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 in the apartment above. The Q&As below have been submitted by unit residents experiencing an unreasonable level of noise coming from the upstairs neighbours. We respond to questions about 5 star acoustic ratings, tiled or hard flooring compared to carpet flooring, the reasonable level of noise you can expect from the upstairs neighbour walking around the unit during the day and who is responsible for fixing the noise transfer issues experienced in strata living.

Table of Contents:

• QUESTION: Who is responsible for addressing the noise issue caused by upstairs neighbours with floorboards lacking acoustic underlay, installed by the previous owners?
• QUESTION: The owners upstairs have been served a breach and fined at NCAT for noisy flooring. They are happy to pay the fines and not fix the flooring. What can we do?
• QUESTION: My upstairs neighbour has a tiled floor and I can hear every noise he makes, however, he is constantly yelling at me for making too much noise. We are at a stand still. What can we do?
• QUESTION: Due to the poor quality of our slab, we have been unable to source a flooring product that will achieve a 5 star acoustic rating. Will the owners corporation recognise this or would we be best to proceed through NCAT?
• QUESTION: Can we retile over existing tiles on a balcony? Our downstairs neighbour is concerned about the possible noise implications.
• 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: Who is responsible for addressing the noise issue caused by upstairs neighbours with floorboards lacking acoustic underlay, installed by the previous owners?

My upstairs neighbours have noisy floorboards without acoustic underlay. The previous owners installed the flooring. The new owners are a family who make more noise and have loud children. The owners corporation claims they can’t do anything since the current owners didn’t install the floor. Who is responsible for addressing this noise problem?

Answer: The owners corporation should seek to regularise unauthorised works and have the current/previous owners obtain the proper approvals.

In relation to unauthorised works in general, the owners corporation should be seeking to regularise them and have the current/previous owners obtain the proper approvals.

There is case law that imposes on the owners corporation the duty to remove any alterations or additions to the common property that have been made by an owner without its approval and re-instating the common property to its previous condition.

Despite the above, you will likely have the standard flooring by-law (which requires floor coverings in case of unreasonable noise) and the nuisance provisions under the Strata Schemes Management Act, 2015 (NSW) regulates such noise too.

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

This post appears in the October 2023 edition of The NSW Strata Magazine.

Question: The owners upstairs have been served a breach and fined at NCAT for noisy flooring. They are happy to pay the fines and not fix the flooring. What can we do?

The lot owners in the apartment above my unit installed a noisy floating floor. Mediation was unsuccessful and NCAT ordered the floor be replaced with carpet. The owners took no action. They were fined. The owners paid the fine but they took no other action to replace the flooring. They were then taken back to NCAT and fined again. Once again they paid the fine but have not replaced the flooring. The owners feel it’s easier to pay the fines rather than replaced the noisy floating floor. As the downstairs owner, what action can I take?

Is it up to the committee to get legal advice and pursue the breach or is it up to us as the affected lot owners?

Answer: Get legal advice on whether you can now apply for new different orders along the lines of getting an order to have the works carried out on behalf of the offending lot owner at their expense.

You will get owners that feel it’s easier to pay the fine. This is more of a legal question so I suggest you get legal advice. I would get legal advice on whether you can now apply for new different orders along the lines of getting an order to have the works carried out on behalf of the offending lot owner at their expense. Some implications of the order would be access to the lot. That would have to form part of the advice.

So option one is to look at getting orders to have the works completed. Also, look at another jurisdiction, perhaps going outside of NCAT and maybe going to another jurisdiction and seeing whether or not they have more weight and force.

In my view, I would think the owners corporation has that obligation because the breach of the bylaw is noise and the owners corporation have an obligation to enforce compliance with the bylaws. It wouldn’t harm if the affected lot owner is a joint applicant. The application may have more force and weight.

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

This post appears in the June 2023 edition of The NSW Strata Magazine.

Question: My upstairs neighbour has a tiled floor and I can hear every noise he makes, however, he is constantly yelling at me for making too much noise. We are at a stand still. What can we do?

I have an annoying neighbour upstairs who is constantly banging on his floor and yelling at me if I make any noise.

His apartment has floorboards instead of the carpets. He is the one with noisy flooring, yet he constantly complains about me.

I can hear every noise from his unit, including his footsteps.

What can I do to solve this situation?

Answer: Your first step is to have a conversation with your neighbour.

You have my empathy on this one. Noise issues can be very disruptive in a strata scheme.

It’s not clear if you have had any kind of interaction or conversation with your neighbour. If not, then that is your first step (subject, of course, to that being safe and appropriate to do so). There may be a resolution which can be reached informally. I have heard of situations in which getting a neighbour to stand in another apartment to hear noise can be enough to help that neighbour understand the issue better and put into place some fixes.

After that, you need to decide how far you will take this matter and the amount of effort you want to put into it. The bottom line here is that nothing will change unless you take steps to change it. That means pursuing your neighbour for the apparently ‘wrong’ flooring they have installed, or pursuing your neighbour for the interruption and potential nuisance they are causing to you, or both. While I can’t comment on the processes for this in NSW, in Queensland this would mean enforcing a noise by-law and/or pursuing a breach under nuisance provisions. That process starts, typically, through your committee. You might want to think about keeping logs of noise, if you haven’t already.

Bear in mind that your neighbour may decide to do precisely the same thing against you for the noise they say is coming from your lot. Which leads me to ask you: do you think your neighbour has a valid concern about the noise they say is coming from your lot? You mention their flooring, but you don’t say if your lot is being used in a way which might cause disruptive noise. Remember also that even if your lot is used for everyday purposes (e.g., it’s not as though you are constantly holding loud reckless night time raves), that everyday usage might still be causing noise and nuisance.

There is, I think, a lot of benefit for you to try and resolve this amicably with your neighbour and it may take a bit of honest reflection from both of you to do that. Otherwise, things can get difficult – and ugly – very quickly, for a long time.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in the July 2022 edition of The NSW Strata Magazine.

Question: Due to the poor quality of our slab, we have been unable to source a flooring product that will achieve a 5 star acoustic rating. Will the owners corporation recognise this or would we be best to proceed through NCAT?

My by-laws state I am required to achieve an AAAC star rating of 5 if installing floorboards. After conducting almost 30 different acoustic tests, engaging 2 acoustic consultants and speaking to 11 other acoustic consultants, we have not been able to find a product (flooring and underlay) that achieves a rating of 5. A rating of 4 is the best I can achieve.

Consultants are advising that due to the poor quality of the slab, achieving a rating of 5 would be almost impossible without performing other major construction work. Should I escalate the matter to NCAT so that Strata can approve a 4-star rating or are my hands tied and I can never install floorboards?

Some further context for consideration:

• Strata have confirmed that no tests were performed when considering the 5-star rating. They have advised that due to the age of the building, that they chose the 5-star rating as the requirement
• Other units have hard floors and when I requested what they installed, Strata / Building Manager have been unable to assist as the records have been lost

Answer: Even if you were able to install a flooring system that achieved the 5-star rating, you may still find yourself dealing with noise complaints.

It sounds like the by-law was put in place without adequate consideration of the actual achievable outcome based on the existing building constraints. Based on the acoustic consultant advice you have outlined, the best practical outcome is a 4-star rating. However, if it is feasible to achieve 5-star, you could be held to the by-law even if the cost of achieving 5-star is prohibitive.

If the 5-star is not possible and your Owners Corporation is unwilling to compromise by allowing 4-star, it may be your only pathway is through NCAT. It is recommended to obtain legal advice from a Strata Law firm who will be able to help you navigate this situation.

There is also the requirements of the Strata Schemes Management Act and Regulations to consider. Your Strata Manager should be able to provide guidance on this, but may also direct you to seek legal counsel.

Keep in mind, even if you were able to install a flooring system that achieved the 5-star rating, you may still find yourself dealing with noise complaints, especially if the new flooring results in an increase in impact noise transmission, despite installing the required acoustic rating. Its all about adjoining lots having a right to “peaceful enjoyment”.

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

This post appears in Strata News #527.

Question: Can we retile over existing tiles on a balcony? Our downstairs neighbour is concerned about the possible noise implications.

I have a tiled balcony that is on top of the living area of the unit downstairs.

I am wanting to get the balcony retiled. The tiler has suggested we tile on top of the existing tiles and re-waterproofing.

My neighbour below wants me to get acoustic underlay. This will effectively double the price. Do I have to do this as the area is already tiled and I am not changing the material? My tiler has informed me that adding waterproofing and new tile will improve the acoustics from what they are anyway.

Answer: For a number of reasons, the recommended pathway of applying tiles and waterproofing over existing tiles is not recommended.

Navigating the pitfalls of Strata living, for all the benefits it brings, is not an easy task. The question raised branches across several areas with regard to construction and performance of works under the Building Code of Australia and Australian Standards as well as Strata Law and specific by-laws for the property.

Unfortunately, it’s not possible to provide a black and white yes or no answer without consideration for a number of factors. The recommended pathway of applying waterproofing over existing tiles before laying new tiles is not recommended. There are several compliance considerations in terms of waterproofing, weatherproofing and safety that should be reviewed. You don’t want to spend a lot of money on new tiles to later find out later you have to remove it all!

If there are no existing waterproofing issues with the balcony, it may be feasible to lay new tiles over the existing after review of the existing site conditions/constraints and especially with respect to any balustrading. New tiling may only add 10-15mm in overall height, but this may result in what is now a compliant balustrade height (minimum 1m) becoming non-compliant. Can the new tiling be installed without impacting balcony drainage (including any overflow), weep holes in walls and drainage of the balcony door itself?

Application of waterproofing and tiling over existing will have negligible impact/improvement on the acoustics. A proper acoustic, under tile layer, installed strictly to the manufactures requirements is necessary to achieve a notable reduction in sound transmission. Measurements by an acoustic consultant would allow you to determine what products are suitable to reduce the sound transmission by a certain level.

Your Strata Manager will be able to advise if there are any specific by-laws that apply to your property in this situation and can also advise on matters regarding the Strata Schemes Management Act/Regulation, especially in terms of “peaceful enjoyment” and how this can be interpreted.

Any external waterproofing works where these relate to a Class 2 Building are also now subject to the requirements under the Design and Building Practitioners Act and Regulations. This requires the waterproofing to be designed and declared (certified) by a registered design practitioner and the works performed by a registered building practitioner.

A remedial engineer/consultant can help guide you through the works, ensuring the correct documentation is collected and the correct process is followed, as well as manage the works from start to finish.

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

This post appears in the November 2021 edition of The NSW Strata Magazine.

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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