25 October 2023

Take notice: statutory nuisance and criminal liability

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If you or your company has received notice of a potential nuisance, please contact us immediately.  Failure to act in a short timeframe can result in criminal liability.

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The cost of living crisis, coupled with a greater awareness of suitable conditions of rented property, puts landlords at an increasing risk of being served notices to abate nuisances experienced by their tenants. Failure to act may result in criminal liability.

The Environmental Protection Act 1990 provides a protective mechanism for tenants who experience or may believe they are experiencing a ‘statutory nuisance’ during their tenancy.

Excessive dampness, mould, and rodent infestations are typical examples. However, the Environmental Protection Act applies a broad brush, allowing “premises in such a state as to be prejudicial to health or a nuisance” to fall within the confines of the legislation. This ambiguity means that landlords should be alive to any report (usually by a tenant or a local authority) as to the condition of their premises.

Serving notice for statutory nuisance

Where a tenant believes that a ‘statutory nuisance’ is present, a tenant or a local authority (usually where the matter has been reported to a council) may serve a landlord with an ‘abatement notice’. This abatement notice cannot be ignored:

  • in the first instance, a notice will typically require a landlord to abate (i.e. rectify) the nuisance within a period of 21 days; and

  • where the nuisance is not abated within 21 days, the notice serves as a notice of intended prosecution. This means that if the nuisance wasn’t abated within the timeframe, then the tenant can commence criminal proceedings without further notice.  

Abating the nuisance

It is therefore extremely important that you take note of hazards listed in the notice and the deadline for compliance.

Landlords should take all reasonable endeavours to abate the nuisance immediately upon receipt of the notice, and in any event within 21 days of receipt. This includes where a notice is served on an agent who acts on a landlord’s behalf.

If a landlord believes that the notice is misguided, a landlord may lodge an appeal of the notice with the Magistrates Court within 21 days of its receipt.

Criminal proceedings

After the time frame stipulated in the notice, a tenant may commence criminal proceedings against their landlord in the Magistrates Court. These are brought by a tenant, in the form of a private prosecution, rather than being brought by the state. Once proceedings begin, a landlord is liable for the costs of the aggrieved tenant.

A landlord may wish to raise a defence in that they had a reasonable excuse for failing to abate the notice, and/or that they took the best practicable means to prevent or counteract the effects of the nuisance.

Where a tenant is successful in criminal proceedings, the court can order the landlord to abate the nuisance, together with an order for a landlord to pay the prosecution damages and costs, which can reach fees of £50,000 and beyond. Furthermore, the court can also impose criminal penalties such as fines and endorse your or your company’s criminal record. 

If you receive an abatement notice it is therefore imperative to seek legal advice as soon as possible to avoid potential criminal consequences. We can discuss available defences with you if you find yourself or your company in this position. Get in touch with our dispute resolution team today.

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