Noise from other leaseholders - Is it worth suing?

The first thing, of course, is to have a look at your lease and to see whether the conduct about which you are complaining is prohibited by the lease. If it is then you have a good starting point. If it is not then all is not lost because there are common law remedies for nuisance but there are different considerations to apply.

Before embarking on any litigation today you have to consider the issue of legal costs and the cost of bringing proceedings is often the biggest deterrent to remedying unneighbourly conduct by other leaseholders. Legal Aid has been drastically restricted and, as a broad proposition, it is unlikely that many of the readers of this magazine would end up qualifying for Legal Aid to bring any proceedings at all. That means putting your hand in your own pocket to pay the costs of a solicitor unless you want to represent yourself - something that is rarely to be advised. In terms of recovering your costs the Court will look at the way that you have conducted yourself in litigation and indeed before it. Have you acted in a reasonable way? Have you done everything possible to bring this matter to an end without litigation? If the Court thinks that you have not done so, refused a reasonable request for mediation or conciliation (as one example), then there may be some reduction or even possible elimination of the costs that you have incurred. However it is better not to be too negative in these matters or else you will end up helpless. If you have acted in a reasonable way and have tried to settle your dispute with your neighbour and failed and have followed through and have continued to follow through any opportunities for negotiating a settlement then you should not have too much to worry about when the matter comes to the Court. Sometimes lawyers can help you on the costs by agreeing to work on a no-win no-fee basis and there is also the possibility of covering yourself for the costs of litigation by taking out legal costs insurance. Legal costs insurance can be taken out as an annual policy or you can obtain it after a dispute has occurred although the premiums can be high. A good insurance broker or your solicitor should be able to guide you to these possibilities and see if either of them can help you in funding your Court case.

It is instructive to have a look at a real-life example and one recent neighbourly dispute that reached the Courts concerned a very upmarket block in Kensington. The High Court considered the dispute concerning noisy neighbours in July 2002. Many of you reading this article may identify with poor Mr Stannard who had lived in his flat since 1971. However for the last ten years he has suffered a particular nuisance from noise invasion. The terms of the lease in the block had a fairly stringent requirement that there had to be floor coverings, carpeting and the like, to minimise noise transmission in each flat. Although for technical reasons Mr Stannard could not take full advantage of the terms of the standard lease the provision was material background and in any event Mr Stannard brought his action as one of nuisance where he did not have to rely upon the lease. The installation of a marble floor in the flat above gave rise to so much disturbance that Mr Stannard and his family had difficulty sleeping. They could hear hoovering and moving around during the day and because the family above them kept different hours, sometimes coming home in the small hours of the morning with friends and guests, the annoyance was made worse. Even chairs scraping on the floor in the kitchen came through to the Stannards’ flat. One of the fundamental problems that caused this difficulty which is not wholly uncommon is a failure in stacking arrangements so that the vertical distribution of accommodation is incompatible with the minimisation of noise invasion. In this particular case the kitchen and principal bathroom of the upper flat were directly above Mr Stannard’s drawing room. Both their kitchen and bathroom were floored with ceramic or similar tiles. Mr Stannard explained how anyone walking or running along the marble floor particularly in high heels created very audible noise in his flat. When everyone maintained carpets in position and the accommodation was vertically compatible, disturbance by noise was minimal. Where the marble floor was laid with some kind of resilient acoustic barrier the problem was again minimised. The Judge found Mr Stannard to be a highly intelligent and sensitive man who had suffered over the last ten or more years and it is interesting that he took that into account in deciding what Mr Stannard had to tolerate as reasonable. Was Mr Stannard being over-sensitive? The Judge thought not.

The case also illustrates one important feature in this sort of litigation – the need to have an expert to give evidence on your behalf. Here Mr Stannard had enlisted the support of a noise expert who gave technical evidence. Again it was interesting to see that the Court appeared to think it possible that the standard to be met might be different for new build as opposed to conversions where the requirements might be less stringent. In this particular case it was not necessary to determine that issue finally. The expert recognised that flats in urban areas do involve the tolerance of some level of noise but he thought that the noise Mr Stannard was suffering was above the modern standards of acceptability, particularly in luxury flats.

It was important to appreciate that the expert considered that the problem could have been substantially alleviated by the specification of technically correct media works involving the laying of an acoustic barrier to separate floor coverings from the structure below and alongside. Those leaseholders thinking of doing work which could create a noise problem are therefore well advised to take expert technical advice to ensure that they do everything possible to minimise noise since if they annoy their neighbours they may have to explain themselves in Court.

The Judge made it clear that there was no absolute standard to apply and ultimately it was a question of degree where the interference with comfort or convenience constituted a nuisance. The Court had to look at all the circumstances of the particular case and the discomfort had to be substantial to any person occupying the premises irrespective of their position in life, age or state of health. The fact that teenagers might tolerate some of the noise was not an indication of the standard to be expected by an adult occupier. The Court had to apply modern-day standards and should not be regressive. The mere fact that a floor covering such as linoleum was permitted by the lease in, for example, the kitchen would not absolve the leaseholder from a claim to nuisance if it led to unacceptable noise. The Judge concluded that on any objective standard of reasonableness the noise that Mr Stannard was suffering from was unreasonable, unacceptable and constituted an actionable nuisance. In reaching tis conclusion the Judge was not interested in whether or not the neighbours who made the noise had enough money or not to carry out remedial works.

In looking for the solution the Judge made it clear that he hoped that the parties would agree a specification of works to be carried out within a reasonable time that would deal with the problem. So, what does this case tell us about modern-day living in blocks of flats? Firstly if your neighbours are driving you mad with noise you do not have to put up with it. Secondly, you must be reasonable in your approach and the Court will look at this from a reasonable standpoint objectively. Thirdly you need to get a qualified expert to back you up in your assessment of the noise problem. Finally, so as to give yourself the maximum protection with regard to the costs of such a case you need to be seen to have done everything possible to have resolved the problem before heading for the Courts.

Hopefully Mr Stannard is now sleeping peacefully at night.