Here is a question to the blog clinic from Angela (not her real name) who is a tenant.
I am a tenant and I rent a flat with my boyfriend, we have lived there for two years and we both have full time jobs. Our landlord owns the flat above ours too and has moved in some nightmare neighbours.
We never heard a peep from our old neighbour but the new couple who have moved in are rude, selfish and have no consideration for others.
They seem to have a party every night with several people visiting at all hours. We cannot sleep and this is affecting our jobs because we go in tired every day.
We have told our landlord, he said he would talk to them but nothing has changed. My boyfriend tried to speak to the neighbour (the woman), she said that she would try and keep the noise down, we have placed notes under their door pleading for them to be quiet. No change.
Our landlord says that there is nothing he can do and it is a matter between us and the flat above.
One night, after banging on their door at 3.30am one of the men walked into the corridor and exposed himself to me. I reported it to the police but the person was not the tenant so it hasn’t changed the situation.
Since then we have been on the receiving end of some childish pranks such as condoms pinned to our door and pornographic material placed in our postbox. Phantom knocking on our door happens on a regular basis.
They are making our life a misery, me and my boyfriend would like to move but we cannot afford it.
Our landlord has done absolutely nothing and does not seem to care and has now told us that the flat above have complained about us! They claim that we are hounding them and making false accusations against them and their friends. We did put an exasperated note under their door which contained a swear word because we were so angry, they are using this against us.
We are at our wits end, is there is anything we can make our landlord do? We have thought about not paying rent in the hope that this will make him take notice but are worried that this may affect us getting another place to live.
Please help we are desperate and miserable.
We have discussed this situation elsewhere on the blog and I suggest that you read the post on landlords being liable to neighbours for tenants from hell.
The short answer is that although there are technical arguments, practically there is not much you can do about it – so far as your landlord is concerned. He is not the one causing the problem, it is the other tenants.
So long as your landlord did not deliberately install the tenants so as to annoy you (and that is unlikely) he can’t really be held liable if they turn out to be unsatisfactory.
Even if your landlord were willing to help, there is not much he can do during the fixed term of the tenancy. If he were to bring a claim to evict them on anti social behaviour grounds, for example, it would take many months, would be extremely expensive and he may lose the case (they would probably claim, as you say, that you are harassing them). Why should he do this?
He may be willing, as you are long term tenants, to terminate their tenancy at the end of their fixed term and ask them to go then. Particularly if they are unsatisfactory in other respects (they don’t sound like very nice people). But he does not have to.
Basically this is a situation where two sets of neighbours are unable to get on. It is not a landlord & tenant problem, save that it is easier for you to up sticks and move somewhere else than it would be if you owned your flat.
Do any readers have any suggestions?
This might be a problem in which your local authority can intervene.
If the noise is regular and in particular amplified, and can be recorded then the local Environmental Health department might be willing to install recording equipment for the purposes of evidence. If the noise exceeds a certain level then the Council may be prepared to issue a notice to the other tenants under the Environmental Protection Act. Non amplified noise is more difficult to deal with. In the most serious cases hi fi equipment may be seized.
In addition the local council Anti Social Behaviour team may be able to intervene.
I concur with Tessa’s view that in essence this is not a landlord tenant law matter.
The landlord really could do something if he cared enough about keeping his good tenants of 2 years. He needs to ask for their evidence (c/o of the council) and then, based on this evidence, pursue the flat upstairs for eviction. Threatening it might vene be enough, but of course that comes with great risk for the flat downstairs. Sadly many landlords are not interested in the dirty work, and many wd even get rid of the good tenants first if it came to it.
See some comments on G+ https://plus.google.com/+TessaShepperson/posts/d8TQrjnhnWj
Only just seen this been away.
I completely disagree Tessa. If the flat above was owned by a different Landlord I would agree, but if he howns the flat above then he should be involved in sorting this if the accusations against the tenants upstairs are true.
Are the tenants acting in a tenant like manner – no they are not. Supposing Angela was renting from a different Landlord – do you think this current Landlord would still be immune?
Landlord should definitely be investigating and doing more than just saying it’s not his problem. Of course he’ll say that, he needs to be educated otherwise. I would suggest a tame solicitor to write a letter to him for you.
IO
Unfortunately there is a difference between what the landlord ‘could” do as a general act as a helpful landlord and ‘must’ do under tenancy law. Under the latter unless there is a particular clause in the contract that the landlord MUST take certain action where one tenant complains about another. The facts stated here do not imply that the landlord has installed the tenant upstairs in order to disrupt the peace and comfort of the complainant.
If the later situation were the case then as has been mentioned on many other questions the landlord may be liable under Protection from Eviction Act.
Not a hope in hell of a landlord being able to evict on the above grounds.
Just saying…
Colin
I know not where you are coming from with this but any half decent agreement will have plenty of clauses in it about how the tenant needs to behave.
These upstairs neighbours from hell are tenants of the same Landlord. They can easily take action, and legally, if they choose to. Unfortunately like so many unmanaged landlords they evidently choose not to and to pass the buck back to the tenants when it is clear Landlord obligation to ensure their tenants do not breach quiet enjoyment for other occupiers – never mind other tenants of the same Landlord.
If only half of what Angela says is true would you want these people living in one of your properties? Or would you get rid of them and keep Angela?
Pity there isn’t a good agent involved. Angela make a mental note always rent through a reputable agent.
HB Welcome I can only assume you have never bothered trying to get a possession order under ground 12. Never had to get rid of an unauthorised dog, or tenant where they refuse Gas Safety renewal access?
Many agents and landlords make the mistake of thinking discretionary grounds are totally useless because the benefit of mandatory is of course so obvious.
My advice is don’t give in so easily. What does it cost to issue a section 8 notice and fire a serious warning shot across the bows of tenants who obviously couldn’t care less about other occupiers?
IO,
Issuing a section 8 ground 12 would soon be revealed for the empty threat that it is.
Credibility would be damaged and any subsequent action would be taken less seriously.
My advice would be that tenants should not be treated as second class citizens to that of owner occupiers. Landlords should not play at being judge, jury and executioners in neighbourhood disputes.
But if a landlord genuinely believes it is their moral responsibility to get involved, then they should be 100% sure of all the facts, from all sides, before jumping in with both feet.
I am coming from the perspective of landlord and tenant law and what is reasonably achievable for the benefit of the downstairs tenant.
The covenant of quiet enjoyment is either an express or implied term in a contract that imposes a duty on the landlord to that tenant and it is not intended to extend the remit of the clause to cover the independent actions of a third party unless the act complained of was at the instigation of or on behalf of the landlord. Much of my professional work was advice and assistance to tenants and if there was a direct and enforceable way of securing the landlord to take action I would attempt to follow it but I fear in this circumstance I doubt that the landlord must take action against the upstairs tenant although they may choose to do so. Your point of the landlord issuing a section 8 notice is useful as it might stop the upstairs tenant causing further problems.
Colin
After 22 years in this industry myself I am well aware of how quiet enjoyment works – or in this case, doesn’t.
I disagree completely with your somewhat passive view. I am not saying the Landlord must take action, that he certainly should in his own interests. I wonder if he has seen the inside of his flat since these tenants moved in.
The simple solution here is for Angela to declare a frustrated contract and vacate without penalty. But she says she cannot afford to go elsewhere and doubtless given the quality of this Landlord first thing he’d do is try to keep the deposit in lieu of notice.
My agreement is modelled on the ARLA standard latest version, and with all the extras (PI, glossary of terms, non standard clauses page etc) runs to about 22 pages.
I can assure you that within its do’s and dont’s section for the tenant’s covenants there will be probably half a dozen clauses that could be listed where the upstairs tenants are in breach.
How much good it would do I agree is uncertain, but at least it is something and one thing is for sure. If this Landlord will not do anything about having the tenants from hell in his own property, if no section 8 notice is issued then there is no starting point if a repeat performance occurs and a second notice needs to be issued.
The whole problem here unless Angela is an incredibly sensitice soul, lies with the Landlord and his upstairs tenants. Them because of their unacceptable behaviour, and the Landlord because of his unacceptable response, or lack of it, to his other tenants problems.
Why all the buck passing. If the downstairs tenants were with another Landlord this one would still have obligations as to the conduct of his own tenants.
One tip I would give you Angela – find a friendly L&T law solicitor who will give you first free advice as to the landlord’s liability to you because of his unwillingness to do anything about a problem where he can do something, or should at least try to.
Industry Observer, I am a friendly L&T solicitor, none friendlier.
There is no liability on the part of the landlord to the questioner for the other tenant’s actions. There is no liability to the questioner for the landlord’s failure to take any steps under the other tenant’s tenancy agreement.
The only exception might be if the questioner’s tenancy agreement contains a commitment by the landlord to enforce the terms of other tenant’s agreements, but I would be astonished if there was.
The landlord might well be able to do something under the other tenant’s agreement, but there is no obligation for the landlord to do so and no liability to the questioner if they don’t.
IO – I don’t see how this can be a ‘frustrated contract’ – the doctrine of frustration is only rarely used and my understanding insofar as tenancy law is concerned is that it would only really apply in situations where the property itself was destroyed, eg by fire or falling off a cliff.
I can’t see how it can be used if there are unpleasant neighbours. Sorry.
Hi Giles
I am sure you are friendly, just not so sure of your advice (with respect!!)
So just to be clear what you are saying is I can live in a ground floor flat in a block of 6 purpose built block of 6 flats that that you own and self manage.
I have been there a few years and am also friendly and the world’s best tenant, as are the other 5 flat tenants.
Then comes the sad day when one of the middle floor tenants leaves and you unwittingly install the tenants from hell in that flat, and they proceed to make life a complete misery for the rest of us. They leave the communal door open, they use the wrong bins and car park spaces, they block passageways with bikes and buggies, there is suspected drug taking.
You are saying under the terms of the agreements you can do nothing about it, when you clearly could do, and as a result I suffer significant financial losses, not to mention my nerves and those of my family are shredded. In effect we live in terror of your tenants and their actions.
Are you seriously saying I could not join you in any action against the tenants to recover those losses?
Yes, that is what I’m saying.
There may be a cause of action in nuisance against the landlord if there is a nuisance emanating from common parts – those retained by the landlord (see http://nearlylegal.co.uk/blog/2010/07/landlord-liability-for-nuisance/ ), or if the landlord has encouraged or approved of the behaviour (and that does not mean doing nothing, it means actively supporting the behaviour).
But if, as in this case, the nuisance is from a tenanted flat, that is exactly what I am saying. Because it is the law as it stands.
By the way, I don’t think you mean you are not so sure of my advice, I think you mean you don’t like it.
Tessa
A frustrated contract only occurs where there is no action or inaction on the part of any party to the contract. That they do not contribute by their action or inaction to wanting or needing to leave.
So as you say the house falling off a cliff or a bus driving into it, fire (not arson by tenant) or flood not caused by tenant) etc.
The only reason I mention it here is in my view the Landlord could at least make some effort to control the upstairs tenants. So by their inaction in doing so could at least argue it is frustrated. But I agree it is straw clutching, but this is a desperate situation for Angela.
I am much more interested in your opinion on Giles’ view that the landlord cannot be held liable by Angela. That I just cannot see.
I agree with Giles.
One person cannot be held responsible for the actions of another save in very specific exceptions – such as for example an employer being liable for the ‘torts’ of his employee which take place during the course of his employment. And maybe parents being liable for their underage children (I’m a bit vague on family law).
But I can’t see how a landlord can be held liable for the acts of his tenants. A landlord cannot control his tenants once they are in without being accused of harassment and breach of the covenant of quiet enjoyment.
Any attempt to evict these tenants under discretionary grounds would undoubtedly be defended and the landlord could be faced with an expensive claim. I would not advise any landlord to do this, particularly as we cannot be sure that Angela is blame free – she has already admitted shoving an offensive note under the door.
This is a very unfortunate situation and I do feel sorry for Angela but life is sometimes unfair and these things happen.
Her best course of action is to ignore these people completely and maybe consider moving elsewhere.
Ah well apologies to Colin and Giles and looks like the world now allows one person to stand by and watch another suffering when they have it in their power to at least attempt to do something to improve their lot.
Angela are there any other occupiers you could ask if they are experiencing the same problems.
Also if it is a flat then you could threaten to withhold your service charge payments.
I would also still ask the Landlord to serve a section 8 notice under ground 12 to ask them formally to desist what they are doing.
Finally you say you cannot afford to move – but can you afford to stay? If it was me I would not pay the next rent and just leave but that of course is not legal advice.
Also if it is a flat then you could threaten to withhold your service charge payments.
Have you come across many tenancies where the tenant (as opposed to the leaseholder) pays the service charges?
Not paying the next rent and just leaving is, with respect, awful advice. Angela will still owe the rent. If she is outside or near the end of a fixed term, she can serve notice. But she said she can’t afford to move.
Witholding service charges would also be a terrible idea. There is no basis to do so and Angela would no doubt face a claim for those charges.
It is a dreadful (though sadly not uncommon) situation. But I’m afraid your well meaning thoughts would only make it worse.
Lat’s tidy up here bittricky as some posts seem to have gone out of sequence
@HB Welcome 7.03
An empty threat is only ever that if there is absolutely no substance to it and it is hollow and carries no weight or ‘threat’ at all. In this instance if the landlord was minded to he could easily serve s21 now and also s8 to show he seriously does not want the tenants. I am not suggesting he’d win first time out – but issuing and if necessary going to Court to get it on record is at least something.
@ HB Welcome 7.17
Yeh dumb comment in efforts to help. Tenant never pays service charges.
@ Giles 8.07
Just trying to think practically as only two options here if LL does nothing. Stay and tough it out or leave. If no notice can be given then just lkeaving is only option. Yes the rent would be owed as lawfully due but would the LL pursue? Who is to say.
It may be awful advice and would not be the most saintly course of action – but desperate situations sometimes demand desperate choices. I know what I’d do if my missus’ life was being made a misery by tenants from hell as neighbours. Walk and deal with consequences if any later.
IO,
“I am not suggesting he’d win first time out – but issuing and if necessary going to Court to get it on record is at least something.”
I don’t think it is at least something.
I think it is worse than nothing at all as it will only exasperate the situation.
The offending tenants will believe they are immune to eviction and can behave however they like. The ‘victory’ parties will go on long into the night.
Serving a section 8 for the above is worse than useless.
What a sad, passive and negative approach. I can only assume you have never bothered or been lucky enough not to need to. On the basis of your view you’d put up with just under 2 months arrears for ever.
I have been there and got the T shirt after inexpensive discretionary cases and then gone back a few months later on a repeat offence and got an Order.
Each to their own nothing more to be gained from this thread so I’m out
After reading all the posts, I thought I would throw in Rights under Tort. There are private nuisance rules under which both sets of tenants are liable. I am assuming it can be applied to flats in the same building as well as property v property? This legal rule can only be used by property owners. This includes tenants, as they have a legal interest under their tenancy ie they are deemed to “own” it for the period of the tenancy. So the tenants could look into a private nuisance claim against the upstairs tenants.