June 18, 2020 at 8:21 am #231345GreentreesMember
About 3 years ago a unit put down a hard floor with noise inhibiting material. This was not approved by the Executive Committee. This unit was sold and in the photo was a beautiful photo of brand new floorboards.
So we have an owner who has no idea the floor ha snot been approved and has been installed incorrectly.
Now the owner on the unit directly below him is demanding that the Strata fix it as the noise of people walking on the floor is deafening.
My question is is it a Strata problem and we have to tell the owner to either pull up the floor and start again or lay carpet? Is there a statute of limitations in it is over three years ago? Ia it a civil problem between the 2 units and nothing to do with the Strata?
we do have a by-law stating that the owner must ensure that the floor is treated to prevent the transmission of noise to disturb the peaceful enjoyment of an owner
I am really not sure which way to go and we do not want to go to NCAT if we dont have to.
Your advice would be appreciated.
GreentreesJune 21, 2020 at 4:57 pm #231523ts1904Expert
You want to be writing to the owners to let them know there is an issue and that the owners corporation intends to enforce the by-law.
That may be the owner that did the works (if they still own the unit) or the new owner.
Regardless of when it was done, or whether it was authorised, the flooring must comply with the by-law.
Try and approach the issue in a friendly way to avoid going tot he Tribunal. Make them aware of the issue, the affect it is having on the unit below.
The issue resides with the owner and if it is the new owners they may want to take it up with the old ones – that’s between them.June 22, 2020 at 8:15 pm #231582Amanda FarmerExpert
Expanding upon ts1904’s comments above: if the Owners Corporation does not want to act on this (which I sense is your position), it does not have to.
I have been involved in a number of ‘noise’ disputes (on both sides) where the OC did not want to act and I have advised that it is not obliged to act. Surprisingly enough, there is nothing in our NSW legislation that requires an owners corporation to enforce the by-laws against those in breach.
It is particularly with noise complaints that we see OC’s don’t want to act: the majority see it as an issue between two residents only, that is not impacting anyone else.
Setting aside the fact that such an approach is (usually) a little selfish, it remains open to the resident suffering to take their own action. Namely, apply for mediation and ultimately make an application to the Tribunal for an order. The resident cannot issue a Notice to Comply and seek a penalty order; only the Owners Corporation can do that, so they do have one less tool available to them (and that’s a powerful tool, in my view).
Now, having said all of the above, it is possible that the resident suffering will attempt to draw the Owners Corporation into future Tribunal proceedings, perhaps on the basis that there has been an illegal alteration (the installation of hard flooring) and the resident may seek an order forcing the Owners Corporation to do something about it. I have seen that happen.
I have also seen the Tribunal order an Owners Corporation to convene a general meeting and propose a motion (a) to issue a notice to comply and (b) to ultimately commence Tribunal proceedings if there is no compliance. If the majority of owners want to assist this suffering resident, then they vote in favour of the motions, the OC has its instruction to proceed and the democratic process has done its work.
There may be reasons why your Owners Corporation is reluctant to act: for example, it does not believe the noise is as bad as is being made out; perhaps there is history between the two residents that makes the OC reluctant to get involved. Fair enough. Those can be good reasons to stay out of it. But if the flooring is indeed unapproved (regardless who installed it) and there is no doubt that the resident below is suffering, in my view a properly functioning Owners Corporation, acting with due diligence and in good faith, should intervene.
Amanda.June 23, 2020 at 1:09 pm #231616FlotsamMember
Hi Amanda & TS
Related to this topic, I have been given varying opinions on whether approval for installing such flooring (or the removal of carpet to return the floor to original floorboards) can be retrospectively given under Section 110. My interpretation reading the legislation is no.
If I have this correct, I suspect most Strata Plans put in this position may be able to reach some compromise and give authorisation after the works occurred (which technically wouldn’t be valid and more or less just means “we won’t go after you for this illegal act”) but a stubborn owner or Owners Corporation, if they wanted to dig in, could take this to the Tribunal and insist the works be reversed prior to any application for approval being made.
Do I have this correct?
FlotsamJune 29, 2020 at 6:27 am #231914Amanda FarmerExpert
Yes, in my view hard flooring can be retrospectively approved.
Take a look at section 126, which permits the Tribunal to make a “work approval order”. This specifically contemplates such an order being made after minor work has already been carried out.
So, an Owners Corporation may resolve to grant retrospective approval in a particular circumstance simply to avoid having to defend an application made under section 126.
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