The leasehold-owner of an apartment in Fitzrovia, London W1, is suing the off-plan developers for more than £3m, alleging that an “unexplained noise” has made the apartment “not fit for habitation”.
According to a preliminary ruling in the dispute, the leaseholder, Nazirali Sharif Tejani, agreed to buy the apartment off-plan for £2,595,000 from freeholder Fitzroy Place Residential Ltd.
The apartment is in Fitzroy Place, a new business centre on Mortimer Street near the British Museum, and the developer is the 2-10 Mortimer Street GP Limited Partnership.
The building was completed in 2016. In May this year, according to the ruling, Tejani issued a claim against both the freeholder and the developer, alleging that the apartment is “blighted by an unexplained noise”.
“He pleads that the noise can be heard throughout the apartment, that it is intermittent, variable in volume, that it happens both at day and at night, that it is loud enough to wake him and his wife when sleeping, that it cannot be suppressed or masked and that attempts to solve the problem have not been successful,” High Court judge Mr Justice Pepperall said in his ruling.
As far as loss is concerned, Tejani claims the noise has caused “annoyance, discomfort, distress and loss of amenity to the claimant, who has been unable to occupy the property as he intended when he purchased it and is unable to rent the property out to a tenant”.
His lawyers say that the defendants have breached the Defective Premises Act 1972 and, according to the ruling, he is seeking almost £1m more in compensation than the sale price.
According to the particulars of claim, quoted in the judgment, he is also claiming for miscellaneous costs of more than £14,000, stamp duty of more than £200,000, more than £100,000 for furniture and improvements that be paid for before he knew the flat was uninhabitable, and £400,000 for 205 weeks of lost rent charged at £2,000 a week.
That takes the claim to £3,357,978.20. On top of that, he is seeking 8% per annum interest.
According to the ruling, soon after filing the claim the defendants applied to have the case struck out.
They argued that the method of calculating the loss should be restated. It was due to be heard last week.
However, according to the ruling, before the hearing Tejani agreed to modify the calculation and take the case to alternative dispute management.
The defendants’ lawyers said they should be awarded the costs of the hearing, saying that they would have won because, among other things, Tejani was asking for his money back and lost rent, which is double counting.
But in a ruling sent out under the current Covid-19 rules this week, the judge disagreed and said they probably would not have won their strike-out application.
While he agreed that the calculation “appears to involve double counting and that he probably cannot recover both the value of the property, consequential expenses and interest and his alleged rental loss”, that is a matter for trial, if one takes place.
He said the strike-out claim was “a bad application that, in my judgment, would have been dismissed had it not been compromised. Accordingly, I reject the defendants’ argument that they should have their costs”.
Nazirali Sharif Tejani v (1) Fitzroy Place Residential Ltd and (2) 2-10 Mortimer Street GP Ltd as a General Partner of 2-10 Mortimer Street GP Limited Partnership Trading as “Exemplar”
David Berkley QC and Kay Puvanesan (instructed by Mortimer Court Chambers) appeared for the claimant. Gary Blaker QC (instructed by Clyde & Co LLP) appeared for the defendants.
In the High Court of Justice
Business and Property Courts of England & Wales Technology and Construction Court (Pepperall J)
