Q&A - Noise Disturbance

Is the landlord legally obliged to have installed a proper underlay? Or is it the tenants responsibility to be concious of the lack of sound insulation between the dwellings when going about their day-to-day business?

We've already taken the issue up with the building's management agency, but don't seem to be getting anywhere. The landlord of the flat above us claims he doesn't want to install nice carpet as "the tenants will ruin it".

RESPONSE

Thank you for your question, which is a very interesting one.  Primarily, my advice would be to seek proper advice from an experienced landlord and tenant solicitor who in turn would need to see both the lease of your flat, and the lease of the flat above you. 

Without sight of those documents, in order to respond, I have to make a number of assumptions about your situation.  These are:

i.            When you say you are a ‘tenant’ you mean that you are the long leaseholder of the flat as opposed to a tenant paying a monthly rent.

ii.            There is also a lease in similar terms to yours granted in respect of the flat above you, and that this belongs also to the freeholder or an associated person.

iii.            When you say that the ‘landlord’ renovated the upstairs flat, you mean that the freeholder of the block developed it as opposed to just the owner of the leasehold interest.

On these assumptions, whether the owner of the upstairs flat was obliged to lay proper underlay will usually be determined by the lease.

Long residential leases normally contain a simple covenant on the part of the tenant to comply with various regulations as to the use and occupation of the flat.  Often those regulations are contained in one of the schedules towards the end of the lease.

If the lease takes a fairly typical form, I would expect to see a covenant or regulation requiring the owner of the flat to keep the floors of the flat (with the exception of the kitchen and bathroom) covered with good quality carpet and underlay.

If this is the case, you then need to check your own lease to see whether it contains a ‘mutual enforceability covenant’.  This is a provision which allows a leaseholder to take legal action directly against another leaseholder for breach of covenant.  In that case, you can require the owner of the upstairs flat to comply with any requirements as to carpeting by seeking an injunction in the county court.

If you do not have a mutual enforceability covenant, you may have a covenant on the part of your freeholder to enforce the terms of the other leases in the building on your behalf on the condition that you pay the freeholder’s costs.  Often you will also need a barrister’s opinion confirming that the case would have good prospects.

This option may, in practice, prove problematical if the freeholder and the leasehold owner of the flat are effectively the same person.  In that case you might bring proceedings trying to argue that the freeholder’s failure to comply with the terms of that lease are a breach of your covenant for quiet enjoyment, but such proceedings would be complicated and probably quite expensive to run.

In the absence of any satisfactory provisions in the leases, or in the absence of there being any lease on the upstairs flat at all, then you will be able to bring proceedings directly in nuisance.

Your first port of call should be to check the planning and building regulations position in respect of the renovation.  It can sometimes be the case that flats need to be properly soundproofed in order to get buildings regulations although this is more common with new builds.

If that provides no answer, you should contact the Environmental Health department of your local council and report a noise disturbance.  They should arrange to send an Environmental Health officer to monitor the noise levels and, if they exceed the statutory limits, they have powers to enforce the legislation directly against the tenants and/or the owner of the flat.

You should also keep a detailed noise diary logging the dates and times when the noise is particularly bad.  This is because you can bring proceedings for damages directly against the tenants of the flat for nuisance and to do this you will need evidence of the nuisance.

These are the main ways in which we deal with noise disturbance cases in leasehold flats.  If there are no helpful provisions in the lease, and the Environmental Health team do not consider the noise amounts to a statutory nuisance, then there is generally no obligation on your landlord to make improvements to the building to abate the noise nuisance and you may only have a claim in nuisance against the actual tenants of the flat.

This advice is given without sight of the necessary documents and without any retainer having been entered into with our firm.  Accordingly, we accept no liability to any reader for the matters referred to in it and you should always seek bespoke professional advice before commencing any legal proceedings.

Paul Barnes, ODT Solicitors LLP