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Really need advice on an issue that has been going on for a couple of years now and no matter how often I bring it up at strata meetings there is no resolution, only indifference and quite frankly an air of arrogance.
I live and have for several years in a small block of 6 apartments in with the building being a lovely old 1930’s structure.
I am on the middle floor and a few years after me a couple bought the unit directly above us and proceeded to rip up the carpet in the front bedroom directly above ours and put down timber flooring which at the time I told them wasn’t really good as it will affect our peace and quiet as we sleep.
This has become a nightmare as they show no respect for our rights to a quiet life in our bedroom and the noise is so loud it sounds like they are actually in our bedroom.
I know what it should sound like as we had 3 different owners/tenants in the years prior to them moving in. The previous owners we could hardly hear walking apart from the odd creaky board.
They keep putting it back on me saying they have done nothing wrong and I have tried to remain on friendly terms every time we encounter them in the building or at meetings but it seems they care not a jot about us really.
At the last meeting I asked if we can all check the difference between walking around their bedroom whilst they stood in mine then cross reference by walking around mine whilst they stood in the Unit below my bedroom which I got recarpeted when I bought the place, it was refused saying they wern’t comfortable doing that whilst her partner wasn’t there, so that idea which would have shown everyone the stark contrast was not happening.
I really wanted to show everyone including the strata manager that we are not just complaining for no reason, and show the owners above in their lofty top floor with all the peace in the world that what they done was wrong and needs amended and carpet returned.
To make things way worse they are about to have a baby and guess where the baby will be, yes right above our bedroom with them thumping out of bed as the baby cries in the middle of the night.
I haven’t had a full nights sleep in a couple years because of this and they don’t mind kicking off shoes in the middle of the night when they come home or dropping items on the hardwood floor creating a drum effect for us living inside their drum.
They even rent their place out when they are on holiday and that has been not a good thing for us either. Getting the picture?
Can I force them to restore the carpet they ripped up without asking the owners corporation and how would you suggest I go about this?
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Not involving the committee is tying your own hands behind your back.
The committee has a duty to enforce the by-laws of the building as regards noise and residents’ behaviour, as well as maintaining common property. The floor is common property.
My advice would be to pursue a section 232 (2) complaint against the committee for having done nothing to remedy your issue. That will force them to take the action they should have taken years ago.
But first, you could talk to a strata lawyer or, perhaps, StrataAnswers about what your options are at the Tribunal, epsecially if you’d rather take a case directly against the upstairs owners.
And that is fair enough. People who are happy to destroy your peace and quiet to suit their lifestyle deserve no consideration or sympathy. You’ve been way too accommodating. Time to go Braveheart on their asses.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Perhaps the first stage is to write to the chair and/or strata manager saying something like:
“It is with considerable regret that your failure to take seriously our intolerable situation caused by the illegal flooring in unit X means I now have to take action at Fair Trading and NCAT to remedy the problem.
“This committee had the opportunity to fix this problem right at the start and refused to do anything. As a result of your inaction, I now have no choice but to seek mediation at Fair Trading with a view to pursuing orders under section 232(2) of the Strata Schemes Management Act requiring the committee to seek the reinstatement of properly insulated flooring in the aforementioned unit.”
And then apply for mediation. Mediation is partly an opportunity to resolve the problem without resorting to the Tribunal, but it is also a mandatory prerequisite for applications for (most) orders at the Tribunal.
By the way, do your by-laws have any mention of flooring or any kind of noise or nuisance?
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
I should add that if you don’t want to start a war with (rather than in) your block, you could take action against the upstairs neighbours directly. This however tends to descend into “he said, she said” although it can lead to a more immediate resolution.
Once again, I find myself advising Flatchatters to speak to StrataAnswers who will advise you on your best course of action for a modest fee, before escalating it to a strata lawyer, which may also be necessary. In the meatime look here and here for information about applying to NCAT for orders.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
I want to share the experience of a small block of units (less than 25) where the Owners’ Corporation is taking an owner to NCAT for unauthorised and excessively noisy floorboards.
This owner was made well aware of the need to obtain a bylaw and of prior research by other owners showing how near impossible it is to match the quiet of carpet over carpet underlay. He still went ahead, possibly hoping nothing much would happen. The owner below is now besides himself from the noise that come through (confirmed by the acoustics reports).
After nearly two years of notices to comply, Fair Trading mediation and NCAT preliminary hearings, we are not yet at a point where orders can be expected in the OC’s favour. We had a lawyer right up to a few weeks ago but when mid-way in the process he announced a cost double his original estimate, and therefore exceeding our budget (and taking us only to the first NCAT hearing), we pulled the plug and decided to take it to NCAT ourselves. The lawyer had done a good job so far, by the way, but in a small strata, there is very little leeway for special levies to cover such costs. In addition to legal costs, we paid for two acoustics reports.
The owner/respondent is also spending money on a lawyer and had to get an acoustics report, so his floorboards are costing him quite a bit more than he budgeted. But then he had plenty of opportunities to prevent that. However his pride and sense of entitlement are highly intertwined in the decision to have floorboards and he won’t relent even if NCAT finds in the OC’s favour and makes orders to remove the floorboards and alternatively to give OC the right to remove them (and replace them with carpet and underlay). In which case forceful action will be required and I don’t even want to think about how to put this into practice.
Based on costs to date, I estimate that a strata that does not have ca. $40,000 to put towards a case should think long and hard about taking it past a certain stage. This would cover lawyers’ costs and acoustics reports. For those who want to bypass the services of a lawyer, the work, time, dedication, research necessary will significantly exhaust the few people interested enough in “doing something”. Most of those volunteers won’t have the skills, health, time, reliability or stamina to be there all the way.
This first-hand experience has brought it home to me that the process exists, yes, but it is only viable for stratas of a decent size that can afford the cost and/or have access to substantial volunteer labour to take the case all the way. I’d be interested in hearing from other small stratas. I also would like to know how much effort is the OC legally obliged to make to ensure the bylaws are complied with.
It is utterly preposterous that we have a system that requires a super-majority to pass by-laws and then we have to prove the by-laws are pertinent before some retired solicitor who doesn’t understand strata and doesn’t care about strata residents, and sits there like Solomon, re-litigating every nuance of what should be an open and shut case.
If someone breaches a by-law, they should be fined and orders issued to correct the problem. If they want to challenge the by-law, they have plenty of opportunities to do so at AGMs etc. Otherwise the burden of proof should be on them, not the strata scheme, and there should be an assumption that they will bear all the costs unless they can prove beyond doubt why they shouldn’t
The NCAT system is just as bad as CTTT ever was, with too many duffers and fumblers making decisions based on nothing more than their own biased ignorance.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
I have been through this experience myself
1. Check your by-laws and your Strata Plan you need to know what is common property1.1. If the previous floor was considered common property did the owner have permission to change the floor
1.2 Go to your local City Council, Health Dep and Building commission and find out what the minimum decibel is for acoustic rating, if they above are causing this level to be considered as exceeding the acceptable level within a multi dwelling, then you have a case to present to the tribunal ( you don’t need a lawyer)
1.3 Have an acoustic report done and first present to your Strata Manager to forward to the Owners committee, even better if the floor is common property they have to fix it. Always request in writing that they provide a response by 5 business days, send again if no response, then you have something to present to the tribunal.
This is how fickle Strata is if you purchase your property of the plan and the floor tiles are included on the plan then they are common property, I have read previous cases that even go into the original level of the cement slab because it can reduce your internal cubic meterage of your lot. So who fixes the floor when there is a problem over the years of normal living, you can’t consider replacement if they are common property that is up to the Committee……but it’s your home???
You might like to read this from Western Australia and no it wasn’t me!My heart bled for this person I am in the same situation somebody who has no empathy and feels they are entitled, (a good term I will use this in the future) about 20 years ago the flat under us was refurnished for sale, they installed wooden floors, the new owner who lets the place out the Airbnb or similar and does not care, she has received numerous notices form the body corporation and just ignores them while the money tree produces that is all she is concerned with.
I did start proceeding some time ago and some thug was sent to threaten us, after some conversation where I was thinking should I call the police it was agreed that carpets would be put down to help. I thought this is something and should help, and it did to some extent but recently the noise is back I suspect some or all he rugs have been removed.
Doing this was a mistake On hindsight I should have proceeded.
I absolutely agree with Jimmy’s comment about how preposterous it is . We have had very many issues with the developer who still holds the numbers for every special resolution in our strata Schemes as he still owns 31% of the lot entitlements. He is able to prevent such things as installing a clothesline as he claims it is a change to the common property and therefore needs a special resolution. Needless to say when he built the 14 apartment development he did not provide any clotheslines. Due to the small number of apartments and the fact that for 3 years we were still in the Initial Stage and then no funds were handed over at the first AGM, our Owners Corporation/ Strata Committee has never been able to afford a lawyer to sort this guy out. Trying to go to NCAT without a lawyer would be a nightmare for us given the Tribunal members who would probably hear our complaint would be unlikely to understand strata issues. For these reasons it seems to me that unless you have significant funds to spend on lawyers you just have to put up with arrogant and disrespectful behaviour and actions from owners in your strata Scheme, whether it is for failing to comply with by laws, wooden floors or any other matters.
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