Arrest threat as tenant flees noise

A noise battle between two landlords could see them both in court and one tenant under arrest after her constant noise drove her downstairs neighbour out of her home.

“I have a very good tenant. However, because of unresolved noise issues with the tenant in the apartment above, she doesn’t want to renew her lease,” reader Henrietta told the Flat Chat Forum. “I’m thinking of getting my solicitor to threaten legal action and claim damages for loss of income.”

Henrietta used to live in the unit herself until work-related issues took her out of NSW.

“I had a lot of trouble with noise from the previous tenant,” she says. “I went through the whole process of making complaints to the landlord, the strata executive and the managing agent. I kept records of noise disturbances, obtained witness statements and finally went to mediation … all at my expense.

“Eventually they got rid of the offending tenant and for 12 months everything was OK, but now they have a shocker again.”

Henrietta claims the offending renter is a young English woman who is clearly a bit more The Only Way Is Essex than Downton Abbey.

“She likes to have a good time and has drunken, noisy parties and is generally inconsiderate about how much noise she makes late at night or in the early hours of the morning,” says Henrietta. “She also seems to have a lot of friends staying over.

“At a mediation, she agreed to comply with the strata bylaws as regards noise disturbance, and the deal was that I would have her phone number and ring when there was a problem. But if she is having a good time she simply doesn’t answer her phone, so that was useless.”

So what are the chances of Henrietta getting compensation that would outweigh the cost of a legal action?

It would have to be an action against the tenants, as they are causing the problem, says Ian McKnight, a partner with strata specialists Grace Lawyers.

“It would probably have to be initiated in the local court as the measure of damages would be within the jurisdiction of that court and your reader would have to satisfy the civil burden of proof, i.e. on the balance of probabilities,” he explains.

The Consumer Trader and Tenancy Tribunal (CTTT) – the usual route for strata disputes – does not award damages.

“The owner would not be caught up in it, unfortunately, unless he knowingly permitted it, which is more difficult to prove,” says McKnight, whose firm, did win a landmark judgment against landlords who failed to control the behaviour of their tenants.

When a rolling tenancy of partying backpackers meant the person named on the lease was long gone by the time complaints were made through Fair Trading, the long-suffering downstairs neighbours went to their district court for a noise abatement order against the flat’s owners and won. You can find a report on that case HERE.

A noise abatement order is a much bigger deal than any action taken under strata law. Breaching a court order is a crime and, if you have such an order in place, all you have to do is call the police when it is being breached – for example, a party is in full swing after hours (10pm on weeknights and midnight at the weekend) – and they can arrest the miscreant.

However, if Henrietta just wants the problem to stop, rather than getting compensation, an order from the CTTT forcing the tenant to comply with bylaws is the more usual approach and breaches of that could cost the party girl upstairs up to $5500 in fines.

NSW readers can find links on how to run a case at the CTTT HERE. Interstate readers can find out who to contact about noise problems in their states HERE.

Meanwhile, Henrietta is left looking for a new tenant.

“The owner of the apartment told her managing agent I was always complaining, so my tenant’s complaints have not been taken seriously,” she says. “Perhaps the best plan would be for me to get backpackers or a big boofy bloke as my next tenant.”

You can read Henrietta’s whole sorry tale, plus some Flat Chat readers’ advice, HERE.

The original release of this article first appeared on the website of Hangzhou Night Net.

Comments are closed.