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We have found more and more cases coming before us where tenants are complaining of noise caused by upstairs neighbours. Some buildings are not well insulated and don’t have good sound installation. Often it is difficult to sue the tenant upstairs because they may not have the means to satisfy any Judgment and the law appears to be quite difficult, in that nuisance has to be established which exceeds ordinary levels of noise caused by the normal behaviour of tenants. If the normal behaviour of tenants takes place in the building that has been inadequately soundproofed, then that does not create automatic liability on the neighbouring tenant because the level of noise may be “ordinary” and merely amplified because of inadequate sound installation.

Accordingly, the Claimant is then faced with the possibility of suing possibly the freeholder who has the means to satisfy a Judgment.

But is the freeholder actually responsible in law?

The law was recently clarified in the case before Morgan J in the Court of Appeal in an appeal against the finding of His Honour Judge Parfitt at Central London County Court in the case of Fouladi v. Darout Ltd 2018 EWHC 3501 Ch.

Essentially, the Judge upheld the findings of the County Court on appeal in favour of Fouladi where she had suffered noise nuisance in a high-class mansion block in London following flooring and other building works. Accordingly, the neighbouring tenant was responsible in this case for nuisance.

In this case also the freeholder was approached for consent to flooring works, which if granted may have minimised or diminished the noise nuisance. Consent was not given for the works by the freeholder, but Fouladi argued that the freeholder “participated” in the creation of the nuisance, although they did not create or authorise the nuisance.

The Judge found in the appeal that the freeholder could have made enquiries about the potential noise and discovered that works to the floor had been carried out and that might have established the position but that would not support a finding that the freeholder authorised or participated in it.

The Judge relied on the settled case case of Malzyv Eicholz (1916) 2 KB 308, which provides that the landlord is not liable for nuisance caused by its tenant merely because the landlord does not take steps (which are available to it) to prevent what is being done, even where the landlord knows that its tenant is causing a nuisance.

So, it seems as a result of this case, cases against the freeholder will still be difficult to prove and require proof of active authority or direct participation by the freeholder but there are likely to be more and more cases where claims will be brought, particularly where it is difficult to enforce a Judgment against occupying tenants.

The law does appear to be settled in this respect, but cases can be distinguished on facts in each case and no doubt efforts will be made to prove liability against freeholders in the future.

If you would like further advice on issues that arise from this Article please contact us.

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