Defective Buildings Are a Nuisance

Abstract This article highlights the potential for nuisance to provide another avenue to leaseholders of defective buildings who want to seek remediation. The Supreme Court’s decision in Fearn v Tate Gallery expanded the scope of nuisance, focusing on whether there was substantial interference with property use, without the need for physical invasion. Unsafe cladding and fire safety defects diminish the amenity and utility of leasehold flats, so that many are unsafe and unsellable. Landlords, as freeholders, can be considered ‘neighbours’ under nuisance law and therefore held liable for failing to remediate hazards. Applying nuisance to defective premises could allow leaseholders the remedy of an injunction, therefore allowing remediation. Unlike the criticised Fearn, which prioritised the interests of wealthy occupiers of the Neo Bankside apartments over the general public, this article explores the possibility of using nuisance for public good through the remediation of buildings with potentially life-threatening defects.