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Topic
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Hi All
I’m writing to you for advice on a situation a friend has in regard to an air conditioning unit. When my friend first moved into her apartment she had never lived under strata governance before. Being new to the whole strata scene she contracted a company to install an air conditioning system without any approval. From what I have been told the air con unit has been installed partly on the balcony (including bolts attaching it to the wall).
Once she found out that she had violated strata conditions, she has been living in constant fear of discovery of the unit and possible consequences. As a result she’s hardly ever used the air con – even on days like today when its over 35 C for fear of someone complaining about it. She has been like this for 7-8 years now.
I’ve tried talking her into confessing to the Strata company and working out an appropriate action plan (removal of the system and payment for necessary repairs to property etc) to set the record straight, though she’s too worried about the implications of having it found.
Having lived in a house all my life I’ve never gone through the strata cycle so it’s hard for me to advise her on the right thing to do.
Would it be possible for someone to let me know what sort of penalties can be applied in a case like this
and
What the best way to approach the Strata team would be ?
Should she propose appropriate action or just wait for a ruling by the committee ?
Kind regards
Catch_22
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Replies
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Catch22 – The exterior wall on a balcony is generally a common property structure. The by-law usually goes something like this: An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the prior written approval of the owners corporation.
A couple of questions before we can try and answer your question:
Is there a By-law that deals with the issue of air conditioners and what approvals must be obtained from the owner’s corporation before installing an air conditioner?
Is there a By-law that deals with the issue of Appearance of a Lot?
Is the balcony located within the boundary of the Lot or is it a common property balcony?
Have other owners installed an air conditioner on their balcony or on their balcony wall?
It is quite common for owners to make innocent mistakes if they are unfamiliar with strata schemes. In many cases these mistakes can be remedied by sensible and reasonable owner’s corporations and approvals can be given by the owners corporation after the event has occurred.
It’s a genuine error and the way the system works in strata is that if you breach a by-law, you get a Notice To Comply (with the by-laws). You then choose whether or not to do that. Any reasonable person would do so and that is the end of it.
The only subsequent action may be if there is damage to common property and she would just pay for the repairs.
There are no StrataKops and there is no penalty for an honest mistake unless she refuses to remedy it when asked to do so.
Her only real issue is if she wants to keep the air-con and the strata committee or owners corp don’t want her to.
Personally, I would wait for someone to complain and then deal with it as amicably and efficiently as possible.
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.
To add to Jimmy T’s comment …. if things ever became ‘nasty’ (which I hope that they won’t do) then your friend can always claim that the EC, in failing to act to serve a Notice to Comply for a period of 7 to 8 years, has Acquiesced to the owner’s air conditioner.
It is difficult to believe that over a period of 7 to 8 years that someone from the EC or OC did not know that your friend had installed an air conditioner on the exterior wall.
Acquiescence refers to allowing too much time to pass since knowledge of an event which may have allowed legal recourse against another, implying that the person has waived their rights to that legal recourse. Acquiescence by the owner’s corporation for a number of years can amount to a deemed authorisation.
Silence does not mean consent or approval. Approval is an active process which has to be commenced by the person seeking approval actually asking for it. If it were otherwise, anyone living in a strata scheme could do what they like and then wait to see whether the OC objects.
Presuming this is in NSW and the balcony is common property, the works would have been undertaken when the old Act was in force, but the new Act provides at section 111 that an owner of a lot must not carry out work on common property unless they are authorised to do so.
It is not uncommon for owners to carry out works and/or install things that affect common property without approval, either by accident or design. In respect of anything that is on common property, or effectively then forms part of the common property, it is then the property of the OC, and in the absence of an exclusive use by-law the OC is responsible for it. The other element of this is that the OC can then determine to remove anything that is on or forms part of the common property.
For example, the previous owner of my apartment installed a range hood which was ducted into the ceiling. As no approval was given for that installation, and no exclusive use by-law was put in place, the part of the installation that was in the common property was the responsibility of the OC, and they could have removed that ducting at any time.
I am not sure why your friend is so worried, and after 7 or 8 years it seems a bit silly that she is not using something that is causing her so much concern. I suggest the best course of action is to lodge an application with the OC seeking retrospective approval so she can get on with her life. If no-one has raised concerns to date it is highly likely she will get approval and she will have clarity about the issue going forward.
@proudsceptic said:
To add to Jimmy T’s comment …. if things ever became ‘nasty’ (which I hope that they won’t do) then your friend can always claim that the EC, in failing to act to serve a Notice to Comply for a period of 7 to 8 years, has Acquiesced to the owner’s air conditioner.Not sure about this, PS. I have never come across “acquiescence” in strata law. But that doesn’t mean an adjudicator wouldn’t accept that.
My advice: Switch on the air con, cool down, let it go.
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.
Jimmy T and scotlandx – See below for two Tribunal Orders from QLD that refer to the principle of Acquiescence. In these instances Acquiescence on the part of the body corporate was in relation to failure of the body corporate to issue a By-law Breach Notice within a timely manner for animal by-laws, and appearance of a lot. This principle may apply across jurisdictions:
and
And from
https://hyneslegal.com.au/news/the-golden-rules-of-by-law-enforcement-nar-426
Acquiescence. Such a beautiful word. But not when it comes to by-law enforcement.
Enforcing by-laws is not an optional activity. By-laws must be enforced, and the responsibility for their enforcement lies with the committee.
It does not apply to this kind of case and both of those cases are distinguishable on their facts – in the first, the owner applied for approval and no response was given. The second involves a 17 year old cat.
As noted above, if a principle of acquiescence applied, anyone could do anything to the common property, and just say that the OC had acquiesced once a certain amount of time had elapsed. There have been a number of cases where owners have been required to remove works affecting common property where approval had not been obtained.
Under the previous Act, section 65A applied, under the current Act section 111 applies. It is not just a matter of compliance with by-laws.
Not so factually different to be rejected as a grounds for an appeal against an OC Notice to Comply. Both Orders revealed that Body Corporate knowledge of the breach and their subsequent delays in implementing Breach Notices were grounds for Acquiescence.
Granted it is yet to be tested in a NSW Tribunal perhaps but a lesson for OCs that By-laws should be enforced in a timely manner. I wouldn’t want to take the risk of this principle not being applied in the future in NSW.
It may not be the sole factor that a Tribunal may consider when making an Order but it may be part of it.
Hi Catch 22, another thing your friend should know is that if there is no Bylaw in place for the installation of the air-con she may be asked by the OC to pay for the drafting and registering of the By law which could cost around $500 depending on how much your legal fees are.
I recently had an issue with the wish to install air-con (one owner had already installed an unauthorised system without a By law being place)
My request to have a By law for the air con to cover all 6 units in the block was voted down at an EGM (with harvested proxies) without explanation from the EC. They instead voted (absurdly) for a By law to be drafted which applied only to the one offending unit.
I really think that the EC/OC did not understand what I was asking for, and seemed to think (according to their submissions) that I was trying to get the rest of the owners pay for my air conditioning!! I took the issue to NCAT and won, and much to my surprise, had a costs order awarded in my favour too. I assume that the Tribunal member assessed sensibly that to deny me the opportunity to install air conditioning was unreasonable.
Seeing as the installation of my air con was part of a legal battle I wanted to install it properly with all the appropriate approvals and also had to pay $400 for a DA with my local council. It is now installed (as of Monday) and working very well.
Please warn your friend there may be some extra costs involved, apart from the earlier purchase and installation of the air-con system. I think it will be worth it to fess up and get on with surviving the current heatwave.
Quite a few years ago an owner apparently wrote to someone asking for permission to instal an air – con which involved cutting into a window facing a balcony and installing piping on common property. The EC at the time responded with approval and a long list of requirements and it was installed. In other words the Owner installed it with neither the consideration, approval or knowledge of the relevant authority – the OC via a special resolution. I wondered what possible risk they may have and the best I could come up with is that some tradesman working on it may drop a tool onto someone on the walkway below – the balcony is partly above an entry door to the units.
I recently noticed a large drop of water landing on my head on a sunny day and often subsequently and concluded that there is some leakage from the air con. This regular dripping is also causing a patch of forming slippery mould so a real safety issue is developing.
Perhaps you should inform your strata committee of both the drip and the mould. They should follow up with the owner. Maybe the unit needs a service, or needs replacing, or has dirty filters etc.
I have done some (minor) research on the question of “acquiescence” and found this: The Owners Strata Plan No 6534 v El Khouri [2015] NSWCATCD 145 (4 December 2015)
It mentions “acquiescence” and the argument is accepted. However, as far as I know there is no concept of precedent in Tribunal cases. Each is supposed to be judged on its merit. So this is a Member in an appeal, agreeing with a Member’s decision IN THIS CASE.
So, acquiesence could be argued but it is not a lock-down certainty. For instance, if no one knew the air con was there, you could hardly argue that they accepted it.
It’s case by case and in this case, it sounds like the owner is getting worked up over nothing.
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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.
Good luck. Let us know how it all goes.
Hi Catch 2-2,
I voluntary assist in the admin of a strata scheme in the northern districts of sydney and a registered strata manger & real estate manager, and completed onsite property manager course.
As the unit is already fitted to exterior wall of the building without strata body corp consent they may object. Or request it be remove if they consider it is not adding value to their strata building.
I would suggest you friend read a strata guide from the local library as to starta living requirements, bylaws etc. All areas which are not contained within the unit lot entitlement are regarded as strata scheme, owned by all the major stake holders in joint.
I suggest a letter to the chairman advising as to why the air con was installed, about hot weather or some evidence of medical condition. They may allow it to remain, But it is up there body corp members.
Yours Sincerely, Digby
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