- This topic has 29 replies, 6 voices, and was last updated 1 month, 3 weeks ago by .
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hi everyone ,
im In NSW and am putting up with a lazy landlord/lazy real estate agent who are basically lying to me and fudging me off hoping I go away. I made a noise complaint about there tenants , and the landlord via the real Estate agent said they have a handyman coming and will put pads on the cubbards etc , and from now on not contact them and talk to the strata and building manager about noise etc.
Blah Blah, I then say okay can you confirm what date this handyman will be coming and I want the landlord to Agree to show me proof of receipts that work has been carried out and can you email me a copy of proof of receipts when work has been carried out.
Three days later , surprise surprise no email reply agreeing to my fair terms. Which says to me, the owner won’t spend any money on handyman unless he is forced to by a legal body eg Fair trading. As he hasn’t emailed me back agreeing to tell me the dates of this so called handyman coming and receipts.
I feel like also being in attendance watching the handyman carry out this work , but he will fudge away from that(there is no security threat To the tenants me watching the handyman put pads in etc). Just time wasting stalling tactics by the landlord hoping I just go away and adapt to the noise from door slams above.
Very frustrating when you try and be co-operative only to be fed lies and stalling tactics. So fair trading it is, and NCAT if possible. I feel like suing the owner above for pain and suffering eg time wasted doing all this…
- This topic was modified 9 months, 2 weeks ago by .
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There is a fine line here and it all comes down to (as so many strata issues do) what it says in your by-laws.
If there is a by-law saying that residents mustn’t disturb other owners, then the strata committee or strata manager should have issued a notice to comply becasue while the noise doesn’t affect other owners, by-laws are being breached. If your action at NCAT goes nowhere, you could try seeking orders under section 232 to compel the strata committee to do their job in enforcing by-laws.
Otherwise you have basic strata law regarding not interfering with the peaceful enjoyment of another resident’s lot. It sound as if that’s where you are headed now. That’s the loophole that your strata committee is exploiting to absolve themselves of responsibility.
Just because the sound is capable of being transmitted doesn’t prove that it is or has been. As well as the acoustic report, you should have recordings and stat decs from visitors and other owners who will testify that they have heard intrusive noise.
My car is capable of going 200kph – but I don’t get a speeding ticket just for owning it. There is a behavioural element in noise nuisance and you have to prove that too if you want to be reasonably certain of getting orders against the occupants and the owner.
At the very least, you will need a diary of when the noise occurs and what causes it. Backed up by recordings, statements of vistors to your home and the acoustic readings, you will have as strong a case as you can muster.
Hi Joe50, You are basically going to mediation (and potentially further) to request another Lot Owner to spend considerable thousands of dollars- solely based on your person opinion/feelings.
I think this has gone beyond mediation, if we are talking about directions hearings.
Hi Joe50,
You are basically going to mediation (and potentially further) to request another Lot Owner to spend considerable thousands of dollars- solely based on your person opinion/feelings. You really shouldn’t be so surprised that they are unwilling to do this. Would you? You haven’t stated you have record of:
1. Trying to resolve directly with the tenants directly. From this thread you went straight from upset to demanding new flooring and evictions;
2. You have no proof of the noise, or proof that it is pervasive/intrusive (only your opinion). Do you have recordings of noises? Any professional acoustic measurement? Any diary (which will have little weight as can easily be falsified)? A signed stat dec from another neighbour saying they are also affected? Any record of a flooring change or renovation application in the strata records? etc
The onus on proof is up to you. Best of Luck, but I’m pretty sure what the outcome will be. NB: I have previously taken my OC to NCAT about floor changes and noises- and won; so can speak with some modicum of experience. Please let us now how you get on. This has been a super entertaining thread.
There is no overreaching, as the tenants have breached the buildings by laws about noise and peaceful enjoyment multiple times.
The possible over-reach is in your demand that the tenants be evicted. However justified you might be in demanding that, my feeling is that the Member will be a lot more reluctant to order an eviction than they would be to tell the landlord to deal with the problem.
However, if there has been a clear breach of by-laws, eviction would be in the landlord’s armoury. They could face financial penalties for non-compliance with NCAT orders, but it would be up to them to join those dots or face the consequences.
Also the court can’t order the tenants to be thrown out if they are noisy … I feel you are overreaching somewhat and consultation with a lawyer will help guide you for a better outcome.
One correction – you are the applicant, not the respondent.
Otherwise, I agree with Kaindub’s comments. All you can really ask is that the owners instructs the tenants to abide by the by-laws of the building, and your right to the peaceful enjoyment of your lot, and agrees to take action if they don’t.
I think the instinctive reaction by most NCAT Members to a demand that tenants be evicted would be to throw the case out. You want the noise to stop – how that is achieved is between the landlord and the tenant.
Kaindub’s advice to get legal assistance is spot on. Meanwhile you could have a look at this web page for more information on what to expect at your hearing.
- This reply was modified 2 months, 1 week ago by .
Joe50
at a directions hearing the judge will direct certain actions are undertaken by one or both parties in relation to the presentation of the case. You don’t argue your case at the hearing.
If this is the first direction hearing you will be asked , as the respondents, to submit to the court and the other party the basis for your case (I said, he said, I did, he did). You will be given a deadline to submit your version. The other party will be directed to do the same but only after you have put your stuff in.
If you have never done this I would engage a solicitor to help you prepare your submission. It needs to be in accordance with the Evidence act. If you muck up your submission will not be heard, you’ll lose the case and you’ll pay their costs.
Also the court can’t order the tenants to be thrown out if they are noisy.
You need to provide the acoustic report. You are the respondent and are responsible for proving your case.
Good luck that you got this far. I feel you are overreaching somewhat and consultation with a lawyer will help guide you for a better outcomeThe by-laws are less significant but they aren’t insignificant. They work, or should work, hand in hand. If your by-laws demand a certain level of noise insulation in your flooring and the law demands that reseidents don’t be disturbed, the Tribunal has an easy avenue for resolution (Muppetry notwithstanding).
The significance of by-laws is that they deal with local conditions in a detailed way that can’t be dictated by state laws. So it’s not one or the other, except where the by-laws of the building are clearly unfair or inadequate.
- This reply was modified 7 months ago by .
I’m going to take a punt here and say it is the landlord that you need to take action against becasue, theoritically, they can address the problem by:
1) telling the tenants to behave or they will be in breach of the by-laws and could be evicted:
or
2) properly insulating the floor
or
3) both.
You could go after the tenants but then you’d have to prove that they were behaving unreasonably.
So go after the fact that there is too much noise and let NCAT decide what the cause is.
Add to that, statutory declarations (signed and notarised) from friends and neighbours who will say on oath that the noise is intrusive, plus any correspondence from the owners corproation records that suggest there have been complaints in the past.
Joe 50
When you go to NCAT you need to be armed as follows
1) The law or bylaw that is being broken. Courts don’t adjudicate on grievances alone.
2) You will need your own noise report carried out by a recognised professional (an acoustic engineer) . Again the courts are loathe to entertain arguments that its noisy. As an earlier email said, noise is subjective. get your report together; spend the bucks.
(the court may award you your costs if you win, but its not guaranteed, and you never recover all your costs – you will be out of pocket)
Its up to you as the plaintiff to prove your case; the other party is entitled to argue otherwise, but in the court you go first.
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