3. I am a tenant of an apartment unit who have been disturbed by my neighbour (since he habitually sings karoake at a high volume at night). I complained to the manager of the building and was told that as I was not the owner of the property. He further stated that, as tenant, I did not have any right under the deed of mutual covenant. Is he correct and what can I do?
A deed of mutual covenant is a contract binding on all owners of a multi-unit or multi-storey building. It basically sets out rules for the management and regulation of the building. A typical deed of mutual covenant will state that a unit owner shall not cause or permit nuisance either created by the owner or his/her tenant to other occupiers of the same building.
It is technically incorrect to say that a tenant does not have any right under the deed of mutual covenant. In fact, the law confers a right to a tenant to enjoy and enforce the benefit of all covenants relating to land under the deed of covenant against other co-owners and their tenants. As such, the tenant may have the right to sue his/her noisy neighbours directly to enforce the said covenants under the deed of mutual covenant in Courts (e.g. Lands Tribunal). by obtaining an injunction and/or compensation for any harm or damage caused.
The manager of the building is also mostly likely to be under a duty to enforce restrictions under the deed of mutual covenants against all owners and their tenants. If there is an incorporated owners of the building (i.e. an “IO”), the IO will also be under a statutory duty to enforce the provisions under the deed of mutual covenant. In the event that the manager/incorporated owners willfully refuses to take any step to remedy the situation, the tenant may consider commencing a claim to compel such parties to enforce their duties.
Likewise, a tenant is also under an obligation to comply with the negative/prohibitive covenants under the deed of mutual covenant (e.g. an owner shall not cause any nuisance or annoyance in his unit). Any breach of the same may be subject to claims to be made by co-owners, the manager of the building and/or the IO.
In the event the tenant finds himself/herself facing with a deed of mutual covenant which is silent on the issue of nuisance, another option is probably to sue the singing neighbour under the law of nuisance by obtaining an injunctive relief as well as monetary compensation for the disturbances caused.
As the relevant legal procedures are complicated both procedurally and evidentially, it is strongly recommended to obtain lawyer's assistance in such regard.