@Wendy said:
We first brought this matter to the building manager, he told us nothing he could do. Then we wrote to strata manager, she said this is not a strata issue as long as the flooring above complies with the bylaws.
Both of these “experts” are wrong, at least to some extent. Section 153 (below) says owners are not allowed to create a nuisance. Now, that is not just something that is annoying – it’s something that is injurious to your health.
You could put up a pretty compelling argument that being kept awake at night and disturbed during the day is injurious to your health.
There’s also a very good chance that you have in your by-laws a variation on the one that says residents can’t disturb other owners peaceful enjoyment of their lot.
Also, you have to consider the possibility that the by-law on flooring that you have in place is inadequate or defective, or that the flooring was installed in a way that didn’t actually meet the requirements of the by-law.
So for anyone to say that you can’t do anything if the neighbours have fulfilled the requirements of the by-law, misses the point. If the insulation is inadequate, for whatever reason, then the by-law is irrelevant.
However, if your upstairs neighbours have been misled by the Owners Corp by an inadequte by-law, they could have a claim against the owners corp. The OC has a “duty of care” to maintain common property (the slab) and this sounds like a failure to do so.
To be fair, this is not as clear-cut as if your upstairs neighbours had ignored the by-law. And if you want to pursue it you would be well-advised to get professional legal advice form an expert strata lawyer. It could be a tough fight
But I don’t think you (or indeed your upstairs neighbours) should have to suffer because either the by-law is flawed or the installation was not done properly.
Try to keep them onside as they have tried to do the right thing and a united front is more likely to succeed against an OC, building manager and strata manager who are determined to take the easy way out at your cost.
153 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not) …
Model by-laws: 6 Noise*
An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.* Your by-laws may be different