Can a landlord (Proprietor) and Management Corporation be made liable for nuisance caused by the tenant (eg: Air B&B guests / students) in a stratafied development area?
Floral Green Condomium is a stratafied condominium near to UTAR.
The Plaintiffs are a family of 7, sued the Respondents for nuisance and trespass. Nuisance comes in a form of illegal renovation / extension works, excessive noise from tenants (students). Trespass relates to discharge of sewer effluent.
D1-D4 are proprietors of various parcels. These parcels were rented out to students of UTAR and used as a hostel. D5 is the Management Corporation.
D1-D4 denied allegations of nuisance and contended that letting the premises to students had already been approved at the AGM.
The Management Corporation denied allegations of nuisance and claimed that even if there was, MC has attended to all complaints.
Decision of the High Court
The Plaintiff’s case is dismissed on grounds that the evidence was not strong enough to prove that the proprietors committed nuisance or trespass.
The Learned High Court Judge was of the view that the Plaintiffs ought to seek recourse against the local authority for failure to perform its statutory duties and breach of by-laws cannot be itself found a valid course of action in tort against the Defendants.
Decision of the Court of Appeal
The Court of Appeal disagreed with the High Court Judge and allowed the appeal. The Court of Appeal finds that the evidence was not evaluated comprehensively by the High Court Judge. It also found the proprietors and the Management Corporation liable and further ordered them to pay damages to the Appellants / Plaintiffs:
(a) in a sum of RM50,000.00 against the 1st Respondent;
(b) in a sum of RM20,000.00 each against the R2-R4;
(c) in a sum of RM10,000.00 against the Management Corporation (5th Respondent)
What is more important was that the Court of Appeal took quite considerable time in determining the issue whether a landlord would be liable for nuisance caused by the tenants and analysed several English cases, focusing on the Supreme Court’s decision of Lawrence and Another v Gen Tigers Ltd & Ors (No. 2)  3 WLR 555.
In Lawrence v Fen Tigers, it was held that a landlord would not be liable for nuisance caused by the tenant unless the landlord either could be said to have authorised the nuisance by letting the property or had participated directly in the commission of the nuisance. It was not enough that the landlord had been aware of the nuisance but took no steps to prevent it. In order to succeed on the basis of authorisation, a claimant will have to show a high degree of probability that the letter of the property would result in nuisance, that liability on the basis of direct participation in the nuisance was largely a question of fact for the trial judge to decide.
The Court of Appeal went to great length to analyse the judgment and distinguished the facts of this present appeal against Lawrence v Fen Tigers. The Court of Appeal pointed out that in this present case, the landlord had undertaken unlawful renovations and change the use of parcel from a residence to a commercial hostel. The landlords also failed to take steps to mitigate nuisance despite being made aware of it.
The Court of Appeal also referred to By-Laws pursuant to 3rd Schedule of the Strata Management (Maintenance and Management) Regulations 2015 and opined that the effect of these statutory provisions is to recognise the common law duty of care with regard to communal living and duty and responsibility to ensure no nuisance is committed. There is no distinction provided in these laws that proprietors are absolved where the tort is caused by some 3rd party.
It is the view of the Court of Appeal that the responsibility for nuisance caused by 3rd parties occupying tenanted parcels remain with the proprietors in the capacity of landlords.
A proprietor share liability if nuisance is committed by tenants (whether short term AirBnB guests or otherwise)