The case of Tejani v Fitzroy Place Residential Limited and others  EWHC 2760 (TCC) is a judgment of the High Court with regard to a luxury penthouse apartment purchased off plan and which Tejani claimed was defective in that the façade of the building had created a noise nuisance, preventing him and his family from sleeping.
The matter was heard over three days in October 2022 before Veronique Buehrlen KC sitting as Deputy High Court Judge. The case provides a useful summary of the legal arguments which can be used in such a case.
What constitutes a nuisance? The traditional definition as per Clerk and Lindsell on TORTS states “the essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land”.
In this case, the judge concluded that the noise complained off was not such as to awaken the average person when sleeping in the apartment, let alone frequently, and he went on to conclude that there was no material interference with the ordinary comfort of the average person living in the apartment.
The Judge found that if there was no private nuisance established, then there could not be a breach of covenant of quiet enjoyment.
The Claimant claimed that the agreement to purchase the apartment off plan included a clause which required the defendants to remedy any defect arising from the building works. The judge rejected this argument, finding that the clause was not an absolute obligation but was an obligation to “take reasonable steps to procure that any defects in the works…shall be remedied as soon as reasonably practicable…”.
The judge did find that there was a defect in the works carried out because the façade of the building did not comply with the specification.
However, the judge found that no written notice of the defect had been provided within 23 months of practical completion as required by the contact, and that the claimant could not rely on breach of contract.
This is a very technical area, this case highlights the need for a claimant’s potential case to be broken down into its constituent elements and correct weighing of the facts and the legal tests. Principally, if private nuisance cannot be established, it is most unlikely breach of covenant can be established. The agreement to purchase needs to be analysed carefully, and if written notices have not been given within a period specified, it may well be too late to take any action.
Pinney Talfourd are experts in development agreements and claims for private nuisance and breach of quiet enjoyment, Stephen Eccles leads the team of Lisa Eastwood, Oliver-James Topping and Jack Oliver.
The above is meant to be only advice and is correct as of the time of posting. This article was written by Stephen Eccles, Partner in the Property Litigation team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2023.