'What can we do about the noisy tenants upstairs?'

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Dear Property Doctors,

We live in a block of two- and three-bedroom flats. The bedrooms are above each other and the lounges are above each other.

The old lady next door to us sold her two-bed flat to someone who turned out to be a property developer. She didn’t know that at the time, although at the last minute he did knock £30,000 off the agreed price.

He wrote to the neighbours with photos of his family introducing themselves, saying there would be noise as it needed decorating and new kitchen fittings. This came as a surprise as the building is only 10 years old.

Subsequently, we found he had knocked the kitchen through into the lounge, thereby making a third bedroom. The worst part was he removed the carpet from what was the lounge. This has now become a kitchen living area and he has moved in tenants. There is noise transmission into the lounge of the flat laid out identically directly below.

Several of the leaseholders had bought out the freehold and I reported this change of use to the chairman of the freehold company. He passed it to the chairman of the residents’ management company.

They sought legal advice and were advised it would be most unlikely that the developer could be made to revert the layout. 

The lady who lives below them suffers from the noise above. The developer says his tenant and their two children are being victimised and it is up to the lady in the flat below to make representations about the noise to his tenants. This is difficult as the tenants speak little English.

I have just taken over as chairman of the RMC and have the very irate lady in the flat below to deal with.

DB, by email

I note you say that you refer both to the “freehold company” (the company owned by several of the leaseholders) but also to “the RMC”. I assume the “RMC” is either a management company referred to in the lease or a right to manage company which has acquired the right to manage from the freeholder under relevant legislation.

It is important to know what the position is since you need to take action against whoever is in a position to enforce the compliance with the covenants. There are a number of possible remedies in your situation:

1. It may be that the leaseholder who is suffering from noise could bring a claim directly against the owner of the flat above without having to mention the lease at all. Under the general law of nuisance, a person is not entitled to use one’s property in a way that causes undue disturbance to another owner. The remedy here would be a claim for damages and an injunction to carry out the necessary work to stop the noise nuisance.

2. Some leases have a provision stating that the flat must be carpeted. It may be that the lease will make it clear (and in certain circumstances it can be implied) that one leaseholder can enforce the covenants directly against another so, again, the leaseholder suffering the nuisance could bring a direct claim against the owner above, requiring him to have the flat carpeted.

3. Finally, most leases provide that, subject to you paying the freeholder’s or management company’s costs, you can require the freeholder or management company to take enforcement action against a leaseholder who is in breach. In fairness, these provisions are rarely exercised because of the requirement to pay the freeholder’s costs, but it is often the best remedy.

The reason for that is that if there is a breach of an obligation in a lease with the freeholder, then the freeholder ultimately has the sanction of threatening forfeiture of the lease if the nuisance is not rectified.  In practice, it is the threat of forfeiture that usually makes leaseholders comply with their obligations.

If the freeholder or the management company has effectively authorised the works that are causing a nuisance, then the leaseholder affected may very well have a claim against those companies for a breach of their obligations.

There was an interesting case in the Supreme Court a year or so ago that decided that where there was an absolute prohibition against alterations, if the freeholder nevertheless authorised alterations, they were in breach of their obligations to the owners of the other flats.

David Fleming is the head of property litigation at William Heath & Co solicitors (williamheath.co.uk)

Every week, The Telegraph’s Property Doctors bring expertise on renovations and DIY, planning, buying and selling, lettings, legal issues and taxes. Send your questions to propertydoctors@telegraph.co.uk