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I am seeking your advise on a matter which has arisen since I bought an apartment a few years ago.
Recently, I received a letter from Strata asking me to remove an air conditioning unit which was installed by the previous owners who did not seek permission from Strata.
According to the by-laws of the strata plan, the out- door component should be sitting on the floor of the balcony. However, this is not the case with the air conditioning unit as the out-door component is currently affixed to the wall out on the balcony.
Another point to note is that the Contract of Sale does not specify the air conditioning unit being included as part of the fixtures of the apartment.
From my point of view, this issue should have been identified the moment the air conditioning unit was put up had Strata had been doing their monthly routine inspection properly.
I am wondering if I am liable for the costs of removing the air conditioning unit as I am now the current owner.
Also, is there any legislation or Strata Management Act that I can refer to and which I can use in my argument against having to bear the costs of removing the air conditioning unit?
Thanking you in advance
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If you had an inspection done prior to your purchase I would be going back to whoever did the strata inspection and ask why they did not advise you of this unapproved alteration to the common property attached to your lot.
If your strata inspector asked the question and was told there were none then the SM would be at fault and I would refuse to do anything for the time being on that basis alone.
If your strata inspector didn't ask the question I would want to know why.
The other thing to consider is that the AC unit is now part of the common property even if not approved by the Owners. As such there are various processes applicable to CP changes which are contained within the Act.
Quite simply, if the Owners Corporation has failed to remedy an unauthorised use of common property and the unit has subsequently been sold, then they and not the new owner “own” the problem.
This is a reflection on why OCs need to be on top of all unauthorised use of common property at all times.
If the EC want the aircon unit moved, then they have to pay for it. It’s that simple. This issue has already been discussed extensively here.
Good luck with it.
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.
Thanks Jimmy and as you said in one of your blogs 'a wake up call to OC's'.
In Makinson's case he should suffer no loss in his lot value as the AC unit should be relocated, and rightly so, at the OC's cost. However there is still the option open to remove if 75% of OC agrees.
I have great sympathy for owners who have bought into lots thinking they are getting something when they are not simply because an unauthorised addtion wasn't picked up in the pre purchase inspection.
I am aware of instances where very expensive unauthorised additions have been made to CP attached to lots, the lots have been sold without disclosure either by the seller or the OC, and the new owners think this part of the lot is CP and therefore will be looked after by the OC.
In these instances the new owners are vulnerable to the whims of the OC especially if the OC decides not to repair or worse to remove the unauthorised addition which it is entitled to do through special resolution.
When a plan, through loss of control of its CP, condones, through inaction, unauthorised additions to CP then financial pain for all owners either through the need to repair, replace or remove these additions will sooner or later come back to bite.
The solutions is for OC'c, through their EC's, to continually monitor its property, conduct regular inspections and be firm with owners who make unauthorised changes. On the other hand OC's must be flexible and recognise that all owners at some time will want to do some alterations. They must therefore have processes in place to encourage lot owners to apply for changes and above all not be unreasonable with requests. its a two way street.
Final point – Clover Moore's draft Strata legislation amendment bill if it ever gets reintroduced includes:
Schedule 1 [7]
amends section 98 of the Principal Act to require certain additional matters to be recorded on the strata roll for a strata scheme. Those matters are licences granted by the owners corporation for use of the common property, plans and approvals for building work to the common property, details of loans to the owners corporation and copies of special resolutions passed to allow additions and alterations to the common property or the erection of new structures on the common property.
If passed that would put the ball well and truely in the OC's court.
It's not spelled out in the Act but it has been a recent Supreme Court interpretation of the Owners Corporation's legal responsibility to maintain common property regardless of how, why or by whom it has been altered or damaged.
I'll try to find the case if I can but I'm assured that this is the case.
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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