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19/12/2013 at 9:57 am #9272
One of a very clever unit owners has made a claim that the strata is responsible for the maintenance of his air conditioner. He complained to the strata manager who sent a technician and concluded the air con compressor is leaking. There is no record whatsoever that the aircon was fitted by the builder or upgraded by another owner in the past 12 years. Why? since there are no special by laws. If he gets this I am going to ask the strata to replace my dishwasher, oven, toilet seat, light fittings, taps, wardrobe doors, door knobs and latches, flyscreens because they don’t work. These were all supplied by the builder..
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19/12/2013 at 12:41 pm #20477
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.
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.
20/12/2013 at 12:19 pm #20478Well I have my aircon lined up as well. I am quite uncertain as to how this constitutes Common Property. Yes the outdoor unit was installed on CP but it is for the benefit of that owner only. Why are dishwashers, light fittings, etc not included in common property.
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.
21/12/2013 at 2:09 pm #20479@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.
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.
22/12/2013 at 10:26 pm #20484The 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.
23/12/2013 at 7:28 am #20486@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.
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.
23/12/2013 at 9:30 am #20488@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.In NSW I consider approving a motion to install anything on common property without a bylaw defineing who maintains the item a potential nightmare for the OC.
If the OC or EC just passes a motion approveing this it appears to me that they (the OC) are accepting reasponsibility for the ongoing repair and maintenance of the item because they have not demanded a bylaw clarifing that the lot owner should accept the reasponsibility.
So how many Strata in NSW have approved one of these motions in the past not realiseing the potential ongoing consequences of this seemingless innocuous decision
12/01/2014 at 3:25 pm #20631Unbelievably, 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?
13/01/2014 at 11:23 am #20636braveheart said: 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?
NO not entirely, but rather only if there’s no Special By-Law (SBL) already in place that enables consent by the Executive Committee to such works, so you need to check that.
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.
So if there’s no relevant SBL, you need to formally advise your O/C (Secretary) and copy your Strata Manager if you have one about the circumstances, and about the fact that the works recently undertaken are in breach of Sect 65(A) of the NSW Strata Schemes Management Act (1996).
That Section makes what then needs to be undertaken fairly clear, but in summary the Owner of the offending works must either reimburse the O/C’s costs to restore the Common Property to its original state (i.e. minus the air conditioning components) units), or seek the O/C’s retrospective consent to those works by way of a Special Resolution taken at a General Meeting, where ≥75% of those in attendance need to (poll) vote in favour in order to grant that consent with or without conditions such as noise levels and screening of the outdoor unit, and to the drafting and registration of a SBL with those and other conditions such as, and with the Lot Owner’s written consent, making the maintenance, repair, and replacement of the air-conditioning system the responsibility of that Owner and all future Owners of the Unit concerned.
Unless the O/C is of the opinion that the above SBL would be of benefit to all Owners, such as where others may in future seek consent for similar works, then it is customary for the Owner of the presently un-consented works to also reimburse the O/C’s costs for the drafting and registration, and for convening the General Meeting.
So get moving with your investigations and if necessary advice to the Secretary and Strata Manager, and as the Owner concerned is an E/C Member note that retrospective consent in the absence of an existing SBL is not something that the E/C can itself do.
13/01/2014 at 12:40 pm #20637@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.
13/01/2014 at 1:07 pm #20638Whether an O/C would be responsible for the proper maintenance of the entirety of works undertaken on and attached to its Common Property or only to that property as it was in its as-built form is a moot point.
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.
13/01/2014 at 3:13 pm #20641@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.
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.
13/01/2014 at 5:48 pm #20642Many thanks Whale, kiwipaul, and Jimmy T for your considered and prompt advice. I have done as you suggest and passed all of your excellent advice on to our Secretary who will inform our Strata Manager. With regard to Whale’s query about a possible SBL enabling consent by the EC to such works, no, there is no SBL as you describe in place. (Although I’m just now wondering what implications, if any, Section 65A of the SSMA 1996 might have?).
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s65a.html
We’ll see how the cookie crumbles as due process unfolds.
It all goes to show what complications and time-consuming trouble can be avoided if people just read their by-laws and abide by them. If in doubt, ask eh? How hard can that be?
Much obliged,
braveheart
29/01/2014 at 11:36 am #20787As 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
29/01/2014 at 3:17 pm #20790Gees I hate these….. but seriously though, depending upon any notations to the contrary on the Strata Title Plan for your Scheme, and/or any Special By-Laws (SBL) about air-conditioning installations, my understanding of the 1974 change is, amongst other things, that any walls separating parts of the same lot are not common property.
So in this circumstance if the balcony is part of the lot (check?) then the wall separating it from the lot’s living area is not common property, BUT you’ll note from Jimmy T’s extract from Sect 116 of the Act (post #12) that the Owner was still required to provide the O/C with a minimum 14 days notice of what works were then intended; that’s advice not a request for consent.
Nonetheless it was at that stage the O/C could have imposed conditions on the installation, but I’m afraid that’s all water under the bridge (or cool air through the vents) now, unless the Owner would at this stage agree in writing to be responsible for the maintenance and repair of the installation, including the wall, in which case the O/C could specially resolve to create and Register a SBL covering that and other aspects of the completed installation any others that may in future occur by other Owners.
As the Owner concerned is also an E/C Member they may be morally inclined to accept such a proposition; worth a try perhaps!
29/01/2014 at 5:32 pm #20793Thanks 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
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