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Tortured sounds from above
I live in a flat in a period conversion in west London. Recently, a new family have moved in upstairs and they have been producing an inordinate amount of noise. The daughter practises the violin day and night — it sounds like someone is torturing a cat. Can I get her to stop?
The problem you describe is something that comes up time and time again as more people are living in flats. The recourse you have will depend on how and why this noise problem arose.
I know how it arose: the family took up the carpets when they moved in and laid a smart wooden floor. It’s an echo chamber up there.
If you think that the works are the reason that your neighbours’ use of their flat are disturbing you more than ever, then your first port of call would be the terms of the lease. These govern the relationship tenants have with the freeholder. Some leases contain a specific prohibition against playing musical instruments or a requirement to have a carpet. If the works the tenant has undertaken have caused the problem and do not comply with the lease, then you may be able to press your freeholder to enforce those terms — and that should resolve the problem. I expect that you would have to agree to cover your freeholder’s costs of taking any such action against your fellow tenant.
What if I can’t prove that the noise has been made worse by the alterations?
If you can’t, or the freeholder won’t assist, then you will need to make a nuisance claim. Various tests will need to be done to ascertain whether what you are suffering constitutes a “nuisance” in the strict legal sense. The remedy that you would be asking for would be, in so far as it is possible, an order requiring the tenant to stop doing what it is that is disturbing you and/or damages to compensate you for your loss. During a recent case in London, it was deemed that a neighbouring family caused unacceptable noise after removing a carpet. The court ordered the family to pay the complaining tenant £100,000 in compensation. You may well be able to reach a more practical solution through negotiation, which may mean you can avoid the courts altogether.
Liberty Chappel is a real estate dispute resolution solicitor at Pemberton Greenish
How to force a sale
My business partner has disappeared, leaving me with large debts. I have a court order, but he still hasn’t paid me. I know his most significant asset is his house in London. Can I force its sale?
Yes, it is possible, but it will take time and effort. The first step is to apply to the court for a charging order over his property. It is at the court’s discretion and it will consider all the circumstances but generally, if the prescribed criteria are met, the court will grant a charging order.
Once I have the charging order will he be forced to pay me?
Unfortunately, you will not automatically receive payment. A charging order means that the sum is secured against an asset, but there is no guarantee when you will receive this sum. You need to register the charging order against the title of the property at the Land Registry. When your business partner comes to sell his home the charge will need to be settled from the sale proceeds, provided there is sufficient equity in the property.
I know he owns the house with his wife. Does that make a difference?
The charging order will only apply to his share of the beneficial interest in the property. Whether you receive payment on a sale will depend even more on the level of equity in the property and amounts of any charges with priority over your charge.
I doubt that he is planning to sell the house any time soon. Can I force the sale of his family home?
You could apply to the court for an order for sale of the property to force a sale at any time. This is only worth doing if there is sufficient equity in the property to satisfy all charges, including yours. Before making the order, the court will consider all the circumstances, including any prospect of the debt being paid by other means, the size of the debt and who occupies the property, particularly whether children live there.
What happens if I do obtain an order for sale?
The order will set out a date for your business partner to pay the sum owed. If he does not, it will say that the property can be sold.
Nikki Yates is an associate in the litigation team at Boodle Hatfield