Lease law: Definition of 'one family only' / 'single private dwelling'?

[derekunderwood01]

Apologies LHA... Right now I'm clinging to anything in the hope that I don't have to leave my home. Sadly it looks like this Is my only option if I want to maintain my sanity.

The situation is as follows. The freeholder is currently seeking legal advice on this definition of 'one family'. I have also spoken to the leasehold advisory service and forwarded them the lease to get back to me.

Ultimately the two couples above are clinging to the fact that because they moved in together as 'close friends' and supposedly 'share meals' as they like to claim, they are 'one family', and the managing agent and the leashold advisory service now appear to be buying this - dispite the fact one of the couples is paying rent. I do not believe they share meals, and I know they don't act like any family I know or have ever known, but ultimately it's impossible for me to prove that they don't 'share meals'. The only thing I have is constant times of coming and goings from their apartment hour after hour, every evening... But again, a court would argue anyone could write down a list of times off the top of their head and submit it as nuisance.

The other problem is that because the nuisance is only constant noise of coming and going from their apartment and stomping above this cannot - as the leasehold advisory service have said to me - be regarded as a nuisance or annoyance (despite the fact its driving me crazy). Essentially theyve said that just coming and going cant be considered a nuisance and that it's just bad luck on my side and that they do this ...'that's life' they said, while suggesting I was being 'over sensitive'.

As far as I'm concerned I might as well live in a house share with these guys... The stairs are within feet of my kitchen, living room, hallways and bathroom and they are above me and within feet of me on a constant basis, I get no privacy - so have to whisper to make private phone calls, I hear the pitter patter of their feet all the time every day, every hour - and even the opening and closing of the latch their door is driving me crazy now as its so monotonous. Asgard as I'm concerned there's a case to be made for harassment, and even a human rights issue here... But maybe that's just me,

Either way, if constant footsteps or coming and going can't be considered a nuisance and close friends can be considered family... And the freeholders lawyer and the leasehold advice service comes back and says as much.... It's going to be very difficult to pursue....

[derekunderwood01]

The council still believe the managing agent should act on the situation as council is primarily concerned with rented properties - not owned.

My question is what are my options if the freeholder refuses to take action? Can I force the managing agent to issue a section 146? I know law cruncher says that I can 'require' them to take action, but if they come back and say there is no case, can I still do this? Or am I then on my own via the courts?

[Lawcruncher]

If the freeholder takes legal advice and is advised that action would be likely to be unsuccessful I do not think he can be required to take it, especially as there is no provision for you to provide security for costs.

[DNM2012]

The council still believe the managing agent should act on the situation

What exactly have the council done or said about the noise? And what council department have you actually spoken to? You still haven't answered this.

My question is what are my options if the freeholder refuses to take action?

You sue them for breach of contract.

[derekunderwood01]

So far the council have done nothing, but they are involved in the dialogue that's going on. The only thing the council can do as far as im aware is - if there is a significant noise nuisance, force the freeholder to carry out work to repair the nuisance. The department is environmental health. The housing department I don't think deals with privately owned properties.

Law cruncher, there is I think a clause in the lease that states that any leaseholder can require the managing agent to take action against another leaseholder if the accusing leaseholder covers the costs... So presumably so long as I pay for it a section 146 can be issued to the above owner if I give the order and cover the costs?

[DNM2012]

I thought that might be the case. However in my experience persistence pays off. Keep on at them, they will palm you off as low priority, but keep phoning and writing. In my case I have worked my way up the council hierarchy, and now correspond with the head of department, suddenly things happen much quicker than before. There may be little they can actually do but don't take no for an answer, lay the emotional stuff on thick, I haven't slept for weeks, its unbearable, its affecting my health etc. Write to your local councillors and MP too. Any support you can get from them will help your case. It might get you nowhere but costs nothing apart from your time.

[leaseholdanswers]

Let me try and tidy this up.

First of all you are mentioning harassment and human rights and whispering on the phone, which confirms that you are losing perspective. I urge you to “get a grip” before you make yourself ill. And yes a large part of that is not their behaviour, but your attitude. Noisy neighbours do not require you to whisper.

I urge you to discuss this with your GP as this may assist your evidence, and some much needed perspective, if nothing else to help you persevere.

Try a little music or the radio, rather than silence, so that door latches are not heard or muffled. Develop a taste for rap, thrash metal or 80’s industrial music ( plus ear defenders) or Robert Fripp’s King Crimson at its syncopated best, a little Larks Tongues in Aspic Pt 2, Bill Brufords’ timing will drive them nuts -it 7/8 or 9/8 no its 16/14, now, I don’t know!

There is a world of music and audio to explore. If you are reading or doing the suggested research, then try earphones, earplugs or “earth music” to create a new sound scape where footfalls are only part of it, not all of it.

Sadly I have heard this sort of story very often and this is the first step, change your attitude as that you can control.

Second the clause that requires the landlord to act on complaint of a breach will also contain the wording on costs. Let him take that advice, though there is nothing to stop you doing some research or if funds permit, or an insurance policy has legal expenses cover, send a copy of the lease to counsel direct http://www.barcouncil.org.uk/instruc...ublic-access//

Third though I have shown LEASE "needed to look again" including on here on 2 occasions, their advice is limited. Moving to and fro is not in itself a nuisance however the frequency and disturbance that it creates can if it is not “ordinarily done”. Recording the pattern of movements and audio recording of the sound, running or stomping feet, can therefore be a nuisance which is associated with going to and fro. A useful comparison is “the TV is on 5 which the manual says is x watts, and you can hear the footfalls” A detailed dirty over a period of time, with witnesses where practical will help.

Four the local authority have a duty to all residents irrespective of the ownership of the block under the EPA 1990(etc) and are simply shirking that to avoid costs. That said they will prioritise resources to people who loudly play rap, thrash metal, or yes oops, but you get the point. Noisy users of stairs are low on the list and aren’t likely to be a statutory nuisance. You can take action yourself eg http://www.elmbridge.gov.uk/EnvHealt...kingaction.htm

As to the family then that is a matter of argument and unless you are in the home with them, or can show how they are not a family, it will be harder to prove.
So exercise control over your own environment and attitude, and let the landlords respond and in the meantime start the diary.

[derekunderwood01]

LHA, it's not a case of needing to see a gp. And when my walls, hallway and front door are within feet of the stairs, if I am having a private conversation It IS necessary to whisper. Bare in mind that even with my internal doors closed I can hear everything they say at normal levels on the stairs - so it would follow that they can hear me talk on the phone. If they are on the stairs constantly it is very difficult for me to have a private conversation in my own apartment. The building is incredible like that.

As regards putting on radio - I usually have the tv on when it's excessive and due to the building I can still hear constant footsteps over the tv - even with volume on loud. Like I said I can't even get through a tv programme without the constant sound of footsteps throughout.

I also don't think I should have to change my own life all because they are living there's to excess. It's a matter of principle.

I like your 'tv is on 5' theory and I may try that, however, the trouble here is not necessarily something that is easily recordable... Even low-mid level noise - if it monotonous will drive a man crazy. However from all the evidence I can see the courts do not consider coming and going or low level high frequency noise to be a 'nuisance or annoyance'. This is rediculous as it is a scientific fact that this can drive people nuts.

The diary is already started, I have days and days of times and dates of abnormally high usage of the stairs... so much so Im beginning to think one of them is a 'dealer'... any sound recording equipment I have doesnt pick up what im hearing (or feeling for that matter).

At the end of the day, perhaps the best thing to do is find something as equally annoying to them that I can do until they get the point and it dies down... it really is my only option if all else fails...

[derekunderwood01]

There are other things I could have them under 'annoyance or nuisance'.. last year was nuts with parties every weekend till 8 in the morning, shouting, stomping, throwing of cigarrettes on my property... would the court consider 'past nuisances' as being a breach of lease or ongoing nuisance?

Its interesting hearing lawcrunchers opinions on family - that being that four unrelated individuals living together and paying rent being more towards the not-family end of the spectrum (your telling me). Also interesting to note that the leasehold advisory service felt the same until I suggested they may be 'sharing meals'. lol. Seems to me all thats required for a friend to become family is to share a meal with them.... this is hilariously ridiculous... surely there must be more to the 'friend or family' assessment than just sharing meals?

I shared a snickers bar with a tramp once... if Id known hed immediately become a family member I would have at least offered him a bed for the night. Jeez....

My point is is that friends (two couples) living together is a completely different social situation to 'one family'... families LIVE together - its a unit - friends (if unrelated and as couples) just party all the time - it doesnt even RESEMBLE a family situation in the slightest. They simply shouldnt be allowed to be called a family - its blatantly obvious its not a 'family' situation up there! Would a court even consider this 'social difference'?

[DNM2012]

At the end of the day, perhaps the best thing to do is find something as equally annoying to them that I can do until they get the point and it dies down... it really is my only option if all else fails...

If you are living in your flat, quiet as a mouse, the upstairs flat will assume as they can't hear you, you can't hear them. As LHA suggests background music will cover up some of the nuisance.
Mrs DNM is a nightmare for sitting in the flat in total silence, even watching TV with the volume down and subtitles on when she is alone. She discovered vacuuming the cobwebs off the ceiling very therapeutic when upstairs are particularly annoying, me I've always got music on and it really does help.

Don't suffer in silence, make some noise occasionally, they might come and complain to you, then you compromise

[leaseholdanswers]

The TV is on 5 is not an idea, it is a measure of the disturbance.

You are still focusing on the issue of family and we have all said stop that, its an expression of frustration that we understand, your purpose now should be to consider,as I said at the outset the underlying problem.

if you are saying that you can be heard on the phone from outside the flat then you might consider sound insulation as an alternative to legal fees.

[derekunderwood01]

I have already said that I have the tv on and can hear their footsteps over it constantly. Even with the volume turned up. The vibrations come through the walls, floorboards, windows... The whole building rattles - sound insulation is likely to be highly ineffective. The major problem is with the occupancy, the type of occupancy and the style of occupancy - combined with it bring a very old building converted before modern insulation guidelines...

Any insulation worthwhile will cost almost as much as initial court fees and will mean I lose space in my property.. Not to mention the inconvenience and the fact it may not actually do ANYTHING.

Above all it's the constant bombardment the building takes with 4 20 something's living it up all the time... If they sat down occasionally all this may not be a problem.

[derekunderwood01]

Quite obviously there's significant extra wear and tear on the building with these people in. Not to mention (as you say LHA) the strain on the water supply with 4 adults being in constantly... It's in no ones interest to keep these people.

The managing agent is now also looking into their littering of my property below.

Listen guys, I've tried radio, I've tried tv, I've tried music... All of which I'd have to turn up to levels whereby I'm breaching the lease to drown out the sound of constant footsteps - the stairs central to the property are BUILT INTO my walls, it's simply impossible... I can feel them stomping above - below my feet... The building simply isn't designed to have continued occupation above by two families... Once in a while fine - day in day out? In an old property? Converted befor modern insulation guidlines? Gimme a break... I've never experienced anything like it...

[derekunderwood01]

Can the managing agent legally issue a section 146 if the above owners are contesting the breach of lease? Despite already admitting to the fact they are not family? ...my objective now is to keep the pressure on and just wondering whether assuming I cover the costs I can request the managing agent to issue the above owner with a section 146, is doing this breaking thr law if she is contesting it?

[leaseholdanswers]

The section 146 sets out the breach, if they believe that there is case to answer, and they then challenge it.

In most cases the breach will be alleged and determined at the FTT before a S146 is issued.