Noisy upstairs neighbour (flooring) - NSW Strata Application Process

Discussion in 'Property Management' started by lamecrocs, 11th May, 2017.

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  1. lamecrocs

    lamecrocs Well-Known Member

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    Hi PCers,

    I'm planning to proceed with the NCAT strata application as I have gathered sufficient evidence related to noise travelling through non-compliant flooring from the neigbour upstairs.

    I'm a unit owner in one of the Sydney apartment.
    It's been almost 3 months and 3 notice letters were sent out to the lot owner, managing agent and also the tenant but there is no improvement.

    The foot stomping noise has been consistently interrupting our peaceful living and I believe the floor was not properly installed without adequate soundproofing. It's proven that the flooring has been replaced from carpet (original) to timber without any approvals by body corporate.

    Hence, I'm here to ask if anyone has gone through the NCAT strata application process? If so, how long did it take and what's the success rate? or more specifically, what sort of outcome can I expect?

    Thanks,
    LC
     
  2. thatbum

    thatbum Well-Known Member

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    You should probably get some legal advice before you commence proceedings. Do you even have standing? Isn't this something the body corporate should be doing?
     
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  3. Propertunity

    Propertunity Well-Known Member

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    ^ ^ this.
     
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  4. lamecrocs

    lamecrocs Well-Known Member

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    Thanks @thatbum. Do you mean strata manager should help to resolve this issue on behalf of body corp? How many notice letters before usually the issue being escalated?
     
  5. thatbum

    thatbum Well-Known Member

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    I mean exactly what I said.

    I don't know what you've tried to do with the body corp, so I don't know what you should try to do next. It sounds like you've send them some noise related letters? You hadn't mentioned that yet in your initial post.

    All I was trying to get at was that you should get legal advice before commencing legal proceedings, which is what an "NCAT strata application" presumably is.

    How well do you know your strata rights and responsibilities?
     
  6. Ted Varrick

    Ted Varrick Well-Known Member

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    Did they install hard surface flooring before or after the updated Strata Act came in in Nov 2016? And did you approach your stata committee, and if so, what was the outcome?
     
  7. lamecrocs

    lamecrocs Well-Known Member

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    @thatbum The notice letters were all sent out by our strata manager. I don't have a direct contact with either the owner/managing agent. I guess I need to work with the strata manager closely to get this resolved.

    Although I have spoken to the tenant, it seems like not the people living in the unit but the issue is very much related to the timber flooring which I suspect did not have a proper insulation.

    Thanks @Ted Varrick Yes, they replaced the original carpet floor with timber/hard surface flooring. I'm not sure when they installed it but I guess it would have been before Nov 2016. If "before", what does it really mean? I read about the new law that they must have at least 50% agreement from committee. Hence if "After", they are in the wrong as they didn't have any approvals and didn't even communicate to body corp.

    I've been working with our strata manager, they are quite helpful and as mentioned above, they sent notice letters. I posted on this thread as I think this issue will be escalated to the next level which I believe is the court case?
     
  8. SYD

    SYD New Member

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    I am reading this as you bought the property and moved in three months ago. As an owner you should have been given a copy of the by-laws. Look at these to see whether any special by-laws or common property rights by-laws exist allowing the wooden floor. There should be minimum insulation standards included that needed to be applied. If these don't exist ask the Strata manager whether the wooden floor has ever been approved.

    It's good to have the Strata manager onside. Some may say this is a problem between two owners and will wash their hands of the problem. I believe you will have a better chance of resolution if the owners corporation initiated the NCAT action.

    SYD
     
  9. Hetty

    Hetty Well-Known Member

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    Get on the strata committee as well. We've all become friends and it helps with getting things done. I say "helps" because we've been dealing with the dodgy builder who has been outvoting us on repairs (small block, he holds more votes than the SC) but we're starting to manage that situation.
     
  10. Ted Varrick

    Ted Varrick Well-Known Member

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    OK, you have two issues. One is that the tenant is probably in breach of by-law 1 "Noise" and the second the owner is probably in breach of by-law 14 "Floor coverings". See NSW Legislation

    You need to get at least 3 other residents to come to your unit and then provide you collaboration in writing (an email will do, but a Stat Dec is a lot lot better, due to the idiocy of a dangerously stupid goose who recently adjudicated a similar noise matter) and it's a good idea they use the words "disturbing" and "nuisance" and "annoying".

    And also that they NOT offer ANY solutions, only what they experienced.

    You will also have to keep a detailed noise log (start right now) with times, dates, and what the noise sounded like to a layman. ie. 6.34am - Bang like a wood block dropped 6.36am - Continual thumps like jumping.. etc

    You will then need to go to a Fair Trading mediation. And this might seem unpalatable, as you might not want to cause any "problems" with neighbours, but in hindsight that is the least of your worries, so just do it.

    See http://www.fairtrading.nsw.gov.au/biz_res/ftweb/pdfs/About_us/Forms/medform.pdf

    If the mediation fails, and there's a good chance it will, as the other party probably wont show up or the mediator, who does this all day and is really bored, will tell you that both of these by-laws are "vague" and the offender, if they turn up, will tell you why nothing can be done, as this is just a day-to-day part of living in a strata block, and <insert any other excuse for un-neighbourly and bad behaviour here>.

    The Fair Trading mediation, if you haven't been there before, will seem a bit wierd as you are in the same room with the Mediator and the offender(s), but as soon as your Bullsh1t Radar goes off (ie. you aren't getting anywhere, there's going to be no resolution, and the offender(s) DGAF) then just terminate the session.

    The letter you get from Fair trading will tell you that the mediation was unsuccessful.

    Let us all know how you go from there, as then it's time to go to NCAT, and get an Adjudicator's ruling.

    If you've got any questions, feel free....
     
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  11. Ted Varrick

    Ted Varrick Well-Known Member

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    @lamecrocs And SYD is right, if there are special by-laws that require OC permission for installation of hard surface flooring, and the owner(s) have not complied then there could be grounds for the OC to take action.

    Of course, if the install was prior to the Nov 2016 legislation then works within the lot, vis a vis floor coverings, may not have needed OC approval
     
  12. lamecrocs

    lamecrocs Well-Known Member

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    WOW @Ted Varrick I haven't seen anyone responded in such a clear and complete answer before! Thanks heaps, I hope this answer would help others too in the future.

    Sounded like the Fair Trading will be a lengthy process with no real outcomes. I would go straight to NCAT, if I'm successful, am I able to claim all the expenses (application fees, taxi to and fro the hearing location, my time, psychological burden because of the noise etc)?

    3 other residents? Can I have my mates over? Otherwise, This will be difficult, but I will try to socialise a bit more.

    About the detailed noise log, this is happening EVERYDAY. I can easily fill up the 42 pages notebook in a week time. But fact to the matter is their flooring doesn't have a proper insulation. Also, there is NO specific by-laws created for flooring.
     
  13. Ted Varrick

    Ted Varrick Well-Known Member

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    Thanks for the kind words.

    You will have to go to Fair Trading first, and have an unsuccessful mediation attempt before you can apply to NCAT for an Order.

    The Order will only order the offending owner to comply with the by-laws that are being breached. ie STFU and make sure the floor coverings comply or have a big fine. They will NOT order the owner to replace the floor with carpet/anything specific. They will not order any compensation, as I understand it, for fees, taxis, incidental costs and pain and suffering.

    For this you will need to go to a real court, not a tribunal, and you should take legal advice from a real strata lawyer, not just some member of the commentariat who has a cool avatar on a public Internet forum...

    A proper strata lawyer will charge about $500/hr for a heavy hitter, so strap yourself in. And note that this is a VERY worthwhile investment to spend an hour discussing your options initially (although you might want leave it until after your Fair Trading mediation).

    As an owner (as mentioned in your first post), I highly recommend you make this an Owners Corp issue and run it through the Strata.

    Is the offending Occupier of the lot above you a tenant or an owner? If they are an Owner, are they on the Strata Committee?

    Your mates can provide written corroboration, ie. "I was present in Lot X at 7.30am on <date> and I experienced X, Y and Z coming from the Lot above..etc", however you should consider also getting other lot owners to be present as their written corroboration will carry more weight.

    Note that if you end up going to NCAT, you will need to also have a typed copy of your detailed handwritten log.as part of your submission.

    You will also need a report on a Drop Ball and Tapping Test performed by a qualified engineer, which will cost about $2500 - $3000, which is why you should consider running it through the Owners Corp. If you run the matter privately, you will not get this money back, unless you have a successful outcome and then seek costs from the offender through a proper court, but you will have more control of the matter.

    If the strata asks the offending occupier for access for the purposes of a Drop Ball and Tapping Test and they ignore it and/or refuse it, this will look very bad for them in Tribunal (but will save a bunch of cash).

    It would be VERY worthwhile at your next AGM to have your strata manager arrange an agenda item implementing a new special by-law that specifically relates to your OC being able to recover Bylaw Enforcement costs from an offending owner. This will make the offending owner exposed to whatever tests, reports, legal fees etc are incurred, and a lot more sensitive to your concerns (if you get my drift).

    Anything else?
     
    Last edited: 14th May, 2017
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  14. Gingin

    Gingin Well-Known Member

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    Wow. Um, let's start at the start. I've been through this in NSW.

    First and foremost you need to call an extra ordinary meeting and obtain a quorum to have strata issue a ' need to comply ' order. In this meeting it will be established what has been given to strata in terms of notification and certification of the new flooring system. This will bring clarity as to what's happening and if the flooring is as bad as you say other neighbors will be affected. It will bring social weight.

    The process works in two parts. The noise actually transmitted regardless of covering, is what the strata covers. At this meeting the strata can request floor coverings, throw rugs put down as part of the order.

    The second part is compliance with Bca requirements when changing one covering to the next. During the replacement of carpet to hard surfaces a acoustic certificate needs to be provided to strata. Special mind needs to be paid to slab thicknesses or any ceiling linings. This affects noise transmission and reflection. This is crucial for you to get.

    I cannot stress how important it is to go to mediation. Understand what is occurring and offer a technical solution.

    Mediation also offers a impartial assessment by technical people in fair trading. Each party can make a submission, which gets assessed.
    Any agreement made in mediation are binding by law.

    In my case as sign of good faith I offered and was accepted to pay for the upgraded underlay and they paid for lifting the boards and reinstating of it. Best investments I have made paying the $300 for material and for mediation cost.

    If the other unit owner provides compliant certification and prohibits access or correspondence, sadly you will have to go down the diary route. Which I cannot comment on as I do not have this experience.

    Most of all best of luck, I appreciate how annoying it is, and how much better it is once resolved.
     
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  15. Ted Varrick

    Ted Varrick Well-Known Member

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    @Gingin nice to have your input. I'm glad you resolved your issue in Fair Trading.

    The BCA require requirements of the flooring are irrelevant as the bylaws 1 and 14 relate to Performance not to certification.

    ie. the flooring might conform to Building Certification but if the resulting noise disturbs the peaceful enjoyment of adjoining lot owners then a tribunal order can order compliance with the breached by-laws irrespective of the amount of boxes ticked. Slab thicknesses and ceiling linings are probably irrelevant to the order depending on the Applicant's evidence of non-performance. As you say "The noise actually transmitted regardless of covering, is what the strata covers.", and whilst the strata "can request floor coverings, throw rugs put down as part of the order", they no control whatsoever of what is installed or not, within the lot, unless there is a special by-law in relation to this.

    Furthermore, calling an OC EGM may cost in the vicintiy of $700-$1000, the result of which is the OC voting for the owner to do something within their lot and the owner can then tell the OC to go forth and multiply, as there is nothing the OC can do about these works within the lot, only the CONSEQUENSES, which will involve the aforementioned Fair Trading and NCAT processes.

    The OC is responsible for common property, although, to be fair, installation of hard surface flooring now requires OC permission after 30 Nov 2016 under the SMA 2015. @Gingin also said "During the replacement of carpet to hard surfaces a acoustic certificate needs to be provided to strata", but unfortunately this is not correct if the installation occurred prior to the new Strata MA 2015, as works within the lot relating to floor coverings did not require approval by the OC at an AGM, unless a Special By-Law was in place.

    Whilst I agree that @Gingin 's proposal to offer a solution from the affected party is worthwhile, it is not the be all and end all. After all, the offender made the change that is causing offence and it's really up to them to rectify the situation to return the complainant to peaceful enjoyment of they lot.

    And @Gingin 's offer in good faith might actually be the best case outcome of this matter, as the alternative is going to be unpleasant.

    And I am in whole-hearted agreement with @ginggin 's "best of luck" sentiment towards the OP.
     
    Last edited: 14th May, 2017
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  16. Gingin

    Gingin Well-Known Member

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    Hi @Ted Varrick. Great insight, it's been a few years since I went through this. Your insight into it is flawless. I take it you are in strata?

    The OP asked if anyone had any success with this. I have. I did make the point,but should have articulated it better that regardless of the compliance of any flooring , carpet or timber if interruptive noise transmits through it falls within the strata bylaws.

    My advice was to proceed to further beyond strata intervention and into mediation with a view to legal.
    1. it needs to be timely. Floors changed - result noisey. Document it.
    2. Strata contacted - was there any notification or certification given. Request copies of certification. Notice of intents.
    3. Commence dialog. Diarise communication, better still email from start.
    4. Call an extra ordinary meeting. Obtain strata support to noise compliance. Issue notice to comply.
    5. Book a mediation session.
    6. Noise has been proven. Keep a noise diary like Ted suggested separately.
    7. Dismantle the validity of the new flooring system. Tap test or certification or professional opinion - building certifier.

    Be very organised and informed. Remember the BCA cannot be enforced by law. It is a code and conformance to it demonstrates a minimum performance standard. If they can't demonstrate minimum performance with a new flooring system they installed it will be a problem for them in a court.

    To this point your expenses are in the very low hundreds.

    8. Like Ted alludes to lots of cash and an unsure outcome if a understanding can't be reached at mediation. My experience stops here, post mediation.

    If it's a prolonged period from installation to first documented noise complaint I would follow what Ted suggests.

    In my case the acoustic certification the other tenant provided was for a building with 250mm thick slab and lined. Our sixties building was 150mm and unlined. The performance is significantly different than designed. With the new parameters the flooring underlay did not meet minimum BCA standards.

    I paid for the you beaut over engineered underlay instead of risking the one that just complied. Mind you it is no where near as good as carpet, but even though we hear upstairs, we are very rarely interrupted, unless they do the Irish jig or wear heels.

    I believe the unit upstairs then pursued the supply/installation company under the threat of trade practices and got them to lift and relay flooring gratis. Got the underlay free to!!! From me

    Like any mediation, see it from there side also. Try and provide a solution. Don't give them a reason to not like you. At the end of it you are living in the same complex in close proximity. If it goes to court you have always acted politely and reasonably.

    The problem I found was that the flooring industry regulates itself. They don't come for a site quote. They then issue any certification at will. The purchaser trusts them to do the right thing but if underlay is prohibitively expensive the customer always goes to the cheapest guy. Trusting that they are comparing apples with apples.
     
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  17. lamecrocs

    lamecrocs Well-Known Member

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    @Ted Varrick can't thank you enough! Very thorough and so much information for me to digest! Hence no question for now.

    @Gingin Thanks for your contribution, that's wonderful you have gone through the process and shared your successful experience.

    Excellent steps there, I've completed up to #3 but can I ask about step #5, who attended the mediation session and can you please share what did you cover in this session by each attendee? I'm hoping I could follow this straightforward process and not to include the #8

    How did you find out your building configurations i.e. 150mm slab and lined/unlined? Was it part of the strata plan (which Strata manager can confirm)? or other means?
     
  18. Gingin

    Gingin Well-Known Member

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    @lamecrocs . I booked the fair trading mediation at services nsw. The meeting forum is you, the other party and a trained fair trading mediator.

    You called the mediation , so it is up to you to set the forum and then a solution.

    It is essential that you learn about the flooring installed and the minimum performance standard. I am in the building industry as an electrician and have a degree in construction economics/ project mgt. I felt comfortable with the tech jargon.

    At the time I was sure they were not attending. I was happy to waste my own time.

    It may help if you engage a professional to act as an expert for this mediation session, however the other party may just say I don't care and close the meeting costing you the professional fee. It may also come across confrontational.

    I was very lucky as the neighbour I had , sister was a lawyer and she attended the mediation for them. She was pragmatic, fair and reasonable as much as she could be with the weight of evidence I had. I explained the consequence of their actions in terms of interruptive noise which is subjective and she had little sympathy for my plight. I'm sure she tried to intimidate me and few times told me the BCA is not enforceable by law.

    However when I showed her my email trail, her brother in laws failed pledges and the flawed acoustic report . She was very open to my fair and generous offer to pay for new underlay. The owners were quite put out by my insistence to rectify and I sure as Ted said , if it was up to them they would of told me to get nicked. As it turned out they were tossing the place for an auction and didn't want an issue prior to sale /settlement which I'm sure worked in my favour as I showed them very little sympathy for their wants, with a promise to persue them further.

    Thinking more about my situation I was extremely lucky.

    I was at home when they were installing and I asked and was given a sample of the underlay by the installer so they could not just slip me a different acoustic report.
    I immediately rang strata to ask if any notification had been given and demanded them cease work pending issue of certification.
    At this point I googled and realise the product was not rated for this application.
    I could of had a horrible strata manager who offered no help.
    I have mates that are certifiers that I could rely on for expert advice/direction.

    I did ask for and offer to pay for a tap test but the owner would have no part of it.

    Funny my lawyer said exactly what @Ted Varrick said at the start !! Waste of time. Really lucky ,more that I reflect on it. I wouldn't of persued it hadn't I been living there rather as a rental.

    They could of sold the place and the disappeared to England on settlement , which they actually did. Lucky their cheap and cheerful sale Reno now performs as best as it possibly can.

    The place was empty they thought they were not causing a nuisance post renovation, so , no need to repair.

    I was then able to explain to the lawyer that the certification was incumbent on the installer for compliance , she very quickly understood and accepted my offer that evening after leaning on the original flooring contractor. Her relations had entered into an arrangement in good faith with the specialist supply/install contractor and the products were demonstrated not fit for use. Without understanding the legality of it all she twisted them to resolve it gratis.

    The strata manager had all building engineering in archive as she was the original strata manager from new! I didn't use these rather I simply measured the exposed slab thickness and she confirmed my measurements.

    Again best of luck and it's awesome that ted has such a grapple on the process and most likely path, and we can leverage of his wealth of knowledge in this difficult area.
     
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  19. Ted Varrick

    Ted Varrick Well-Known Member

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    @Gingin Yep I'm in strata.

    You should be thankful that you resolved this issue, albeit with a bit of "sister the lawyer" intimidation in Fair Trading, which you subsequently slam dunked, as I gather from your post.

    I had a different experience, with an incompetent mediator who did not understand the the role of by-laws in strata, and was told that the bylaws were "very vague", and also by the offending party that "nothing could be done", which was accepted by the mediator.

    And so on to NCAT, who, let me assure you, offer less odds than spinning a chocolate wheel, and you should be assured that your odds are always 50:50.

    Now this will cost, including peripheral issues (I can go into more detail if you like by PM...), about 20k, and if you don't get an application upheld, it will cost approx 28k-ish (shared between applicant and respondent, if you can afford it and REALLY don't like them) and then another 20k or so for a specialist strata lawyer to argue on your behalf in an appeal of the dismissal of your application.

    In my case the adjudicator basically looked for reasons not to make the orders sought, which was a bit ****, and was a glaring demonstration of the lack of expertise of adjudicators in a NSW strata environment.

    This particular matter, as I understand it, has been passed further up the chain, but I think I'll leave it at that.

    Note that an appeal can result in an adverse ruling against the applicant (ie. you) for compensation to the respondents and their costs.

    If you don't appeal then they just have to suck it up.

    So it might be worthwhile filing a new appeal, depending on your situation.

    Let me know if you have any further questions, (or if your cheque book is starting to suffer from fatigue...) as it aint going to get cheaper..
     
    Last edited by a moderator: 18th May, 2017
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  20. Ted Varrick

    Ted Varrick Well-Known Member

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