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  • #11003

    My husband and I purchased an off-plan apartment and moved in last year, everything seemed perfect at the beginning. Then my upstairs neighbour installed timber flooring in the entire apartment and our nightmare started.

    Prior to the installation, they hired an acoustic engineer to conduct a test in my apartment. Based on the test, the hard flooring they installed complies with the bylaws-4 stars rating, so strata approved it. However, I can hear every footstep and some appliances working ( fan or humifier) as long as they are home. What’s worse is that they have very odd routines. During daytime the noise is bearable, but we can hear them walking around and appliance working in both bedrooms constantly between 11pm – 4am. A few times their footsteps actually waked us up around 2 or 3 am. 

    We first brought this matter to the building manager, he told us nothing he could do. Then we wrote to strata manager, she said this is not a strata issue as long as the flooring above complies with the bylaws. 

    We talked to upstairs neighbor, a young couple, they were shocked that we could hear them. They said they did not do anything out of ordinary and promised they would try to keep it done. Yet we can still hear them walking around 11pm – 4 am and their darn appliance working.  

    These constant noises make my insomnia a lot worse and I feel so helpless. They are a young couple and kids will make it a lot worse in the near future. Considering the real estate price nowadays, we can’t afford to move out or sell it right away. Even if we do, I’m worried it may not be easy to rent out or sell this apartment because of the noise. 

    Can anyone give us any advice in regarding to the noise? 

Viewing 13 replies - 1 through 13 (of 13 total)
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  • #26657
    Lady Penelope
    Strataguru

      Wendy – If the flooring in the upstairs apartment is compliant there is nothing much that you can do apart from attacking the problem from your side of the floor/ceiling slab. If you are worried about the quality of the upstairs acoustic report then you can you carry out your own acoustic testing to verify that it complies.

      Can you speak to an acoustic engineer … perhaps there is something that can be  applied to your own apartment interior to dampen the noise? Foam ear plugs that you change frequently to prevent ear infections may also help. 

      #26659

      I’m intrigued as to what appliances they are using in their bedrooms?!

      Seriously, without meaning to be trite, have you suggested to them that they use rugs on the floor?  I’ve had this problem before and laying down rugs, especially in the high-traffic areas like hallways and lounge rooms, can make a difference.  I hope you find a solution soon, I can imagine how frustrating it is.

      #26662
      Jimmy-T
      Keymaster


        @Wendy
        said:
        We first brought this matter to the building manager, he told us nothing he could do. Then we wrote to strata manager, she said this is not a strata issue as long as the flooring above complies with the bylaws. 

        Both of these “experts” are wrong, at least to some extent. Section 153 (below) says owners are not allowed to create a nuisance.  Now, that is not just something that is annoying – it’s something that is injurious to your health.  

        You could put up a pretty compelling argument that being kept awake at night and disturbed during the day is injurious to your health.

        There’s also a very good chance that you have in your by-laws a variation on the one that says residents can’t disturb other owners peaceful enjoyment of their lot.

        Also, you have to consider the possibility that the by-law on flooring that you have in place is inadequate or defective, or that the flooring was installed in a way that didn’t actually meet the requirements of the by-law.

        So for anyone to say that you can’t do anything if the neighbours have fulfilled the requirements of the by-law, misses the point.  If the insulation is inadequate, for whatever reason, then the by-law is irrelevant.

        However, if your upstairs neighbours have been misled by the Owners Corp by an inadequte by-law, they could have a claim against the owners corp. The OC has a “duty of care” to maintain common property (the slab) and this sounds like a failure to do so.

        To be fair, this is not as clear-cut as if your upstairs neighbours had ignored the by-law. And if you want to pursue it you would be well-advised to get professional legal advice form an expert strata lawyer.  It could be a tough fight

        But I don’t think you (or indeed your upstairs neighbours) should have to suffer because either the by-law is flawed or the installation was not done properly.

        Try to keep them onside as they have tried to do the right thing and a united front is more likely to succeed against an OC, building manager and strata manager who are determined to take the easy way out at your cost.

         

        153 Owners, occupiers and other persons not to create nuisance
        (1) An owner, mortgagee or covenant chargee in possession, 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) …

         

        Model by-laws: 6 Noise*
        An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

        * Your by-laws may be different

        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.
        #26663
        Jimmy-T
        Keymaster

          There is one other aspect to this which has been alluded to in other posts and that is largely behavioural.

          Putting some sort of insulation under the appliances in the bedroom should make a difference, as would taking their shoes off when they come home.  This may seem alien to some but it’s standard practice in Asian homes.

          A mediation with your neighbours would allow you canvas the issues with them before you go down the road of legal action, and you can ask your strata committee to organise this for you. 

          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.
          #26670
          g-g
          Flatchatter

            We have had three wins at Fair Trading/NCAT by going through their mediation process and arguing the right to peaceful enjoyment, rather than right to have non-carpet flooring. On all three occasions we obtained recommendations/orders to have flooring removed and reinstalled.

            The key component that led to our wins was utilising a simple noise test (walking around in high heels, dropping keys, moving furniture), witnessed by independent persons (non neighbours, building management, committee members), making a report and going from there.

            Needs the cooperation of all parties, but if cooperation is not there I think you will find that would be looked on unfavourably by Fair Trading/NCAT.

            #28897
            HappyStella
            Flatchatter

              @Puddn said:
              We have had three wins at Fair Trading/NCAT by going through their mediation process and arguing the right to peaceful enjoyment, rather than right to have non-carpet flooring. On all three occasions we obtained recommendations/orders to have flooring removed and reinstalled.

              The key component that led to our wins was utilising a simple noise test (walking around in high heels, dropping keys, moving furniture), witnessed by independent persons (non neighbours, building management, committee members), making a report and going from there.

              Needs the cooperation of all parties, but if cooperation is not there I think you will find that would be looked on unfavourably by Fair Trading/NCAT.  

              Hi Puddn,  I would be interested to know how to  kickstart that process if the other party is not willing to play ball?   I have been trying to resolve that with the landlord and owner of the flat above but with no joy.  Any advice would be welcome?  Many thanks

              HS

              #28898
              BONNIE L
              Flatchatter

                Thanks everyone. Can be a neighbour issue that’s for sure. Dishwasher or washing machine 1 hour cycle made sleep impossible in any room to midnight for me. Fortunately, I know there is a by-law in the building, and I can write to said neighbour –  in case they don’t know. 

                #28899
                Jimmy-T
                Keymaster

                  @HappyStella said:
                  I would be interested to know how to  kickstart that process if the other party is not willing to play ball?

                  The simple way forward is to ask for mediation at Fair Trading (which is now free).  That might resolve the issue, but probably won’t, however it is an obligatory first step in seeking orders at NCAT to get the problem resolved.

                  If the upstairs landlord refuses to participate, then they only have themselves to blame if they end up being served with orders to re-carpet the floors.

                  There are dozens of posts and topics on this website regarding the flooring issue.  Have a sniff around and you will see how others have dealt with it. 

                  But bear in mind that attitudes are changing and what was once seen as “part of living in strata” is now more likely to be regarded as an intrusion into your right to the peaceful enjoyment of your lot, to enhance the value of a neighbour’s apartment at your expense.

                  You’ll find the Fair Trading mediation form HERE.

                  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.
                  #28902
                  g-g
                  Flatchatter

                    JT is correct. First step is to ask for mediation at Fair Trading.

                    Also start gathering your ‘evidence’ – that is noise logs, copies of letters/emails between the parties, description of noise, and notes on how the noise affects you and others (stomping, rolling balls, disturbs sleep,  etc).

                    This will help organise your experience and build your case if you need to go to NCAT.

                    #29345
                    BingLee
                    Flatchatter

                      Hi everyone,

                      Just wondering what was the outcome of this incident as I myself am in a similar position though I have been fighting for almost 2 years, due to an incompetent strata manager and an ignorant strata committee. The unit above is a rental owned by overseas investors so they have been reluctant to provide any sort of communication. All dealings are handled by the property manager, who cannot make any decisions, nor is it in his interests to jeopardise the occupancy of the unit.

                      I was an acoustic engineer for 7 years during which time I have conducted countless floor assessments. How ironic that I am dealing with this for myself after I have changed careers. The science and technical side of things I am well-versed in, it’s the political side of things that do my head in. 

                      There’s a failure to recognise the difference between noise generated intentionally and noise being generated as a by-product. E.g. a person playing their music loudly and disturbing others fit the definition of creating a nuisance. If a person walks normally and the foot fall noise is heard in the adjacent residence due to insufficient noise insulation in the floor construction/covering, then the root of the problem is not the occupant’s behaviour but the floor covering itself.

                      I have gone through the mediation process with Fair Trading and even lodged a case with NCAT, and here is where things get even more difficult for the individual, and where I can use some further advice. There is no condition in the Strata Management Act that allows the individual to dispute a breach of by-law, only the strata committee can make that claim, but my strata committee refuse to acknowledge the breach of by-law and does nothing, so what can I do?

                      I ended up lodging a case to NCAT anyway for Article 153 of the Act “Owners, occupiers and other persons not to create nuisance”, even though I knew this didn’t address the issue of the floorboards directly, but it was the most relevant condition I can find.

                      First thing the tribunal member asked me was why is this not being handled by the strata committee. Secondly, the tribunal can only give rulings on the condition being disputed, that is Article 153, so even if they had ruled in my favour, all the tribunal can do was give notice to the occupants not to be a nuisance, which doesn’t solve the problem with the floorboards since I will be dealing with the exact same problem with every new subsequent tenant. The tribunal suggested I retract my appeal and relodge a new application that would address the actual problem. One option they suggested was to make a claim against the committee for failing to exercise their duties. They also suggested I seek legal advice, which I ended up doing. The lawyers indicated that an application can be made under the general dispute resolution powers of s232 of the Strata Management Act, but this was going to be a $10,000 exercise.

                      All I wanted to do was get an assessment of the flooring construction so that an objective decision can be made, yet the politics of the committee and tribunal have made this process unnecessarily difficult. I’m at my wit’s end as to what to do here. Sorry for the long winded message.

                      #29355
                      Jimmy-T
                      Keymaster

                        Coincidentally, this is exactly the same advice as I am giving an other owners on a different issue.

                        The Owners Corporation or committee can’t just decide to ignore its own by-laws.

                        So start proceedings at Fair Trading seeking mediation leading to a binding agreement to issue a Notice To Comply and pursue it the NCAT if need be.

                        If they refuse start proceedings at NCAT seeking orders under Section 232 (extract below) which says that he Tribunal  can make an order to settle a complaint or dispute about the operation, administration or management of a strata scheme, and/or failure to exercise, a function conferred or imposed by the Act or the by-laws of a strata scheme.

                        Failure to issue NTCs for by-law breaches is a failure under section 232, as was explained to me by former Fair Trading minister Victor Dominello before he moved up the government food chain.

                        232 ORDERS TO SETTLE DISPUTES OR RECTIFY COMPLAINTS

                         

                        (1) Orders relating to complaints and disputes
                        The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:
                        (a) the operation, administration or management of a strata scheme under this Act,
                        (b) an agreement authorised or required to be entered into under this Act,
                        (c) an agreement appointing a strata managing agent or a building manager,
                        (d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,
                        (e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
                        (f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

                        (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.

                        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.
                        #29357
                        BingLee
                        Flatchatter

                          Thanks Jimmy.

                          Just to clarify, my dispute is now against the strata committee under Section 232.

                          I can see mediation is going to be a fruitless exercise and more a formality of due process as I have had multiple debates with the committee already and they are firm with their decision to not enforce the by-laws.

                          #29359
                          Jimmy-T
                          Keymaster

                            Mediation may well seem fruitless but if you don’t do it you can’t proceed to NCAT – it’s as simple as that.  There are a few exceptions but this isn’t one of them.

                            However, once the committee see you are coming after them and not the lot owner, it may sharpen their thinking.

                            This is especially so if they are aware that once they are no longer acting in good faith – i.e. they are ignoring their duties of which they have been informed – then the members who voted to do nothing become personally liable for that decision.

                            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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