This lot owner is concerned about installing floorboards in strata units in Canberra. Christopher Kerin, Kerin Benson Lawyers provides the following response.
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- QUESTION: The developer installed noisy timber/vinyl flooring in one unit in our building. We’ve requested an acoustic report but the developer states that in this instance there is no requirement to provide acoustic insulation on floor systems within the building.
- QUESTION: Can lot owners install floorboards in strata units in older buildings in Canberra? Where should we look for information before approaching the body corporate?
Question: The developer installed noisy timber/vinyl flooring in one unit in our building. We’ve requested an acoustic report but the developer states that in this instance there is no requirement to provide acoustic insulation on floor systems within the building.
Our complex was completed last year and consists of 21 townhouses.
Several buyers took up the option of timber flooring and this has not caused any problem with noise. However, one owner chose a different type of timber/vinyl flooring that was apparently installed by the developer before settlement. Unfortunately, this flooring is very noisy and we can hear footsteps and chairs scraping across the floor and there are also vibrations.
We have basement garages and the noise seems to radiate through the building. I live next door but owners four doors down can also hear and feel the effects of this flooring.
We have written to the developer requesting a copy of the acoustic report but they have advised that, as there are no floors separating sole occupancy units within the building, there is no requirement to provide acoustic insulation on floor systems within the building.
Is there any action we can take with either the developer or the owner to alleviate this problem?
Answer: Given your building is likely to be a B class building, the origin of the noise in your building might be lot property not common property.
In the recent ACT Supreme Court decision in De Gruchy v The Owners – Units Plan No 3989  ACT SC 65 the penthouse owner sued the owners corporation in nuisance arising from “structure borne noise” which was heard everywhere in the plaintiff’s apartment during the day and night and was successful. However, this was an A class building and consequently, given your building is likely to be a B class building, the origin of the noise in your building might be lot property not common property. This is the critical first question which must be answered to determine if the lot owner or owners corporation is responsible.
In terms of the liability of the developer, given the statutory warranties under the Building Act do not reach the developer, you will need to look to the terms of your sale of land contract to determine if there are any rights against the developer.
This post appears in Strata News #365.
Question: Can lot owners install floorboards in strata units in older buildings in Canberra? Where should we look for information before approaching the body corporate?
Do you have any advice on lot owners that install floorboards in strata units in older buildings in Canberra? Is this allowed and where should we look for information before approaching the body corporate?
Answer: For guidance, see Nolan & Anor v UP 369  ACAT 32.
Here is an excerpt from my book: Guide to ACT Strata Law on Privacy (from page 97 – 98):
3.05 Case Note. Nolan & Anor v UP 369  ACAT 32.
This case was about the application of default rule 4(1) which states that a unit owner may erect or alter any structure in or on the unit or the common property only in accordance with the express permission of the owners corporation by unopposed resolution (the owners corporation did not have its own specific rules).
The applicants request that the owners corporation consent to a change in the flooring of their unit from carpet in the living areas, kitchen and hallway to bamboo floating floor with noise minimising underlay which met the requirements of the Building Code of Australia.
The strata manager replied to the request by advising that as one of the adjoining owners had not consent to the request, a general meeting would not be called and the applicants would not be able to present their request to the owners corporation and they could not install the floorboards.
The applicants then made an application to ACAT arguing that the floating bamboo floorboards would be laid without nailing or gluing and that there will be no structural change to the concrete flooring of the units.
ACAT analysed the meaning of ‘structure’ in default rule 4(1) and concluded that the removal of carpets and the installation of a floating bamboo floor was not an erection or alteration of the structure as provided in default rule 4(1) and consequently did not require owners corporation approval.
ACAT was also critical of the conduct of the strata manager in misunderstanding the basis for calling owners corporation meetings. The applicants should have been given an opportunity to provide information to the owners and “the default rules do not require 100% consent to the proposed work from the relevant unit owners before the General Meeting can be called and held”. (p. 97-98)
This post appears in Strata News #199.
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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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