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The questions or queries that I wish to raise relate to both the air-conditioning situation in the block of 6 Apartments where I reside and resolution of a Dilapidation Reports issue consequential upon extensive and heavy building works which took place on immediately adjacent properties.
Each Lot Owner has his own independent aircon system with certain plant and equipment contained in the void above the ceilings in each Apartment for his own exclusive use and his own separate compressor which sits on Common Property on the roof of and/or at ground level outside the building. As far as I am aware, the interior of each Lot comprises both the void (containing that Lot’s aircon plant and equipment) and the space beneath the ceiling. Obviously there are independent connections which traverse Common Property between each Lot and its own compressor with each Apartment having its own internal panels for controlling its aircon usage.
The issue to be resolved is whether repairs, maintenance and/or replacement of any plant or equipment or parts, regardless of their location or, possibly, dependent upon their location and which service each Lot independently are the responsibility of individual Owners or the Owners Corporation. There is no registered By-law which addresses or governs this situation.
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I think most state and territories have a principle that ‘utility conduits’ that service a single unit are the responsibility of that unit, even where they traverse common property. So, I would be inclined to apply that principle to the air conditioners. You could probably make an argument that the pipes and system that circulates refrigerant fluid into each unit is providing a utility service (heating or cooling).
Where I am, we added a general rule (ACT-speak for bylaw) to make explicit and beyond doubt that anything that services an individual unit is that unit’s responsibility to repair and maintain, even if it is on common property, with or without permission to be there.
S108 of the NSW legislation includes a paragraph:
(4) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
It is also possible that the owners corporation could decide (by special resolution) not to maintain the property and remove it instead!
The best option would be to create by-laws authorising the existing arrangement in retrospect and, as part of that process, obtaining from each owner a commitment to maintain their own equipment. This becomes difficult if the existing owners did not install the equipment and purchased the lot with an assumption that equipment on the common property (and not mentioned in a by-law) was Owners Corporation equipment and therefore maintained by the OC.
This becomes difficult if the existing owners did not install the equipment and purchased the lot with an assumption that equipment on the common property (and not mentioned in a by-law) was Owners Corporation equipment and therefore maintained by the OC.
I recall a case from several years ago where a cafe sat under a pergola that needed to be repaired. The cafe owner said it was OC’s responsibility, as it had been installed without a by-law, and the OC said it was the cafe owners’. Using the regulations quoted above, a tribunal ruled the pergola belonged to the OC. Within a couple of days the OC arranged for the pergola to be removed. Cafe owner hoist on their own petard, methinks.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
My building has two apartments with existing aircon units attached illegally to common property, two owners who said they would “never” want to install one and two owners who asked permission to install them with the external unit on the roof. We decided to develop a by-law specifying the precise location where each lot could install its external unit. These locations matched the location of the two existing (illegal) units, nominated locations for the “never” units (with their input) and covered off the roof requests. It also covered ongoing maintenance, required materials and construction, hours and other conditions for tradespeople working, replacement units, damage to other lots, right to Committee to inspect work etc. Effectively it gives all lots permission to install aircon without having to seek permission – all they have to do is provide documents to the SM to check.
Effectively it gives all lots permission to install aircon without having to seek permission – all they have to do is provide documents to the SM to check.
Smart thinking! Presumably it also includes a requirement for the air-con owners to be responsible for their ongoing maintenance.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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