Problem: Defective construction work – should the tenant pay?
I run a small general building company, carrying out mostly repairs and refurbishment work to within a radius of about 25 miles of Leicester. A few weeks ago, we were contacted by a client who had recently purchased the leasehold of a flat.
Although the flat is a new build within a small block, the actual shell of the building was formerly an old warehouse. The client explained to me that shortly after moving in, she became aware of noise being transmitted from the neighbours directly above her flat. The client has said that although the noise being transmitted is ‘normal’ noise, for example, someone walking on the floor and sometimes even muffled talking, it is very annoying.
The client has asked whether we are able to do anything to eliminate or reduce the noise. In response, I have said that we could create a sound barrier by installing another ceiling below the existing one, and insert a good quality insulation material, although I did say that the disruption and cost would be considerable, and that the floor to ceiling height would be reduced.
I have also said that she should really consult a building surveyor to consider the best option and also a solicitor as the existing ceiling / floor should have much better sound properties than it currently does.
Response: Builder in breach of contract
You have been sensible in suggesting to the client that she consults a professional third party, as being a new build flat, it is most unfair to expect the tenant to meet the remedial cost plus, a matter such as this can be legally and technically complex.
The first port of call will be the Lease. The Lease that each tenant has entered into should contain covenants requiring the tenant not to do anything at the property which may be a nuisance or annoyance and, not to live in the property unless all floors are carpeted (save for perhaps the kitchen and bathroom). Providing such covenants are included in the Lease of your client’s neighbour, and the neighbour has breached the covenants, your client should be able to insist that the Landlord enforces the covenants.
Another document that your client should look at is the Sale Agreement. This is the agreement that your client would have signed with the developer, given that she was the first purchaser of the flat. In the Sale Agreement, there may be terms relating to the standard of construction works including obligations on the builder to construct a new home using proper workmanship and materials, and in accordance with the Building Regulations and the architect’s plans and specifications etc.
If construction work is therefore defective (i.e., the ceiling / floor has not been built in accordance with the documentation), the builder is in breach of contract and your client is entitled to a remedy. Your client should contact her conveyancing solicitors about this.
Finally, see if your client was provided with a completion certificate by a building professional, such as an architect. If such a certificate was provided, then your client may have redress against the professional even where the professional was paid by a third party, as the completion certificate is a warranty, and any breaches of warranty your client may be able to pursue the professional directly.
© Michael Gerard 2016
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.