Right to flush

The Sheriff Court decision in the case of Carol Morris and James Morris v Robert Patrick Curran and Maria Josephine McGarry Curran is a helpful consideration of what level of noise constitutes a nuisance in the context of flatted properties – one of which is used as a holiday let via Air B&B.

Mr and Mrs Morris are proprietors and occupiers of a ground floor property in Kinghorn, Fife. Mr and Mrs Curran own the property above the Morris’ and have used it as a holiday home since purchasing in 2016 – as well as use by themselves and friends and family, it was let out via Air B&B. Prior to Mr and Mrs Curran purchasing the upper floor property, significant renovations had been carried out by the previous owner who had also used it as a holiday home but only for herself. Part of the renovations included the installation of a saniflo macerator plumbing system. Mr and Mrs Morris made several complaints about noise during the renovations and thereafter about the vibrations from a washing machine but none of the complaints were related to the saniflo prior to Mr and Mrs Curran taking ownership.

Mr and Mrs Curran made several modifications to their property in response to complaints from Mr and Mrs Morris regarding noise – including laying carpet throughout and removing the washing machine. When complaints were made about the noise of the saniflo, the Currans arranged for an engineer to service it and the engineer confirmed that it was working well. Nevertheless, the Mr and Mrs Morris continued to complain and averred to the saniflo as ‘sometimes making a noise akin to a motor bike or chain saw’. The Initial Writ served in December 2017 made various averments relating to noise but the eventual claim was restricted to the saniflo. Mr and Mrs Morris sought declarator that the operation of the saniflo was a nuisance and an interdict against use of it on account of the noise.

The Sheriff dismissed Mr and Mrs Morris’ claim and noted that it appeared that they had become ‘over sensitive’ to noise and displeased with the increased use of the upper floor property upon purchase by the Currans as a result of the AirB&B lettings. Mr Morris kept a diary of the ‘disturbances’ from the upper floor flat and the level of detail was noted as indicating an obsession. The Sheriff noted that the noise complained of from the saniflo was ‘part and parcel of living in a flat’ and that any occasional annoyance did not reach the standard required to be a nuisance in law. It was also noted that ‘silence is not a right to be enjoyed by downstairs proprietors’.

There has been a lot of commentary on the effect AirB&B has on communities – particularly in popular destinations such as Barcelona and New York – and, as noted by the Sheriff in this case, the introduction of AirB&B guests seems to be a primary source of Mr and Mrs Morris’ displeasure. They had grown used to the previous owner using the property above theirs only occasionally and were concerned that the Air B&B use changed the character of the area. However, the Sheriff was clear that AirB&B use alone was not a nuisance and her decision is a helpful clarification on the distinction between annoyance and a legal nuisance.