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Q1. My neighbour in the same subdivided flat causes excessive noise at night every day.  My children and I cannot sleep.  Can I terminate the tenancy agreement?

 

It depends on whether the landlord is in breach of its covenant for quiet enjoyment and whether the interference is substantial enough to entitle the tenant to early terminate the tenancy.

 

The covenant for quiet enjoyment does not offer absolute protection against all forms of interference by any person during the tenancy, but only protects the tenant against interference with quiet and peaceful enjoyment of the premises by the landlord. 

On the basis that all the subdivided units are owned by a common landlord, the tenant may have a valid complaint if it can be shown that the excessive noise caused by the neighbour is authorised by the landlord.

 

To constitute a breach of the covenant, there must be substantial disturbance to the tenant’s possession and enjoyment of its own subdivided unit.  Mere personal annoyance or inconvenience does not generally qualify.  Relevant factors include the character of the locality, the standard of comfort, the reasonableness of the conduct complained of and the duration, frequency and degree of the interference, etc.  Each case must turn on its own facts.

 

Separately, if the tenancy agreement has a break clause, the tenant may rely on the break clause and terminate the tenancy early.

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