Question: What can I do if the upstairs lot was meant to install carpet for acoustic reasons, but I still hear loud floorboard noise, and the body corporate won’t confirm whether the work was actually done?
I’m a lot owner living on the ground floor of a seven-unit building. The upstairs units originally had timber flooring, but all were required to have their floors repaired and carpeted with proper underlay to reduce noise for those living below.
The lot above me was supposedly repaired and carpeted. I was home the week the work was said to have been done, and I did not hear any installation. I’m still experiencing loud, squeaky floorboard noises constantly — every step is audible, my house shakes, and it’s severely affecting my sleep.
I asked the body corporate to confirm whether the flooring work was completed and requested proof of repairs and an acoustic test to ensure it meets the required standards. They’ve ignored my requests. The previous owner has since sold the lot, and a new owner resides in the upstairs unit.
What are my rights in this situation, and what steps can I take?
Answer: The starting point with any potential dispute within a strata community is to make sure you have all relevant information at hand.
The starting point with any potential dispute within a strata community is to make sure you have all relevant information at hand. This will help you understand who was supposed to do what, in what way, and by when. Only then can you formulate your position and what your next steps could be.
Some relevant documents may include:
- the community management statement (namely, the current by-laws applying to the scheme);
- meeting minutes (particularly for those meetings where any relevant resolutions were passed by either the body corporate or committee); or
- development approval conditions/requirements.
These documents should form part of the body corporate records.
Lot owners are entitled to access body corporate records, subject to a few exceptions (such as, if they are subject to legal privilege or contain defamatory material). Accordingly, if you do not have copies of relevant documents, you may make a records request to the body corporate pursuant to section 205 of the Body Corporate and Community Management Act 1997 (BCCM Act).
A records request can be to either inspect the body corporate’s records yourself (or by a professional search agent), or to ask the body corporate to search its records and provide you with copies of specific documents. It will also involve payment of a prescribed fee, which is generally calculated in accordance with the regulation module applying to a scheme.
There might also be some relevant information which can only be obtained from inspecting a neighbouring lot. Lot owners generally do not have a right to access another lot belonging to someone else. A body corporate (by its authorised representatives) may enter a lot in limited circumstances pursuant to section 163 of the BCCM Act being:
- that the purpose of entry is to either:
- inspect the lot to find out whether work the body corporate is authorised or required to carry out is necessary; or
- to carry out work the body corporate is authorised or required to carry out; and
- that the required notice is given to the owner/occupier of the lot (specific notice periods for different circumstances are outlined in s163(2) of the BCCM Act).
Once you have gathered up all the information you can, you should try to answer (at least) these questions:
- What was required?
- What was actually required to be done in your neighbour’s unit?
- Was there a due date/timeframe for what was to be done?
- Who was responsible for ensuring that it was done? For example, was the work the lot owner’s responsibility or a body corporate responsibility?
- By what authority was the work authorised to be done? For example, were the works required in accordance with a by-law, order of the court/adjudicator, or development approval?
- Have all the requirements been met?
- Have the relevant by-laws, body corporate or other approvals, etc been complied with?
- Alternatively, are they in the process of being complied with? For example, have the works commenced, but further time is required to complete them?
- If there is noncompliance, then who is responsible for ensuring compliance? For example, is it the body corporate or a local government entity?
Once you have your (draft!) answers, make an appointment to talk to an experienced strata lawyer. Take, or send them in advance, all the documents and information you have collected. Doing that should make their job easier and thus cheaper.
An experienced strata lawyer will be able to assess the situation quickly and then help develop a plan to move forward, whether it is taking action yourself or seeking the body corporate to do so.
This post appears in Strata News #750.
Michael Kleinschmidt and Kimberley Johnson Bugden Allen E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280