• Creator
    Topic
  • #50739
    Avatartruthseeking
    Flatchatter
    Chat-starter

    We have an ongoing dispute with upstairs neighbour who installed a porcelain tile floor, which produces considerable noise. The only by-law at the time of the renovation was the one relating to not interfering with peaceful enjoyment, although the building now requires all renovations to comply with a 6 star acoustic standard for any floors, effectively ruling out hard floors.

    Anyway, we have been to mediation with our neighbours and they refused to agree to put any kind of mats or rugs down but did agree to an acoustic test (clever mediator, thank God!). That test will be conducted in a few days but this weekend there has been extensive noise upstairs that I’m fairly confident is related to putting floor coverings down so as to make it difficult for the engineer to actually be able to test the tiles.

    No doubt those coverings will be lifted once the tests are completed. What do I do and how do I explain to NCAT?? To top it all off the neighbour is the Secretary of the Owners Corporation and the Strata Committee has refused to get involved saying it’s an issue between two neighbours. Please help

    • This topic was modified 1 week, 1 day ago by .
Viewing 4 replies - 1 through 4 (of 4 total)
  • Author
    Replies
  • #50816
    Strata AnswersStrata Answers
    Flatchatter
    (from NSW)

    You don’t say what sort of acoustic test was  agreed at mediation.

    Acoustic testing in this context is typically conducted using a tapping machine on the hard surface floor and the sound measurement would be made in the apartment below. So as the  affected neighbour you will be  very much witness to the process.

    There are different types of noise – what needs be measured is the noise transmitted through the floor with the ambient  noise generated within the apartment above being of no direct relevance.

     

    STRATA ANSWERS

    Practical Assistance with Strata Living

    solutions@strataanswers.com.au

    #50767
    Jimmy-TJimmy-T
    Keymaster

    I’ve seen quite a bit of legal advice and NCAT judgments that argue the by-laws are a contract between each owner and not between the owner and the OC. Therefore, while the OC can enforce by-laws they are actually under no legal requirement to do so. Interested in anyones thoughts.

    The owners corporation has a duty to enforce its by-laws – although it may be only when asked to do so (i.e. there is no duty to do so pre-emptively).  I have never read anywhere that by-laws are merely a contract between individual owners.

    The contrary was confirmed to me by the Fair Trading (now Services) Minister Victor Dominello who quoted his Second Reading of the current Act, in which he said “Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.”

    He said that implied a duty of care to enforce their by-laws.  If the owners corp doesn’t have a duty of care, why does section 232(2) (below) even exist?

    Good luck with the acoustic tests.

    Section 232 (2) Failure to exercise a function 

    For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—

    (a)  it decides not to exercise the function, or

    (b)  application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

    #50758
    Avatartruthseeking
    Flatchatter
    Chat-starter

    Thanks for the reply. I’ve seen quite a bit of legal advice and NCAT judgments that argue the by-laws are a contract between each owner and not between the owner and the OC. Therefore, while the OC can enforce by-laws they are actually under no legal requirement to do so. Interested in anyones thoughts.

    #50750
    Jimmy-TJimmy-T
    Keymaster

    What do I do and how do I explain to NCAT?? To top it all off the neighbour is the Secretary of the Owners Corporation and the Strata Committee has refused to get involved saying it’s an issue between two neighbours. Please help

    I think I might start with applying for a Section 232(2) action against the Owners Corporation for failure to enforce the scheme’s by-laws. If you were feeling particularly litigious, you could also apply to have the secretary removed from office or, from the committee entirely, under Section 238 for having “failed to comply with this Act or the regulations or the by-laws of the strata scheme.”

    Be clear on this, it is enshrined in the Strata Schemes Act that the owners corporation has a duty to enforce its by-laws … and I have that directly from Minister Victor Dominello himself.

    Now, to be fair, I’m not suggesting you actually follow through with these threats.  But one significant element of them is that you have to apply for a madatory first step of mediation and the committee and the secretary will be served with requests to attend, with the reasons given for the mediation spelled out.  If mediation doesn’t put a scare into them, you then at least have the option to proceed to NCAT.

    You’d have to consider the next step carefully but, considering the impact of a noisy floor above on the value of your property, it might be worth serious thought.

    As far as the potential for selective testing goes, send a message that you will want to see evidence (as in pictures) that temporary floor coverings have been removed to permit proper testing.  You might add that if  carpet has been laid, you will require a binding undertaking that it will not be removed.

     

    • This reply was modified 1 week, 1 day ago by .
Viewing 4 replies - 1 through 4 (of 4 total)
  • You must be logged in to reply to this topic.