Is there a remedy under the terms of the Lease?

Lessees occupy flats under the terms of their leases. Those leases are a form of contract made between the lessee and the landlord. It is therefore only the landlord who can enforce a breach of the lease against the lessee, and only the lessee who can enforce a breach against the landlord. This principle of law is called "privity of contract", and means that a fellow lessee cannot enforce the terms of the offending lessee’s lease even though it is the fellow lessee who is suffering from nuisance, and not the landlord.

 Most leases contain a covenant upon the part of the lessee not to cause noise or other nuisance to the disturbance of other occupiers in the building. If another occupier is adversely affected by the noise/nuisance then because of the law of privity of contract, the affected occupier is unable to enforce the covenant in the lease against the offending lessee. In order to remedy this problem most leases will contain a covenant upon the part of the landlord to enforce covenants against offending lessees upon the request of other lessees provided that the complaining lessees pay the costs to the landlord of doing so and provide security for costs as required by the landlord. This covenant is enforceable against the landlord should the landlord refuse to take action, although the precise obligation of the landlord will depend upon the particular wording of the covenant.

 The remedy against the offending lessee is therefore through the landlord. An occupier who is not the lessee, for instance a subtenant, may cause a noise/nuisance. Even though the lessee does not cause the noise/nuisance, it is nevertheless a breach of covenant upon the part of the lessee and can be enforced against him. The usual route in such cases has been to bring an action for breach of covenant against the lessee of the flat, who is then forced to in turn bring an action against the subtenant, usually for eviction, in order to save his lease from forfeiture. Further detail on evicting anti- social tenants is given below.

Since the 28th of February 2005, however, a landlord who wishes to forfeit on the ground of breach of covenant, must first satisfy the Leasehold Valuation Tribunal, or a court, that a breach exists, before commencing a forfeiture action (section 166 of the Commonhold and Leasehold Reform Act 2002) in the County Court.

The Covenant of Quiet Enjoyment

There is an implied or express covenant in all leases upon the part of the landlord for quiet enjoyment of the flat by the tenant. However it is established law that a landlord is liable in relation to nuisance committed by another of his lessees only if he actively participates in the acts or authorises them. He is not liable simply because he knows of the acts and takes no steps to prevent them. Thus the only contractual avenue of redress open to the aggrieved lessee is to require the landlord to enforce the relevant covenants against the offending lessee.

 The problem of privity of contract as described above is addressed by the Commonhold and Leasehold Reform Act 2002 which introduced a new form of legal tenure called Commonhold under which members of the commonhold association are able to enforce rights and duties against each other. It is possible to convert to Commonhold provided that all lessees agree. The subject of Commonhold, however, is complex and so far untried.

  What if the noise/nuisance is caused by the tenant of the lessee?

Sometimes the culprit of noise or nuisance is not the lessee but tenants in the premises that he has let the property to, usually under the terms of an assured shorthold property. It is of course first worth checking the terms of the lease to see whether the lessee can sublet the premises without consent. If he has done so, then this may be sufficient to constitute a breach of the terms of the lease and the managing agents should then write to the lessee to advise him of the fact and invite him to take steps to remedy the situation. It may also be breach of the implied covenant of quiet enjoyment as described above.

If the lessee is aware of the problem with his tenants but not sure how to evict them, then it is a good idea for the managing agent to be able to give some basic legal advice to assist with the problem and then point the lessee in the direction of a good lawyer. There are two methods for the lessee to obtain possession of his flat. The lessee must first serve the tenant with a notice under S21 or S8 of the Housing Act 1988. Under the S21 procedure, the notice period is two months and no proof of breach of the tenancy agreement is required. At the end of the two-month notice, if the tenant still has not vacated the premises, then the landlord can apply to the court for a possession order. The court will grant an outright possession order if the landlord has followed the correct procedure and all the paperwork is in order.

The lessee can also take possession proceedings, against an assured or assured shorthold tenant, under Ground 12 of the Housing Act 1988 on the basis that there has been a breach of a term of the tenancy or under Ground 14 on the basis of anti-social behaviour. Ground 14 is available where the tenant, or any other person residing in or visiting the tenant, causes nuisance or annoyance or have been convicted of using the premises for immoral or illegal purposes. Under this procedure, the anti-social behaviour of the tenant must be proved and it must also be reasonable for the court to make a possession order. Possession proceedings brought under ground 12 or 14 case can be long and expensive for the lessee and if his primary concern is to evict the troublesome tenant, then the S21 procedure may be the preferred method. However the lessee should always obtain legal advice first.

What about a Claim in Nuisance?

Nuisance occurs where a landowner uses his land in a way which unreasonably interferes with the land or another. This will usually be an adjoining neighbour but does not need to be. The Claimant bringing the action must have a propriety interest in the land and therefore the action can be brought by a freeholder or leaseholder. A lessee affected by continuous loud music from a neighbour could sue in the tort of nuisance and seek an injunction within the proceedings.

 However it needs to be remembered that taking legal action in a case in nuisance can be very expensive and time consuming and could result in an escalation of problems between neighbours. It is therefore worth the managing agent considering whether an outside agent, such as the local authority or the police, could take action to abate the nuisance complained of.

Can the Local Authority assist?

If the problem is noise, then it is possible to complain to the Local Authority’s Enviromental Health Department who have a duty to investigate complaints from residential premises. Under Sections 80 and 81 of the Enviromental Protection Act (as amended by the Noise and Statutory Nuisance Act 1993) local authorities have a duty to deal with any noise which they consider to be a statutory nuisance. The local authority will send an officer to the premises to investigate and if the officer believes that the noise amounts to a statutory nuisance, then he must serve an abatement notice on the perpetrator.

The abatement notice will set out what action the neighbour must take to abate the nuisance. The notice will also specify the times or times within which the requirements are to be complied with. If, for example, the problem complained of is loud music, then the person may be asked to stop playing loud music at all or only between set times and not late at night. The local authority is also empowered to confiscate machinary or equipment, eg music equipment, which is causing a statutory nuisance. The writer has been involved in a case where this power was successfully used by a local authority against a well known rock star who was disturbing his neighbours by playing loud music at all times of the day and night.

If a recipient of an abatement notice contravenes or fails to comply with any requirement contained in the notice, without reasonable excuse, he or she will commit a criminal offence and summary proceedings can then be issued in the Magistrates Court. The maximum penatly for non-compliance with the abatement order is £5000 for domestic premises.

The Clean Neighbourhoods and Enviroment Act 2005 also gives the local authority, in certain circumstances, powers to deal with the clearance of litter and refuse, take action against dog owners who do not keep their dogs under control and enter premises where a burglarer alarm has been ringing for a long time.

Anti-Social Behaviour

In serious cases of nuisance and anti-social behaviour, the Crime and Disorder Act 1988 allows the local authority and police to seek an Anti-Social Behaviour Order (ASBO) against any resident who has acted in a manner that has caused, or was likely to cause, harassment, alarm or distress to others. Anti-social behaviour can cover a wide range of conduct and can include loud parties, playing loud music or banging and shouting. The nuisance or annoyance complained of need not be intentional but must be more than an isolated incident and will often have occurred over a long period of time.

Applications for ASBOs will usually be made by the relevant authority to the Magistrates Court and will prevent the Defendant from carrying out certain acts for a prescribed period of time. Orders will last for a minimum of two years. A Magistrates Court in Cardiff has recently made an ASBO against a DIY fanatic. The Magistrates banned him from using power tools for a six-year period after his neighbours complained that he was banging and hammering continuously during anti-social hours.

Practical matters for agents

In the first instance, the managing agent needs to carefully check the terms of the lease and see whether the nuisance complained of is a breach of the express or implied terms of the lease. If so, then the managing agent needs to bring the breach to the lessee’s attention and ask him to remedy the breach and abate the nuisance within a specified period of time. If this does not result in a satisfactory outcome, then it will be necessary to follow this up with a second letter threatening legal action. If unfortunately the noise or nuisance still does not abate, then the managing agent may need to instruct solicitors to make an application to the Leasehold Valuation Tribunal for a declaration that a breach exists before starting forfeiture proceedings in the County Court.

The managing agent also needs to carefully consider the issue of evidence, should the matter go to court, and ask the lessees affected by the nuisance to keep detailed diary notes. It may also be necessary to take photographs, noise readings or recording. The managing agent should also consider whether other agencies, such as the police or the local authority, can assist with the problem of noise or nuisance.

Alan Edwards is Partner and Tilly Rubens assistant solicitor at Alan Edwards and Co Solicitors

Telephone: 020 7221 7644

Fax: 020 7243 1076

www. aedwardssolicitors.co.uk