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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There’s an added by-law (the added checkbox was ticked, nothing was repealed):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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Jimmy, thanks for the reply and the names of solicitors. The Bannermans article is good news. In the building concerned, the by laws in place are the model ones eg “peaceful enjoyment” and “floor covering”. And both over the years have being breached.
What I cannot understand is that if there is no doubt breaches have occurred (records indicate the unapproved flooring was brought to the SC’s notice several years ago as it was disturbing neighbours and nothing was done about it by the OC), what could a solicitor defending the matter possibly achieve?
Persuading the other side not to continue with the case seems to me to be the only strategy. Or am I mising something?
For the record, we included breaches of ss 37 and 260 that we believe have occurred as well.
If you read between the lines on the Bannerman report, the original plaintiff had set out to get a finding against both the strata committee and the upstairs neighbour but then abandoned the case against the strata scheme and concentrated on what the respondent HAD done and not on what the committee hadn’t.
It seems logical to me that if you forget the history and what the committee has or hasn’t done, and focus on the upstairs neighbour, you could then legitimately ask why the strata scheme is paying their legal costs. When you involve the strata committee you are opening the door for them to hire lawyers.
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Jimmy thanks again for your perspective.
I hear you regarding going after the lot owner and not the SC, as per the Bannermans’ article.
In our case we did just that. After reviewing the history, it seemed that the lot owner (previous to the existing one) did not include the hard floor in her application for renovation approval. Not to the OC or the local council. So yes, in our case we focus on the (current) lot owner to remove the flooring and for NCAT to remove her from the SC as breaching by laws is not compliant with ss 37 and 260, we assert.
The reason the SC is involved in our matter is due to another SC member who asked for his renovation to be approved at a general meeting where the SC and strata manager decided that nobody was allowed to attend. Owners could only vote ahead of the so called (person free) meeting. We asked NCAT to void resolutions (which were all passed at the so called meeting) because a proper understanding of the ramifications of the renovation was denied to the OC. We believe that the SC member put his own interest ahead of ALL owners, breaching ss 37 and 260
My advice would be to focus on one issue at a time. You may think your weight and spread of complaints adds to the strength of your case but it might only detract from and dissipate it. For instance, invoking S260 (personal liability) is a stretch. You really need to talk to an experienced strata lawyer, otherwise you risk having your case ripped apart at the Tribunal without the core issues even being discussed.
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 will follow up your recommendation of contacting an experienced strata lawyer. Thanks for the good advice.