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After months of stomping and clattering on a tiled floor in the unit above mine, my strata manager told me that “it is not a requirement to have a rug on the ground.”However, the by-laws have a clause that states:“14 Floor coverings
(1) An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot.”
There’s an added by-law (the added checkbox was ticked, nothing was repealed):
“That each Proprietor within strata plan XXXXX is granted exclusive use and enjoyment rights of the special privileges of: cupboards, sinks, vanity units, wash basins, laundry tubs, toilet bowls and cisterns, lights and fittings, switches and power points, garage doors and windows and/or their working parts on internal or boundary walls, locks, shower screens, door closers, fixed floor coverings, tiles, mirrors, stoves, bath tubs, venetian blinds and their working parts. Each proprietor is responsible and liable for the maintenance, upkeep, repair, replacement and restoration of the aforesaid items as is necessary for safety control and good management.”
Now, I don’t speak legalese, but there’s nothing here that leads me to believe that this gives the owner the right to replace noise insulating carpet in the living area with tiles. Am I wrong?Absolutely love the podcast – I’ve came in half-way through and ended up going right back to the beginning to listen to everything!
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there’s nothing here that leads me to believe that this gives the owner the right to replace noise insulating carpet in the living area with tiles. Am I wrong?
Your strata manager is being a bit cute. There’s nothing there to tell them specifically to lay down rugs but there is plenty implied in the by-law that requires them to insulate the floor properly. Simple question – why should they be allowed to enhance the value of their property to the detriment of yours?
Ask the strata manager and committee which they would prefer – either enforce the by-laws or be dragged through NCAT, then have to enforce the by-laws, then have to explain to all the other owners why they have to pay your legal bills as well as their own just because they were too lazy or misinformed to do the right thing when they had the chance.
And start making a diary not of every noise from upstairs, record the noise on your phone and get neighbours to listen so they can back you up if need be.
This will cost the selfish B upstairs a lot to fix but that’s not your problem. You only have to know they will put up a fight and be ready for it.
Oh, and ask your strata manager if they have read the SCA’s code of conduct. If they have, why are they ignoring it?
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Amazing! Thank you!
And yes, already keeping a detailed log and videos of all this nonsense.
By the way, even if you didn’t have this pretty solid by-law, you could still take the upstairs owner to NCAT on a nuisance complaint.
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To add to Jimmy’s comments regarding costs that will be incurred by the OC in the event that you do take them to NCAT – and great that you’re keeping logs and videos as this is the type of evidence NCAT will demand – if the committee and strata agent remain stubborn, point out to the them that when you win at NCAT, all costs incurred by the committee and strata manager will be debited to the OC but you are to be excluded from contributing to these costs. That is, the costs incurred must be covered by raising a special levy on all owners, but not you, see s. 104 SSMA.
Congratulations on your win. May I ask, how much did your legal and acoustics report costs? Did you obtain a costs order?
The Flat Chat podcast has been paramount to my confidence levels and motivation to learning about my rights in strata.
Thank you for your kind words. The podcast is taking a rest for a couple of weeks but we hope to be back soon, bigger and better.
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Great to hear of success re sound problems and thru NCAT. Have you read their reviews? :((
I had this problem a couple of years ago living in a studio apartment, when an almost baby moved in above with his angry mother and began stomping and banging on the floor above my bed. I tried polite requests but this only made her crankier, and she began abusing me on common property.
Even tho the family that had rented the studio lived in the same building, they were no help. Nor was the Strata Manager. I did consider NCAT, but being an older person, in the end I retreated and had to move to save my sanity.Dianne
Congratulations Vermont, it’s so good to see someone has a win with these hard floors. However, the cost and the effort you’ve had to put into this is just extraordinary. How unhelpful was your strata manager, what Jimmy said is so accurate: “There’s nothing there to tell them specifically to lay down rugs but there is plenty implied in the by-law that requires them to insulate the floor properly.” Some of these strata managers need lot more training. They don’t have to take sides just outline the by-laws and state the possible consequences.
Some of these strata managers need lot more training. They don’t have to take sides just outline the by-laws and state the possible consequences.
So true. Strata can be a treacherous minefield. A trusted, informed voice of reason has immense value.
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Vermont, well done on your victory, but the fact that you had to spend all that money just to get neighbours to comply is an outrage that must be fixed by the Minns government. Surely if such a breach is upheld then the breacher should be made to pay your costs to deter others.
It seems that folks who breach by laws clearly factor in that a victim of the by law breaches will think twice before dragging them to NCAT as it requires opening up their wallets.
Case in point: a neighnour installed hard flooring without OC approval. She does not deny it, how could she? We have proof. But as a SC member, she has the backing of the SC and will not remedy the situation.
We applied to NCAT. She asked and received approval to be represented by a solicitor on the OC’s dime.
We don’t understand how a solicitor was appointed as the OC ignored ss 103 and 105 SSMA.
We are representing ourselves as we can’t afford a solicitor. NCAT made clear that if she wins we may have to pay costs.
Can anyone indicate what are our options?
NCAT made clear that if she wins we may have to pay costs.
On what basis? The Tribunal has a limited number of reasons under which it can award costs, but legal representation is one of them. My advice would be to sit down with an experienced strata lawyer and ask them what the chances of success would be. Either of the entities that sponsor Flat Chat would be a good choice. If they are conflicted out, Amanda Farmer prefers not to represent owners corporations or committees and instead take cases for owners.
If they say you have a better than 75 per cent chance of success, I would go for it. Less than that, you have to weigh the risk against the potential reward. I would start by questioning the basis under which the strata committee is bankrolling the tiler, especially when you look at Section 37 of the Act
37 Duty of members of strata committee(1) Each member of a strata committee of an owners corporation has the following duties—
(a) to exercise the member’s functions—
(i) with honesty and fairness, and
(ii) with due care and diligence, and
(iii) for the benefit, as far as practicable, of the owners corporation,
(b) to comply with this Act and the regulations,
(c) to only use or disclose information obtained as a member, including information about an owner of a lot—
(i) as required to carry out strata committee functions, or
(ii) as authorised or required by law,
(d) to not behave in a way that unreasonably affects a person’s lawful use or enjoyment of a lot in the strata scheme or the common property.
I am not a lawyer, as you know, but I would think a committee member using strata scheme funds to permit a breach of the by-laws, or ignore other aspects of the Act, rides roughshod over Section 37 and other parts of strata law.Talk to a lawyer, assess the risk, make your decision on that basis. But a word of warning, make your pitch based on facts, not emotions. The latter will hinder rather than help your case.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.
Have a look at this, from Bannermans: https://diybylaws.com.au/noise-coming-from-above-tribunal-orders-lot-owners-to-remove-or-replace-flooring/
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.