Q&A - Illegal activity in apartments

ANSWER

One of the key roles given to a property manager is to enforce the terms of a lease on behalf of a landlord and/or management company, ergo it is certainly the property manager’s business to look into any complaints regarding any illegal action taking place at a leasehold property.  

Illegal activity

It is important to note that smoking illegal substances may well constitute an illegal activity. If a tenant undertakes any action that constitutes a criminal offence this should first be reported to the police for investigation. 

Civil remedies 

If the activity continues or the police are unable to take any action, then there are several steps that could be taken by a property manager (on behalf of a landlord and/or management company) under civil law.

One step to take would be to report the illegal activity to the relevant local authority for them to open up an investigation. 

A second step would be to consider the contract governing the tenant’s occupation/ownership of the property, which in most cases would be the lease. The majority of leases contain a provision preventing a tenant from committing any action that would cause a nuisance to any other party to the lease or to another occupier of the development. Arguably, the smoking of an illegal substance constitutes a nuisance. Accordingly, if the lease contains such a provision, then enforcement action could be taken.

Finally, if the above-mentioned steps are unsuccessful then action could be taken to pursue a claim in statutory nuisance on the basis that the above-mentioned activity arguably interferes with the use or enjoyment of a home/premises. There are three potential remedies that could be sought including; abatement of nuisance, an injunction and/or damages. 

Smoking illegal substances vs obnoxious smells 

The key difference between smoking illegal substances and obnoxious odours arising from cooking is that the former gives rise to an illegal activity. 

Whilst there will almost certainly be cases where neighbouring properties are affected by odours emanating from other properties, it is difficult for any action to be taken successfully unless it can be evidenced that the odours are so invasive that the other tenants are significantly affected by them.  

Consequently, a property manager is unlikely to interfere in such circumstances, as the extent of their role is to enforce the terms of a lease not to become involved in every grievance between the leaseholders. 

There is a fine line between balancing the rights of the landlord and/or management company and balancing the rights of all of the leaseholders in the building and this line needs to be carefully considered by the property manager before any action is taken under the lease.

Victoria Bottomley, Solicitor at JB Leitch