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TIMBER, tiled and even polished concrete floors have become possibly the most consistently heated issue in the 15 years that Flat Chat has been in existence.
In an old apartment block, the problem arises when owners lift their carpets to discover nice, untouched floorboards underneath, only awaiting a sanding machine and a splash of varnish to make them new and trendy.
In new apartments, the carpet is ripped up and floorboards, tiles or, indeed, nothing is laid down to get a similarly aethetically pleasing effect. Often, the potentially devastating effect on the downstairs neighbours is either not considered or flagged as “part of apartment living”.
In both cases of re-flooring above, the owners have removed the most effective form of sound insulation on floors and replaced it with something less effective or, in some cases, material that actually enhances the transmission of noise from one apartment to another.
When the owners of the new timber floor are challenged, the responses range from “you can always move out if you don’t like it” to “my kids have these allergies …” via ” the man in the flooring shop said it would be fine” and “I know my rights!”. Funny, isn’t it, that people who claim to know their rights, rarely ever do and certainly have little idea of their responsibilities?
But that’s a whole other issue. When it comes to flooring over-riding sentiment, and deeply flawed logic, is that your upstairs neighbour has the right to enhance the value of their apartment even if it means decreasing the value of yours.
This is, of course, not true and it never has been.
The NSW strata law changes of late 2016 decreed that laying a timber floor was a “minor’ renovation, meaning you only needed the strata committee’s permission (rather than a by-law). However, permission could not be unreasonably refused but the owners corporation (body corporate) could set reasonable conditions.
What happens if somone just ignores the process and pulls up their carpet and polishes the un-insulated timber boards or lays cheap timber straight on to the concrete?
There are process for putting that right but the problem, however, is knowing which way round the Fair Trading and NCAT maze you should go to get to a satisfactory result.
When I raised this issue in Flat Chat a couple of years ago, one reader, Garry, wrote in and explained how he had had a successful outcome when upstairs neighbours ripped up their carpet and proceeded to make his life miserable just by walking around living their normal lives in a normal fashion. I blithely offered to pass requests for more more information on to Garry.
It was like the Second Coming.
Suddenly all these long-suffering apartment owners came out of the woodwork (pun entirely intended) seeking relief from their selfish and/or blissfully ignorant upstairs neighbours. It would be no exaggeration to say that this is far and away the biggest response to any topic I have ever covered – including pets, parking and parties – by a factor of more than five time the normal number of emails.
It’s an incredibly complex issue and it’s not just the people downstairs who are victims. Sometimes people who have tried to do the right thing have been given bad advice or paid for an inferior installation and end up having to replace their expensive wooden floor with expensive insulated carpet (a nice double-dip for the flooring sellers!).
Bad insulation can actually cause more noise nuisance than no insulation – and owners often don’t realise there is a problem till they get a letter from their Owners Corporation ordering them to put properly insulated carpets down again.
Others, sadly, know perfectly well that they are going to make their downstairs’ neighbours lives miserable but, as is so often the case these days, don’t give a damn and assume that they’ll get away with it. Timber floor sales people will often encourage this notion if it means making a sale.
I immediately felt sorry for Garry who was manfully trying to respond to all these emails individually. So I had a trawl through recent CTTT adjudications and appeals and put together a package of case histories (which you can access at the foot of this post) to try to build a picture of the best way to approach this issue if you do decide to take the matter to the CTTT.
There are two ways you can approach this – through your by-laws (which vary from building to building) and through strata law which applies to everyone.
By-laws
If you have a by-law in your building which forbids or restricts flooring that doesn’t properly insulate noise transmission, you are halfway there. If it specifies the Australian Building Codes for noise transmission, you may have a problem and have to depend on Strata Law (see below). Australian Building Standards are a joke when comes to apartments and those that apply to flooring seem to have been designed for people whose feet never actually touch the ground.
The standards devised by the Australian Association of Acoustic Consultants are a much better guide to what it tolerable and what isn’t. But don’t be sucked in to thinking the level of noise is the only factor.
A dripping tap is not particularly noisy but it will drive you mad if you don’t do something about it. Similarly, the tap-tap-tap of fashionably high heels drumming a military tattoo above your head when you are trying to watch TV will have you thumping the ceiling by the first commercial break.
Even if you don’t have a specific by-law on flooring, you may well have one that says owners may not do anything that interferes with “the peaceful enjoyment” of another owner’s unit. This is one of the “model” by-laws suggested by Fair trading and adopted by many new apartment blocks and a significant number of (but by no means all) older ones.
Since you can’t reasonably ask people not to walk around their own apartments, then you should be able to demand that their floors are insulated so that you don’t have to put up with noise every time they do.
Strata Law
NSW Strata Law takes a much less specific view. Let’s look at the relevant clause:
153 Owners, occupiers and other persons not to create nuisance
(1) An owner … 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)
Now, my legal eagle friends tell me that the legal definition of nuisance is very different from the colloquial meaning. For instance, it has to be frequent or persistent and something a reasonable person with no particular sensitivity would be affected by.
The context is also taken into account – the attached case studies include a building that the CTTT (precursor to NCAT) adjudicator (in their infinite wisdom) decided was pretty noisy anyway by virtue of the way it was built and dismissed the complaint.
I’ll say no more on that except to advise that if you do decide to take an upstairs neighbour to the NCAT on the basis of strata law, you would be well advised to consult a specialist strata lawyer first.
Since this whole issue erupted, and the law was changed, we have been asked many times to suggest appropriate wording for a by-law. That’s probably better done by your strata manager or even a strata lawyer, but if you were thinking of heading off future problems by adopting a by-law, I would couch it in non-specific terms.
It could say that permission is granted provided there is a written undertaking to remedy any failings immediately if downstairs neighbours are adversely affected.
If owners aren’t prepared to make that commitment, then they can keep their carpet or face the consequences of action at the NCAT for breach of by-laws.
If you are contemplating action or are even the subject of a complaint, have a look at the attached documents – many are failed actions, some are successes, but regardless of the outcome there is a pattern even in how different adjudicators assess different cases. I have also included a case about piano playing (not flooring) as it illustrates how the CTTT dealt with a very complex and sensitive issue.
Meanwhile, as a guide, here are my own highly subjective observations based on reading these reports:
1. Adjudicators seem to be at least as concerned with whether or not the noise is disturbing (which is where the by-law breach occurs) as they are about whether or not the floor meets BCA or acoustical engineering standards.
2. There seems to be an acceptance that the BCA standards are not an acceptable guide as to whether or not the floor is properly insulated against disturbing noise so anyone relying on that as a defence is skating on thin ice. Failure to meet Acoustical Engineers standards for carpeted floors (and few if any wooden or tiled floors can) may be a more significant consideration. The first case study (CTTT Appeal Decison 1, below) clearly states that while the floor meets BCA standards, it is still 25 percent less effective than carpeted floors and that’s why the upstairs neighbours lost their appeal
3. If you are taking a case to NCAT supported by an acoustical engineer’s findings, make sure your expert’s qualifications and experience are stated as part of the submission.
4. Witnesses who are there to support your case by testifying that they can hear noise from the timber-floored unit will be asked if the noise is disturbing. If they say “not really” (as in one example attached) the adjudicator is likely to rule that some noise is acceptable in apartment buildings and only “nuisance” noise is a breach and throw the case out.
5. Throwing down a few rugs is unlikely to be accepted as solving a noise problem with a timber floor. A couple of these cases are appeals or penalty hearings because the offending owners have wrongly assumed that putting rugs down meant they had met the terms of a previous adjudication. It may be worth asking for a pre-emptive adjudication on the use of rugs. The simple test, again, is whether or not the disturbance continues.
6. The question of rugs arises because adjudicators will often not specify a remedy. The adjudicator may rule that there is a noise problem and it must be rectified but then leave it up to the unit owner to decide how to rectify it. That’s why so many of these cases are only resolved after several trips to the tribunal. In one case, the upstairs owner thought that she didn’t need to do anything, in another, the upstairs owner laid carpet with little or no insulating underlay. In both cases they were subject to further orders to insulate the floor properly.
7. Be as organised and methodical as you can be and try to keep personality clashes, past and present, out of the picture.
8. It is definitely worth considering getting a specialist strata lawyer, especially one with a track record in these disputes, to run your case for you. It’s not essential, it may be expensive and you won’t recover costs even if you win but it will probably increase your chances of success.
And finally, I attach a table from our original successful anti-timber litigant which shows that NO timber floor provides the same sound insulation as carpet on a quality underlay. That could be the basis for justifying any by-law you may plan to propose.
FYI: The higher the figure the worse the noise transmission and it’s worth noting that a polished concrete slab doesn’t even meet the minimum BSA standards.
The following links are to archived CTTT rulings on flooring and noise issues
OWNERS CORPORATION WINS APPEAL
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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Hello and HELP!!!
I've been looking around for information about the laws and “who is right or wrong” with the whole floorboards argument.
We are first home owners and just bought a unit (upper level) on a small block of just 4. The block is 1930's built and the unit got original floorboards. This is a self managed block in Sydney north shore.
We haven't even moved yet!!! not even settled! and went to have a friendly meeting with our downstairs neighbour to make sure they know us and understand we are not a noisy crowd, we got no kids, no pets…. what we got in return on this meeting was a very agresive neighbour (old lady) with a copy of “fair trading” pages estating that the floors must be covered and carpeted through out.
I am very distressed with the whole thing, and really don't know where to look for information and wether this can be resolved in a friendly manner.
The neighbour also show us pictures of the other unit upstairs saying “you see is carpeted there…and you MUST carpet too…”
Please let us know what you think and how to take this forward, is very tiring and emotionally frustrating to deal with such an agressive person…
Thanks a lot and hope someone comes back to us with some thoughts!
Noise transmission from floors can sometimes be problematic, but usually when Proprietors change from what was originally in place when the Building was constructed; like from carpets to a floating floor.
Your problem is somewhat unusual in that due to the age of your Building the original floor was timber, and from what you're saying none of the previous Owners has never had it carpeted and then taken it up (?).
I'd check that with your Owners Corporation (O/C) though, because the applicable Model By-Laws that your Plan would have most likely adopted state that Proprietors must notify (read: seek the consent of) the O/C before changing any floor covering to one that may create noise (By-Law 14), and that the floors of a Lot (Unit) must be covered to the extent that there's no noise transmitted to other Lots (By-Law 15); bathrooms, kitchens, and laundry areas excepted.
Depending upon what's occurred over the 80 years, it's likely that you will have to cover or otherwise treat the floorboards “to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot” (By-Law 15). That doesn't mean carpets though, as some selectively placed furnishings and scatter rug/s or carpet runners can work wonders!
I am on the other side of the fence. We just bought an apartment and have been denied by the Body Corporate when we asked permission to replace our carpet with timber flooring.
Our body corporate regulations state “a member must not, and must ensure that the occupier of a member’s lot does not – fail to keep the floors of the unit carpeted or otherwise covered insofar as to may be necessary to avoid annoyance to the occupiers of any unit”
Apart from the wording being very confusing, we assumed “otherwise covered” could mean another type of flooring, however have been advised that only carpet will be accepted.
We have reason to believe our upstairs neighbour has timber flooring as we can hear them walking around and we have no neighbours below us, only a carpark.
We do not want to disturb our neighbours or create tension between the other owners, however it would have been nice to have this stated more clearly. It was always our intention to put down timber floors and we even checked the body corporate regulations prior to purchasing the apartment to make sure we could. We obviously did not understand the regulation clearly enough.
New chum in this forum and still navigating. But usually s117 is not the way to attack a floor noise problem; the standard by-laws have a floor covering by-law that reads
14 Floor coverings
(1) An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot.
(2) This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.
The ‘disturb peaceful enjoyment’ wording is generally generally interpreted quite well by adjudicators.
The AAAC guidelines are also very useful.
Some quick tips:
i if you are offended by a change to floor covering, make sure that you gather evidence. Get an exercise book and keep a ‘noise log’ listing the times when the noise was annoying, and the kind of noise.
ii if the noise happens when friends are over, get them, if possible, to make a short note of what they heard and when.
iii on the other hand, if you have just ripped up the carpet and underlay and polished and you are now getting noise complaints, do not expect that putting down rugs will solve the problem. ‘sound proofing’ a hard floor can be a complex and horrendously expensive exercise.
Floor noise disputes can run and run, and they can be horrendously expensive. At CTTT appeal level it is not uncommon for both sides to hire acoustic consultants to do so-called ‘tap tests’ on the floor.
The real answer to this is that one should be very restrained about changing floor coverings.
Jimmy
Yes, you should always check the bylaws that apply to your strata scheme, and I should have made that more clear. Sorry. The flooring by-law 14 that I quoted is not new; it is applied by s42 of the SSMA to 'old' schemes – that is, pre-january 1997. It appears as by-law 15 in the 'model by-laws' that appear in the strata schemes management reg 2010.
Both those sets of by-laws can, of course, be adopted, modified, supplemented or what ever.
So yes, I have come across other flooring by-laws in various strata plans, but the one most often applied in the 12 years I have been involved in strata law is the one I have quoted above.
In passing, the great advantage of the 2010 'model' by-laws is that they contain a compulsory notice provision, which is the new number 14:
“14 Changes to floor coverings and surfaces
(1) An owner or occupier of a lot must notify the owners corporation at least 21 days before changing any of the floor coverings or surfaces of the lot if the change is likely to result in an increase in noise transmitted from that lot to any other lot. The notice must specify the type of the proposed floor covering or surface.
(2) This by-law does not affect any requirement under any law to obtain a consent to, approval for or any other authorisation for the changing of the floor covering or surface concerned.”
This is an idea which should, probably, be adopted by every strata scheme – that is, the by-laws should be amended to include a notice provision. The idea that by-laws should retain their numbers when the legislation changes is, I fear, beyond hope in this universe.
If you are offended by a change to floor covering, make sure that you gather evidence. Get an exercise book and keep a 'noise log' listing the times when the noise was annoying, and the kind of noise. This is one of the problems people have to deal with when it comes to hard floors – different building have no by-laws, draconian by-laws, unworkable by-laws and others that make sense but aren't enforced. Thanks…
putting timber floor down instead of carpet is a very selfish thing to do , YOU HAVE NEIGHBOURS please remember that , if you want timber flooring , get a FREE STANDING HOUSE , my upstairs neighbours have a timber floor , it wasnt so bad when the last tenants where there as they were never really home , but the new tenants have a pool table and every day ( almost 24/7 ) they are playing it , not only can we hear them smashing the balls , we also hear when the ball falls off the table ( very regular) , we told our real estate and they told us there is not much we can do about it – apart from asking them to put rugs under the pool table
well thats not good enough , we are taking them to the CTTT , we do not have any acoustic specialists but we do have pictures from when they advertised the unit for rent , along with stat dec's from neighbours and visitors stating the amount of noise created by these rude tenants
Its going to be one expensive exercise for the landlord of that unit , our strata bylaws state no timber flooring is allowed ( i live in a 21 unit , 7 story block , my neighbours or on level 4 ) , the o/c are also unaware ( well not now )
and to ” disappointed ” you need to get a house not a unit – its very selfish what you want to do – its irrelevant what your neighbours have as a floor covering – 2 wrongs do not make a right !! these by laws are there for a reason – timber flooring is obviously going to make noise no matter how you put it down ( either above you or below you , but most likely BOTH ) , think about your fellow human and do the right thing
Good luck Allfields1, you deserve to and should win.
I can't figure out if your proceedings are also including the Executive Committee and Strata Manager if there is one, and any real estate agent, but all the joy should be shared around. Let them have it good and proper! Pursue them for any and all breaches good and proper!
My next door neighbour has a wood floor that has always existed in the apartment. The problem is that they have a football (soccer) game table that they play all though the night (meaning at 4am, 5am etc).
Can you imagine the noise this makes? All the banging of the table and control rods, the stomping/running, and the balls dropping on the floor.
What an inconsiderate jerk. And he is an owner. Regardless of the noise wooden floors can make, there is consideration of your neighbours. It would be noisy enough at 4pm. It's ridiculous at 4am.
Jimmy has given a good information. Timber flooring looks antique. It is also defined as a style statement. It requires high maintenance and care. There are nice carpets in a wooden texture available in market which gives you the same feeling as timber flooring.
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