The main story from the Forum this week is a real comedy of errors, with a dash of misguided or mischievous bush-lawyering thrown in.
A Flatchatter has written to us about a floor that has been installed which clearly breaches the schemes by-laws requiring owners to install flooring that is adequately insulated against noise transmission.
The strata committee has trotted off to Fair Trading to have mediation prior to action at NCAT.
However, the downstairs flat is tenanted and the upstairs owner says it’s not the committee’s role to take him to NCAT, it’s up to the tenant. So who’s right?
The answer, as sharp-eyed Flatchatters will have spotted is that just about everyone is wrong.
Dispensing with the bogus bush-lawyering for a moment. A breach of by-laws has nothing to do with tenants, although they can complain about the effects of a by-law breach, in this case too much noise.
However, the most appropriate body to raise this is the strata committee or strata manager. Now we get to the correct procedure.
The most direct way to deal with a by-law breach must surely be to issue a Notice to Comply and follow that up with a request for fines and orders.
Notices to Comply don’t need mediation, so I don’t really know why they went to Fair Trading in the first place unless they have decided that they would rather get orders to force the owner to fix the floor, rather than fine them for not doing so.
Personally, I think that’s a roundabout way of getting to the same result and it will cost the scheme more. If they have a fine imposed, the money goes into the strata scheme’s coffers. If they get orders issued they probably won’t even get costs.
It also puts in another delay and increases the chances of the bush lawyer with the dodgy floor wriggling out of it somehow. They could have issued the Notice To Comply and, if need be, come back later for orders when the breach has already been established.
There is another aspect to this, however. The recent Court of Appeals ruling on pets implies that anyone can do anything they want in their homes provided it doesn’t trouble anyone else in the block, and therefore you can’t have pre-emptive by-laws to stop them.
By-laws that establish minimum standards for flooring have been cited by some strata law experts as examples of situations where a problem needs to be established before action can be taken.
The correct procedure would then be to take a complaint against the owner with the noisy floor. And one person who could do that would be the tenant.
So the cheap floor installer may be right, for all the wrong reasons. But does this mean all flooring by-laws are defunct? Have a look HERE.
Elsewhere on the Forum
- We are being inundated by water from a ruptured membrane in deck above our unit. The strata committee say they’re waiting for the upstairs owner to sign some papers. Meanwhile the damp is killing us. What can we do? That’s HERE.
- We have a by-law that says the strata scheme will pay for inaccessible windows to be cleaned. Does that mean they will clean the windows of people who are unfit and unable to reach them? That’s HERE.
- Our strata manager says the strata insurance doesn’t cover damage to my car from drips from the car park ceiling as the car isn’t owned by the strata scheme. Is he right? That’s HERE.
There are plenty more new questions and ongoing discussions on the Flat Chat Forum. Log in and have your say or ask a question yourself.