase in temperature would not damage normal property or inconvenience a person engaging in normal use of the land. However, the increase did damage the claimant’s special brown paper. The claimant sued the defendant in private nuisance and for breach of the implied covenant of quiet enjoyment in the lease contract.
- Was the defendant liable in nuisance for damaging the paper?
- Was the defendant in breach of the implied covenant of quiet enjoyment?
The Court of Appeal held in favour of the defendant. The defendant was not liable in nuisance as his use was not such that it would affect ordinary use of the claimant’s part of the property. The defendant was not in breach of the quiet enjoyment covenant because he did not know his use of the remainder of the land was liable to affect the claimant’s property when he entered into the lease.
This Case is Authority For…
A defendant is not liable in nuisance where their use of the land would not interfere with ordinary and reasonable use of the claimant’s land – even where this results in property damage.
A landlord is not liable for breach of the implied covenant of quiet enjoyment where his use of the remainder of the land affects the tenant only because the tenant is using the land in an unusual manner if the tenant did not inform the landlord of that use prior to contracting.
All three judges commented that in this kind of case, the claimant must specifically negotiate for lease terms regarding the unusual use of the land if they want to be protected.