Upstairs neighbour wants me to pay for recarpetting his illegal floor

Thanks for all the responses – I appreciate it.

@JimmyT: Very insightful! We were actually headed for adjudication: he had not answered 3 letters from the OFT mediator and she phoned me to tell me that she is ‘closing the file’ and that I would be free to proceed to adjudication. I then panicked thinking my plan of offering a token sum was now falling apart and that he might later claim that he never received the letters. I then managed to find his phone number and supplied it to her. He then confirmed to her that yes, the letters had been received and no he had no intention of showing up to mediation. He said he would chat informally with me instead. The mediator was happy with this approach. She phones him and chats to him. She then phones me and chats to me. She then makes file notes based on the conversations.

The upstairs neighbour and I had an informal meeting where he said he didn’t think the noise would be disturbing but because he is a “friendly neighbour” he is willing to look into putting in better insulation as long as I offer him money which mostly covers the cost. He also noted that he had spoken with “his solicitor” and as a result he felt I had no case and that he was doing it out of the goodness of his heart. He later phoned me and noted that he has not found any carpet that he liked the look of but he was going to search again.

Your point about title deeds is very interesting: I had never actually considered that – would he be willing to agree to such a term? My thinking is that he would seek to avoid such a term given it could affect resale value?

I did speak with a lawyer at TEYS Lawyers – I was quoted $360 to proof-read the 2 page mediation application I had already written and it took them a week to get back to me. I was left feeling a bit underwhelmed and did not proceed. That said, I have heard good things mentioned about them and the person I spoke to did seem friendly and knowledgeable? Are there any lawyers you would recommend?

@scotlandx: The Executive Committee? I don’t see them as a committee which would be supportive of my concerns. The problem is that the apartment block is filled with elderly pensioners, builders, and young families. The only people who show up to the Annual General Meeting are the builders. They then elect each other to the Executive Committee. The self-appointed Chairman, Treasurer, and Secretary goes around apartments obtaining proxy votes to ensure his grip on power remains. No one wants to upset him or get on his wrong side as they fear he will use his power against them if they need to get something approved.

I did try to raise the issue at the most recent Annual General Meeting. The other owners became agitated at the idea of me raising anything: they claimed it would then be recorded on the minutes for future apartment buyers to read. This would then reduce the value of apartments in the block. The strata manager and the chairman insisted that we handle things “informally” and “off the record”. The Chairman’s view is yes there is noise but “you get used to it after a while”, that he has the same issue but he “lives with it” because its about “getting along with others” and accepting that “living in an apartment block means accepting that you live in a noisy environment”.

As for the mediator, yes I decided to become a bit more firm with her after she revealed that she told the upstairs neighbour that “perhaps all you really need to do is install some rugs” and that he shouldn’t bother trying to do anything with the insulation after he claimed that fixing the insulation “would be expensive” and that he would have “financial difficulty”. I was really about to snap at her when she told me that but then I thought maybe she will write an unflattering report on me once the mediation is over – I note that since we never attended the formal mediation session, no confidentiality agreement or anything was signed. I told her that she was not being helpful in putting such ideas into his head – her response was “but you do agree that putting down some rugs reduces the noise yes?”. It was at this point that I told her quite plainly that it was not something I found acceptable and that her role was as a mediator was not to dictate solutions. She then bluffed around and said she was “only making suggestions”.

@mattb: Oh I don’t think the Executive Committee would do anything. I expect they will just approve his changes retrospectively. I know I can lodge a request to enforce a by-law (noise, or floor covering) and then once they refuse to enforce the bylaw I can sue the Owners Corporation – but my issue that will this not just get the builders to rally around each other and take steps to ensure that my key claim, i.e. that the noise is disturbing, is rendered invalid by not actually fixing the problem but getting some dodgy expert report to put up roadblocks?

The floorboarding issue in general started around 5 years ago. The apartment next to me was the first to rip out the carpet and install floorboards. When told by the Chairman needed to get approval and that approval may not be forthcoming given the potential sound issues: the owner retorted he “is a lawyer”, that he is going to do whatever he likes, and “good luck in court” against him. Some apartments were later sold to investors who wanted to “do up” the apartment they bought to make them “look modern”. They then insisted if the apartment next door could do it, why couldn’t they. As a result, they installed floorboards too. None of them bothered getting approval. My upstairs neighbour followed in their footsteps.

More recently another apartment adjoining mine wanted to install floorboards. The new owner lodged an application. I objected and through a legal technicality the request was declined. She then reapplied with a very emotive letter claiming she has health problems and a list of questions like who else has floorboards. The Chairman then went to all the Executive Committee members (except me) and told them to vote yes as it would be “unfair” to decline the request given others had floorboards and that the Owners Corporation might incur a legal liability if it does not approve the request. He then called a formal meeting by simply putting a notice with some vague description “an urgent meeting is called. Please meet in unit xx on Friday”. When I called to enquire what the meeting was about, I was told that “I don’t need to attend” as “everyone has already made up their minds”. Upon asking him to explain how everyone had made up their minds, he then revealed his actions in talking to everyone beforehand to fix the vote and he boasted that “you have lost, you are not going to win this”. He then suggested that perhaps I had no place on the Executive Committee.

The whole thing has caused me much stress and it has really been wearing me down. As a result, I thought if I can get a nice quick result with little further emotional stress – it will be very welcome. My best option was to offer him $1,000 and then talk about CTTT to get him to finally do something. His response was that $1,000 is not enough. I increased to $2,000 but he said he wanted more. It was at this point that I no longer wanted to go further and said he will need to give me a proper cost estimate as to why it would cost more than $2,000. He has not since returned with any costings.

The mediator was initially a positive influence but I feel like she is starting to derail the progress the upstairs neighbour and myself made with her “ideas”.