Floating timber flooring and unsympathetic Owner and tenants | Page 2 | Hard floors and tough decisions | Flat Chat Forum: Your Questions Answered




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Floating timber flooring and unsympathetic Owner and tenants
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andyj
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14/05/2013 - 11:03 am
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The owner upstairs has emailed me and asked that we consider settling the issue without going to the appeal and penalties option. He has had a costing on an acoustic report and has decided that carpet may be a more cost effective solution

 

He has offered to carpet the bedroom areas. I would like for the living area to be carpeted as well as significant noise is generated here as well.

My question to my learned friends is should the existing timber floor be removed before the "quality carpet and underlay" is laid or would keeping the timber floor add to the sound insulation properties of the carpet.

I will say to the owner that I want "the installation of carpet and quality underlay in all areas except the bathroom, laundry and kitchen areas that will provide sufficient impact sound insulation so as to satisfy by-law 14 and not disturb the peaceful enjoyment of the surrounding apartment's".

 

I am thinking of asking that he sign an agreement that the carpet not be removed. How would I phrase something like this

 

Pls advise as I may be able to have this resolved in a satisfactory manner without further CTTT action

 

 

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scotlandx
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14/05/2013 - 2:35 pm
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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.

 

 

 

 

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JimmyT
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14/05/2013 - 2:44 pm
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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.

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scotlandx
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14/05/2013 - 2:49 pm
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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.Smile

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andyj
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14/05/2013 - 3:08 pm
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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

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andyj
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15/05/2013 - 10:49 am
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Hi Jimmy and Scotlandx

Received the following from the owner upstairs (edited to protect the arrogant and innocent)

 

"I believe that by installing a carpet with underlay  on the top of floorboard would certainly remove any residual noise that may have been generated by the floorboard.The laying of new carpet I would imagine will reduce the noise transmition level to a level below the original torn, well exhausted carpet."

 I will not accept anything less than full carpeting in all living areas except the kitchen bathroom and laundry, and a) it reduces the noise completely and b) we return to the tribunal to have this agreement ratified before them including an agreement that the carpet is never removed again.

"On this basis with the new installation, I would expect that you can kindly check with XXXXX and XXXX (other lot owners) and if you are all happy then I go ahead with this and we both withdraw our applications from CTTT and close the matter on floorboard." 

 No please see paragraph above. this agreement needs to be registered with the tribunal to make it binding on all parties

"If you still believe that there would be some chances of noise coming through and you would be continuing to peruse the case then I would need to go ahead with all the tests for measuring the noise levels in your unit, and also in XXXX and XXXX units in order to quantify everything and close the issue based on the findings."

Acoustic testing can only occur in my unit as I am the respondent to your appeal the other parties have not been ordered to give you access. This path may turn out to be more costly to you

 

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andyj
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15/05/2013 - 4:56 pm
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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

:-)

 

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excathedra
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15/05/2013 - 6:50 pm
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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.

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andyj
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26/06/2013 - 2:50 pm
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Hi Jimmy,

 

In your article under Timber Floors - facts and frictions you cite CTTT appeal 1 at the bottom of the article regarding SCS 07/63941 Strata Plan 30478

http://www.flat-chat.com.au/ti.....frictions/

 

I wish to use this in an upcoming penalties/appeal hearing next week but cannot find the case in http://www.auslii.edu.au

Can you point me to the database or URL that I can find the original CTTT ruling and cite it correctly

 

Ta

Brave in battle!!

andyj

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JimmyT
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26/06/2013 - 5:25 pm
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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.

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kiwipaul
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26/06/2013 - 6:08 pm
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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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andyj
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04/07/2013 - 11:13 am
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Hmmm.. I received some paperwork from the CTTT today indicating that the applicant in the appeal had submitted some correspondence. Essentially he was saying that we had reached an agreement and that I wanted to have the tribunal issue them as orders. He is partially correct here. There was also a lot of calling the team members "honorable person" and saying how generous he is and how hard done by he is in agreeing to fix his floor. What  I have suggested that we agree on some orders to be issued by the tribunal. In short I have asked for the "removal of all the floorboards and the wall to wall laying of quality carpet and underlay, which is to be agreed to by both parties, so as to prevent the transmission of noise from the floor space likely to disturb the peaceful enjoyment of the owner or occupier of another lot in the strata scheme". I have also asked that the work is completed within 42 days, to the satisfaction of myself and other lot occupants within 42 days of these orders coming into effect. On further rereading of the letter from the CTTT I noticed that he had had his appeal fees waived and they referred to a letter posted to him. When I rang the CTTT asking why he didn't have to pay fees and why I didn't get a copy of the correspondence to him I was told that essentially the communication didn't affect any decisions and I was not privy to the letters or reasons for the fee waiver. Is this normal as he has been copied in on all correspondence between myself and the tribunal including what I have had for breakfast. I get the awful feeling of bias here...

 

Thoughts anyone

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drshelley
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19/03/2014 - 9:28 pm
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Well I was warned - recent jubilation that our recent submission for adjudication was successful and our upstairs neighbour was ordered to comply with by-law and treat ALL their floors.   To me this seems simple - neighbour was given 10 weeks to comply.  In their submission respondent (go-ahead young couple) had requested orders against us (I didn't know you could do this) 1. that we insulate our ceiling - order denied as adjudicator said we had not contributed to their noise at all. 2.  that they carpet the bedrooms and put rugs in living areas - adjudicator view was that this order request reinforced the idea that they knew they were making noise and the order was not made 3. that we stop harassing - outside adjudicator's jurisdiction.

Acoustic testing had demonstrated that flooring did not meet the minimum standard (adjudicator had underlined this phrase, bolded the word minimum and in brackets after put the words (emphasis added).

 

When we asked our neighbour what they intended doing as 6 weeks has now passed, she said that she was waiting for further info from the acoustic engineer and then would be putting a submission to OC for approval???

I don't believe the OC can overturn any order of the adjudicator - in fact I don't really think they understand what the adjudicator's order means. 

Any thoughts fellow sufferers would be appreciated.  Is it too late to draft a by-law stating that hard surface flooring is not allowed or must be 6 star standard.

 

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JimmyT
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20/03/2014 - 9:24 am
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drshelley said

When we asked our neighbour what they intended doing as 6 weeks has now passed, she said that she was waiting for further info from the acoustic engineer and then would be putting a submission to OC for approval???

Presumably they want to delay the process for as long as possible by seeking "acoustic reports" that will tell them nothing except that the only truly effective sound dampener is thick carpet on a top quality underlay,  with an 11mmm quality underlay under floorboards is a fairly distant second.

The only submission to the Owners Corporation that would be relevant would be notice that they intend to alter common property by ripping up the floorboards and putting additional insulation underneath.

They could just be messing with your head  and the carpet layers will roll up on the very last day of the deadline. I would be tempted to send them a letter - perhaps a lawyer's letter - telling them that you have noted that they have not commenced work to abide by the terms of the CTTT Order and their stated intention to pursue this through the Owners Corp.  

You are giving them fair warning that there is no respite offered to them via the Owners Corp which can't overturn an NCAT  (CTTT) order. The Owners Corporation can't instruct them on what kind of noise insulation to use as the CTTT order simply states that they have to fix the problem.  The Owners Corp has no say in how that is to be achieved and even if they did tell them what to do and it didn't work, they would still have to fix it.

I would add that any failure to complete work within the deadline will be the subject of IMMEDIATE further action at NCAT which may impose fines of up to $5500 and award costs incurred by you, the plaintiff, in pursuing the order. 

Considering the length of time that you have suffered noise due to their non-permitted removal of carpetting, any efforts to pursue this issue through the Owners Corp will been regarded as a delaying tactic and will be presented to NCAT as such, and you will accordingly pursue further orders and the imposition of fines with the utmost vigour. 

The addition of a new by-law allowing the floor seems unlikely since it will be inferior to the standard item of strata law, section 117,  that forbids residents from disturbing another resident's peaceful enjoyment of their lot.  They can't use even the request for such a by-law as a stalling tactic - at least not without the risk of hefty fines at NCAT.

Your choice is to jump now or wait until deadline day.  They don't sound like the kind of people who like losing - perhaps this is their last little show of defiance before they cave in.

 

 

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drshelley
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21/03/2014 - 9:41 pm
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thank you Jimmy T.  Your advice as usual gives us so much confidence.

This evening however, we have received another email saying that they have been recommended to use 5mm regupol plus relay their current  2mm of quiet step underlay.  They are also going to carpet the 3 bedrooms.

At least this is a start.  But as you say the OC cannot instruct them on what insulation to use nor overturn an adjudicator's order.  However they do need OC permission to pull up the floorboards.

At this stage I think our response will be that even 11mm regupol is only a 'distant second' to carpet.  They will still take a risk that this will not fix the problem.  To quote our neighbour she states that 'she is confident this premium underlay will considerably improve the noise transfer into our unit and meet the by-law". 

Any further opinion would be appreciated.  Should we request that an additional 5mm underlay would be the minimum.

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JimmyT
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22/03/2014 - 10:57 am
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drshelley said
At this stage I think our response will be that even 11mm regupol is only a 'distant second' to carpet.  They will still take a risk that this will not fix the problem.  To quote our neighbour she states that 'she is confident this premium underlay will considerably improve the noise transfer into our unit and meet the by-law". 

Yes, my response would be that you can't tell them how to deal with the problem but  to caution them that you will not be satisfied with a solution that doesn't properly address the noise transfer issue.  A sensible if slightly more expensive solution would be to put 11mm Regupol on top of the existing insulation which is obviously more likely to do the trick.

Even so, the CTTT order is about stopping the noise, not laying down insulation and they should consider whether it is worth risking having to go back and do it all over again,  After all, it was so-called "experts" who told them the current insulation would be fine. Attempting a solution is not the same as solving a problem.  If it doesn't worrk, all it means is you didn't try hard enough and that's exactly how NCAT will see it if the problem continues.

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andyj
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23/03/2014 - 12:35 pm
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JimmyT said

Even so, the CTTT order is about stopping the noise, not laying down insulation and they should consider whether it is worth risking having to go back and do it all over again,  After all, it was so-called "experts" who told them the current insulation would be fine. Attempting a solution is not the same as solving a problem.  If it doesn't worrk, all it means is you didn't try hard enough and that's exactly how NCAT will see it if the problem continues.

Jimmy is spot on the mark here. The CTTT usually does not specify a product to solve the noise problem and it would be risky to agree to any specific solution as it may not solve your noise issue. In my case the owners have put in cheap carpet and cheap underlay. This has reduced the noise, but not eliminated the daily disturbing thumps on the floor above. So its back to NCAT for me. Nothing beats  quality thick carpet and thick quality underlay.

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drshelley
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23/03/2014 - 8:52 pm
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We will certainly be warning them of this and also of the fact that if we apply for a penalty order we can at the same time apply for any costs, including legal fees which might be in the order of $9000.

Judging by the noise last night, thuds, jumping on the floor, running etc for over 2 hours- not even carpet would solve the issue.  It was unbearable and unacceptable by a country mile.

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24/03/2014 - 8:25 pm
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Hi everyone. I had a good outcome at NCAT on 13 March in a similar matter.

I searched thoroughly and found out that there was a precedent where, at a hearing for a penalty for non-compliance with an adjudicator's orders, a tribunal member had instead made an alternative order under s187 and made an order under s138.

So at my "application for a penalty" hearing, I asked for the same ruling, i.e. and alternative ruling under s138, By-Laws.

The ruling I asked for was from a precedent, and was that "the respondent is to cover all floor areas with the exception of wet areas with carpet and underlay if sufficient quality to ensure no transmission of noise from that lot to the lot below (etc) within 60 days." And I am happy to say that was the order the Tribunal member made in my case. So I am very happy about that.

The problem of people ripping out quiet carpet and installing floating timber floors with inadequate underlay is a big problem.

If you need any links to what I found please let me know.

All the best with your plight Drshelly and AndyJ

Patricia

 

 

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andyj
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25/03/2014 - 12:50 pm
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PatriciaSC said
Hi everyone. I had a good outcome at NCAT on 13 March in a similar matter.

I searched thoroughly and found out that there was a precedent where, at a hearing for a penalty for non-compliance with an adjudicator's orders, a tribunal member had instead made an alternative order under s187 and made an order under s138.

So at my "application for a penalty" hearing, I asked for the same ruling, i.e. and alternative ruling under s138, By-Laws.

The ruling I asked for was from a precedent, and was that "the respondent is to cover all floor areas with the exception of wet areas with carpet and underlay if sufficient quality to ensure no transmission of noise from that lot to the lot below (etc) within 60 days." And I am happy to say that was the order the Tribunal member made in my case. So I am very happy about that.

The problem of people ripping out quiet carpet and installing floating timber floors with inadequate underlay is a big problem.

If you need any links to what I found please let me know.

All the best with your plight Drshelly and AndyJ

Patricia

 

Hi Patricia,

 

Could you please post the links to the web sites and cases that you used to prepare your case. I would like to seek similar orders as the carpet and underlay the owner has installed upstairs is not suppressing the transmission of noise. Last night and this morning (as is usual most days) all I could hear were thumps and bangs

 

Cheers

 

AndyJ

 

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