Q: We carefully read your Newsletters and it is our first port of call whenever a new matter arises. However we live in a very volatile age and what might be correct procedure this week may not be available in the following one.
This time it is a chronic (9 months) dispute between neighbours. It is alleged by the tenant in a lower flat that the tenants in the upper flat make unacceptably loud noises (mainly shouting and loud tv from about 11pm (when they return from working in a restaurant) through to 2 or 3am. I have no doubt but that it is true. Those in the upper flat have completely ignored his polite and friendly protestations, my pleas for a friendly resolution or the warnings from the managing agency. It is not only a matter of loss of sleep (health issue) but the value of his flat will be adversely affected should he decide to move out.
I advised the complainant that it was for him to deal with and advised him to get in touch with the local Environmental Health Department, keep a diary and get some practical evidence. Although he has kept a diary, he claims it is for the directors to do more as it is a breach of the lease. The managing agency have now offered to get in touch with their solicitor. It may come to this but there must be other steps yet to be taken. The Environmental Health Dept should be able to get decibel readings and actual frequency of any noise and with such hard evidence the matter might be brought to an end.
What more can and should the directors do? Do such breaches of the lease warrant the intervention of the company or does it remain a private matter.
FPRA Committee Member Bob Slee replies:
The Environmental Health Department route is of course available to anyone in a situation such as you describe. However, one of the advantages of living in a residential leasehold development is the additional protection of the restrictive covenants contained in the lease. These reflect the particular obligations of flat dwellers inevitably living cheek by jowl with their neighbours. In all situations it is of course better to deal with difficulties and disputes informally and on a neighbourly basis but you have indicated that this has failed in this case and nine months is a long time to endure continued nightly disturbance.
In your lease the specific covenants restrict a lessee from using the flat “for any purpose from which a nuisance shall arise to the lessor or the lessees or occupiers of the other flats comprised in the property”. More specifically, it requires lessees “to take every precaution for ensuring quietness in the property and in particular not to permit any musical instrument, radio, television or such like equipment to be played ….. so as to cause annoyance to the lessees or occupiers of other flats comprised in the property”.
The arrangements regarding enforcement of these covenants are covered in a schedule of your lease, which requires the lessor to enforce the covenants if required to do so by a lessee. However, the lessee requesting enforcement is required by the lease to indemnify the lessor against all costs and expenses arising from pursuing enforcement. This is very common practice in residential leases.
If the lessee requiring action is prepared in principle to agree to the necessary indemnity then the prospect of imminent and potentially costly legal action should be drawn to the notice of the lessee responsible for the nuisance. This could be sufficient to resolve the issue without a penny being spent. On the other hand, if the nuisance persists the matter should be referred to a solicitor whose first task would be to draw up the necessary indemnity documents.
However, if the complainant lessee is not prepared to indemnify the lessor then his only recourse would appear to be via the Environmental Health Department, in which case there is no reason for the lessor to become involved in that procedure.
[Submitted July 2017]