Dispute vs owner or owners Corp

Discussion in 'Legal Issues' started by Steve Matthews, 5th Sep, 2020.

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  1. Steve Matthews

    Steve Matthews New Member

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    New South Wales issue,

    I’m in NSW. There is impact noise coming from neighbour above(Tenants). Door slamming of cubbard doors/bedroom doors etc(all in the lot, front door is owners Corp issue). The owner refused my request for mediation at NSW fair trading..

    Now NCAT I wanna go. But as it’s coming through the ceiling Eg no carpet underlay or weak underlay, would I go to NCAT against the OC or the Owner of above Lot? As ceiling walls are usually the responsibility of the OC(common property). I want either strong carpet underlay put in above or have my ceiling wall adjusted to soundproof the noise from above Lot(soundproofing is different to absorbing). Or a ceiling hanging thing. Either way an accoustic consultant and tradespeople to install this, the owner or OC is liable between 5k-10k. This has caused much pain and suffering the noise problem. But who do I take to NCAT? OC or the lot owner above?
     
  2. David_SYD

    David_SYD Well-Known Member

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    Has the owner above changed the floor since you moved in? OC are often very particular about people changing floor types for this reason.

    If nothing has materially changed since you bought the property and/or no laws or by-laws have been broken, the best you can hope for is the OC let you undertake your own acoustic treatments.
     
  3. Ted Varrick

    Ted Varrick Well-Known Member

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    Are you an owner or a tenant?

    Both.

    You have failed an OFT mediation with the owner so take them to Tribunal.

    You will need corroboration from at least 4 others, who experience the noise in your unit (but is wise for them not to offer any solutions, just what they experienced, including descriptions of the noise, eg. "loud thumps like billiard balls dropped on the floor in quick succession", and "bang like a medicine ball dropped") so that you aren't viewed by the adjudicator as "too sensitive". ALL noise episodes should be logged in a noise log with dates and times.

    You should take advice from a strata lawyer (about $550/hr) so use your time wisely unless you aren't price sensitive. You should also add a Statutory Declaration to your Application to NCAT.

    Further, you should arrange a tapping test (approx $1500-ish depending on the number of rooms) from an Acoustic Consultant who is a member of the Australian Association of Acoustic Engineers, which needs to be in an NCAT format (the strata lawyer can give you more info on this). If the owners/occupiers refuse access to the engineers to conduct the test, it will look very bad for them.

    You should see if the adjacent (above, below, next to) unit owners are suffering the same issues and if so, get corroboration in writing.

    You should also make a complaint to the Owner's Corp, and try an get them to conduct the noise tapping test. You should be on the Strata Committee to make sure this doesn't get derailed.

    If the OC dont want to get involved them you should consider an OFT mediation to get them to do their job to rectify the flooring bylaw breach, and then a separate NCAT application with the other evidence above, to get an Adjudicator's Order.

    Dealing with the the chocolate wheel of NCAT is a learning that you and your bank account will experience a lot from.

    And it won't be dealt with by next week.
     
  4. Steve Matthews

    Steve Matthews New Member

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    The new owner hasn’t, but the problem was there before he bought it. I’m not causing the noise I shouldn’t be liable to pay to fix it..
     
  5. Steve Matthews

    Steve Matthews New Member

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    I am not the outright owner but live in a family property that’s a trust fund property and as an occupier/beneficiary I have been given permission to take legal action vs OC or Owner above I wish.

    the noise is only relevant to me as it’s only coming into my apartment. The tenants above them are noisy themselves and would be the last to complain.

    I can’t afford a lawyer and I can’t afford an accoustic consultant to do the tap tests or install the accoustic technology myself. But I’m not liable anyway, and I want NCAT to legally force the owner to make a legally binding agreement under section 232a order, to stop the nusciance noise coming into my apartment(door slam vibrations). Just I’m not sure if OC or lot owner is liable to fix it here. As I don’t wanna waste time at NCAT being told the ceiling wall that’s transmitting the noise through is an OC problem not a lot owner problem. NCAT application says ideally try and go to NCAT without a lawyer, I don’t think I can get legal aid for this. A family member said they will only pay legal fees for me if it ends up in court. I blame the lot owner more than the tenants as the tenants aren’t deliberately causing noise to provoke me, just the acoustics are bad(lot or oc responsibility). Previous tenants caused noise to with door slams of cubbard doors.
     
  6. Steve Matthews

    Steve Matthews New Member

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    What OFT mean?
     
  7. Ted Varrick

    Ted Varrick Well-Known Member

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    OK, @Steve Matthews OFT means Office of Fair Trading, which is what it used to be called.

    I don't want you to think what I am about to add as flippant or antagonistic, more as saving a bunch of time.

    NCAT doesnt care what you can or cant afford, or what a lawyer or acoustic consultant costs, or whether or not you consider you are wasting NCATs time or not, or your legal aid problems, or lack of, and what your family member thinks or wants to pay, or your trust arrangements, or your interpretation of both s232 and your perceived liability, or any other excuse.

    And, sorry, I know that appears brutal.

    If you have been given permission to take legal action, then you might want to find out what budget the legal action also entails, and how it will be paid.

    You are better off pushing the matter to the OC, so they can resolve the bylaw breach, which takes time, and if they don't then you possibly have a complaint under s232(2) for Failure to Exercise

    But, even so, you must have evidence, this is corroboration, that is a tapping test, that is a detailed noise log, and, what you are ACTUALLY asking the Tribunal Adjudicator for, is an order to comply with the relevant noise by-law. ie. Please STFU.

    Note that, as I understand it NCAT doesnt award costs, except in certain circumstances, but NCAT will award costs in an appeal process, should the appellant not like the adjudicator's decision in the original application.

    You will note my comment in the above post about a chocolate wheel, so hopefully you have a full understanding of that definition before, during, and after you make any decision.
     
    Last edited: 6th Sep, 2020
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  8. kierank

    kierank Well-Known Member

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    I am not a lawyer but my understanding is:
    1. The Lot owner above has a legal relationship with the OC.
    2. The tenant above has a legal relationship with the Lot owner.
    3. There is no legal relationship between the tenant above and the OC.
    You have the right to “quiet enjoyment“ of your Lot. If this is not occurring, I would be registering the issue with the OC and getting the OC to request the Lot owner above to address the issue.

    I am happy to be corrected if I am wrong.
     
  9. skater

    skater Well-Known Member

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    This is true, however before you go down the path of NCAT and all the rest, maybe find out if you are oversensitive, and although you can hear things above, it's not outside what is permissible and I'll give you an example.

    We are currently renovating a home. We are doing this quite slowly, and usually start around 10.00am and finish before 4.00pm. Next door is another house with a Granny Flat at the rear. The tenant from the Granny Flat is hypersensitive and seems to sleep all day.

    The first we heard from him was around 12.00 noon one day, when he opened his window and shouted abuse because we were making noise. From memory Hubby was removing the back door, and he wanted Hubby to 'Go do that somewhere else'. Hubby told him in no uncertain words that he's actually allowed to start work at 7.00am. Anyway, this person has called the Real Estate agent (his agent is the same one we were using when it was a rental), he has filed a noise pollution complaint with Council. He yells abuse constantly because he insists that he has 'quiet enjoyment' of his home, and we are ruining this.

    Hubby is actually a bit of a softy and won't do the noisy work in the morning if he can help it, even though this poor excuse of a human has been verbally abusing him for months.
     
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  10. kierank

    kierank Well-Known Member

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    Good point.

    A little while ago, when we were having a problem with a noisey neighbour, I downloaded a free app on my phone. It would measure the noise in decibels.

    I don’t believe the readings would stand up in court but it might be sufficient to convince the OC, the Lot owner above and the tenant to take action.
     
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  11. Momentum

    Momentum Well-Known Member

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  12. fl360

    fl360 Well-Known Member

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    this is to be expected when you live in a strata, multi level apartment.

    save your energy and resources and look for alternative accommodations.

    avoid duplexes as well, buy a house in a OK suburb with at least 500 sqm land size.
    so there will be some separation to the neighbour.
     
  13. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

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    You want a tribunal to just believe you ? They will dismiss due to lack of evidence.
    An acoustic report will provide the professional assessment of the noise level, its duration the time it occurs and its impacts on you as well as reporting on the respective sources of noise (strata building or occupant) . If you cant afford the legal remedy then move out.
     
    Last edited: 7th Sep, 2020
  14. Depreciator

    Depreciator Moderator

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    Great, practical solution. Bunnings have an array of stuff for all sorts of doors. Spend $40 and ask the tenant if you can put the stuff on their doors.
     
    skater likes this.