How not to deal with Nuisance!
25th May 2023
25th May 2023
Most leases and tenancy agreements contain covenants prohibiting leaseholders and tenants from causing a nuisance to neighbouring properties such as a noise disturbances. If a landlord is faced with mounting complaints in relation to a noisy leaseholder or tenant how should they proceed?
The London Borough of Lambeth (“Lambeth”) was faced with such a dilemma in LB Lambeth -v- Fanfair (2023) which concerned a noise disturbance from a flat within a converted house. This case was originally reported by Giles Peaker of Nearly Legal and so we thank him for bringing it to our attention. Whilst this case related to a local authority housing tenancy the points raised within it relating to nuisance are equally relevant for those dealing with private tenancies and long lease property
The legal framework
As the property was rented by the local authority, proceedings for an anti-social behaviour injunction in relation to the nuisance were available and brought under Section 1 of the Anti-social Behaviour, Crime and Policing Act 2014 (“ASBCP”), legislation which is not available to private landlords who are seeking a remedy for a nuisance breach. However, the case is still relevant to landlords of privately rented properties or leasehold properties as the same principles apply in terms of what amounts to a nuisance and the importance of the correct evidence in support of the claim.
The provisions of ASBCP are, as will be seen below, very similar to the sort of covenants found in most private tenancies and leases in relation to nuisance.
Part 1 Section 2(1)(b) ASBCP defines anti-social behaviour as:
“conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises”
This definition is, of course, very similar to most nuisance covenants in leases and tenancy agreements. A breach of such a nuisance covenant could give rise to injunction proceedings (see here), or a claim for possession under Ground 12 of Schedule 2 to the Housing Act 1988 (breach of tenancy) in relation to assured or assured shorthold tenancies or, in respect of long leasehold property, a determination under Section168 Commonhold and Leasehold Reform Act 2002 (as a precursor to forfeiture of the lease).
The definition is also similar to the wording under Ground 14 of Schedule 2 to Housing Act 1988, as below:
“The tenant or a person residing in or visiting the dwelling-house—
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality”,
Therefore, action which may be sufficient for the granting of an injunction under Section 1 of ASBCP may also be sufficient grounds for possession as against an assured or assured shorthold tenant under Ground 14.
Accordingly, the facts in the recent case of LB Lambeth -v- Fanfair are equally relevant to private sector landlords, RMCs and RTM companies considering claims for nuisance.
In March 2022, Lambeth applied for an Anti-social Behaviour Injunction under Section 1 of ASBCP (ASBI) against Ms Fanfair, as they had received a significant number of complaints from the neighbour in the flat above regarding the noise coming from her flat. The complaints were of unreasonably loud music and shouting.
The evidence disclosed by Lambeth was of no value as it consisted of three video clips in which barely anything could be heard. Nevertheless, the Court granted Lambeth an interim ASBI.
Ms Fanfair filed witness evidence in her defence asserting that the noise from her flat was just every-day noise and the only reason why the neighbour could hear her was due to the substandard sound insulation in the building. Two of Ms Fanfair’s neighbours, who lived either side of her, also provided witness evidence in support of her defence. One of these witnesses provided a note in which they complained about the sound of snoring in order to illustrate the point that every-day noises were being carried between the flats.
Ms Fanfair and the complainant neighbour had previously engaged in mediation to try and resolve the noise disturbance issue. This mediation led to an acceptance that sound insulation was required to remedy the problem of sound carrying between the flats. However, that work could only be undertaken with access to the complainant neighbour’s property but, because the neighbour had refused access, the insulation was never installed.
The case was adjourned to allow Lambeth time to disclose further audio and video evidence to support their claim and to allow for their noise production team to examine the levels of sound transmission between the flats. Lambeth failed to comply with this direction by the next hearing and so the Court discharged the interim ASBI and ordered Lambeth to carry out tests to examine the sound insulation. Lambeth, again, failed to comply. Eventually, Lambeth provided an expert’s report that confirmed that the flat was affected by poor sound insulation which could result in the complainant being disturbed by every-day noise.
The final hearing took place in February 2023. Lambeth was not in attendance and failed to provide a reason for their absence. In light of the expert’s findings, the judge found that the test for summary judgment was met as Lambeth had no real prospect of succeeding in the claim, thereby dismissing Lambeth’s ASBI application and awarding Ms Fanfair her costs.
A landlord, RMC or RTM company who is faced with complaints of nuisance under a lease or tenancy agreement due to a noisy neighbour should consider the following before making any application (where applicable) for an injunction, a possession order or a determination of a breach of lease :
There is an absolute need to fully assess whether the complaints are about matters that actually constitute a nuisance under the terms of the tenancy or lease and the general position in relation to the issues about which the complaints are made (in this case, that is, the poor sound proofing in the block).
Every day noises are unlikely to constitute to a nuisance and lack of sound insulation between the flats should not, of itself, turn ordinary noise into a nuisance. We have provided some guidance in our Legal Update from 2019 - What Constitutes a Nuisance - which is worth a read, and the Supreme Court recently re-stated the law relating to nuisance in the now infamous case relating to the Tate Modern and residents of Bankside (see here).
Following that, consider what evidence is required and whether you have enough. Ensuring that you gather relevant and enough quality evidence is also crucial to succeeding with an application. See here our Legal Update - Dealing with complaints of noise nuisance for further guidance on what steps should be taken before starting any claim in nuisance. Complaining residents should be prepared to give evidence - in the form of a written statement and also oral evidence in a hearing - for the best chance of any claim succeeding.
If the matter cannot be settled following reasonable attempts to conclude without the need for proceedings, action might be taken under advice.
Even faced with evidence of nuisance behaviour, it is not always incumbent on the landlord, RMC or RTM company to take action to enforce the covenants in the lease or tenancy agreement. Therefore, consideration should be given in all the circumstances as to whether it is necessary and/or appropriate for legal action to be taken (and, therefore, costs incurred), particularly (in the case of long-leases) in the absence of any costs indemnity for that action being given by the complaining resident(s).
The Claimant in this case also exacerbated the situation by failing to comply with court orders thereby delaying the proceedings and ultimately failing entirely and increasing the costs’ order made against them.
Getting it wrong by rushing ahead ill-prepared, and in the absence of simple due diligence and evidence gathering, will likely prove problematic (and costly), as Lambeth found in this case.
If you require advice on any breaches of covenants or complaints suggesting the same, then do seek competent legal advice on the points above. We are experienced in such matters and happy to assist so please feel free to contact us at email@example.com or on 01435 897297.
This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above. The Legal Update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.
If you have received this update in error or wish to unsubscribe from future updates then please email us at firstname.lastname@example.org.
Sign up to receive FREE regular Legal Updates by email