- This topic has 6 replies, 3 voices, and was last updated 12 years, 8 months ago by .
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Topic
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Scenario
What if you advise your EC about your concerns about a renovation proposal for hardwood flooring in the unit above you in an old unit block, and after undertaking the relevant research and pointing your EC to the relevant information available and the consideration currently underway in the new Strata Legislation highlighting current community concerns.. . . and their response is to:-
Over-ride your submission for further consideration and hasten approval, with a resulting negative impact on your home amenities.
Question
Would you have any recourse against the EC for failure in their duty of care to ensure that the amenities of your unit are not compromised by “the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner of another lot (current model by-law under the Act)?
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Replies
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@Unit Dweller said:
Would you have any recourse against the EC for failure in their duty of care to ensure that the amenities of your unit are not compromised by “the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner of another lot (current model by-law under the Act)?Two things – the only by-laws that are relevant are those in place in your building. The current model by-laws have no standing unless they have been adopted as your by-laws. (As I write this, a little voice is telling me that perhaps if there is no by-law specific to an issue then the appropriate model by-laws apply – I will check this out.)
Secondly, the recent ruling in the Thoo case at the Appeals Court basically said that you can’t sue an Owners Corporation for damages for failure to fulfill its statutory duties (although you might be able to sue for negligence). THIS factsheet from Mills Oakley lawyers explains the decision in detail (and, inevitably, in legal language).
Having failed to head the timber floor off at the pass, all you can do now is prove that its use is an unacceptable disruption of the peaceful enjoyment of your lot. It can be done and it has been done many times – but it takes a lot of legwork, some serious information gathering and a bit of luck to get there.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
In my opinion (and experience) you need to avoid the inconsistency and illogicality of the Fair Trading and Tribunal processes if at all possible.
So if it’s not too late, try to obtain the support of other Owners whose Lots, together with yours, have a units of entitlement ≥ 30% of the total for your Plan, then you can serve a Notice on the Secretary stating that you (collectively) oppose the Motion to give consent to the hardwood flooring; that can head it off at the pass!
Tsk, tsk, Unit Dweller, you managed to commit two cardinal Forum sins in the one posting. First you created a new topic when the existing thread (this one) would have done perfectly well. Then (shudder) your headline was only a couple of words shorter than the post. But we are very forgiving here at Flat Chat, so consider yourself absolved … this time.
To answer your question, I would avoid any prescriptive by-law that sets a minimum standard for the floor because that can’t take into account all the variables, including the thickness and density of the slab, the acoustic properties of the building or, indeed, the behaviour of the occupants. I would favour something like:
Owners may not put down, create or change the floor covering in any way so that it provides less sound insulation than would be provided by wall-to-wall carpet professionally laid on top of a high grade underlay.
Any owner who does so, causing any increase in noise transmission to any other unit will be required to immediately restore the flooring to its previous noise insulation properties at their own expense.
Now I’m not a lawyer – and I’d be interested to hear from someone who is – but I reckon that puts the onus on the person changing the flooring to make damn sure they have the very best materials and if they are stupid enough to believe Dodgy Dave from the Floating Flooring Emporium that 3mm of plastic will “do the trick” then they deserve all the grief that will doubtless be coming their way.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I agree; you’d be far better to focus on outcomes as opposed to prescriptive standards, but if you want to get an overview of just how many variables need to be considered, have a browse through THIS, and the links on page 8 of the doc.