My neighbours are too noisy

My neighbours are too noisy

"I'm a tenant in a block of flats. For years the upstairs neighbours have had dogs barking all day and the downstairs neighbours make noise late into the night. I've tried talking to them and to my landlord, but nothing has changed and nobody wants to take any action. You gave some advice in a column in 2004, is it still valid? What can I do about it?

A., Geneva

Your question follows on from the column published on 23 December 2004, and since that date the tenant's duty to use the property with due care and show due regard for neighbours has remained in force. For the record, under the Code of Obligations (art. 257f), tenants are obliged to respect the privacy and peace of their neighbours by refraining from making noise or disturbing the peace of the building. In return, this duty includes the obligation to tolerate certain nuisances arising from cohabitation. To determine whether these nuisances are excessive or tolerable, the judge must apply objective criteria, putting himself in the place of a reasonable and moderately sensitive person. While it is inevitable that noise will be heard in the flat, it will only constitute a defect if, in view of its duration, intensity and timing, it exceeds a certain threshold and interferes with the normal use of the rented property.

In this case, the aggrieved tenant may avail himself of the rights arising from the defect in the rented property (art. 259a ff CO), the provisions of the Civil Code relating to rights of neighbours (art. 679 and 684) as well as the right to bring an action against the neighbour for cessation of the disturbance of possession (art. 926 to 929).

The tenant who then notifies the landlord of the defect may demand that the defect be remedied and/or that the rent be reduced proportionately to the actual reduction in the use of the premises. In this case, reinstatement will consist of the landlord's intervention with the disruptive third party in order to put an end to the nuisance. Case law also holds that a reduction in rent due to a reduction in use does not presuppose fault on the part of the landlord. The source of the disturbance may lie not only in the property itself, but also in the neighbourhood or in the behaviour of third parties.

Tenants therefore have the choice of taking action against their landlord under the guarantee against defects or against their neighbours under the provisions of the Civil Code. However, as things stand, the first option seems more appropriate, since it would begin with a simple letter to your landlord or to the Conciliation Board, whereas the second involves taking direct action before the ordinary courts.