Most leases contain covenants (obligations) which state leaseholders cannot cause nuisance and annoyance to their neighbours.
However, from loud music to water leaks to offensive odours, leaseholders frequently experience nuisance; so what remedies do they have?
Remedies Under The Lease
In some leases covenants made by leaseholders are expressed to be enforceable by other leaseholders in their building. They are known as mutually enforceable covenants.
In order to be mutually enforceable, however, the lease would have to expressly state that covenants are made for the benefit of other leaseholders. It is therefore often impossible for tenants to enforce lease covenants against each other directly.
As an alternative the lease may often allow a leaseholder to require their landlord to take action on their behalf. Usually the landlord is entitled to ask for money on account before the obligation to take action arises, which may be unsatisfactory to the aggrieved leaseholder.
Remedies Beyond The Lease
In addition to seeking a remedy under their lease, a leaseholder who has suffered nuisance may consider a claim in private nuisance directly against their neighbour.
A private nuisance will arise in this context where the unreasonable use leaseholder A makes of their property causes damage or disruption to the property of leaseholder B. The damage or interference must be substantial and/or unreasonable, so there is a triviality threshold.
There are a number of remedies that a leaseholder has in nuisance. First of all there is an injunction, where the court orders a party to do something or refrain from doing something, to prevent future harm occurring. The second remedy is damages. A leaseholder can claim for damage to property as well as for loss of enjoyment. The final kind of remedy is abatement, whereby a party may be entitled to enter onto another’s land in order to end the nuisance.
Defences To Private Nuisance
The defendant may try and defend a claim in nuisance on several grounds, including:
- ‘Abnormal sensitivity’: that the claimant’s property is particularly sensitive to damage
- that the character of the locality is such that the behaviour is reasonable (e.g. a noise in the centre of a town might not constitute a nuisance, whereas it might in a village)
- that the time and duration of interference does not amount to a nuisance,
- that the claimant has accepted the nuisance by not taking action to stop it quickly
- that he conduct of the defendant has been reasonable.
This last point can be particularly important where flats are concerned. If the leaseholder causing the nuisance takes reasonable steps to remedy the nuisance, they may not be liable for it. Thus in Yianni v Shakeshaft [2014] where a flat owner made a claim in private nuisance against their neighbour in respect of a leak, the neighbour avoided having to pay damages by taking reasonable steps to prevent further damage within a reasonable time.