Breach of lease : Neighbours barking dog

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    #31
    Originally posted by Tw1982 View Post
    Do you have a link to that post? Cant appear to find it through a common search
    https://forums.landlordzone.co.uk/fo...17#post1036717

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      #32
      Thanks for that. Just a query.. is it actually legal for the freeholder to bill the costs entirely to the lessee? Ive read quite a lot about lesees successfully challenging this.

      Essentially theyve said that theyre willing to enforce the lease, but that the costs will be recovered from the owners of the basement, myself - or failing that ... the entire building.

      Ive asked them today what action theyll take if my solicitor determines dog nuisance... as I wont be happy going forward with anything other that full removal of the nuisance animal, as it otherwise risks barking outside my window for years to come.

      Not sure whether the onus is on my solicitor to request full removal, or the managing agent?


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        #33
        The contentious issue is charging fees to the dog owner, not getting an indemnity from the complainant.

        It is the uncertainty of being able to recover all the costs from the dog owner that results in the need for an indemnity.

        Basically the situation is that legally, only the freeholder can take action, but it is really the complainant who is trying to take action. The indemnity arrangement reflects this by putting the complainant in the same situation as they would be if they did have a direct contract with the dog owner, and had the power to forfeit the lease.

        This should be an indemnity. You should only need to pay the excess over the costs that can be recovered from the dog owner. Obviously, if the case is lost, you end up paying all the costs.

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          #34
          My position now is that Im searching for solicitors for this. My worry is the managing agent / freeholder will want to use their own solicitor.

          Its interesting - I asked them yesterday whether, if their solicitors opinion is that it is nuisance, if theyll recover the full costs from the basement lesee... they replied that they wont know this until they consult with the solicitor. Not sure what that means, maybe something to do with the ambiguity in the lease regarding reclaiming costs..

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            #35
            Im getting my GP report this week to help with the case that this dog is causing me severe stress... Not sure how much weight that will carry with a solicitor when determining nuisance?

            Also seeing a psychologist for a talking session to deal with it, as Im still hearing barking in my dreams after six months of it directly outside my window at all hours of the day, and drinking more heavily than before.

            Does anyone know if psychologists can make any kind of recommendation to the managing agent / freeholder in terms of determining the actual harm the dog has caused to me?

            I now live in fear of it barking... as it has gone on for so long it has a physical, stress inducing effect on me.

            Comment


              #36
              Originally posted by Tw1982 View Post
              My position now is that Im searching for solicitors for this. My worry is the managing agent / freeholder will want to use their own solicitor.

              Its interesting - I asked them yesterday whether, if their solicitors opinion is that it is nuisance, if theyll recover the full costs from the basement lesee... they replied that they wont know this until they consult with the solicitor. Not sure what that means, maybe something to do with the ambiguity in the lease regarding reclaiming costs..
              As I said, clauses allowing costs to be recovered from the leaseholder in breach are controversial, and they will need advice from the solicitor as to how much of the costs are going to be recoverable.

              Comment


                #37
                Originally posted by Tw1982 View Post
                is it actually legal for the freeholder to bill the costs entirely to the lessee?


                Ive asked them today what action theyll take if my solicitor determines dog nuisance... as I wont be happy going forward with anything other that full removal of the nuisance animal, as it otherwise risks barking outside my window for years to come.

                Not sure whether the onus is on my solicitor to request full removal, or the managing agent?

                Whether or not the freeholder can ask you to pay for the costs depends on the wording of your lease.

                Neither you nor your solicitor nor the freeholder for that matter can insist on the "full removal of the nuisance animal".

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                  #38
                  Originally posted by Tw1982 View Post
                  My position now is that Im searching for solicitors for this. My worry is the managing agent / freeholder will want to use their own solicitor.
                  .
                  The freeholder is likely to insist on using its own solicitor,

                  You would have no control over the case, the solicitor could advise the freeholder to discontinue the claim or settle the claim whereby each party bears its own costs ie you would not recover any of your costs.

                  Comment


                    #39
                    What would you say if there was a baby crying all night and disturbing your sleep? Would you insist on the baby being removed?

                    Comment


                      #40
                      To get a view of how this looks from the other side see the thread: https://forums.landlordzone.co.uk/fo...dence-required

                      There the the poster is complaining about the freeholder taking action against their dogs, rather than abut inaction.

                      Comment


                        #41
                        I dont really think you can compare a baby to a dog eagle. A dog is not a human being... which would obviously be different, and presumably when a baby grows up it will stop crying (unlike this dogs bark which only get louder, deeper and more ear pearceing).

                        The managing agent have again come back to me today and stated that "before paying solicitors, get the environmental health in" and again stating that they have written confirmation from the other owners (who are out all day till late) that the dog is not a nuisance.

                        It sounds like they intend to contest this, even if my solicitor deems it nuisance... I have no idea whether I would win in court and have read of cases where other owners testimonies that an animal is not nuisance give huge weight to a case against pet nuisance.

                        It seems the only recourse is an initial consultation and assessment with a solicitor, followed by a claim for damages directly against the tenants in small claims court (where, as far as Ive read, legal costs aren't awarded?)

                        In summary the case for nuisance is as follows:

                        - six months of videos of dog barking directly outside my window at all hours of the day, before 8am and after 11pm
                        - three months of daily sound diary
                        - detailed video diary documenting over 60 videos of dog barking directly outside my windows at all hours of the day
                        - six months of complaints to managing agent regarding dog nuisance
                        - six months of direct text communications between myself and dog owner complaining of their dog nuisance
                        - six months of direct text communications and emails between myself and the owner of the flat complaining of their dog nuisance
                        - GP and psychological stamped report stating that due to this dog, im now diagnosed with severe depression

                        Case against:

                        - Written testimonies by the other owners that the dog does not cause them nuisance
                        - No council report of statutory nuisance

                        Any and all advice and an assessment of my chances appreciated!

                        Comment


                          #42
                          Originally posted by Tw1982 View Post

                          The managing agent have again come back to me today and stated that "before paying solicitors, get the environmental health in"

                          Follow this advice.

                          Comment


                            #43
                            I think its a bit too late for that. Due to six months of dog barking directly outside my window im now so sensitive too it its doesnt even have to bark much in a day to be severely stress inducing. I guess failing removal of the nuisance animal, damages is the only way forward.

                            I dont know why people keep advising me to get the environmental health in - believe me, I have tried, they take four hours to arrive and then state that they have to be in my bedroom at an unreasonable hour and hear the barking for a prolonged period to declare statutory nuisance - which is ridiculous.

                            This is case of lease law and quiet enjoyment, not necessarily statutory nuisance. The lease says no nuisance pets... clearly its not worth the paper its written on.

                            If possible, I'd like to know the general opinion here on my chances of proving 'dog nuisance' and a breach of lease based on the evidence above (in absence of a declaration from the council).

                            Comment


                              #44
                              The threat to quiet enjoyment is to the dog owner; you don't seem to understand what quiet enjoyment is. Quiet enjoyment is about the landlord actively interfering with the use of the property, e.g. having the dogs removed, not about failures to keep the neighbours under control.

                              I've already pointed you to an article which says that it is quite easy to take magistrates' court action yourself, and without the statutory nuisance ruling your case is going to be weak.

                              Comment


                                #45
                                Cant an application to the FTT be made to determine this at relatively little cost?

                                Comment

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