Noise Nuisance

Briefly: noisy neighbours due to likely breach of lease by installation of hard flooring.  Block of 6 flats, mine is one of the middle ones, noisy neighbours are above me.  Tried contacting them, but they ignored all attempts, so I contacted freeholder/management agents (FMA) who spoke to neighbours and reported back to me that they had said there was no noise.  FMA told me to contact Council, which I did – and subsequently filled in noise diary and returned it.  FMA refused to respond to request regarding whether they had given permission for renovations (noise was prolonged DIY noise and then impact noise from daily living on hard flooring).  Neighbours told me today they have carpets everywhere, then became aggressive and threatening as they felt I should have contacted them before contacting anyone else – they ignored the fact I had tried for months whilst they studiously ignored my knocking on their door! 

Questions:

1.Can the FMA reasonably refuse me an answer to the question as to whether they sanctioned the renovations?  My understanding is that if they did give permission, then they are also liable for the resulting noise nuisance arising out of that – is this so? They claim landlord/leaseholder confidentiality as reason for not responding to the request, but I don't need detail, just a yes/no on whether they agreed to it.
2.Is it necessary for the freeholder to establish as fact the neighbour's claim that the flat is carpeted? 
3.I believe there to be a clause in the lease prohibiting hard flooring, but have no proof of this as my lease copy is from the people I purchased the property from – and I believe the actual lease changed, but the freeholder/management agents have failed to respond to my requests for a copy of it.  Whether the clause exists or not, the noise nuisance does, so can you advise me either way what it is I need to do in order to stop, or at the very least, force these people to lessen their noise?
4.What level of noise nuisance needs to be established (and how, e.g. will they need to put recording equipment into my home?) for the Council to take action?  I have tried to contact them today regarding the noise diary I sent them as requested several weeks ago, but have yet to hear from them. 

The situation has lots more detail, but I have attempted to keep it as brief as possible to the areas I require assistance with. 

I would appreciate any relevant statutes/case law to be included if any is relevant/necessary to respond (I'm a BPTC student and am kicking myself for not having taking the housing law module during my LLB!).

Your assistance with this horrid problem will be much appreciated.  Thank you.

Just to add...

...this is a genuine real issue.  On re-reading it, I realised it might look like I was looking for assistance with some form of coursework (I'm not).

Thanks again.

 

 

Profile: Independent (self-employed) legal professional: 25+ year work history incl. 10 years in child protection - seven years legal experience in non-molestation/occupation orders; housing law (tenant/landlord); mortgages; possession hearings and family proceedings. Advice is provided for the purpose of answering the questions posed, based on the information given.

Blueview..... I think you

Blueview.....

I think you have three options;

1. There will be a covenant in your lease, probably express certainly implied if not, between the free holder and yourself for quiet enjoyment. Regardless of the rights or wrongs of the decisions not to provide you with information you can bring a claim against your freeholder to enforce that covenant. The management company then has to enforce the terms of its agreement with the leaseholders causing your problems.

2.Get your local council involved ,as you have. They wield the greatest power and are the most used to bringing actions in cases of noise pollution. Unfortunately they often do not get involved with cases where the noise is caused by general domestic activity or lack of soundproofing. This might be the case here.

3. If you do not get satisfaction from the council you have the right to bring an action in the Magistrates court yourself under the Enviromental Protection Act 1990 (s82)

There is no simple answer and no hard and fast level of noise which constitutes a nuisance.It would be for you to show that the level of noise would be considered unreasonable by ordinary members of the public.

There are a number of websites which offer practical advice , I often refer to the Lambeth council website which guides you through your various options

Richard Paremain

Profile: Personal injury specialist solicitor with Sarginsons Law LLP. I have more than 20 years experience involving both minor injury and cases with injury of the utmost severity. This has ranged from the Zeebrugge Ferry Disaster to a pavement trip for a Mrs Gready.I have a special interest in compensation for the Victims of Crime through the Criminal Injuries scheme. 02476521081 rparemain@s-law.co.uk

Thank you...

...so much for the response.

1. Yes, this is what I thought re peaceful and quiet enjoyment, hence asking them to confirm or deny the permission required for renovations (the permission required for renovations is also detailed in the lease).   They have actually not been particularly helpful on this issue at all, in fact, they at times appear to be deliberately obstructive. 

2. The Council are sympathetic, and are more than willing to come out and listen to the noise themselves if I phone when it's happening - but it's not as if the noise happens for specified periods, so doing that would be quite difficult.  I spoke to them today and requested a referral for mediation.  I want to be able to show the court if I take action under s82 that I tried everything reasonable to resolve the issue.  The Council Officer told me to report the threats made yesterday to the police, so they have a record in case something happens, but I don't think they reach the standard required for the police to be interested in recording them.  I agree that the noise issue is probably due to lack of soundproofing - some rugs might assist, which is what I would suggest in mediation (if the neighbours agree to it and turn up!).

I have done masses of research around this area, but just wanted clarification on the points I asked about - so your help has been much appreciated. 

I have written to the FMA informing them of yesterday's threats, and am awaiting their response.  I think my next step is to wait for the mediation to take place (or not) and continue to keep a noise diary.  If the mediation doesn't take place then I think I will have no option but to go for s82 action.

Finally, is it possible for me to issue a claim myself for enforcement of the covenant, or do I need to instruct a solicitor?  I am more than capable of filling in claim forms, but tend to deal directly with set asides, TDS claims and the like.  Which form would I need?

Thank you so much for your time and knowledge.  Once again, it is very much appreciated.

 

 

Profile: Independent (self-employed) legal professional: 25+ year work history incl. 10 years in child protection - seven years legal experience in non-molestation/occupation orders; housing law (tenant/landlord); mortgages; possession hearings and family proceedings. Advice is provided for the purpose of answering the questions posed, based on the information given.

I believe the starting point

I believe the starting point here is the lease by which you own the property.

I will therefore deal with question 3 first.

I cannot unerstand why you do not have a copy of the lease. You must surely have employed a solicitor when you purchased and he would have a copy.

The lease sets out the conditions on which your property is occupied. Almost certainly there will be an identical lease covering the flat upstairs. It may even be possible to obtain a copy of that lease from the land registry.

The lease will contain covenants by the owners not to cause nuisance. Sometimes such leases will contain covenants requiring all floors except the kitchen and bathroom to be carpeted.

Most leases also contain a covenant by the landlord to take action against other owners who breach their covenants provided the landlord's costs are paid.

The lease will contain a covenant by the landlord that you will have quiet and peaceful possession.

When I talk about the landlord I mean the freeholder and/or the management company.

You do therefore need to get hold of a copy of your lease.

On this basis therefore you could require the management company to take action against the upstairs owners if you can show they are in breach of covenant. If the management company refuse to take action then you could sue them under the quiet enjoyment clause. This would also be the case if the management company had allowed alterations which resulted in the loss of your quiet enjoyment.

I do not think you can force the management to tell you if they have consented to alterations unless you are a shareholder in that company. Sometimes these arrangements are set up in this way. If so let me know and I will tell you how you can try to force a company meeting.

As for question 2, I do believe that if you proceed on the possible breach of covenant as to floor covering you would need to prove your case on the balance of probabilities. The owner of the flat above would be under no obligation to let you in to inspect. You would need a court order and by that time costs would be enormous.

As to question 4, the local authourity can establish if there is a Statutory Nuisance. If so this would result in proceedings against the upstairs tenants in the magistrates courts. The Environmental Health Officer decides this question by taking scientific measurements and then applying his own judgement taking into account the nature, the time of day and the duration of any nuisance

The Permitted Level Of Noise (England) Directions 2008 gives some guidance on the decibel levels permitted at least during night-time hours.

If the local authority do not take action you can bring proceeding youself under Section 82 of the Environmental Protection Act 1990.

If Statutory Nuisance was established the management company would have to take action under the terms of the lease as set out above.

At this stage I would continue with a complaint to the lacal authority and at the same time threaten the management company with action but only after you have obtained a copy of the lease to enable you to quote the relevant covenants.

Profile: I joined Sarginsons from university as an articled clerk in 1970. I am now the managing partner and have wide experience in all aspects of the law normally dealt with in private practice. I believe that a modern high street practice must adapt to the hefty demands of clients and deliver it's services according to the clients wishes.

Ian, I purchased the property

Ian, I purchased the property 18 years ago - I believe I did have a copy of the lease, but for some reason it was not with all the other paperwork I have relating to the purchase (which is everything bar the lease!) - as I indicated, I have a copy of the lease from the people I purchased from (Land Registry copy), and it does NOT include the clause that I believe my own lease does in relation to carpets.  The FMA, as indicated in my original post, have not responded to my requests for a copy of the lease.  I have made repeated requests and am awaiting a response to my last request/complaint.  I doubt whether my then solicitor has retained my paperwork in his office since it was 18 years ago, but I can ask.  My concern is that the people above me have the original lease, which does not contain a carpeting clause.

I'm not a shareholder.

I have already seen the renovations in the flat above when they were first carried out years ago - internal walls in two places were removed, one of which resulted in the plastering on my wall below it cracking, presumably with the additional weight...the FMA came to look, but did nothing at that time.  The flooring at that time was tiling (ceramic) in the hallway (the family did not live in the flat for a while and that is probably why there was no noise nuisance apart from constant DIY) - which THIS summer was removed and, I believe, some other form of hard flooring placed.  The occupants claim the property is fully carpeted, but this is obviously not the case as can be evidenced whenever they drop something, walk, or scrape furniture across the floors.

With regards to the Council - they appear to want a person to hear the noise - is this the usual method prior to using equipment to monitor?  I will continue using the Council process and, as I stated in my previous response, I have asked for a mediation meeting to be set up.  I don't particularly want to have to sue anyone, as I'd rather just be able to live my life in peace.  But I am prepared to sue if I can't get that peace by other methods.

I will give the FMA another few days to respond to my request for the copy of the lease, and thereafter will threaten them with action - I may have another search in my paperwork as I may have moved the lease to another file previously.

Thank you both kindly for your responses.  I may be back to ask further questions! 

Profile: Independent (self-employed) legal professional: 25+ year work history incl. 10 years in child protection - seven years legal experience in non-molestation/occupation orders; housing law (tenant/landlord); mortgages; possession hearings and family proceedings. Advice is provided for the purpose of answering the questions posed, based on the information given.

Brief Update...

...I bumped into my neighbour the other day and he apologised for his rudeness previously and stated that they had tried to be quieter and had I noticed.  I had noticed; they're still noisier than they should be due to the fact that they don't have carpeting when they should have, but they have clearly tried not to drag their furniture across the floor as much as they used to.

I call this a result - though he still insists that the authorities had no interest in the matter!  I pointed out to him that the ball had been in my court, hence no further action - whereas he was under the misapprehension that he could make noise from 8 am to 8 pm (I disabused him of that belief!).

Anyway, hopefully the issue is resolved, and if not, at least I should be able to speak to them directly without them mouthing off again.

Thank you all again for your help...I now have a new question which I shall be posting shortly!

Profile: Independent (self-employed) legal professional: 25+ year work history incl. 10 years in child protection - seven years legal experience in non-molestation/occupation orders; housing law (tenant/landlord); mortgages; possession hearings and family proceedings. Advice is provided for the purpose of answering the questions posed, based on the information given.

Who's online

There are currently 0 users and 17 guests online.
sarginsons law link

User login

Navigation

twitter link facebook link
netlawman link