Damned Nuisance - the occupier's right to quiet enjoyment

Every occupier, be he freeholder or tenant, has the benefit of quiet enjoyment.  It is a fundamental right enshrined in the common law.  But we all know, from our own experience, the erosion of the old adage that silence is golden.  All night parties, ghetto blasters, car and burglar alarms, barking dogs, courting cats, crowing cocks and world cup TV football, are just some of the ills of modern living which can disturb our slumbers.  But for the bleary eyed sufferers, legislation and judicial decision has started to restore peace and equanimity to our lives.

A growing problem

Nationally, nuisance is an increasingly common problem.  Local authorities receive around 180,000 complaints a year relating to noise alone.  Landlords and agents also spend a significant amount of time resolving issues involving nuisance.  In the extreme case, nuisance can encompass more serious problems involving neighbour disputes, racial harassment and damage to property.  Indeed, the term 'neighbours from hell' has entered popular usage and inspired a recent television documentary on neighbour disputes where a shooting incident was the result of one major disagreement.
Fortunately, axes and shotguns are not yet common weapons among warring neighbours, but there is a drive to protect the public from noisy and nuisance neighbours which has led to much recent legislation in this area.  New provisions, explained in further detail below, give landlords and local authorities greater powers to regulate anti-social behaviour by both tenants and their visitors.  These powers are now being used effectively to drive out and blacklist the worst offenders.
Southwark is one of several London Councils which have set up 24-hour noise nuisance teams and are using powers under the newly introduced Noise Act 1996 to seize hi-fi equipment and take offenders to court.

What is nuisance ?

Nuisance has been defined in law as "something unauthorised that is obnoxious or injurious to the public at large (public nuisance) or to an individual, in relation to his ownership or occupation of property (private nuisance)".
In modern terms, a nuisance can encompass behaviour that unreasonably interferes with other people's rights to the use and enjoyment of their home and community.  The most common source encountered by landlords and agents is the playing of music late at night, but other examples include racial harassment, drug dealing and other criminal behaviour, problems with pets and pests, and problems with rubbish and other discarded junk.  The list is endless, but what is certain is that the landlords and property managers can spend a significant amount of time managing issues resulting from nuisance. 
To deal effectively with these situations, it is important that landlords understand where their responsibilities to a tenant start and finish, and what remedies are available to both landlords and their tenants to abate the nuisance.

Different Sources
Nuisance can arise from a multitude of different sources.  We shall consider the situations where a nuisance arises from some third party or outside source, and the rights and remedies of the parties.  These might include:

neighbour disputes and noise

infestation of pests

break-ins and other criminal activity

Landlord's Duties

All tenants have the benefit of two important covenants which, even in the absence of an express term, will always be implied into the tenancy agreement.  Firstly, a landlord is under a duty to keep the structure and exterior in a state of repair and would be liable for any nuisance caused as a result if the disrepair were allowed to continue after being informed of it.  Secondly, all tenants have the benefit of a covenant for quiet enjoyment.  In practice, the main effect of this covenant has been to protect a tenant against harassment and eviction by the landlord.  The covenant for quiet enjoyment does not however extend to activities outside the landlord's control such as noise from a neighbouring property, damage by third parties, or infestation by pests.

This means that where the landlord's tenant suffers damage or annoyance as the result of actions from adjoining occupiers, or simply becomes embroiled in a dispute with neighbours, the landlord can normally choose to refuse assistance and involvement.
Yet sadly, life is rarely so simple; an unhappy tenant will move away, forcing a landlord into the time and expense of reletting the vacant property.  Anti-social behaviour may also blight the neighbourhood, reduce local property prices and rents, and make the property harder to relet.  So in some situations, despite holding no legal obligation, the landlord or property manager will be forced to intervene, especially if the behaviour is resulting in damage to the property.

Example:  A tenant in Islington suffered noise and general annoyance as a result of a neighbour who was trading and repairing motor vehicles from home.  The accumulation of vehicles and resulting nuisance developed into a major annoyance for the neighbours.  Problems included the noise of machinery working late at night, access being blocked by vehicles and visitors to the repair business and the number of vehicles littered around the property and in the street.  The landlord helped the tenant to obtain an induction preventing the neighbour carrying out these business activities from a residential property.

Noise

Noise is probably the most common form of nuisance for landlords and their residential occupiers.  Where the noise is caused by the tenant or a visitor of the tenant, the landlord will generally have authority to deal with the problem under the terms of the tenancy, and the recent Housing Act 1996 brought in additional provisions to assist landlords here.  The ultimate sanction is for the landlord to start possession proceedings and this process is described in more detail in the second article.
Where the noise is coming from a third party, either a neighbour's home, a local business or stationary vehicles and equipment in the street, the starting point is to talk to the person or company responsible for the noise and point out the problem.  They may be carrying on normal domestic activities and unaware that their actions are causing a significant disturbance.
When informal action is not possible or fails, it may be necessary to consider formal action.  The occupier affected can complain to the local authority about the noise problem.  Complaints are normally addressed to the environmental health department.
Local authorities have a duty to investigate complaints of noise emitted from premises and vehicles, and machinery or equipment in the street.  Under sections 80 and 81 of the Environmental Protection Act 1990, local authorities have a duty to deal with any noise which they consider to be a statutory nuisance.

Enforcement
The local authority will usually send an environmental health officer (EHO) to visit the property where the noise or other nuisance is taking place.  If during the visit, the EHO witnesses the noises or is otherwise satisfied that a statutory nuisance exists, they must serve an abatement notice on the person responsible for the nuisance.  This may require the noise to be stopped altogether or limited to certain times of the day.  Where the nuisance is not caused by unreasonable behaviour but, for example, by inadequate sound insulation, the owner can be required to carry out remedial works.

Failure to comply with an abatement notice without reasonable cause is an offence which can carry a maximum fine of £5,000 with a further fine of up to £500 for each day on which the offence continues after conviction.  Nuisance caused by commercial activity can attract higher fines.  Local authorities have a number of powers to help them abate a noise nuisance.  They can gain entry to premises to enable them to abate the nuisance or they can gain access or entry to vehicles, machinery or equipment when the person responsible cannot be found (e.g. misfiring vehicle alarms).

There is no set level at which noise becomes a statutory nuisance; what is acceptable to some is unacceptable to others.  Some commercial and industrial activities are inherently noisy; but codes of practice which lay down guidelines for minimising noise emitted by potentially noisy activities including audible alarms, model aircraft and construction sites and European standards also now exist for 'acceptable' noise levels emitted from cars, motor bikes etc.  But, persistent revving of engines, honking of horns, uncontrolled burglar and car alarms along with barking dogs, carousing cats and cocks could all be subject to an order and subsequent criminal conviction if breached.

New measures
Despite these powers, night noise still proliferated and something more drastic was called for.  The Noise Act 1996 was brought into operation, quietly, on 23rd July 1997 and supplements the existing powers under Environmental Protection Act 1990, although local authorities must resolve to adopt the legislation in their area.  Once adopted, the local authority has a duty to investigate any complaint by any occupier about excessive noise between the hours of 11pm and 7 am.

The Act also specifies permitted noise levels which may be measured with standard measuring devices.  The investigating officer may decide that the permitted noise level has been exceeded, and serve a warning notice on the person responsible asking for the noise to be abated within the time specified in the notice (which may commence no earlier than 10 minutes after service and ends by 7am on the following day).  Powers contained in the Noise Act 1996 (which does not apply in Scotland) enable local authorities to seize noise making equipment and apply for forfeiture. In Scotland, the police have powers to remove articles suspected of being used to commit an offence.  The courts have powers to order the forfeiture of such articles.
Furthermore, the Housing Act 1996 contained tougher powers for landlords to take eviction proceedings against nuisance tenants, and extended existing provisions to persons visiting the tenant, and causing nuisance in the locality - these will be explained in more detail in the second part of this article.

Pests

Another frequent source of nuisance to residential occupiers is infestations resulting from pests such as wasps or even cockroaches, taking place either within the property itself, or within the grounds associated with the property.  The common law position, generally, is that the landlord is not responsible for the acts of third parties. 
The landlord cannot normally be held responsible for the eradication of insects or other pests which occur during the course of the tenant's occupation of the property.¹

There are two notable exceptions; firstly the landlord is responsible if the infestation occurs from adjoining common areas which remain under the control of the landlord.  For example, the courts have held that a landlord would be responsible where cockroaches entered a tenants flat via the ductwork within the common areas and passages of a block of flats.  Secondly, the landlord would be responsible for eradicating the pests if they were present prior to the commencement of the tenancy, or giving the tenant the option to withdraw from the tenancy^.2

Dogs

Domestic pets can be the source of damage or annoyance either within a property, or from the nuisance caused by neighbouring pet owners.  Landlords generally protect their own property by inclusion of a covenant in the tenancy agreement against keeping pets.  Landlords may decide to relax the covenant upon receiving a formal written assurance that the landlord reserves the right to have the premises professional cleaned at the end of the tenancy and replace any articles deemed to have been damaged (at the tenant's expense).

If an occupier is disturbed by loud or incessant barking of a neighbour's dog, or unsanitary conditions, complaints may be made to the local authority Environmental Health Officer in the same way as for other noise nuisances.  Action, via the police, may also be taken against dangerous dogs, where a person feels sufficiently threatened or has been injured.  A magistrate's court (sheriff court in Scotland) can order that a dog is muzzled, kept on a lead, neutered or destroyed if it has been behaving dangerously in a public place.  Stray dogs are also responsibility of the local authority's environment health department. Many local authorities have a dog warden whose duty is to round up and dispose of stray dogs. 
Local authorities have the power to introduce by-laws to keep dogs on a lead and not to foul public areas.

Criminal Activity

Damage arising from break-ins is sadly an increasingly common phenomenon, especially in urban areas.  Again, the common law rule is that the landlord is generally not responsible for acts of third parties and landlords frequently include an express covenant in the tenancy agreement whereby the tenant is required to replace any broken glass, or rectify other similar damage to the property.  In practice, the property will normally be covered by a buildings insurance which will provide appropriate cover on behalf of the landlord for such damage.
Where the tenant incurs costs in securing the property (e.g. temporary boarding up of a broken window or door) following a break-in, a landlord will not be bound to pay for such costs, although similarly, it may be possible to recover such costs from the insurer.

Fences and Party Walls

Repair to a garden fence or wall is usually the responsibility of the person who owns it.  When in doubt, the title documents and plans of the property may give an indication of ownership.  If the boundary fence is supported by pillars on your side, then the law presumes that it is yours.
Party walls built right on the boundary between homes, are the joint responsibility of the neighbouring owners, although it is not possible to force a neighbour to carry out repairs on their side of the wall.

Powers in relation to party walls and neighbouring land have been considerably strengthened with the new Party Wall Act 1996 which came into force at the beginning of July 1997.
Section 6 of this Act introduces new obligations on anyone digging an excavation near another owner's building (particularly useful where there is a risk of subsidence), or undertaking work or alternations to a party wall.  Notices must be served and procedures followed.In England and Wales, under the Access to Neighbouring Land Act 1992, you can apply for a court order to gain access if you need to go onto someone else's land to carry out repairs and they have refused to let you in.  In Scotland, you cannot.

Trees

If trees on neighbouring land are causing a nuisance, it is sometimes possible to persuade or even force neighbours to remove or reduce trees since the potential effects and dangers of subsidence and root damage caused by neighbouring trees are well recognised.  Tables exist which outline the recommended minimum planting distances of different types of trees from the foundation of buildings and a surveyor will be able to advise further.
If a neighbour's hedge or bush is overhanging the subject property, the owner is entitled to prune it back to the boundary but no further.  However, the clippings and any fruit removed from the neighbour's tree rightfully belong to the neighbour and should be returned.  Where the property lies in a conservation area, it may be necessary to ask permission from the council who have six weeks to decide whether to put a preservation order on the tree.  Similarly, the tree may already be subject to a preservation order, in which case, any person found pruning it without permission from the council could be fined.

Light
The modern prevalence for planting of fast growing conifers has led to many disputes between neighbours. Indiscriminate planting of such trees can deprive neighbouring occupiers of the natural enjoyment to light and views from the property (in fact, there are currently moves to ban the open sale of these trees).  Construction may have similar effects on light reaching neighbouring properties but this can be regulated in other ways (see separate heading below).
In English law, there is no universal right to a free flow of light.  A landowner or tenant cannot object to activities on neighbouring land merely because they reduce the amount of light passing through his windows unless the obstruction complained of constitutes a nuisance.  The person would need to prove two things; that he held rights to light in that particular direction (for at least 20 years), and that the reduction in light is so significant as to markedly reduce the amenity and enjoyment as a dwelling-house, and thus constitute a nuisance.  There are formulae and guidelines that can be used to support claimants in this complex area.

Construction work

Construction work in the neighbourhood is a frequent cause of noise and increased traffic.  Planning permissions are required for most types of works (except very minor extensions) and owners are generally required to notify neighbours, who may lodge objections.  In Scotland, the onus is on the developer to inform anyone who is likely to be affected. 
Planning or environment health departments can impose restrictions on the hours of work and the type of machinery being used.  The construction works can also cause nuisance and damage directly to a neighbouring property, for example by vibration, or erosion of foundations.  Property owners and builders should have third party insurance to cover damage caused by their building work.

Parking

The parking place in the public road directly outside a house is not part of the property and the occupier therefore has no legal right to insist on parking there (or exclude others from parking there) although owners and occupiers do have rights of access to the entrance of their driveway or garage. 
However, where neighbours park commercial vehicles in residential areas, it may be possible to prove that planning or environmental rules have been breached.  Also, many local councils now operate controlled residential parking schemes which restrict the designated parking spaces to local residents.  It may be possible to apply to the highways department of the local council for extra road markings or the introduction of a residential parking scheme where there are frequent parking or access problems.  If a neighbour's parking habits are judged to be illegal, then it would be a matter for the police.

Conclusion

In order to avoid being drawn into prolonged disputes over nuisance, practitioners can benefit from being aware of the legal provisions, the role of the enforcement agencies and the remedies available to abate the nuisance.
Courts in turn are showing increasing willingness to enforce the right of quiet enjoyment and provide support for the common adage: 'be seen, but not heard'.


References
1.  Habinteg Housing Association v James (1994)
2.  Smith v Marrable [1843].