Breach of lease : Neighbours barking dog

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

    Breach of lease : Neighbours barking dog

    Hi,

    Thanks in advance for your time. Im a long leaseholder living in london, and have been living in the same flat for 8 years now. The building is an old victorian conversion with four flats in the building and a basement flat with a garden.

    We have recently had new short-hold tenants move into the basement (garden) flat. All was going fine with them up until February this year when they bought a new puppy and started locking it out in the garden every day, playing catch with it, shouting at it constantly and generally getting it excited... this has lead to around six months of continued intermittent barking at over 90 decibels directly outside my windows. It has been happening daily for up to six months now, to the point it has driven me insane, have seen my GP for counselling for stress and depression due to its prolonged incessant barking, and am now even considering having to move due to this dogs regular and incredibly loud barking (it can be heard clearly over my TV on 100 percent).

    The basement garden is located five yards away from my bedroom and office windows, it has been barking before 8am, regularly throughout the day, and after 11pm... I have over 60 video recordings of this thing barking in the garden and barking at me at the side of the property when we try to access the meter to the building, I also have a sound diary, video diary and countless emails sent to the owners of the property and the managing agent along with all the video evidence.

    The dog has also been recorded barking for up to an hour and a half directly outside my window, and the owner has admitted to 'accidentally' locking it out. On this occasion the council were called but took four hours to turn up by which time the barking had stopped.

    The dog is regularly left unattended by the owners, who are out at work all day and either lock it in to bark at every person that walks by, or have sitters come round to play with it in the garden directly outside my window (unattended by the owners themselves).

    Unfortunately, I currently work from home so have been living with this dog directly outside my bedroom and office window for the last 6 months, while all the other owners in the building are out from early morning till late at night so do not experience the same level of nuisance.

    All the evidence has been sent to the managing agent and the freeholder for the building including the video of the dog barking for an hour and a half outside my window while all the other owners were out. The managing agent has this week come back and said that they have asked the other owners in the building whether they consider the dog to be a nuisance, to which they have all said no (as they are out all day), therefore the freeholder (in spite of all the video evidence) does not consider the dog to be a nuisance and will take no further action. They are also requesting letters from the council proving a statutory nuisance, when the council have been called several times but repeatedly take 2-3 hours to arrive.

    Working from home and being on the first floor directly above the basements garden I am obviously the owner that is most affected by this new barking dog, I have argued that the proximity of their garden and their dog to my home and living area directly affects my flat more than others, yet the managing agent is completely disregarding this, and simply justifying taking no action because the other owners in the building do not consider it a nuisance.

    The lease for the property clearly contains clauses for the following:

    - No owner must keep pets that cause a nuisance to other owners
    - No owner must do 'any act thing whatsoever' that may be or tend to be a nuisance to other owners
    - No owner must interfere with another owners 'peace and quiet enjoyment'
    - No owner must restrict another owners right to free access of the building ( something I have argued is being restricted by this dog barking at me every time I try to access the common parts of the building).

    All the above has been completely disregarded by the managing agent and freeholder... and I am now deciding whether or not I want to enter into incredibly expensive and lengthy legal action to enforce the above to remove the nuisance animal, or otherwise take direct action in small claims court for a judgement and damages.

    Has anyone experienced a situation like this? The lease clearly states that nuisance, and nuisance pets are not allowed, and peace and quiet enjoyment should be upheld, and I have many videos of this dog barking on camera directly outside my window, heard loudly over my TV on 100 percent and heard loudly by my father over the phone from within my flat (to even his annoyance).

    The bark is so loud I can regularly hear it from the other side of my property while its in their garden... its now driven me to the point that it has barked so much over six months I am hearing it in my sleep and in my dreams, I am constantly stressed, waiting for it to bark all day and cannot relax in my home knowing its there...

    I have spoken and written to the tenants, lesees and managing agent with little improvement, and to the point it is now too late and has become psychologically damaging.

    Any advice on what to do and likelihood of enforcing the lease in court and removing this animal from the building, would be greatly appreciated,

    Kind regards,

    T

    #2
    This one will raise different views from dog lovers and dog haters!

    The only clause that is probably relevant is the first one. The second one will be difficult to prove without the first. Consequently, I suggest you approach the council with your evidence.

    Quiet enjoyment has nothing to do with noise, and is really about landlord actions, not those of other tenants.

    Comment


      #3
      You will notice there are lots of threads on here where pretty horrible lessees think it is just fine to breach the lease with their animals. I am dog (and animal) lover, but that is completely separate issue to whether one is selfish enough to impose on others when the lease says otherwise (whether to do with health or noise).

      Nuisance is not based on a majority vote. If you say there is then there is and the freeholder is supposed to act. So you are being played.

      You need to look for clauses in your lease about the obligation of the freeholder to implement the lease in terms of lessee covenants that affect other lessees. The problem in a nutshell is that the clauses you mention are in a contract between the freeholder and the lessee - and parties to a contract are free to choose to ignore terms between themselves. YOUR lease might say that the freeholder is obliged to do (whatever) in terms of other leases.

      You could record the dog and play it back at 3am when you go on holiday for a month......

      Comment


        #4
        A problem I see here is that it uses the term nuisance, rather than annoyance. The threshold for nuisance is quite high, and may be the same as statutory nuisance.

        Another issue may be working from home. There may be questions as to whether you are in breach, yourself, and also that residential flats are not designed to create a good working environment, except in as much as creating a good living one has the same effect.

        Other things to check are whether a management company director owns the problem flat. In the history of where I live, of the three dogs I would consider to have caused problems, two were owned by directors or shadow directors of the management company, so, in practice, untouchable. (The other was owned by a rent to rent housing association tenant, so untouchable for other reasons.)

        In my view, only 25% of the dogs we have had have been flat friendly.

        Comment


          #5
          Or you could try training the dog. Not much you can do when they're playing with it, it's no different to kids making a noise. But a water jet has been known to be effective...

          Comment


            #6
            Unfortunately you will not win this in the SCC. Do not spend money on lawyers.

            The sad reality is that, while successive governments has bent over backwards to create overblown legislation at the AST tenant-landlord interface, and have also bent over backwards to create that home owning economy they think voters should like -- they could not give a flying ____ about implementing existing law or creating new law at the (equivalent) freeholder-lessee interface. The hapless renters driven by proposed labour policy into purchasing homes, will later wish they were renters (when they end up locked into battle with other lessees similar to themselves).

            My advice:

            a) Keep up with the formal documented complaints
            b) Do as I said and look at your lease at terms which are actually (theoretically) possible for you to act on
            c) Divorce yourself from it emotionally -- you are making a real problem much larger
            d) Rather than spending money on lawyers, move out, either sell, or put your property up to rent. You can always have a rather low threshold for the tenants you will accept (the potential for lots of large dogs, partying, drug taking, brotheling and vehicle maintenance on the drive I guess, and coupled with the impossibility of evicting them under the new legal landscape, you wont really be able to respond effectively to any similar complaints)
            e) Read point c again

            The problem with the freeholder not taking you seriously is that things tend to spiral out of control, and everyone stops caring. So when you have 10,000 liters of water accidentally escaping from your defective pipework into that flat below, you will just shrug, because the law says you are not responsible for your decrepit unmaintained pipes.

            See https://www.amazon.co.uk/Barking-Ult.../dp/B07VFPZ2J4 -- and with much more powerful devices the dog may not be happy either. Not sure whether a loud ultra-high-frequency buzz throughout the building would be classified as a nuisance...

            Comment


              #7
              Thanks for all your feedback. FYI - all lesees are bound by the same lease. The managing agent does not own the flat - and the lease also contains clauses for annoyance AND nuisance.

              I have only been working from home for a few months - this is not a permanent situation, and the lease makes the distinction between working from home and running a business from home, so I am not in breach of lease.

              Andrew, I have also made the case that nuisance is not a 'majority vote' to the managing agent, and have received no reply. It seems the managing agent have simply approached the freeholder and he has asked whether the other owners (who are out all day) find it a nuisance, and then made his decision - which is ridiculous given six months of video evidence and an hour and a half of barking five yards away from my window while all other owners were out.

              The lesee of the flat whos tenants own the dog, claims she is a solicitor, and that she has been over every one of the videos I have sent. The basis of her case for why her tenants dog is not a nuisance is based around some of the videos not showing the dog on camera.. and that the train tooting its horn in the distance is louder. This is clearly crazy, as the tooting of a trains horn is nowhere near in as close proximity to my flat as the dog or as regular or incessant.

              Essentially it seems the managing agent and the lesee are taking the path of least resistance and refusing to do anything until legally forced to. I am well prepared to take legal action and pay solicitors, but also well aware I may not recoup all my costs.. its funny how the victim always suffers the most isnt it!

              I am also considering taking action through the small claims court directly against the owners of the dog, but well aware this may make matters worse in the building and for the community here..

              Essentially the crux of the situation is that my flat is directly above their garden, and that the dog is regularly playing, coughing, rummaging, and barking incessantly five yards away from my windows every day in their small little garden beneath me... my dad has also seen the dog and believes that (as you say leaseholder64) - the dog is not flat friendly and appears to be way too big and energetic to be confined to such a small space.. hence all the mind numbing squealing, barking and distress.

              The tenant regularly leave it unattended while off at work, have mates round to play catch with it in the garden all day, and lock it in barking at every passer by including me when i try to access the common parts of the building... its bark is so loud it can be heard inside their flat from the other side of my property with the windows closed.. it is now a daily presence and nuisance to have to live around...

              Any advice and help on this really appreciated...

              Comment


                #8
                Originally posted by Tw1982 View Post
                Thanks for all your feedback. FYI - all lesees are bound by the same lease. The managing agent does not own the flat - and the lease also contains clauses for annoyance AND nuisance.
                You are not following me nor do you understand what a lease is. The lease does not bind anything in the way you imagine it does. Read what I wrote before. The lease is a contract between you and the FH, it is not a contract between you and a neighbour. YOUR lease may oblige the FH to obey other leases.

                If you want to survive, read what I wrote - only some of which was tongue in cheek.

                Comment


                  #9
                  It is possible for the lease to contract with the other leaseholders. Mine does, but I think that is rare.

                  If it only contracts with the freeholder, it is quite likely that the freeholder doesn't contract with you to enforce the lease against other leaseholders, or if it does, it may require you to indemnify them against all costs they are unable to recover.

                  In your original posting, you only mentioned nuisance. That has to be quire server, and typically if you cannot get the council to take action for nuisance, the freeholder is unlikely to succeed against the other leaseholder. For that reason, I think your first approach should be the council.

                  If it actually says annoyance, that is a much lower standard. However, for various reasons, the freeholder will probably have to get First Tier Tribunal to confirm that there is a breach, and that may be difficult.

                  In practice that level of breach can only be resolved by peer pressure, and I suspect the neighbour will not react to that, as pets can be a very sensitive subject.

                  Freeholders and managing agents don't like getting into neighbour disputes, so they will try to find ways out.

                  I don't see how you can use the Small Claims Court, as I don't see how you can convert this into a monetary loss. I think you would need to use the full County Court process. Unless the lease covenants with other leaseholders,or has a covenant requiring the freeholder to act, you would only be able to take action on the same basis as against a neighbouring house with a completely different freeholder.

                  Incidentally the dogs on our estate (not actually my block, that make the most noise are poodles, so big and noisy don't go together.

                  Overall, I think your best approach is through the council.

                  Comment


                    #10
                    The issue with the council is that they regularly take 3-4 hours to arrive .. by which time the barking has ceased. The council have been round and have stated that in order to declare a statutory nuisance they need to be in my bedroom, and hear it loudly at an unreasonable hour for a prolonged period... which is crazy.

                    The way the lease is structured states that as a leaseholder it is the freeholder that is bound to protect my right to peace and quiet enjoyment, and that if another leaseholder or their tenants cause nuisance it is my obligation to enforce the terms of lease against the freeholder, to take action against the offending tenants/lesees.

                    The Small Claims Court was to take the tenants (owners of the dog) to court for six months of dog nuisance.. this would provide a determination at a cheaper price, and as I work from home quite a bit, damages would be calculated by the loss of earnings i've suffered from having this thing barking outside my office window all day for six months.

                    The exact terms of lease are as follows:

                    That another leaseholder is:

                    (8) Not to do or suffer to be done on the demised premises or any part thereof, any act thing whatsoever which may be or tend to be an annoyance nuisance damage or disturbance to the owners tenants lessees or occupiers of any adjoining or neighbouring property or of the other flats in the said property.

                    (6) Will not keep or permit to be kept any bird or other animal insect or reptile in or upon the demised premises so as to be a nuisance to the lessees of the other flats in the said property.

                    The managing agent have actually come back to me today stating that they are willing to take action - assuming I cover all their costs. An initial determination from their solicitor is apparently going to be £600, and this may be enough to persuade the lesee to remove the nuisance animal... though presumably I might as well use my own solicitor if Im paying the full costs of the managing agents?

                    Do you happen to know any good solicitors in the london area (or otherwise) that may determine this for a more reasonable price? Ive used Nockholds solicitors previously and they seem to be quite good...

                    Again and and all advice really appreciated...

                    T

                    Comment


                      #11
                      There appears to be some inconsistency in your comments, you state that the dog barks before 8am and after 11pm but the other leaseholders are out all day. Surely the leaseholders occupy their properties at some of those times.

                      If the dog is barking all day long, it should not matter how long the Council take to arrive.

                      You state that the dog barks at every person who passes by, so why does it not appear to bark when the Council arrives? I doubt that the dog is trained to recognise employees of the Council and to be silent when they approaching.

                      The other leaseholder does have a point if the sound of a train is louder than the sound of the dog barking.

                      The freeholder can only act if the investigation by the agent supports your complaint and it clearly does not do so. If the council will not uphold your complaint, I do not see how the freeholder can act.

                      You are clearly irritated by the dog and you seem to focus on any sound which it makes. I would not waste your money taking legal action or paying monies to the agent. Can you not work from a different part of your property? Try to have other sounds with which you are familiar eg radio or relaxing music or use headphones, ear plugs.

                      Comment


                        #12
                        The other leaseholders leave at around 6-7 in the morning... the basement dog comes out around 7:30. The top floor flat is further away from the garden than my flat and their living area is the other side of the property. The lady below does hear it after 11pm but it doesnt seem to bother her, and as she is out till late, she has not had a whole day of it, so it doesnt affect her as much.

                        The dog barks intermittently all day, and the council only stay in your flat for a short time.. you cannot predict when it will start or how long it will go on for. It is intermitted but regular..

                        It did bark at the council - at 3am when I called them... but guess what they told me? ... that they cant take any action or get involved because they "Excited it"! All they did was walk down the driveway to the back garden.

                        The council do not need to involved in this, there is a lease that says no nuisance pets and there are separate private claims for nuisance you can bring. So it clearly is now a case of paying a solicitor to make a determination on all the evidence and forcing the freeholder to take action..

                        I am not focused on any sound it makes... the barking is so loud it can be heard over my TV on 100 percent, and has been going on for months - it is attritional. It has now barked so much over the last six months that I have this week been diagnosed with severe depression due to this thing, and hear barking in my sleep and dreams.

                        I do not want to move, it is a one bed flat and can be heard loudly throughout my property and from the other side of my property - that is the problem.

                        Its bark is also so loud and its proximity to my flat is so close, it has woken me up countless times in the morning with noise cancelling earphones in and white noise playing loudly...

                        In any case Im going to speak directly to the leaseholders of the flat over the next few weeks and see what their final position is. Failing that I will pay for a judgement from a solicitor, and no doubt have to go after the tenants or the leaseholders for costs.

                        Just wondering whether its best to use my own solicitor or the managing agents/freeholders as he's offered?

                        Comment


                          #13
                          Go back to the council (Environmental Protection) and make a formal noise complaint. You will have to keep a noise log for two weeks and then ask them to install recording equipment so they can monitor the nuisance (this is normally done over a period of two weeks and then assessed). If they refuse contact your ward councillor for help.

                          If it were me I would forget about the lease and solicitor—this is a straightforward noise nuisance which should be dealt with by the council. They should write to the offending tenant and then fine them if they don't cease the noise.

                          Comment


                            #14
                            OP you really need to listen to advice given as you seem to misunderstand most of the situation you are in, the meaning if your lease, that solicitors don't judge anything etc etc etc.

                            Very much doubt council will assist either.

                            Comment


                              #15
                              Tw1982 – Your health is more important than any sound or any term of a lease and you will only create stress for yourself if you decide to pursue this. We all notice sounds which we dislike and accept other sounds which may be louder. I would try to train your mind to ignore the sound or cover it up with other soothing sounds or move.

                              If you insist on pursuing the matter, your best option appears to be to have a friendly word with the tenant or the leaseholder.

                              Your next best option is the Council.

                              The freeholder is likely to consider the views of other residents and especially the one who lives below you and nearer to the sound of the dog. If the dog does not bother her, in particular between 11pm and 7am, the freeholder is unlikely to uphold your complaint.

                              I do not believe that legal action is in your best interests. If you choose to disregard the advice, you should appoint your own solicitor but do not expect anything more than a letter being issued to the leaseholder or the tenant, which is unlikely to assist you especially if the leaseholder is legally trained. Involving solicitors can have the opposite effect of what you wish to achieve and any relationship which currently exists with your neighbour and leaseholder could be damaged.

                              I definitely would not agree to use the freeholder’s solicitor, that is likely to be a complete waste of your money. You would not see and have no say in the instructions issued to the solicitor and I suspect that the solicitor would recommend nothing more than a letter being sent to the leaseholder with no further action being taken.

                              Finally, I would cease to play your TV with the sound at 100% otherwise you may face complaints from others residents.

                              Comment

                              Latest Activity

                              Collapse

                              • Licence to Alter
                                vmart
                                Should the leaseholder be given the original signed copy of a Licence to Alter (LTA)? Our landlord created a deed (LTA) to provide us with permission for work we are planning but we were given a photo copy of the completed document but think we should retain the original.

                                Thank you.
                                21-10-2019, 09:48 AM
                              • Reply to Licence to Alter
                                Lawcruncher
                                In fact all you need is a copy signed by the landlord.

                                When lawyers deal with licences they are usually executed as "part and counterpart" - that is the landlord signs one part and the tenant another. When everyone is ready the parts are exchanged. The landlord then has a part...
                                22-10-2019, 08:45 AM
                              • Reply to Licence to Alter
                                vmart
                                Thank you.
                                22-10-2019, 08:28 AM
                              • Freeholder permission and checks
                                c118
                                We have recently purchased a maisonette leasehold and the entire freehold of the building (one other flat on the ground floor). In regards to freehold permission for a conservatory extension, are there any resources online that advise what checks should be completed/information required prior to permission...
                                21-10-2019, 08:10 AM
                              • Reply to Freeholder permission and checks
                                vmart
                                Given that this is not your area of expertise, why not talk to a surveyor to manage the discussions/project for you at the leaseholder's cost....
                                22-10-2019, 08:27 AM
                              • Reply to Licence to Alter
                                ram
                                No need to put "the deed is signed in duplicate".
                                You could have 200 originals, but you still only have authorisation to carry out alterations once, and for the prescribed alteration.
                                22-10-2019, 08:20 AM
                              • Reply to Licence to Alter
                                vmart
                                Thank you all for your replies. Therefore, I will ask the landlord to arrange for us to execute the deed again and we all sign both copies. Should the licence specifically state "the deed is signed in duplicate" or similar wording or is the current deed OK in this respect?

                                Thank...
                                22-10-2019, 08:05 AM
                              • FTT decisions
                                vmart
                                Is there any rule regarding the time a decision must be received from the FTT?

                                Thank you.
                                21-10-2019, 09:43 AM
                              • Reply to FTT decisions
                                vmart
                                Thank you all for your replies....
                                22-10-2019, 08:01 AM
                              • Reply to Licence to Alter
                                ram
                                There should have been 2 originals, and you all sign the two.
                                One for the landlord and one for the tenant..
                                Thats the way it should have been done.
                                22-10-2019, 07:34 AM
                              Working...
                              X