Here is a question to the blog clinic from John who is a landlord
I am a landlord of converted house, there is a maisonette on the ground and first floor with single apartment on the top floor. I own both.
A new tenant moved into the apartment in September last year, she is a working professional and passed referencing with flying colours.
The tenants of the maisonette have complained repeatedly about noise from above, claiming that music is played until 4.00am and loud laughter and conversation keeps them awake every weekend.
I have spoken to the tenant of the apartment who admits that she sometimes has friends over at weekends but denies this is a frequent occurrence, she also said she would try to keep noise to a minimum.
The complaints have continued.
The tenants of the maisonette emailed me to demand the tenant is evicted and they will be withholding 8 days rent per month for each weekend they have to stay elsewhere in order to get a peaceful nights sleep.
I told them I disapproved of this and said the best solution is to have a civil conversation with the young lady, they told me that it is not their place to do this because they are not the landlord.
For the past two months they have gone ahead and not paid the full rent, they claim that the Citizens Advice Bureau told them this was justified. If they do this for a further month, they will be 2 months in arrears (because they are already in arrears).
The tenancy of the apartment is not due to expire until September this year and I have no intention of starting legal proceedings against the top floor tenant.
Are the tenants of the maisonette justified in withholding the rent and could they counterclaim against me if I serve notice for rent arrears?
Your advice would be greatly appreciated.
My view is that your tenants are not entitled to withhold rent for this.
There is no way, realistically, you can control what a tenant does once she is living in your flat, and there is a general rules which says that one person cannot be held liable for what another person does.
Your suggestion that they speak to the tenant direct is the best option – after all if the young lady was the flat owner that is what they would do. Why should they do any different just because she is a tenant?
However it is not all plain sailing.
So far as evicting your tenants are concerned (because of their failure to pay rent), you cannot use the straightforward section 21 procedure until September and if you use the mandatory rent arrears ground, no doubt your tenants will put in a defence and counterclaim.
How this goes will depend on what view the Judge takes of it at the initial hearing. I would hope that he would dismiss it, saying that they cannot deduct rent on the basis of something which is not your fault. However another Judge may decide that the matter ought to be investigated and list the case for a full hearing.
This would be very bad news for you as it will delay the claim for possession and would complicate the case and make it more expensive. It would be a good idea to have representation at the initial hearing therefore to try to avoid this happening.
I should also mention that there is a very old legal doctrine known as the rule in Rylands v. Fletcher where a land owner is held liable when something ‘escapes’ from land and causes damage.
It is usually used for things like pollution, but it is arguable that it could be used for the ‘escape’ of noise. I discuss this in this post here.
I personally don’t think this argument would (or should) be accepted by a Judge for a bit of loud music played late at night, but I thought I ought to mention it.
Has anyone else had any experience of this situation?