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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I own a leasehold flat in a Victorian terraced house. The

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I own a leasehold flat in a Victorian terraced house. The freeholder lives in the maisonette above me and also owns the cellar below me. Prior to exchange of contracts I was told that the freeholder's son had an antique business and kept some stuff in the cellar so I might hear him occasionally when he popped in. As soon as I moved in, the son connected lighting and though he trades on line, he now uses the cellar daily as his working space for sorting his stock, repairing stock, packaging and despatching. He's also employed another person part time. He can be in the cellar any day of the week and sometimes in the evening and because the house was converted without planning permission nor building regs approval, there is only the original floor/ceiling between me and this busy and noisy enterprise below me. I worry that his activities could damage my property and that all his packing materials are a huge fire risk. What type of insurance should I expect him to have to cover me and my property in the event of damage to me, my property or belongings? Thanks for your help
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Are you just concerned about the noise or the fire risk?

Does he have any insurance at all?

What activities are you particularly bothered about damaging your property?

Customer: replied 1 year ago.
I don't know what insurance he has, if any, but before I broach the question with him and his mother (my freeholder) I'd like advice on what I should expect.
I worry about both my safety and the noise ... but I guess that having been persuaded by my chartered surveyor not to worry about lack of these requirements, I'm stuck with the noise as I can't start any enquiries in these areas. Also concerns me about resale problems.
Customer: replied 1 year ago.
Discussing this in the phone would be useful but I can hear everything that is said in the cellar so I assume he can hear everything that is said/happens in my flat.
Customer: replied 1 year ago.
The acitivities that concern me are the hammering and banging to put up shelves and brackets to the walls, the quality of the electrical connections in the cellar, the holes in my floor between me and the cellar (discovered when I've replaced floor coverings) and that I'm not allowed to ask my builder to check out these problems from below. Nightmare really :-(
Customer: replied 1 year ago.
Hi ... is there anyone there?
Expert:  F E Smith replied 1 year ago.

Thank you.I'm afraid it isn't an instant exchange so sometimes you may wait for a reply.

The chance is that there is a covenant in the lease not to run a business from the residential premises so, you need to check the lease to see whether that’s the case. If it is, then you can bring action against the landlord for breaching the terms of his lease and/or allowing it to happen.

There is also the point to be made that whilst this is a seller, it is a cell of a residential purposes, not commercial purposes and hence, there is a planning permission issue here. That would be one for the local authority.

It is not unreasonable for you to ask the landlords for a copy of the insurance which he has in respect of the property and basement and for confirmation from the insurance company that it covers this commercial element and any potential damage to your property.

The amount of packaging which is in there would probably not cause me that much concern because a sofa with non-fire retardant foam or polystyrene roof tiles (still not uncommon) in a flat are probably a bigger fire risk and there would be nothing that you could do about that.

With regard to noise, if it is any more than the normal noise of life, it is actionable in common law nuisance and breach of the terms of the lease by the landlord for quiet enjoyment and allowing this to happen and breach of the terms of any lease of the basement.

Can I clarify anything for you?

Please rate the service positive.

The thread remains open for further exchanges.

Best wishes.

Customer: replied 1 year ago.
Apologies if I seemed impatient, but thought I might have lost contact. I'd like to consider your response and check my lease before I conclude my enquiries. How do I return to this discussion perhaps in a couple of days time? Thanks
Expert:  F E Smith replied 1 year ago.

The thread remains open for further exchanges and you can just contact me in the same way when you are ready.

Meanwhile, it would help me view could rate the service so that I get paid. I still do the follow-up replies for you at no extra cost. Best wishes.

Customer: replied 1 year ago.
Ok. One point ... I didn't think that actual noise disuturbance was taken into account when considering "peaceful enjoyment"? I thought the latter referred to the freeholder/landlord not demanding unreasonable and frequent access to the property?
Expert:  F E Smith replied 1 year ago.

The phrase used is normally quiet enjoyment but it doesn’t mean quiet in the sense of noise necessarily it just means without interruption. It would encompass all of that, including noise.

However notwithstanding, there is an implied covenant not to cause nuisance in every lease.

Further, excess noise is actionable if you contact the Environmental Health Department at the local authority, they can actually issue a noise abatement notice if the noise is any more than “the normal noise of life”.

Finally, it is also actionable in common law nuisance.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks. My self inflicted obstacle is not being able to compromise my indemnity policy :-(