Legal Q&A: What can I do about the cooking odours from the café downstairs?

I am the leaseholder of a flat above a café which fills my home with cooking odours. I have complained to the council but have not had a response and the freeholder of the building is doing nothing to help. Is there anything I can do?

Question: I live in a flat above a café, which I thought would be quite convenient. However, the café fills my home with cooking odours. I am the leaseholder of the flat and have made a complaint to the local council environmental health department, but have had no reply as yet. Meanwhile, the freeholder of the building is doing nothing to help me. I would like to seek legal advice but I’m not sure where to start.

Answer: First off, establish whether you have the benefit of any legal expenses cover on your home contents insurance, as these policies often cover claims of this nature.

You may have a claim in nuisance against the café due to the smell, but that would depend on the terms of your lease, and on other circumstances such as the length of time you have been living in the flat, how long the café has been there, if it was there when you moved in, how long the smell has been a problem, and whether other neighbours have complained.

Follow up your complaint to the environmental health department to see whether the local authority will take action.

Contact the café owner to see if there are any measures they could easily take to mitigate the situation — for example, by moving fans or their bins. If the café owner is in breach of the terms of their lease, you may be able to get the freeholder to take action. 

If you do not have any legal expenses insurance cover, you should consider instructing a local solicitor to advise you.

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If you have a question for Fiona McNulty, please email or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE.

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Fiona McNulty is a legal director in the private wealth group of Foot Anstey

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