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02/07/2013 at 3:52 pm #8913
Dear Flat-chat
I am currently leasing my apartment out because I have a job interstate for a couple of years. I lease my apartment through a real-estate agency and have a very good tenant. However, because of unresolved noise issues with the tenant in the apartment above she doesn’t want to re-new her lease. Before I moved interstate I was living in the apartment and had a lot of trouble with noise from this tenant and to be honest I was pleased to move out. I have a long history of noise problems with the owner of this apartment and a couple of years ago when I was living there I went through the whole process of making complaints to the landlord, the strata executive and the managing agent. I kept records of noise disturbances, obtained witness statements and finally went to mediation (at my expense). Eventually they got rid of the offending tenant and for twelve months with a reasonable tenant everything was ok but now they have a shocker again. Before I moved out I had a mediation session with the real estate agent managing the property and the tenant but the tenant didn’t improve. I’m sick of banging my head against a brick wall and was thinking of getting my solicitor to threaten legal action for loss of income/damages. What do you think?
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04/07/2013 at 4:36 pm #18893
henrietta – any advice provided would depend upon the type of noise you’ve been experiencing, that is party/music/domestic type noise or impact noise such as from hard floors, and what State/Territory you’re in.
If you can provide that info. and anything else of relevance then I’m sure that good advice will follow.
05/07/2013 at 6:44 pm #18914Thank you Strata Guru for your interest in my problem. I live in NSW and the tenant that is causing the problems is a young English woman who likes to have a good time and has drunken, noisy parties and is generally inconsiderate about how much noise she makes late at night/in the early hours of the morning eg. moving of furniture, walking around in high heels, slamming doors etc. She also seems to have a lot of friends staying over. At the mediation, she agreed to comply with the strata by-laws as regards noise disturbance, and the deal was that I would have her phone number and ring when there was a problem, but if she is having a good time she simply doesn’t answer her phone so that was useless. The owner of the apartment told her managing agent I was always complaining and so my complaints and the subsequent complaints of my tenant have not been taken seriously. The offending tenant also does a good (make that jaw-dropping) line in excuses, prevarication and generally muddying the waters. Perhaps the best plan would be for me to get back-packers or a big boofy bloke as my next tenant.
06/07/2013 at 10:53 am #18919henrietta – thanks for the additional details, and by all means speak with you solicitor, but there are in my opinion better ways for you to try to resolve the noise issues (again).
Firstly, as the noise from the “drunken, noisy parties” is affecting your tenant, they (not you) should, albeit with your encouragement and advice, avail themselves of the remedies available to them under the NSW Protection of the Environment Operations Act; sounds like a convoluted mouthful I know but it’s all HERE.
Secondly and as Tenants too are required to comply with your Plan’s By-Laws under a standard condition of their Lease, you as the Owner should approach your Strata Manager with a request that they immediately:
- Contact the noisy tenant’s Property Manager (Rental Agent) and advise them that they’re issuing their tenant with a Notice to Comply with your Plan’s By-Law relating to noise, and;
- Copy the Owner of the upstairs Unit, and also inform them that once notified, there’s a legal precedent that can make them as responsible for their tenant’s noise as would be the case if they themselves made that noise.
In that way the Police or Local Council Officers can deal with your tenant’s issues, if necessary by a Noise Abatement Order upon the upstairs neighbour, and you can with the assistance of your Strata Manager (as you’re interstate) concurrently proceed down the formal mediation path offered by the NSW Office of Fair Trading (HERE), and if necessary progress those via the NSW Consumer, Trader, and Tenancy Tribunal (CTTT) Strata Division (HERE).
I appreciate that you’re interstate, but your Strata Manager is paid to assist in the manner suggested, and whilst that may legitimately result in a Fee to you as the Owner involved, and you may have to attend some CTTT sessions yourself, if you want the issue resolved …….
10/07/2013 at 1:11 pm #18959That sounds too familiar.
We, too, had a young woman living downstairs from us, having her friends staying frequently for long evenings spent on her balcony, chatting, laughing, drinking, smoking.
We have a noise diary over 5 pages long and it went all the way via verbal complaints to her, her agent, her landlord, strata and finally mediation.
The straw that broke our neck was one of the mediation staff saying that if we couldn’t tolerate her noise then apartment living “probably wasn’t for [us]”.
First thing she did after the mediation was having another hours-long session.
We ended up moving out because we both developed anxiety and stress because we wouldn’t know if we had a quiet evening or not.
Sadly, current Australian law does not support quiet tenants much.
11/07/2013 at 1:07 pm #18976Thank you for your responses. Following a particularly bad incident the other night which involved a police call-out, the managing agent for my apartment is contacting the managing agent for the strata with a view to getting the executive to issue a notice to comply as suggested by strata guru. The extra steps suggested by strata guru are extremely useful and we will certainly do that as well. I am in complete sympathy with oasis 69 and am sorry they had to give up. Having been through the sleepless nights and the stress myself, I really want to offer my tenant whatever support I can. I will keep you posted.
11/07/2013 at 2:07 pm #18978Whale’s advice is (as usual) sound however be aware that the Strata Manager will likely require an Executive Committee direction (and resolution) to issue a notice to comply.
The Strata Manager will undoubtedly NOT be empowered under their agency agreement to represent an individual owner at the CTTT and quite possible not be empowered to represent the Owners Corporation at the CTTT either.
11/07/2013 at 3:22 pm #18982JGOWI – It’s been a while since I’ve seen a Strata Management Agency Agreement (and I’m not likely to any time soon), but I’m almost certain that it’s customary for Strata Mangers (S/M) to be delegated to issue Notices to Comply (NTC) and to attend the CTTT.
I think you’re right though, in that the former does need an instruction from the Secretary of the Executive Committee (E/C), and with the later, whilst the S/M can be delegated to prepare and lodge the paperwork necessary for Fair Trading and CTTT proceedings by the Owners Corporation (in whose name the NTC would be issued), I also recall that the S/M needs be accompanied to any mediation / adjudication sessions by a representative of the Owners Corporation; and I don’t see why that couldn’t be henrietta provided the E/C agrees.
It’s clear therefore that henrietta would need to get her E/C’s support to implement those “extra steps”, particularly as the S/M will be entitled to charge an additional “fee-for-service”, and so in that regard it would be a good idea for her to enlist the support of other Owners who are similarly affected by the noisy tenant.
Thank’s for setting me straight JGOWI.
11/07/2013 at 4:15 pm #18983@Whale said:
It’s clear therefore that henrietta would need to get her E/C’s support to implement those “extra steps”, particularly as the S/M will be entitled to charge an additional “fee-for-service”, and so in that regard it would be a good idea for her to enlist the support of other Owners who are similarly affected by the noisy tenant.
Thank’s for setting me straight JGOWI.
I know an NTC is not the same as conciliation and then adjudication, but I asked our SM a few years ago what they charge to obtain a ruling and they told me the average charge is $2,000 (just the SM fee) but it depends on the complexity of the case and how long it takes to prepare the documents.
This would be payable by the OC and even if you win the cost is not claimable against the looser. Our SM is just a small one man operation so god knows what the big organizations charge.
12/07/2013 at 1:40 pm #18986@Whale said:
JGOWI – It’s been a while since I’ve seen a Strata Management Agency Agreement (and I’m not likely to any time soon), but I’m almost certain that it’s customary for Strata Mangers (S/M) to be delegated to issue Notices to Comply (NTC) and to attend the CTTT.The standard SCA agreement sets out different levels of authority for the owners corporation & agents to agree on for a variety of matters. Representing the owners corporation at the CTTT is one of these matters. Some agents wish to have “no authority” listed on the agreement as the “official” line would be that they are not lawyers. In practice and regardless of this most agents will represent the OC and charge an hourly rate.
FWIW – the standard NTC form includes the following instructions:
“The executive committee, or owners corporation if it has decided not to let the executive committee issue this notice, must convene and hold a meeting to decide to issue the Notice and record its decision in the minutes. Alternatively a managing agent that has been delegated the function may decide to issue a Notice.”
kiwipaul said
I know an NTC is not the same as conciliation and then adjudication, but I asked our SM a few years ago what they charge to obtain a ruling and they told me the average charge is $2,000 (just the SM fee) but it depends on the complexity of the case and how long it takes to prepare the documents.
All agents will charge hourly rates for all stages of the by-law compliance process. CTTT says to allow up to 5 hours for a mediation sessions and I have seen them last this long. When you add preparation & travel time you could be looking at up to 8 hours of SM fees. Then add adjudication on top of this and your $2000 has well and truly been used up. All this when the CTTT is meant to be a cost effective way for owners to settle disputes…
12/07/2013 at 4:07 pm #18989Getting the SM to run the case can prove expensive, but they don’t have to any individual resident can DIY the case to CTTT (not NTC unless they have the approval of the EC) with the support of the EC or as a plaintiff themselves.
It’s not to difficult so long as you prepare and read all the online help files and documents. Also read previous CTTT ruling so you can see what is important and what is not.
Also make sure you have followed all the procedures as you don’t want it thrown out due to a procedural error. This brings the cost down to hundreds of $ instead of thousands and if you are doing it on behalf of the EC the EC cover the cost.
22/07/2013 at 9:47 am #16038@kiwipaul said:
Getting the SM to run the case can prove expensive, but they don’t have to any individual resident can DIY the case to CTTT (not NTC unless they have the approval of the EC) with the support of the EC or as a plaintiff themselves.It’s not to difficult so long as you prepare and read all the online help files and documents. Also read previous CTTT ruling so you can see what is important and what is not.
Also make sure you have followed all the procedures as you don’t want it thrown out due to a procedural error. This brings the cost down to hundreds of $ instead of thousands and if you are doing it on behalf of the EC the EC cover the cost.
KP could you please point me in the direction of the “procedures” to be followed.
22/07/2013 at 5:14 pm #19047@Sig said:
KP could you please point me in the direction of the “procedures” to be followed.
Your starting point has to be the CTTT web site in NSW.
Another useful source is Strata living document produced by NSW gov and their is a link to download it at the bottom of the CTTT web site.
22/07/2013 at 8:43 pm #19048@kiwipaul said:
Your starting point has to be the CTTT web site in NSW.Another useful source is Strata living document produced by NSW gov and their is a link to download it at the bottom of the CTTT web site.
How about the laboriously compiled document that tells readers of this website how to do it and provides links to all the forms they will need. You’ll find it HERE.
Where’s the love, fellas?
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.
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