We don’t usually run Scottish case law. It is, after all, a whole separate legal system, and one in which none of us are qualified. It is also, going by the language of the judgments, utterly splendid – after all, who doesn’t fancy a judgment that repeals pleas-in-law and assoilzies Defendants. However, this case is perhaps of some use/interest in my jurisdiction, turning as it does on the issue of poor sound insulation and fitness for human habitation.

STEPHEN REAY (AP) AGAINST DUMFRIES AND GALLOWAY HOUSING PARTNERSHIP (2020) ScotSC SC_19

This is a Sheriff Court decision, so effectively a first instance county court decision in English and Welsh terms. My apologies to Scottish readers, but I am going to translate this into English and Welsh terms as far as I am able. I am sure I will be corrected if any serious damage results.

Mr Reay had brought a claim in respect of inadequate sound insulation in his flat. He was the Scottish Secure tenant of DGHP since 2003. The property was an upper flat of a four flat block built in the mid 1930s. The separation from the flat below was a timber joisted floor with tongue and groove boards, and a plaster and lath ceiling below. Between the floor and ceiling below was ‘ash deafening’ laid on deafening boards (apparently ash deafening was the residue left from coal burning by steam locomotives and there was a lot of it in the 1930s). This layer, the parties’ experts agreed, was less than the usual depth, possibly following electric wiring installation in the 1980s.

It was agreed by the parties’ sound testing experts that the sound insulation levels to the flat below were at a level that would be considered poor and considerably below current building standards regulations.

Mr R had begun complaining to DGHP of excessive noise and other behaviour by his downstairs neighbours in July 2009. Following a number of complaints, an officer attended in February 2011 and decided the noise was ‘domestic noise’ from a family with young children and not excessive. Advice was given to the neighbour. After another complaint a year later, in February 2012, an officer attended and again found the noise to be normal and not excessive given the design and layout of the properties. Mr R requested soundproofing and this was refused.

In October 2013, Mr R again complained of anti-social noise from the downstairs neighbours, and said the sound problem was inherent to the property. At a meeting Mr R was threatening and obstructive towards proposals to put in sound monitoring equipment, because he didn’t think it would be adequate.

The downstairs neighbour left in December 2013 and another tenant moved in. Mr R made no further complaints about anti-social behaviour. In 2014, following Mr R’s involvement of a local councillor, sound testing took place. Mr R subsequently brought the present claim.

Mr R argued that DGHP’s duty under the tenancy agreement keep the house “habitable, wind and water tight and in all other respects reasonably fit for human habitation” (and the same wording under Schedule 4 of the Housing (Scotland) Act 2001) was engaged. The tenancy agreement also provided that the “duty to repair includes a duty to take into account the extent to which the house falls short of the current building regulations by reason of disrepair.” and “we will repair any other defect we find which will significantly affect your use of the common parts, or the house, within a reasonable period”.

Thus, argued Mr R, once he had brought the defect to DGHP’s notice and the difficulties it was causing, they were obliged to resolve the defect and in doing so take account of current building regulations. The noise had significantly affected his use of the property, causing him strain and his daughter, who had the most affected bedroom, to move out. Damages should be assessed as per Wallace v Manchester City Council.

DGHP argued that Mr R for their repairing obligation to be engaged, Mr R had to show the property had fallen below the relevant standard at some point during his tenancy (ie arose during his tenancy). He hadn’t.

They also argued that the noise mainly complained of – doors slamming and loud music – were examples of anti social behaviour, and impact noise like doors slamming wouldn’t have been prevented by underfloor sound insulation anyway.

Mr R hadn’t complained of any noise issues during the first 6 years of his tenancy, so the issues came from the habits and excessive noise of a particular neighbour.

The Sheriff Court held:

The sound ratings at the property were typical of similar properties of the same age.

Mr R had given notice of soundproofing issues in October 2013, when the inadequate sound proofing was raised by him, rather than prior complaints about his neighbour’s noisy behaviour. His difficult behaviour had delayed any point that an obligation might fall on DGHP.

DGHP were wrong in arguing that only defects caused during the tenancy gave rise to their repairing obligation. The obligation extended to maters that came to light during the tenancy, otherwise landlords could escape responsibility merely by showing that their own failings were such that the defect predated the claimant’s tenancy.

However, the reference to the building regulations in the tenancy agreement and Schedule 4 of the Housing (Scotland) Act 2001 did not impose a stand-alone obligation to meet the requirements of those regulations, whether that was to ‘take into account’ or ‘have regard to’ the current regs.

Mr R’s claim was on the basis of the property being not ‘reasonably fit for human habitation’ and/or the defect significantly affected his use of the property, such as to engage the tenancy agreement clause.

However, this was not accepted. Mr R had lived at the property for 6 years before any complaint about noise. For the next 4 years his complaints were about the excessive noise and behaviour of a particular tenant downstairs.

There was no freestanding obligation on the landlord to bring older stock up to current building regulation standards. The soundproofing was poor only in relation to modern homes, but typical of its kind. None of the experts expressed a view that the level of sound insulation amounted to a defect, or that it made the house unfit for human habitation.

Therefore Mr R’s claim fell on the basis that he had not shown that the property was unfit for human habitation or that there was a defect that had significantly affected his use of the property.

Therefore the court

REPELS pleas-in-law Numbers 1 and 2 for the pursuer, and plea-in-law Number 1 for the defenders;
SUSTAINS pleas-in-law Numbers 2 and 3 for the defenders and, in terms thereof,
ASSOILZIES the defenders;
REPELS plea-in-law Number 4 for the defenders as no longer necessary
ASSIGNS a hearing on expenses

(I couldn’t resist).

Comment

There is much of interest here. Although the Scottish statutory obligation is different to section 9A Landlord and Tenant Act 1985 (as amended by the Homes (Fitness for Human Habitation) Act 2018, the case still turns on whether the property was reasonably fir for human habitation.

What is notable is how different this is to the landscape of London Borough of Southwark and Another v. Mills and Others Baxter v. Mayor etc of the London Borough of Camden (1999) UKHL 40, the previously defining case on inadequate soundproofing in England, which begins:

Neither tenancy agreement contains any warranty on the part of the landlord that the flat has sound insulation or is in any other way fit to live in. Nor does the law imply any such warranty. This is a fundamental principle of the English law of landlord and tenant. In Hart v. Windsor (1844) 12 M. & W. 68, 87 Parke B. said:

“There is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let.”

And in Edler v. Auerbach (1950) 1 K.B. 359, 374, Devlin J. said:

“It is the business of the tenant, if he does not protect himself by an express warranty, to satisfy himself that the premises are fit for the purpose for which he wants to use them, whether that fitness depends upon the state of their structure, the state of the law, or any other relevant circumstances.”

What is, I think, quite clear in this case is that noise caused by a lack of adequate sound-proofing could, in principle, be a fitness for human habitation issue. Mr R’s case fell on its facts – he could not establish, given the initial six years of no complaints, and that his complaints were effectively linked to a specific tenant of the other flat, that the poor sound proofing made the property unfit for habitation, or that it was the ‘defect’ per se that significantly affected his enjoyment of the property.

But it is also a caution for those considering bringing noise/sound proofing related cases under s.9A LTA 1985 in England as to what kind of evidence would be required to establish a relevant defect to the property. I’ve already been asked by some people whether s.9A might be a remedy where there is neighbour nuisance (by a tenant of the same landlord). I was cautious about that idea, and this case would show why. Fitness would arguably, as here, not amount to an obligation to insulate a tenant from their neighbours.