Lets get a free upgrade for our airconditioner…

You have another option.  

The Owners Corp is required to maintain common property, it’s true, but you have a choice.  Yes, you could fix the Air-con or you could tell the owner that, as there is no record of permission, common property is going to be returned to its previous condition (no air-con) at the OC’s expense.

If the owner wants to keep the air-con, they can agree to a special resolution by-law giving them responsibility for the air-con and its maintenance and that of the common property around it.  

Or they can arrange a time for your builders to come in and remove it and reinstate the CP.

Just keep the wheels spinning in what promises to be a long, hot summer and I suspect your neighbour will soon come round to a reasonable compromise.

@bpositive said:

It seems strange that the Owners Corp is required to maintain individual aircons for a lifetime for units which are for the owners benefit only.

The basic principle is that, as the Owners Corp has responsibility for Common Pronperty and someone makes a change to common property without their permission, then it is up to the OC to rectify that.  

If the OC doesn’t know that the changes have been made, that is just the same as ignorance of the law – it’s no excuse.  That’s why the illegally installed aircon becomes the repsonsibility of the OC when the unit is sold.

They could, theoretically, inspect the unit when it is up for sale and immediately make an application to have the air-con removed.  If OCs are too lazy or  uninformed to do that, it’s hardly the fault of the new or subsequent owners.

That’s why it becomes the responsibility of the OC and that’s why nobody should ever allow common property to be changed on a nod and wink basis.

But, as i said below, there is a solution to this – tell the owner if the air-con is the OC’s repsonsibility, that’s fine.  The OC will rip it out an reinstate the common property to its previous state.  The OC may have responsibility for the air-con but it doesn’t have responsibility for the temperature in the owners’ homes.

It really is as easy as that.

@chai said:
The reasonable request from a lot owner to install an air conditioner compressor in the common area cannot be denied. At all times, the pump is considered the property and the responsibility of the lot owner.

Two points:  The owner in question wants to change the compressor at the Owners Corporation’s expense.  This owner does not consider the air-con to be their own private property.  This was an illegally installed unit for which responsibility has transferred to the owners corp (unless the owner is lying).

On that basis, the Owners Corp has acquired responsibility for the air-con but, as I have said repeatedly, they don’t have to fix it.  They can just remove it.

This is a different situation from an owner wanting to fix their own air-con at their own expense.

Unbelievably, a neighbour (who is actually on the EC) has just yesterday affixed a new split system A/C unit on the (common property) balcony of his unit. No permission sought from EC and no prior notification of intention, not even a notice that noisy work was to be undertaken. This unauthorised addition to common property also involved the drilling of hole in the external wall approx 100 mm in diameter. From the postings here it would seem that this owner has opened himself and the rest of us to a host of potential legal and financial problems down the line. Am I correct in assuming that by acting in this way he has ceded responsibility for his new toy to the OC and that the EC can simply arrange its removal so that the common property can be restored to its original condition? 

@Whale said:

If no SBL exists, then again the Owners Corporation only becomes responsible for the works if it does nothing to remedy the situation as soon as it becomes aware of it, and the current Owner at some future time sells or otherwise disposes of their Unit with the air conditioner in place.

I agree with everything Whale says except this bit. The OC remains reasponsible for the wall the a/c mounted on and even if the unit is sold I believe the only requirement of the o/c is to restore the wall to it’s origional state ie without a/c unit. Before the unit is sold they can bill the owner but after the o/c have to pay to restore the wall

The exception to this is if an ordinary motion was passed by the OC or EC giving permission to install an a/c unit without a SBL being approved and then I belive the o/c COULD be liable for the a/c.

This to me seems to be a MAJOR floor in NSW strata where owners think they are doing the right thing by allowing an improvement by a simple and inexpensive vote not realiseing the ongoing implications.

At least 2 states (QLD and VIC) clearly specify that any item  (or change) that services only one unit no matter where it is located is the lot owners reasponsibility whether it has recieved permission or not. I feel fell NSW needs something similiar to protect the average owner.

@Whale said:
Clearly the former is my view and KP has another, but I’m sure we’d agree that such matters only become issues when, as I originally suggested, an O/C becomes aware of such un-consented works and does nothing to remedy the situation.

braveheart is a member of the O/C, he’s aware of what’s occurred, and in my opinion has an obligation to act and inform and not to get involved in peripheral discussions around what may in future happen if he/she doesn’t.  

Absolutely right!  As my mother loves to say, “If ifs and ands were pots and pans there’d be no need for tinkers.” (No, we never understood it either.)

This a/c  installer isn’t just in breach of whatever by-laws are in place, it’s a breach of strata law:

116   Owners, occupiers and other persons not to interfere with structure of lot or services to lot

(1)  An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not do anything or permit anything to be done on or in relation to that lot so that:

(a)  any support or shelter provided by that lot for another lot or common property is interfered with …

(2)  The owner of a lot must not alter the structure of the lot without giving to the owners corporation, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.

And the other thing is, even if the EC does nothing, individuals can take action at NCAT under section 138 to enforce any by-laws that have been breached.  You’ll find the new NCAT form HERE (although you will first have to seek adjudication using this Fair Trading form HERE).

Start the ball rolling now and by the time January rolls around you will be able to apply to NCAT to have the EC member removed from the committee for being a very naughty owner.

As previously noted, an owner in our building has installed an A/C unit on the balcony and drilled a hole in the exterior wall of the balcony to facilitate wiring etc to the interior part of the A/C attached to the inside wall of the Lot. Our Strata Manager informs us that because our Strata Plan was registered prior to July 1974, the exterior wall of any balcony’s is considered to be part of the Lot. 

Does a unit owner in a Strata Plan registered prior to July 1974 have an unrestricted right to drill a hole 100 mm in diameter in the exterior brick wall of the balcony if that balcony wall is deemed to be part of the lot (i.e. NOT common property)?

Is yes, would the owner still be obligated to ask the permission (and to submit all relevant documents and a written proposal) of the OC to carry out such works prior to commencement?

Does the OC have any grounds to object after the work has been carried out without discussion or consent?

Thanks,

braveheart

Thanks Whale, I can see why you hate these questions… 

I will seek out a fact-based statement about the actual status of the balconies (be they Lot or Common Property). There seems to be some disagreement. I had noted Jimmy’s point about Section 116 but as you suggest, that particular Elvis has left the building!

Thanks also for the point about Registering a (retrospective) SBL in which the owner accepts responsibility future maintenance etc – we certainly intended to pursue this avenue no matter the outcome. Moral inclination, however, seems to be in short supply around here at the moment. 

With much appreciation,

braveheart