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?
I’ve had this situatuion and it is totally different if the Landlord owns both properties as in this case.
You need to reconsider your statement in effect about not doing anything, and be seen to do as much as you can, including if necessary serving a s8 notice on the aprtment tenant making the noise.
Ask the compainants for what Citizens Advice said in writing (from CA) if this is their reason for withholding rent.
Otherwise you can expect the maisonette tenants to walk without penalty and little chance of getting back the unpaid rent.
Meant to add if the noise really is that severe then I’d suggest involving EHO to do a HHSRS assessment though I doubt they’ll come out at 4 a.m. though having said that they do have noise abatement officers who patrol in the early hours for noisy student parties etc.
To answer your question, they may well try to counter claim but they’d have a hard job proving a nuisance if they have never done anything themselves to try and resolve the problem. Where is the detailed written log (hard to do this if they’re not at the property during weekends)? Where are their letters to the noisy neighbour? Where are their writen complaints to the Environmental Health Officer?
While I do not think you can be ultimately held responsible, as a good landlord you should take reasonable action. We have similar issues on a regular basis. This is how we deal with it.
1) Write to the tenants in the maisonette explaining they should take action themselves but that you will also write to the noisy neighbour making them aware of the complaints as their landlord. Ask for specific details to include in your letter and encourage them to keep a detailed log of events going forward. Be understanding and sympathetic of their concerns but explain that it is very important they contiue to pay rent otherwise it may result in you issuing a Section 8 notice for rent arrears and seeking posession through the courts. Confirm the level of arrears and ask for payment in 14 days.
2) Copy them in on your letter to the noisy neighbour and ask them to keep you informed if they have any further complaints.
3) If the noise continues, wrtite to them advising them to report it to the Environmental Health Officer and provide them with the address. You should write to the noisy neighbour advising them of the additional complaints and potential involvement of the local authority.
A lot of councils are pretty good with investigating noise issues. If it gets this far and was bad enough to warrant an investigation or abatment notice then this would probably be enough to make the other resident stop in this situation.
I wouldn’t let any of this stop you serving them with a section 8 notice for arrears if/when applicable. It’s amazing how a Section 8 notice can focus a tenant’s mind.
Just make sure you keep copies of all your letters to waive in front of the judge to demonstrate you had taken reasonable action.
I have unfortunately had this situation several times and it is one in which no one wins, least of all the landlord who is in the middle of a dispute of others.
It seems as if the downstairs tenants have decided that there is only one solution to this problem and that is eviction asap if not before. John should explain to them that he will need a full statement of dates times and events and the duration of each if he is to consider an eviction that will absolute rather than suspended. If as seems likely they just want her out and don’t want to be bothered with anything practical like statements and absolute facts then they will have to be advised that it will not be possible to evict her at all and they will need to be formally warned that they are in breach but part withholding of their rent.
On a practical level the downstairs tenants can be advised that the police will usually come out for a night noise nuisance and if noise is excessive will ask the person to turn it down/or off. In addition some Council’s have night noise teams, particularly in student areas who can disturb indigenous local families with children
John has not said what further contact if any he has had with the other tenant to find if there has in her view been any further incidents. If the downstairs tenant will agree then the landlord might attempt a three way meeting to come to a resolution. In any circumstances it seems that one or both tenant will leave and there will be rent outstanding.
Yes; you need to make more effort to emapthise with their complaint. Involve the EHOs and offer to even be there when matters are discussed, noice levels recorded etc. It might be good to hear things for yourself. A nice chat doesn’t guarantee any kind of success does it, and you need to do more. Try mediating for the parties concerned – once you have some evidence of your own to go on. It comes with being a landlord sometimes.
Landlords should become mediators in neighbour disputes?
What’s next, droit du seigneur?
(They aren’t really “Landlords” anymore you know, it is just a commonly accepted term that everyone understands.)
If they are not Landlords then why is the word sprinkled throughout various modern Statutes – repeatedly
I can’t see the landlord being liable – Rylands v Fletcher is a strict liability for the escape of dangerous substances from land (and an ‘unnatural use’). The case law is strongly against landlord’s liability for a tenant’s nuisance.
If the CAB really did advise withholding rent, that would be worrying! There is no basis for that at all.
I agree with those suggesting that it would be as well for the landlord to engage, to at least been seen to have tried to address the issue. There is no clear legal responsibility, but it would at least avoid any suggestion of adopting or permitting the nuisance.
But yes, the Council EHO/noise abatement team is the affronted tenants’ route.
Let’s look at this anther way….
The landlord is on control of the building, clearly the floor/ceiling design between the two flats is not stopping a noise problem.
Is the sound proofing up to current building regulation standards?
If not, could this make the landlord responsible?
Ian,
Even if that was the case – inadequate sound insulation – it would not make the landlord legally responsible.
Thank you to everyone for your comments.
My understanding is that there are VERY few circumstances where a landlord can be held legally liable for things done by a tenant. Maybe if a landlord deliberately rented a property to known troublemakers specifically so as to annoy the neighbours …
But in this case the landlord says the young lady passed referencing with flying colours.
Anyway one person CANNOT be legally liable for the acts of another person, over whom they have no control. That would be unjust and unfair.
In the past I understand that husbands used to be legally liable in some respects for their wives (as chattels) but that went long ago. There is vicarious liability for employees – but not for tenants!
If the young lady really is causing all this noise, then it is up to the neighbours to deal with her direct – as people have suggested, by keeping proper records and contacting the local authority.
However I wonder whether she really IS that noisy – maybe this is just an excuse for the downstairs tenants to withhold the rent. Or maybe they have unreasonable standards – you have to have a bit of give and take when living in flats, or terraced houses for that matter.
“What’s next, droit du seigneur?”
:)
there is the case of Octavia v Brumby where a landlord was held responsible for nuisances caused in the communal areas. of course that will not help the tenants here so I agree with Tessa and Giles.