Question: Our downstairs neighbours have accused us of excess noise during the night. They have not provided any evidence of the disturbances. Can they take us to SAT if they have no evidence?
Our below neighbours accused us of being in breach of Schedule 2 bylaw 10 of the Strata Title Act. They can hear footsteps and other sounds in the middle of the night, affecting their peaceful enjoyment of the unit. We have asked for evidence of the disturbances, but the situation has become complicated. How can we be in breach if they have not provided evidence? They have threatened to take us to the SAT. Do we take this seriously?
Answer: Unless the neighbour can support and substantiate their claim of excessive noise and has also given written notice, the State Administrative Tribunal may not consider the application further.
Section 47 of the Strata Titles Act 1985 as amended (the Act) sets out clear provisions when it comes to the enforcement of bylaws.
An application to SAT for the enforcement of scheme bylaws may be made by the strata company, an owner of a lot, a mortgagee of a lot or even an occupier of a lot in the strata titles scheme (Section 47 (3) of the Act).
An application to SAT can only be made on the grounds that the person has been given written notice of an alleged breach of the bylaws or the contravention of the bylaw has had serious adverse consequences for a person other than the person alleged to have contravened the bylaws or the person has contravened the particular scheme bylaw on at least three separate occasions (Section 47 (4) of the Act).
A written notice to a person alleged to have contravened the bylaws must specify the particular bylaw that is alleged to have been contravened and specify the particular facts relied on as evidence of the contravention and specify the action that must be taken or refrained from being taken in order to avoid a continuing or further contravention of the particular scheme bylaw and contain an explanation of the effect of this section in terms set out in the regulations (Section 47 (2) of the Act).
It is our understanding that the Tribunal may not make an order in case of a breach of bylaw unless the person alleged to have contravened a specific bylaw has been given written notice as per Section 47 (2) of the Act.
Also, in our opinion, unless the neighbour can support and substantiate their claim of excessive noise due to footsteps and other sounds during the middle of the night and has also given written notice as per Section 47 (2) of the Act, the State Administrative Tribunal may not consider the application further.
The owner/occupier of the lot is advised to seek further legal advice if the issue cannot be resolved.
This post appears in the July 2023 edition of The WA Strata Magazine.
Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498