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Hi All,
I live in a cozy 8 unit strata block that was built in the early 70’s. All things considered the first four and a half years of ownership have been relatively incident free and reasonably blissful. That is until February of 2012 when the long term tenants in the lot directly above mine moved out and the owners took the opportunity to install floating timber flooring. New tenants moved in at the end of February (a young family) and my nightmare formally begun.
After two weeks of pounding stomping and running/jumping on the new floorboards accompanied with frequent loud door slamming which began at 5-6am and continued almost uninterrupted until 12.30-2am, I had had enough. Enquiries with my other neighbors adjoining the offending unit indicated that they also had been badly affected by the incessant noises and also were at wits end. Attempts to discuss the issues with our new neighbors were met with a shrug and being told that they were not making any noise.
My two other neighbors and I decided to send an email to our strata manager to ask them to intervene. After several weeks of trying to track the owner down (the owner was overseas), contact between the strata manager and the owner of the offending unit was established. What followed was a brief exchange of emails where the strata manager pressed the issue with the noise and the timber floor and the owner’s protests that “he did not need approval to install the floor” and “I have an acoustic certificate from the installer and it meets the BCA standards”. Despite pointing out that the certificate was issued 3 years prior to the install of his floor and that the acoustic underlay mentioned in the certificate was different and thicker than the underlay on their invoice, the owner stuck to his guns. He did say he would talk to his new tenants.
Fast forward 6 months of no change in the incessant noise and email exchanges between me, the strata manager and the unit owner, and nothing had been achieved except that cordial relations were now badly degraded. It was at this point that I realized that despite some early promising signs, relations were at a low ebb and I would need to approach the CTTT for a resolution.
Prior to this I consulted with a Strata lawyer at some considerable expense. He recommended that I take both the owner to the CTTT for a breach of by-law 14 and s117(a) and the tenants to the CTTT for breaches of by-law 1 and s117(a).. Interestingly the owner had not informed the strata manager of the new tenant’s details and it took a strongly worded letter from the strata manager to extract the information.
I decided to take the owner to the CTTT for by-lay 14 initially and follow up with the tenants if that did not bring any relief. Mediation with the owner’s representative and me was a farce with much waving of the now infamous acoustic report in evidence and protests that we were harassing his poor innocent tenants.
A follow-up application to the adjudicator is now in progress with submissions containing detailed noise notes, stat decs and letters from witnesses.
My question is how long will it take for the adjudicator to make an order (submissions closed a month ago) and if appealed how long does it take to go to the Tribunal. Does anyone have a database of similar cases that I can look at should this need to go to the tribunal?
Any additional advice on how to deal with the distressing issue would be greatly appreciated
Cheers
andyj
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Yay! That is such good news! Well done.
I hope you don’t have to endure any more recalcitrance, going by what you have told us, who knows. But keep us posted and congratulations.
I am going to take a slightly out of character punt here and say that the CTTT may be taking a belt and braces approach to this so that your selfish upstairs neighbour can’t come back and claim they were treated unfairly under the law, triggering another appeal to your District Court.
This can often be the impression given when a judge or adjudicator appears to be doing everything they can to favour one side of a legal case when in fact what they are actually doing is closing every possible appeal loophole to prevent someone whom is clearly an a**hole from using the law to avoid observing their social and legal responsibilities.
Someone I know very well recently had a defamation case against them thrown out with all costs awarded against the paintiff. But if you read all the pages except the one with the judgement on it, you would think that the opposite was going to happen because very possible ground for defamation was examined in detail.
However, it turned out the judge was just opening doors so he could slam them shut. It’s different but, I think, similar.
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.
Off the top of my head, as regards laying carpet on top of a wooden floor, I would say no, because the wooden floors would conduct sound downwards. But I’m not an expert. Did you get expert advice as suggested?
More generally – it is understandable that you have had a lot of stress and you want a resolution. The question is, do you trust the other owner, taking into account what has occurred to date? I wouldn’t, but that’s me. Even if you do negotiate with the owner, there are a lot of things up for debate, starting with where he is going to lay the carpet.
If the owner has contacted you to settle, this may be an indication that he believes his chances at the CTTT are slim. If you want to have a resolution that deals with all your concerns, I would be inclined to proceed with the CTTT, on the basis that you will likely succeed and will then have an order that the owner can’t avoid.
if you don’t want to do that, at the very least get a lawyer to draw up a legally binding agreement, because otherwise any resolution you reach with this owner will be as useful as a chocolate teapot. Asking people on a forum to do that sort of thing is not a good idea.
If I were a lawyer (which I am most definitely not) I might be looking at this owner’s previous arrogant and aggressive behaviour and thinking that someone has told him he’s going to lose and now he’s trying to mitigate his losses at your expense.
In fact, his offer is an insult to your intelligence. Look at it this way, on weekdays, chummy upstairs may spend 8 hours in the bedroom but only half an hour getting into and out of bed. The eight or so hours he spends in the living room will be clomping around on his timber floors.
So his “compromise” is to save you from half an hour of noise out of every 24. Think about weekends when you can double the time spent having your peaceful enjoyment shattered by this chancer.
In your position, I would not accept anything less than full carpeting in all living areas except those you have mentioned. You don’t have to offer anything by way of compromise but I would concede that he doesn’t have to rip up the wooden floor provided he carpets the whole area and a) it reduces the noise completely and b) he provides a legally binding agreement that applies to current and future occupants of the lot, never to expose the floorboards again.
The price of not going to the CTTT may be way too high if it means most of the noise for most of the time is going to continue.
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.
Forgot to say – it would be almost impossible to bind future owners, unless you put a covenant on the lot, which would then have to be registered at the Land & Titles Office.
Thanks Scotlandx and Jimmy,
I will tell him to shove his suggestion into a dark passage
As I have witness statements and stat decs from 2 neighbor’s and 3 visitors attesting to the noise, I would guess that an acoustic report is unlikely to sway the tribunal if it just says meets BCA standards or just exceeds them (50’s)
I have seen meets BCA standards reports not sway the CTTT before
Cheers
Here’s something that may be of interest to anyone who is faced with a timber flooring dilemma
Often the owner who has laid the floor will often justify it by frantically waving an acoustic report of the installation itself, or a lab report of the floorings acoustic characteristics as tested in the lab and boldly state that “it meets the BCA standards” (often followed by a final triumphant wave of the aforementioned documents).
Well after talking to an acoustical consultant I was told the following.
“The BCA standards only apply to new buildings and do not apply to renovations of existing buildings”.
and
“By-law 14 is a subjective test whereby the CTTT considers whether or not the noise generated is likely to disturb the peaceful enjoyment of another lot owner or those using common property. It does not require the flooring to meet a particular building standard.”
The acoustic certificate would appear to only be useful as backup paper in the lavatory should the primary roll become exhausted
andyj’s message needs to be repeated loudly and often. Claims by those who have installed wooden floors that the installation meets the requirements of “strata” (whatever that is) on the basis of acoustic readings are groundless. The requirement in most strata scheme by-laws (if based on the model by-laws attached to the Act) is a subjective one – i e does it or does it not cause problems for the neighbours and compromise their quiet enjoyment of their homes. Any representations by marketers that results of acoustic testing that they may have commissioned ensure compliance with “Strata” requirements are misleading and should really come the the attention of the ACCC.
Sorry, I’ve drawn a blank too. Anyone else? You could always write to the secretary of the Owners Corp – if you can find their address.
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.
@andyj said:
Can you point me to the database or URL that I can find the original CTTT ruling and cite it correctly
andyj
The online database in NSW only holds about 500 Strata cases and they seem to del old ones when they add new ones using some convoluted formula to decide which ones to del.
In QLD we at least have about 10,000 but they do the same here. As storage is so cheap nowadays why cannot they just add new cases without del old ones.
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