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Swing erected in communal grounds of flats: what reasons can be used to enforce its removal?
Could you please advise if a person living in a flat who erects a swing or trampoline in the communal grounds has to remove it subject to the following clause which is in the lease. (10) Not to do or permit or suffer to be done in or upon the demised premises or the state any act or thing which shall or may be or become a nuisance annoyance disturbance damage or injury to the Lessors or the Lessees or tenants of the Lessors or the owners or occupiers or Lessees or tenants of adjoining property of the neighbourhood for which may tend to depreciate the value of the Lessors’ property or of other tenants on the Estate or any person thereof or whereby any insurance for the time being affected on the block or individual flats therein or the said garages (including the ? premises) or other part of the Estate may be …….
If you sought to enforce this covenant in the lease a court would have to take a view on whether it is a nuisance or annoyance. If it is obstructive or causes noise then it is possible but by no means certain. It may also be a health and safety risk if it does not comply with regulations concerning the erection of playground equipment which almost certainly jeopardise the insurance position.
In public areas such as parks and playgrounds, surfaces have to comply with the EN1177 standard basically this means it should, be self draining and non-slip in order to do things like safely stop muddy patches under swings. Most new playgrounds now come with heavy rubber tiles or playbark to the necessary depth (according to the equipment used) though playbark can also be attractive to animals who see it as a large toilet.
It is generally now recognised that gravel is not a suitable surface for a play area. Sand, of the correct type can be OK under the right conditions and depth; sand though, is more likely to cause a hazard by being thrown or eaten by younger children so supervision by parents in public playgrounds is a must.
Also, small toys can get lost or hidden by sand, as can stones or sharp twigs, and again sand may attract animals so In fact, there are such stringent rules in place for public area play equipment that the hazards actually arise from poor or infrequent inspection and /or maintenance or vandalism which cause cuts, bruises or falls. It's important that if you see any equipment that is in disrepair that you report it to the owners of the land so that it can be closed off until repaired.
If you are an aggrieved tenant of another flat in the block then you will have to approach the Lessor and request action. You should bear in mind, however, that the lease probably says that if you want the Lessor to enforce the covenants in the Lease then you will have to pay the Lessor's costs.
Finally, the question of nuisance or annoyance is probably a red herring because this clause in the lease only relates to "the demised premises" and the swing/trampoline has been erected in the communal area. A lessee can only do what is authorised under the lease and it is highly unlikely that constructing a swing/trampoline in the communal area is so authorised. The lease probably grants rights to use the communal area but we would argue that putting up a swing goes beyond "use" in the normal sense in which case the Lessor should demand that it be removed.
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