'My neighbour’s loud sex keeps me up'
Welcome to Sisters In Law, news.com.au's weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to noisy neighbours.
QUESTION: I live in a small block of eight apartments in Sydney and one of my neighbours is becoming intolerable. She is a young woman who lives alone but is never alone, if you catch my drift. She has at least one "partner" every night and the noise is ridiculous. Last week I called the police at 3am because she woke up my baby with her "activity", but they said there was nothing they could do (to be honest, I reckon they thought it was a prank call). I've spoken to other neighbours about it but no one seems to know what can practically be done. She rents, while the rest of us own, if that makes a difference. What are my legal rights when it comes to residential noise complaints? - Sleepless in Sydney, NSW
ANSWER: The best way to resolve a dispute with a neighbour is to have a face-to-face chat as more often than not they may not be aware the walls are paper thin letting you and everyone else in your apartment block hear their midnight romps.
Don't engage in any payback responses, like recording your baby crying and then playing it on full volume towards your neighbour's apartment as the sun rises. This is likely to fuel the dispute, not to mention annoy your other neighbours.
As your neighbour is a tenant, if a face-to-face chat doesn't get you anywhere then you can make a complaint about the noise to their landlord or agent.
Make this complaint in writing and keep a copy.
Like most states, all tenants in New South Wales have terms in their lease that mean they cannot cause a nuisance or interfere with the peace, comfort or privacy of a neighbour. They also can't let anyone else do that. So, if your neighbour's "partners" are making the noise then she can still get in trouble.
If, after the landlord warns your neighbour she is breaching the lease, she continues to make the noise then the landlord can apply to the NSW Civil and Administrative Tribunal to stop the breach or give her a termination notice.
If you find that the owner doesn't want to deal with the issue, there are remedies you can pursue through your Body Corporate or Owner's Corporation.
It is likely that this continued behaviour and any failure of the owner to appropriately address the noise will breach by-laws of the property, which allows you to take action with the support of the Body Corporate manager.
This process can result in a mediation at Fair Trading and end up at the Civil and Administrative Tribunal where orders can be made requiring the property owner to take action.
Most neighbourhood noise is regulated by police and local councils. If the noise is "offensive" then police or the council should step in.
While you and your other neighbours may be offended by the noises being made, in order for it to be considered "offensive" and the police or council to take action, it must (by reason of its level, nature, character or quality or at the time it's made):
• Be harmful or likely to be harmful to a person outside the place where the noise is coming from, or
• Interfere unreasonably with, or is likely to, the comfort or rest of a person outside the place where the noise is coming from.
In your situation, the noises made by your tenant in the early hours of the morning are likely to be considered offensive.
Most councils that deal with noise complaints require you to complete a written complaint form detailing the type of noise, date, time and duration - so start keeping records.
It may assist if your other neighbours also make a complaint at the same time and are consistent with the details you have provided.
Continue to persevere and complain to the police.
The police should attend and issue a warning or a noise abatement direction. If your neighbour doesn't comply with the direction then police can issue a fine.
If you think your neighbour may be running a business from her home and engaging in these activities for financial reward, you should also let the apartment owner and police know.
This may breach the terms of her lease, which could warrant eviction.
While prostitution is legal in NSW, there are a number of regulations that govern how sex workers should operate, particularly with respect to where they solicit for work.
So, if your neighbour is not following the rules, she may be engaged in illegal activity that the police can also act on.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
If you have a legal question you would like Alison and Jillian to answer, please email email@example.com