Thursday, 22nd August 2019

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Madness
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Last seen: 8 years 2 weeks ago
Joined: 03/08/2011

Hi
I own a strata unit in Sydney and it is currently tenanted by a family of 4 - parents and two young kids ... One of the kids is a baby and the parents are
trying control crying. Its been going on for a month and my neighbours below are complaining. What are my tenants obligations and mine as the owner ?
Is this kind of noise covered under the NSW Residential Tenancy Act 2010 ? thanks for any advice.

AT Strata Manager
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Last seen: 3 years 7 weeks ago
Joined: 28/07/2010

Hi,

Your tenants obligations are in the by-laws of the scheme and the applicable by-law 'noise' is as follows:

1 Noise

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

As far as your responsibility for your tenant you may have seen a recent case where a landlord was held responsible for the actions of their tenant/s. See SMH article below:

http://smh.domain.com.au/real-estate-news/come-in-and-feel-the-noise-lan...

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Nat
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Last seen: 5 years 36 weeks ago
Joined: 02/02/2011

In the case of a crying baby, I think there may be a possibility that the system is not quite as black and white as in the event of deliberate noise – such as parties.

Reading the case Andrew kindly provided the link for it seems that the Council issued a noise abatement order against the owner, so this wasn't a matter of the CTTT issuing an order to an owner in relation to a tenant breaching a by-law on application of such from an Owners Corporation. It seems to be a completely different circumstance to your situation, whereby multiple tenancies over a long period of time caused ongoing disturbance.

An Owners Corporation cannot ban children from living in a building and if they were to make an issue of noise by-law enforcement due to a baby crying (obviously, the baby cannot simply be ordered to stop crying) they are effectively doing so. I imagine there would be some strata lawyers who would love to be involved in such a case. Really, is the Owners Corporation going to issue a notice to comply on an infant?
There is of course the human element to consider here as well here. Your poor tenants, not an added stress they need when they have a new baby I imagine.

Polly
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Last seen: 5 years 48 weeks ago
Joined: 24/03/2011

Hi Nat...you got in just before me. Surely the by-laws cannot be effective for something out of your control. As you rightly say...you just can't tell a newborn to shutup. It is hard enough being a new mother without having to worry about the neighbours trying to kick you out of your home because of it. A pet I can understand but not a baby human being.

I know a howling baby can be disruptive - especially in an apartment block with thin walls but if we had the choice between a cryer and a sound sleeper which do you think we as mums would prefer. It is not a deliberate attempt to peeve off our neighbours. Come on guys, have a heart.

AT Strata Manager
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Last seen: 3 years 7 weeks ago
Joined: 28/07/2010

Hi again,

I'm sorry to say but by-laws are interpreted in black and white fashion by the OFT, as is Section 117 of the Act.

I believe many strata lawyers would take this case should the owner or owners corporation choose to take up the issue.

I do have a heart (a somewhat cold but logical one), however if my sleep was constantly disturbed over a period of weeks/months due to an infant in another lot crying (especially due to a parents choice to try controlled crying) I would look to take the issue further with firstly the resident and failing that the OFT.

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Half-Truism
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Last seen: 7 years 46 weeks ago
Joined: 08/04/2011

AT Strata Manager wrote:
however if my sleep was constantly disturbed over a period of weeks/months due to an infant in another lot crying (especially due to a parents choice to try controlled crying)

I honestly do not think by-laws should be telling parents how to parent. Babies cry, most parents do the best they can, and that may involve trying a few different styles until they find what works best for them. Just my opinion obviously.

AT Strata Manager
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Last seen: 3 years 7 weeks ago
Joined: 28/07/2010

Noted - I am just trying to reason here - as you know, many people (especially some strata owners) are not reasonable.

Perhaps call the OFT and see what they say?

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Nat
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Last seen: 5 years 36 weeks ago
Joined: 02/02/2011

I’d be really interested in Daniel’s input here.

If what you are suggesting Andrew is that the Owners Corporation should proceed with enforcement of by-law one, just whom would you issue the notice to comply on? The infant? The parents?

Should the OC proceed with seeking enforcement I question that the CTTT would issue an order on an infant to stop crying. It is an impossible order to be complied with. The controlled crying issue aside, what if the baby was sick? I don’t think the CTTT would issue an order that it is physically impossible to comply with. The implications of such an order would be that any family with a crying child would be unable to live in apartment blocks in NSW.

AT Strata Manager
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Last seen: 3 years 7 weeks ago
Joined: 28/07/2010

I'm not going to comment further. I'm taking the issue to be noise and peaceful enjoyment - not a possible order against a child. As a strata manager you know that noise orders are not specific and can be against people that don't make the noise.

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Annie
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Last seen: 7 years 10 weeks ago
Joined: 10/06/2012

We are tenants in a ground floor apartment with a family above us with 2 young children. They have wooden floors and 80% of the time we are woken in the mornings by either the kids crying, shouting or running usually around 6-6:30am if not earlier. We are regularly woken by crying in the night and also very regularly throughout the day for long periods as well as the incessant running. Up till recently there was also tricycle riding until we said that was not okay.

We don't believe it's just a problem with the tenants but also a building issue in terms of noise transmission.

We have gone online to look at what our options are and we consistently read comments from people saying we need to have a heart and recognise kids will be kids. We love children and understand that more and more kids will be raised in apartments. We have not yet taken that step to have our own children. Why should it be okay that we are woken up all the time by them and have to listen to them all day? Any other type of noise at this intensity or frequency would be deemed an unacceptable disturbance would it not? I don't mean to sound cold or lacking in understanding but if you choose to live with kids in a second floor with wooden floors surely you have to think about this?

I have never in my life joined a forum but feel so frustrated by this issue where we are told that that there is nothing that can be done about this. I'm amazed at how little support there seems for people in our position.

We have met with the tenants themselves very amicably to see if we could find a compromise. They said their children are 'spirited' and perhaps we can get ear plugs? We have gone to our real estate agent, to the strata manager and to no avail.

Can anyone advise any sort of option other than trying to vacate without penalty?

Thanks and sorry for length of this, I don't know what forum etiquette is in terms of length of input.

Nat
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Last seen: 5 years 36 weeks ago
Joined: 02/02/2011

Thanks Annie.

I’m the mother of a three-year-old in an apartment (fifth floor) and a strata manager so feel pretty qualified to answer this.

To me, there is a difference between a baby crying and children running around playing. My child, for example is not allowed to run around, play with balls, jump etc inside as I’m well aware of the impact this would have on our neighbours and you’d be well within your rights to make complaints about this type of noise. It’s not reasonable for you to be disturbed when that noise can be controlled.

A crying baby, in my opinion is a little different. It can’t be controlled and chances are Mum and Dad are as desperate as everyone else to stop the baby from being upset.

So to me, the fundamental issue here (and I know, strictly speaking the by-laws will say NO noise) is the practical application of those by-laws to real life – what noise can be reasonably controlled and what noise cannot be.

Having said all that – perhaps there is an issue with the floorboards? If they are retrofitted approval should have been sought and they need to comply with minimum standards. Perhaps an option for you to investigate further?