Question 1

Running Machine Torment

Accepted Answer

We live in a Victorian building converted into flats in the 1970s. This means the flats aren't as soundproof as they could be. They are still quite quiet in the normal scheme of things and no one plays loud music or anything like that. But our upstairs neighbour has acquired a running machine and uses it for about 10 minutes each day. During this time the pounding vibration can be heard throughout our flat and loose objects directly beneath it visibly shake. I've not raised it with him, because in the normal scheme of things he's not doing anything antisocial - if we lived in a purpose built block we probably wouldn't even notice. He does it early in the evening so it doesn't keep us awake. But we wonder (a) if we have the right to ask him to stop and (b) in the event of damage being caused by the vibration, what is the legal situation? The lease has provisions against music being heard outside the flats but I'm not sure if an exercise machine comes under this. Can you advise? FPRA Legal Expert Nick Roberts replies: I do not think the vibration from the running machine would fall within the terms of clause 3 of the First Schedule to your lease. It is, however, important to realise that, whether or not such a clause is included in a lease does not in any way affect the common law that applies between any neighbours (whether next door, upstairs , downstairs, or merely in the vicinity), including the general law of nuisance. Vibration is certainly capable of amounting to a nuisance in law (in the same way as noise, fumes, etc). For that reason it may well fall within clause 1 of the First Schedule (‘nor for any purpose from which a nuisance can arise…etc.”). But vibration, as a nuisance, can be actionable, regardless of whether it falls within the scope of the lease. I say that the vibration from a running machine may amount to a nuisance: from what you say, it does not sound to me as if it is, in law, a nuisance at the moment. The mere fact that something which goes on in one property can be heard, smelt, or felt in another, does not mean that it is ipso facto a nuisance. The law of nuisance is based on the reasonable use of property, and we are expected to put up with our neighbours using their property in a way which may prefer that they did not. 10 minutes per day in the early evening does not sound unreasonable to me. But if it was early in the morning, or late at night, or he was using his running machine to train indoors to run marathons, it might well be considered a nuisance. If the flats are not well insulated as regards sound and vibration (and conversions seldom are) then you might ask him if it would be possible to put the machine on some form of thick rubber mat. You might also warn your neighbour that the vibration is quite perceptible and may be causing damage. As I say, nuisance is actionable in law: it is a tort, a civil wrong, and if physical damage is incurred to other property, the person responsible will be liable for monetary damages. I suspect that this would be the case even if the vibration had not been such as – because of the ‘give and take’ principle – would have been actionable if there was no physical damage. (You may wonder why leases bother to include clauses such as Clause 3 in the First Schedule if nuisance is actionable anyway. I would say that this is generally done for two reasons: (1) the clause, in effect, deems it to be actionable if any musical instrument, etc., is audible outside the flat between 11 p.m. and 9 a.m.; and (2) an activity which is a breach of Clause 1 or Clause 3 is also then a breach of covenant, so it may potentially result in the lease being forfeited, though forfeiture is circumscribed by numerous legal hurdles which means that it can successfully be invoked only in fairly extreme cases).

Question 2

Running Machine Torment

Accepted Answer

We live in a Victorian building converted into flats in the 1970s. This means the flats aren't as soundproof as they could be. They are still quite quiet in the normal scheme of things and no one plays loud music or anything like that. But our upstairs neighbour has acquired a running machine and uses it for about 10 minutes each day. During this time the pounding vibration can be heard throughout our flat and loose objects directly beneath it visibly shake. I've not raised it with him, because in the normal scheme of things he's not doing anything antisocial - if we lived in a purpose built block we probably wouldn't even notice. He does it early in the evening so it doesn't keep us awake. But we wonder (a) if we have the right to ask him to stop and (b) in the event of damage being caused by the vibration, what is the legal situation? The lease has provisions against music being heard outside the flats but I'm not sure if an exercise machine comes under this. Can you advise? FPRA Legal Expert Nick Roberts replies: I do not think the vibration from the running machine would fall within the terms of clause 3 of the First Schedule to your lease. It is, however, important to realise that, whether or not such a clause is included in a lease does not in any way affect the common law that applies between any neighbours (whether next door, upstairs , downstairs, or merely in the vicinity), including the general law of nuisance. Vibration is certainly capable of amounting to a nuisance in law (in the same way as noise, fumes, etc). For that reason it may well fall within clause 1 of the First Schedule (‘nor for any purpose from which a nuisance can arise…etc.”). But vibration, as a nuisance, can be actionable, regardless of whether it falls within the scope of the lease. I say that the vibration from a running machine may amount to a nuisance: from what you say, it does not sound to me as if it is, in law, a nuisance at the moment. The mere fact that something which goes on in one property can be heard, smelt, or felt in another, does not mean that it is ipso facto a nuisance. The law of nuisance is based on the reasonable use of property, and we are expected to put up with our neighbours using their property in a way which may prefer that they did not. 10 minutes per day in the early evening does not sound unreasonable to me. But if it was early in the morning, or late at night, or he was using his running machine to train indoors to run marathons, it might well be considered a nuisance. If the flats are not well insulated as regards sound and vibration (and conversions seldom are) then you might ask him if it would be possible to put the machine on some form of thick rubber mat. You might also warn your neighbour that the vibration is quite perceptible and may be causing damage. As I say, nuisance is actionable in law: it is a tort, a civil wrong, and if physical damage is incurred to other property, the person responsible will be liable for monetary damages. I suspect that this would be the case even if the vibration had not been such as – because of the ‘give and take’ principle – would have been actionable if there was no physical damage. (You may wonder why leases bother to include clauses such as Clause 3 in the First Schedule if nuisance is actionable anyway. I would say that this is generally done for two reasons: (1) the clause, in effect, deems it to be actionable if any musical instrument, etc., is audible outside the flat between 11 p.m. and 9 a.m.; and (2) an activity which is a breach of Clause 1 or Clause 3 is also then a breach of covenant, so it may potentially result in the lease being forfeited, though forfeiture is circumscribed by numerous legal hurdles which means that it can successfully be invoked only in fairly extreme cases).

Running Machine Torment

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