Flat Chat Strata Forum Neighbour noise Current Page

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  • #9038
    Jimmy-T
    Keymaster

      Should we suck it up or shut it down – that’s the puzzle facing many apartment residents who are unsure if they have the right to ask their neighbours to be quieter.
      And to complicate matters, what if the noise problem is caused or worsened by poor building standards?
      “I am living in a relatively new building and we are going through the defects process,” says StrataLearner on the Flat Chat Forum. “What would be considered as normal noise in such a building?
      “People are complaining of music coming through the double brick walls into their apartment; people talking in the lobby outside; furniture being moved on the tiled terrace area and other noises such as hammering, slamming of sliding doors, children running and playing on the terrace area.
      “Some of these would be expected but others may be because of incomplete or shoddy workmanship. Can anyone enlighten me?”
      There are two aspects to noise in strata blocks – structural and behavioural. And even though the Building Standards for construction of apartments can seem inadequate, they are usually sufficient if everyone remembers they have neighbours above, below and to the side.
      That means turning the bass down on the surround sound, leaving carpet on the floors (or using absolute top notch insulation under timber) telling your kids to save their running for the park and not extending your dinner party into the lift lobby when you say goodbye.
      You also have to remember that some people are much more sensitive to noise than others so the right to “peaceful enjoyment of your lot”, enshrined in strata law, is highly subjective.
      However, there may be defective structural elements involved and the only way you can determine this is by getting in an acoustic consultant. Even then you’ll have trouble arguing that inadequate sound insulation is a defect if the building is demonstrably compliant with building standards.
      However, if it isn’t up to code, or if you were promised a level of sound insulation that wasn’t delivered, you may have a case for a defects claim.
      You can read StrataLearner’s post in full – and reader responses – HERE on the Forum.

      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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    • #19491
      andyj
      Flatchatter

        Jimmy,

         

        Some time ago you mentioned that an owner can be held liable for noise made by a legal occupant or tenant if they were aware that there were complaints being made to the SM.

         

        I was looking at SSMA 1996 NSW s117

        117     Owners, occupiers and other persons not to create nuisance

         

        (1)     An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:

        (a)     use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

        (b)    use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

        (c)     use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

         

        (2)     This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of:

        (a)     in the case of a freehold strata scheme, section 28L of the Strata

        Schemes (Freehold Development) Act 1973, or

        (b)     in the case of a leasehold strata scheme, section 52 of the Strata

        Schemes (Leasehold Development) Act 1986.

         

        (3)     In this section, lessee of a lot in a strata leasehold scheme means a sublessee of the lot.”

        Bold and italics my emphasis

        Could this be interpreted that the owner is bound by the activities of the legal occupier re: s117 and could be held liable for their behavior

         

        Could the legal interpretation of nuisance be described as “a condition or use of a property that interferes with a neighbors ability to enjoy their property” 

        I welcome comments from our illustrious Scottish terrier and aquatic mammal (whale and scotlandx)

         

         

         

        #19496
        scotlandx
        Strataguru

          Nuisance is interference with a person’s enjoyment of their property, and that includes a range of things such as noise.  Nuisance may also include disturbing someone’s mental wellbeing.

          So if someone is using a lot in a way that causes a nuisance to another owner, and the owner is put on notice that they are doing that, and does nothing about it, then I think you could take action against the owner in relation to that.

          Ideally a tenancy agreement would include clauses to the effect that the tenant cannot do anything that would be a breach of the by-laws and/or the Act.  In that way the owner would have an enforcement tool.

          #19507
          Whale
          Flatchatter

            Andy ….. I can’t add anything of significance to Scotty’s post, so here’s my less than illustrious contribution:

            The Court ruling that you’re interested in is Jean Whittlam v Sara Hannah & John Hannah [2011] Downing Centre Local Court 63913/11 

            #19513

            Andy – s117 is the3 appropriate clause of the Act whereby you can take action against owners for the behaviour of their tenants however the first point of call will be enforcement of by-laws. Only when there is an ongoing pattern of complaints to the tenants and owners with the owners failing to take action will you be able to go after the owners.

            Whale – Whitlam v. Hannah may be relevant in some ways but was not about s.117. The case was re a Noise Abatement Order against the owners who demonstrated a very long and ongoing failure to reduce noise by a long line of short term, over crowded tenants. It was found that the way the lot owners advertised and leased their unit had a considerable impact on the cause of the ongoing noise issues.

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