NSW: Q&A Dealing With the Noisy Residents In The Apartment Above

These NSW lot owners would like to know how to deal with the noisy residents living above.

Table of Contents:

• QUESTION: If an OC has no hard floor bylaws, can they reasonably refuse a request for approval of installation of hard flooring?
• QUESTION: The owners removed the carpet in the apartment above mine without permission. The noise is terrible. Is there anything I can do or do I have to put up with it?
• QUESTION: I’d like the noisy tenants in the apartment above me to be aware of the disturbance they are creating and the lot owner to change the flooring and comply with sound proofing requirements. Is this achievable?
• QUESTION: My upstairs neighbours have parquetry flooring and I can hear everything. Both the neighbours and the owners corporation will not assist. What can I do?
• QUESTION: The unit below us is complaining of excessive noise being transferred from our unit. Is there an acoustic rating between apartments for noise emanating from a unit in a 1964 vintage apartment block?
• QUESTION: How do I deal with noisy tenants above me?
• ARTICLE: Does an owner have the right to hassle a tenant to fix a noise transference issue?

Question: If an OC has no hard floor bylaws, can they reasonably refuse a request for approval of installation of hard flooring?

We have no by-laws setting out the acoustic rating required for hard flooring, and the Owners Corporation does not want to spend money to establish this. Is it considered unreasonable if they refuse a proposed flooring that meets and even exceeds the BCA and AAAC standards?

Answer: What is and is not reasonable will depend on the unique circumstances of each case.

Good question. What is and is not reasonable will depend on the unique circumstances of each case. I expect that a refusal to approve flooring that could be proven to meet or exceed BCA standards would be a strong argument in favour of the decision being unreasonable however.

Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990

This post appears in Strata News #507.

Question: The owners removed the carpet in the apartment above mine without permission. The noise is terrible. Is there anything I can do or do I have to put up with it?

The owners removed the carpet in the apartment above mine without permission.

Our strata plan has the basic standard Floor Coverings by-law.
I have raised my concerns with the upstairs neighbours, and they got quite angry and are still quite resentful. They have laid some rugs in the high traffic areas, and this has helped cut down the noise of footfall.

However, the situation is still nowhere near as effective as when carpet with acoustic underlay existed in that apartment. I still hear them walking around and the creaking of floorboards, which I did not hear before.

Is there anything further I can do or do I just have to put up with it?

Answer: The short answer is no, you don’t have to tolerate it.

You definitely don’t have to put up with it, because section 153 of the strata act talks about creating a nuisance. Another resident can create a nuisance that interferes with the peaceful enjoyment of another lot.

I would suggest first raising that with your Strata Manager, but it’s not only the noise bylaw and section 153: Owners, occupiers and other persons not to create nuisance that you can rely on. That is a noise bylaw, putting aside the floor breach, if there is a breach, you’ve got the noise bylaw that states that you can’t create a noise disturbance, and you’ve also got section 153, which means you can’t create a nuisance to another resident.

I would probably first be raising this with the Strata Manager having them pursue it and force both section 153, the noise bylaw and the flooring bylaw. If you were to pursue it further through NCAT, I’d probably be looking at engaging an acoustic consultant just to make sure that the tolerance of noise isn’t acceptable and within the BCA compliance, because there is a certain tolerance of noise. Some people can just be more sensitive to noise. Before taking it further, I would definitely look at getting an acoustic consultant to see whether or not the noise level coming from that unit is acceptable or not.

The short answer is no, you don’t have to tolerate it. You’ve got the noise bylaw to rely on, as well as the flooring of bylaw, but you’ve also got section 153 of the Strata Schemes Management Act, which talks about not creating a nuisance to another resident.

Sometimes it is a good course of action to approach the offending resident because some people react to getting the formal approach through a Strata Managing agent, but sometimes it can work the other way where they can still get offended because you’ve approached them. I think you’ve approached them firsthand, you’ve tried that nice approach. I think you now need to run it through the formal channel and that’s generally through your Strata Managing agent and your strata committee because they do have an obligation to enforce compliance with the bylaws. If it can be proven that there is a breach of bylaw, then I would definitely be running it through the Strata Managing agent.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #490.

Question: I’d like the noisy tenants in the apartment above me to be aware of the disturbance they are creating and the lot owner to change the flooring and comply with sound proofing requirements. Is this achievable?

The lot owner upstairs changed their flooring from carpet to timber floor without approval from strata. Since then, I’ve been constantly disturbed by footsteps and banging noises. The situation has been amplified over the last few months after four very noisy tenants moved into the apartment.

They wake me up very early every morning with banging and slamming noises.

Visitors to my apartment agree the noise is unbearable. I have spoken to them numerous times to let them know that their footstep noise, banging or dragging noises all are clearly heard. I feel like my peace and enjoyment in my own unit has been compromised.

I’ve contacted my owners corporation and strata manager numerous times. They either don’t reply to my emails or said I am too sensitive with the noise. They have told me that if I take the matter to Fair Trading, I will most probably not win the case. They have advised me not to bother.

I have been trying to record the noises on my mobile phone to prove how frequent and how loud the noises are. Is it legal to record these noises? As a next step, should I involve the police?

What should I do next? Ideally, I’d like the noisy tenants above me to be more aware of the disturbance they are creating, or for the lot owner to put down rugs or change the flooring to comply with sound proofing requirements. Is this achievable?

Answer: You will need to determine which by-laws apply to your scheme.

You will need to determine which by-laws apply to your scheme.

The standard by-law below may apply:

14 Floor coverings

1. An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot.
2. This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom.

Based on the information provided below, the Owner of the lot is in breach of the by-law.

Further, you state that the Owner did not obtain approval for the change of flooring from carpet to timber. This renovation is a minor renovation requiring ordinary resolution of the Owners Corporation/approval of the strata committee depending on the by-laws applicable to your scheme.

The above matters should be drawn to the attention of your strata manager.

You may wish to pursue your rights through NSW Civil & Administrative Tribunal and mediation.

You may wish to ask the Police to investigate the noise on your behalf.

In terms of whether it is legal to record the noise, generally we do not believe this to be illegal. In fact, you would need to prove the unreasonable noise if you were to pursue your rights. We also recommend you keep a detailed diary of the times, dates and duration of the noise.

Finally, you may wish to apply for a Noise Abatement Order through your Local Council.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #345.

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Question: My upstairs neighbours have parquetry flooring and I can hear everything. Both the neighbours and the owners corporation will not assist. What can I do?

I have a problem with the neighbours upstairs. I hear every footstep as their dining room is directly above me.

They have parquetry flooring and no rugs or other floor coverings in their living areas.

Visitors to my apartment agree the noise is unbearable.

I do not have a good relationship with these neighbours. I have broached this subject with them and they just state that no-one else can hear it and refuse to make any changes. Our owners corporation have not been helpful either.

I am not trying to create angst but I do feel my ‘reasonable peace, comfort or privacy’ is compromised. What can I do?

Answer: Even in the absence of an applicable bylaw, there is a general duty not to cause nuisance under the strata legislation.

The absence of floor coverings is likely a breach of the by-laws applicable to the scheme.

Even in the absence of that by-law, there is a general duty not to cause nuisance under the strata legislation. Section 153:

153 Owners, occupiers and other persons not to create nuisance

1 You must not make noise at any time within your lot or on common property that is likely to disturb peaceful enjoyment of another resident or anyone using common property.

1. An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
   
   1. use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
   2. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
   3. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

Further, are you able to establish whether the parquetry was an original or after-market installation and whether or not such floors are approved by strata?

You may wish to contact your real estate managing agent (as opposed to the relevant strata manager) as the “unreasonable noise” may be in breach of your residential tenancy agreement.

Lastly, you will need some probative evidence of the unreasonableness of the noise – so should you wish to pursue the matter further, we recommend you engage the services of an acoustic engineer to confirm if the noise experienced is within acceptable standards.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #326.

Question: The unit below us is complaining of excessive noise being transferred from our unit. Is there an acoustic rating between apartments for noise emanating from a unit in a 1964 vintage apartment block?

The unit below us is complaining of excessive noise being transferred from our unit. Is there an acoustic rating between apartments for noise emanating from a unit in a 1964 vintage apartment block?

Our Strata managers are quoting an extremely high standard which in an old apartment block appears excessive.

If the unit owner has stripped the vermiculite covering off their ceiling. Would this result in an increase in any transmitted noise?

We are located in Manly. Does a DA have to be obtained from Northern Beaches Council for internal renovations?

Answer: The Strata Manager is likely quoting the current acoustic performance requirements under the NCC which the building of that age is unlikely to meet.

Is there an acoustic rating between apartments for noise emanating from a unit under our unit in a 1964 vintage apartment block?

This would depend on any applicable standard (the BCA only came into existence in October 1996 – adopted July 1997).

Our Strata managers are quoting an extremely high standard which in an old apartment block appears excessive.

The Strata Manager is likely quoting the current acoustic performance requirements under the NCC which the building of that age is unlikely to meet.

153 Owners, occupiers and other persons not to create nuisance

Regulation Schedule 3 – 6 Noise

An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

Note. This by-law was previously by-law 12 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 13 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

As you can appreciate, there is no definition behind the act and regulation for the above clauses and so it becomes very subjective. Ultimately, as I understand, if a resident wants to push it far enough, they would need to go to NCAT and the member would need to assess the validity of the claim.

If the unit owner has stripped the vermiculite covering off their ceiling. Would this result in an increase in any transmitted noise?

Yes, this could have a considerable it on the noise transmission. There are a number of factors which impact on noise transference through materials, however.

We are located in Manly. Does a DA have to be obtained from Northern Beaches Council for internal renovations?

This depends. for cosmetic renovations, no. For structural renovations, likely yes. If removing a load bearing wall or moving/altering shape of a window, this would likely be yes. Of course, anything should also be notified through Strata.

Ian Martyn
Core Project Consulting Pty Ltd
E: [email protected]
P: 02 8961 3250

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #212.

Question: How do I deal with noisy tenants above me?

My husband and I have lived in the first floor unit of out 8 unit block in NSW for 3 years. The first year was bliss until the owners asked their current tenants to move! At this time I observed him removing the carpet from the main bedroom. He said it was standard issue flooring. However, he never had permission from the current strata at that time to remove the carpet.

Since then, life has been constantly interrupted from noisy tenants above me – dropped articles, slamming doors, flushing toilets, children running, tenants allowing their visitors to be disruptive during the late evening.

We have had no success in dealing with the tenants and the owner has passed the problem onto his Real Estate Agent. They call the tenants when we complain and it is ok for a few days/weeks!

Can you suggest what we can do next for a peaceful life!

Answer: The Owners Corporation should be requested to enforce compliance with by law 1, noise and by law 14, floor coverings.

Our reply is prepared on the assumption that the model (standard) by-laws apply to the scheme.

The Owners Corporation should be requested to enforce compliance with bylaw 1, noise and bylaw 14, floor coverings

CLAUSE 1 – NOISE

1 You must not make noise at any time within your lot or on common property that is likely to disturb peaceful enjoyment of another resident or anyone using common property.

CLAUSE 14 – Floor Coverings

14 You must cover the floor of your lot or treat it to stop noise which may disturb another resident. This does not apply to the kitchen, laundry, lavatory or bathroom of a lot.

The subject unit owner has removed the carpet without the consent of the Owners Corporation which has resulted in the noise disturbance to others lot.

To initiate the by law enforcement, the Owners Corporation should start with issuing a bylaw breach letter requesting the owner to arrange for adequate floor coverings to prevent the noise transmission into other lots.

If the owner does not comply, action should be escalated to issuing a Notice to Comply with the relevant by laws which will than allow opportunity to proceed to the NCAT seeking orders for compliance should the matter still not be resolved.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #105.

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Does an owner have the right to hassle a tenant to fix a noise transference issue?

The tenant told me: “I’m being hassled from the downstairs owner about our kids – even when they are playing quietly …” This case involves timber floors between two units.

The owner living in the unit below approached the tenants above shortly after the tenants moved in, to let the tenants know that they can hear children running up and down the floor. The noise on the ceiling of the owner’s unit below is loud enough to wake up her baby. She states she is having trouble “dealing with the noisy tenants above me”.

The tenants took appropriate action and asked the landlord to provide a thick hall runner to reduce noise transference from the upper unit, however, the landlord denied the request. Not wanting to waste money on a rug that would potentially have no use at the end of their lease, they bought a few inexpensive long rugs for the floor, but this did little to stop the noise transference, and the owner living below started an annoying habit of texting the mother regularly to let her know that she could hear the kids running around.

The tenants in the upper unit had already executed a NO-RUNNING-IN-THE-HOUSE rule for the children. Kids being kids forget at times, so the parents would have to constantly remind them!

The complaints from the owner below however just increased and this owner even went as far as suggesting that the tenants introduce an “in-to-bed-by-7.30pm” rule!

The final straw for the tenants came when a friend, who came for a visit with her 4 kids, left because she could see how stressed out the parents were about the kids running around … I’ll add that it was in the middle of the day!!!

In my opinion, this is simply ‘over the top’… so I had to find out for myself if this owner was simply ‘noise-sensitive’ and unreasonable, or if the noise was in fact at an unacceptable level. Could I deal with these noises from the tenants above?

So I got one of the kids to walk normally up and down a small area of the upper floor and to my surprise, it did sound like the child was stomping; so I can image when all 3 children are playing eg hide-n-seek, it would be unbearable for the owner below … let alone when the mother walks in high heels after a date night with the father.

Apartment noise transference issue impeding on the tenant’s peaceful enjoyment of the property

That was sufficient evidence to come to the conclusion that this noise transference issue was impeding on the tenant’s peaceful enjoyment of the property – a property that they pay in excess of $1,000 per week for!

On the other hand, I empathise with the owner downstairs who says the noise is waking up her baby.

So who is responsible to resolve the issue of noise transference between lots? Does an owner have the right to get a tenant to fix a noise transference issue?

By-law 15 (Floor coverings) states “An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot …”

This raises the question: what is ‘sufficient extent to prevent transmission of noise’?

In good faith, the tenants wanted to a) make sure they weren’t compromising their lease conditions and b) that I could help the down-stairs owner resolve her issue, as she had threatened legal action to have wall-to-wall carpet laid on the existing floating-timber floors… not only would that be expensive for the owner, but carpet would be a nightmare for the tenants with 4 children …

It’s been reported that the current flooring meets current acoustic standards, so how successful would the owner be in obtaining orders? My advice to the owner is to seek the opinion of a solicitor who specialises in Strata Law.

Unless Strata offices who use an electronic document management system label this kind of correspondence clearly, it will likely get missed during an inspection of the records … unfortunately, a lot of strata agents aren’t diligent with their electronic filing system.

A strata report should reference a review of the correspondence for the past few years and confirm any evidence of this kind of disharmony. Alternatively, the report should state if no evidence of disharmony was sighted.

A tenant doesn’t have as much to lose as an owner who gets lumbered with these kinds of issues. Given that most issues can be resolved albeit costly at times, a strata report can give you more leverage in negotiating the final sale price.

In this case, the tenants would not have leased the property if they had of known about the issue; however, they would have grounds to break the lease. The tenant’s dilemma is finding an affordable low-maintenance property close to the children’s school and daycare so for now, these tenants have chosen to minimise the noise and hope that the landlord will at least provide a thick hall runner to appease the downstairs owner!

Paula Byrne
Founder
Strata Gophers
E: [email protected]
P: 1300 405 605

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