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Assuming you have tried to get the owners downstairs to cut down the noise by asking them to put down rugs and be more considerate, and they haven’t complied, now check your by-laws.
There should be one that says something like “An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.”
There may even be a by-law that forbids owners from removing carpet without permission or subject to the installation of sound insulation.
If either of these are in place, ask your strata committee and/or strata manager to issue a Notice To Comply. In the meantime, start recording the noise, create a noise diary of the kind of excessive noise and when it happened, and get visitors and other owners to give you statutory declarations witnessing the noise from below.
If the committee or strata manager won’t help, apply to Fair Trading for mediation with a view to seeking orders at NCAT.
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Section 137 (below) of the Act allows Owners Corproations to pass a by-law restricting the number of people in apartments to two adults per bedroom (it’s worded differently but that’s what it means). This would not cover your current situation but might be worth putting in place in case someone in the future decided to fill their apartment with bunk beds.
137 Occupancy limits
(1) A by-law may limit the number of adults who may reside in a lot by reference to the number of bedrooms of the residence.
(2) The limit may not be fewer than 2 adults per bedroom.
(3) The by-law has no effect:
(a) to the extent to which it is inconsistent with any planning approval or other law applicable to the lot, or
(b) in any other circumstances prescribed by the regulations for the purposes of this section.
(4) To avoid doubt, the Tribunal may make an order under Division 5 about a by-law made under this section.
(5) The regulations may provide for the circumstances when a person is a resident of a lot for the purposes of a by-law made under this section.
(6) For the purposes of this section, a “bedroom” is a room approved for use as a bedroom under, or indicated as a bedroom in any plans the subject of, a planning approval and includes any other room prescribed by the regulations as a bedroom for the purposes of this section.
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Flame Tree said:
As for shared costs you unfortunately are in for a penny in for a pound.
Yes, but you can reduce those costs by making the negligent owner responsible for exacerbating the problem, although it make be cheaper just to suck it up and save the actual and emotional cost of pursuing them. I would still hit them with a bill, though, just to see what happens.
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David Ng said
So when you did the inspection prior to purchase did you or your representative miss this?
I think you have misuread the post. The point is that the damage was in another unit and only visible from the inside.
Under standard or “model” by-laws, the lot owner has a responsibility to ensure that common property that is part of their lot is maintained. It could be argued that the lot owner in this instance has neglected the common property and that they should be held liable for the difference between the cost of repairs because of the neglect, and the costs had the work been done at the appropriate time.
So get an estimate of the two figures, get the committee to bill them for the difference and then see what happens. This is potentially a case that would come under damage to common property and it may be worth pursuing on that basis.
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Solutions said:
You can demonstrate damp by taking readings with a damp meter – not expensive and obtainable from Bunnings.
Or you can just say to the strata manager, “how about I take the owners corp to NCAT to force them to fix this, and you to Fair Trading for incompetence, while I’m at it?”
Too many strata managers see their job as being to protect the committee by minimising spending at some individual owners’ expense, including their health. If the strata manager won’t budge, talk to a lawyer (click on the ad at the top of the page) or Flat Chat’s friends at StrataAnswers.
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Tiakei Wrote;
how is the requirement of ‘a fit and proper person’ determined?
Well, it’s not by an accusation even if it comes in a lawyer’s letter.
There are provisions under Section 238 of the Act, as I said before, that allow you to go and argue your case. First you need to go for mediation at fair Trading, then you progress the complaint to NCAT.
But before that you probably need to talk to an experienced strata lawyer.
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What Kaindub said …
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No.
A legal letter is not a legal finding in a court. And there’s nothing to stop someone who has an AVO preventing them from communicating with another owner from being involved in a strata meeting (unless the court ordered them to stay a certain distance away from them).
If there was such a legally binding document, you could take the offending owner to NCAT to have them removed from office or from the committee on the grounds that they weren’t a fit and proper person.
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A polite note telling them that you can’t re-set the AGM but they are welcome to come along, vote and nominate for the committee, once they are registered on the strata roll.
You might also gently suggest that they take a slightly less aggressive stance when dealing with their neighbours which will stand them in good stead now and in the future, especially since, by their own admnission, they don’t yet know how things work in your block.
You have followed the rules and you suggest they acquaint themselves with the basics of strata living through the handbook supplied free by Fair Trading before making demands.
Meanwhile you look forward to their contribution to the continued smooth running of what is a happy building.
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Have a look at this factsheet from the Tenants Union. There is more information available on their website if you need it.
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I am now feeling a bit dim – this is a lot simpler than it seems … provided nobody pays for their own windows to be fixed.
If the owners corp pays for the windows to be fixed (as it should) then it will all even out when the other owners need their widows repaired. If they don’t want the windows fixed, that’s up to them … but the windows aren’t theirs to begin with. They’re common property.
So forget all this stuff about paying for the windows yourself. Raise the money from levies to pay for the windows and do it again later when the other windows start to fail. Nobody loses, nobody pays twice – it’s really that simple.
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One final thought, if you trawl through the last 10 years of Flat Chat you’ll find a stack of posts from owners who’ve had to deal with the fallout from previous arrangements that were done on a nod and a wink, but didn’t stand up to the test when new owners came in and applied basic strata law to their situation. Get it right, right at the start, and save yourself grief down the track.
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Flame Tree wrote:
Seems like a over-reaction setting up a by-law that will get used once ever blue moon. Would you not be better to just write it up as a egm/agm Motion with the detail in the explanatory guff and just pass that?
General meeting motions do not have the power to ascribe responsibilty for common property to individual owners. You would need every owner to agree to this in a legally binding agreement passed as a special resolution or by-law. That is the law (Section 108) and you can’t just ignore it because it seems excessive.
That is the only way to avoid subsequent owners coming in and saying they don’t agree with the arrangement and that it doesn’t stand up to scrutiny from a legal point of view and they want the owners corp to fix their windows, meaning the owners who have already paid for their own windows have to pay twice.
That said, I reckon we are over-thinking this. The Act says common property has to be repaired. If the other owners won’t agree, then either or both of the owners with faulty windows can take the owners corp to NCAT and seek orders.
And again, it’s a matter of sitting down with a spread sheet and explaining to the recalcitrants how much more it’s going to cost if they don’t just go ahead and pay for the repairs collectively. Otherwise a by-law or special resolution with each owner taking responsibility for their own windows is the simplest and least expensive way forward.
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There may be a third option which would be to create a “window” fund only for the repair of the windows belonging to the units that have opted out for now, to be spent when they need it.
But really, there are very few options that make more financial sense than persauding the backsliders just to get it done.
A spreadhseet that showed how much it would costs to get four sets of windows done at once, including scaffolding etc etc, compared to doing it all twice, and adding in a figure for inflation for the second round, might be persuasive.
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It’s pretty much the same in NSW but the point in this context is that the issue is now a matter of record on the agenda (or at least in the Secretary’s inbox) and the clock has started ticking for a section 232.2.
Waiting for the next AGM kind of defeats the purpose of hurrying things along, doesn’t it?
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