Question 1

Wooden Floors and Noise

Accepted Answer

Wooden Floors and Noise Our flats were erected in 2003. One of the conditions of the lease is that the floors be covered with carpet or other sound deadening material. The original buyers of one the first floor flats laid a wooden floor without putting a layer of insulation between it and the concrete floor. The owner of the flat below complained and the then agents for the landlord wrote to the owners of the flat in question in September 2003 telling them that they were in contravention of the lease and to rectify the situation immediately. The owners of the flat in question only resided at the property for a short time before moving abroad and renting the property to a single lady. Nothing was done about the floor covering. The owner of the ground floor flat moved away. The new owner of the ground floor flat was elderly and hard of hearing so no further complaint was made. We acquired the right to manage in 2009. The owners of the first floor flat have now put their flat up for sale and the RTM company have given copies of the 2003 correspondence to the solicitors in response to their enquiries. The seller’s solicitor has written to the RTM company saying “…… that as no action has been taken over the past 13 years, any breach of covenant would have been waived and so no action could be taken at this late stage.” Is the solicitor correct in saying this? Surely the passage of time does not alter the lessee’s responsibility to comply with the terms of their lease? FPRA Hon Consultant Claire Allan replies: Thank you for your email. There may have been a historic attempt to remedy the breach of lease but there is nothing preventing the new RTM company which I note took over the RTM only in 2009, to issue another letter. This will act as a fresh request by the landlord to remedy the breach. There is an argument that the passage of time will remedy the earlier breach but nothing preventing a new letter of breach and requesting compliance being sent. If there are no current complaints by the owner of the lower flat or any adjoining flats, then all well and good and the RTM company may be agreeable to let sleeping dogs lie. However, it does need to protect itself in case a noise complaint issue arises. The RTM company could write to the owner stating that it is aware of the breach and whilst it will hold off taking any enforcement action for the time being, it will not hesitate to do so (claiming all costs it incurs in doing so) should any noise complaint be raised. It seems that the current set up and occupancy arrangement does not give rise to any audible noise. However, the new buyer may make more noise, or there may be more people living at the flat, which may cause more noise and for the owner below to complain again. At which point the flooring will need to immediately be remedied so that it complies with the clause in the lease as to flooring. The RTM company should ask for a copy of the new flooring specification before it is laid and could request that the tenant backs it up with an acoustic engineer’s report so that it has been properly signed off that whatever flooring the lessee intends to use (unless of course the tenant decides to carpet the flat with double thickness underlay) will meet appropriate sound levels for the building. [Submitted April 2016]

Question 2

Wooden Floors and Noise

Accepted Answer

Wooden Floors and Noise Our flats were erected in 2003. One of the conditions of the lease is that the floors be covered with carpet or other sound deadening material. The original buyers of one the first floor flats laid a wooden floor without putting a layer of insulation between it and the concrete floor. The owner of the flat below complained and the then agents for the landlord wrote to the owners of the flat in question in September 2003 telling them that they were in contravention of the lease and to rectify the situation immediately. The owners of the flat in question only resided at the property for a short time before moving abroad and renting the property to a single lady. Nothing was done about the floor covering. The owner of the ground floor flat moved away. The new owner of the ground floor flat was elderly and hard of hearing so no further complaint was made. We acquired the right to manage in 2009. The owners of the first floor flat have now put their flat up for sale and the RTM company have given copies of the 2003 correspondence to the solicitors in response to their enquiries. The seller’s solicitor has written to the RTM company saying “…… that as no action has been taken over the past 13 years, any breach of covenant would have been waived and so no action could be taken at this late stage.” Is the solicitor correct in saying this? Surely the passage of time does not alter the lessee’s responsibility to comply with the terms of their lease? FPRA Hon Consultant Claire Allan replies: Thank you for your email. There may have been a historic attempt to remedy the breach of lease but there is nothing preventing the new RTM company which I note took over the RTM only in 2009, to issue another letter. This will act as a fresh request by the landlord to remedy the breach. There is an argument that the passage of time will remedy the earlier breach but nothing preventing a new letter of breach and requesting compliance being sent. If there are no current complaints by the owner of the lower flat or any adjoining flats, then all well and good and the RTM company may be agreeable to let sleeping dogs lie. However, it does need to protect itself in case a noise complaint issue arises. The RTM company could write to the owner stating that it is aware of the breach and whilst it will hold off taking any enforcement action for the time being, it will not hesitate to do so (claiming all costs it incurs in doing so) should any noise complaint be raised. It seems that the current set up and occupancy arrangement does not give rise to any audible noise. However, the new buyer may make more noise, or there may be more people living at the flat, which may cause more noise and for the owner below to complain again. At which point the flooring will need to immediately be remedied so that it complies with the clause in the lease as to flooring. The RTM company should ask for a copy of the new flooring specification before it is laid and could request that the tenant backs it up with an acoustic engineer’s report so that it has been properly signed off that whatever flooring the lessee intends to use (unless of course the tenant decides to carpet the flat with double thickness underlay) will meet appropriate sound levels for the building. [Submitted April 2016]

Wooden Floors and Noise

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