The Covid-19 pandemic has kept most of us at home, most of the time. During the Movement Control Order in place earlier in the year, many renovations and/or construction were also halted. It is therefore no surprise that some may be experiencing increased levels of noise from their neighbours, including renovation noise.

For those who may be wondering about their rights when it comes to putting up with excessive levels of noise, the Court of Appeal decision in Chin Moy Yen & Ors v Chai Weng Sing & ors [2019] MLJU 681 on the tort of nuisance is worth looking into.

Brief facts 

A family of 7 (“the Chans”) residing at the Flora Green Condominium (located near Universiti Tunku Abdul Rahman) commenced action against the past and (then) present proprietors of 3 adjacent units directly above the Chans’ unit (“Units”).

The Chans’ case is that the Units were illegally renovated without proper approval from the authorities. The Units were partitioned and turned into student accommodations, with each unit renovated to extend the number of occupants to twice the usual amount.

These renovations went on frequently throughout the night and in the early hours of the morning. The renovations also caused physical damage to the Chans’ unit (cracks on the walls and ceiling, water leakage etc), and caused excessive noise and vibrations. The student tenants which later moved into the Units further contributed to the noise.

The management corporation of Flora Green Condominium were also named as a defendant for failing to discharge its duties and responsibilities as a management corporation under the Strata Management Act 2013.

Decision of the Court

The High Court dismissed the Chans’ claim finding that it was not proven. The High Court Judge found that there was not enough evidence of nuisance or trespass and held the registered owner/landlord, having not participated in any alleged act of nuisance, cannot be liable for any nuisance created by the tenants.

On appeal, the Court of Appeal reversed the decision of the High Court holding, amongst others:

  • The renovations which caused water seepage or sewage effluent flowing from the Units as well as cracks to the walls in Chans’ units amounted to trespass
  • The allegation of nuisance by reason of noise and disturbance generated by the activities of the occupants were corroborated by multiple police reports, warning notices issued by the local authorities and complaint emails by other residents to the management corporation. There is no necessity to prove by way of scientific or technical evidence that the noise generated was beyond tolerable levels
  • Testimonies of 22 witnesses also confirmed the noise nuisance. One neighbour gave the following evidence:

overcrowded with students … and the students create a lot of noise and there were renovation noises as well

sounded like dragging of furniture or something very heavy that fell on the floor late at night until early in the morning

noise was loud enough to wake my wife and I up from our sleep

noises I heard from C-P-1 were very loud

  • The complaints were not imagined but were real; the noise and nuisance created not just by the renovations but by the residents in the Units were of such volume, intensity, persistence or regularity that by any reasonable standard this would be considered a nuisance
  • Regard is given to the type of residence (namely, residential condominium)
  • The proprietors/landlords of the Units though were not participants of the acts of nuisance by its tenants, were fully aware of the nuisance complained of and had taken no steps whatsoever to stop and/or reduce the complained nuisance. Therefore, the proprietor/landlord was liable for the nuisance created by their authorised tenants
  • The statutory regime established under inter alia the Strata Management Act 2013 and the Regulations, Bylaws and House Rules enacted or passed under the Act bind all parties. The 3rd Schedule of the Regulations made under the 2013 Act, provides that residents “shall not use or permit to be used his parcel in such a manner or for such a purpose as to cause nuisance or danger to any other proprietor or the families of such proprietor”; “or to use their respective parcels contrary to the terms of use.” The effect of these statutory provisions is to recognize the common law duty of care with regard to neighbours in communal living, casting on all owners including the management corporation, the duty and responsibility of ensuring that there is no nuisance
  • Ultimately, the Chans were awarded RM 80,000.00 in damages:
    • RM 50,000 to be paid by the 1st respondent, who owned all the Units at different points in time;
    • RM 20,000 to be paid by the 2nd to 4th respondents, who were the other proprietors of the Units;
    • RM 10,000 to be paid by the 5th respondent, the management corporation of Flora Green Condominium

Key Takeaways

The decision is a good reminder that:

  • As neighbours, whilst some level of noise is expected, there is a limit. Consideration for others must be practiced even when using and enjoying your own home.
  • As landlords, liability is not absolved simply because the tort is committed or caused by third parties (namely, the tenants).
  • As the joint management body or management corporation, mere investigations and taking steps to resolve complaints (or in other words, not completely ignoring or neglecting the complaints) is insufficient. There is a duty and responsibility to uphold the Regulations, Bylaws and House Rules enacted.

***

This article was written by Donovan Cheah and Yan Nie Th’ng. Donovan is an Advocate and Solicitor of the High Court of Malaya. He is a Fellow at the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and the Asian Institute of Alternative Dispute Resolution. He is also a registered foreign lawyer with the Singapore International Commercial Court. 

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

 

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