AIR CONDITIONERS – WHOSE RESPONSIBILITY ARE THEY? – Smart Strata | Body Corporate Management
AIR CONDITIONERS – WHOSE RESPONSIBILITY ARE THEY?
In our warm, Queensland climate, it is very common for air conditioners to be installed in community titles schemes. Some will have been installed as part of the original building design and construction. Others are “retrofitted” to existing buildings by individual owners as an improvement to their property. Air conditioning equipment can be the source of some dispute and disharmony in a community title context, particularly because the condenser unit, which is often the largest and noisiest part of the system, needs to be located outside the unit or townhouse which it services, and frequently on common property.
This article does not address issues of noise and nuisance from air conditioning equipment. That topic has been usefully addressed in earlier articles, such as this one Noisy Air Conditioners: Bypassing By-Laws. Instead, this article considers maintenance and replacement responsibilities.
The answer to the question of who is responsible for maintenance and replacement of air conditioning equipment will usually depend on the following:
- where the equipment is located – is it partly on common property?
- who it services – does it service only one lot, or multiple lots?
Maintenance
If an air condition system only services one lot then, regardless of whether it is wholly within the lot or partly on common property, it will be the relevant lot owner’s responsibility to keep it in good order and condition.
If the system services more than one lot, then it will form part of the utility infrastructure and common property of the scheme (no matter where it is located), and it is the body corporate’s responsibility to maintain it in good condition.
Replacement
This is where things can get more complicated. The body corporate legislation does not expressly deal with replacement. It is arguable that replacing an air conditioner is in fact part of “maintenance” since it may be necessary in order to maintain the service. Replacement would then follow the rules outlined above. That argument becomes more difficult to make if the entire system is being replaced with a new one.
If the system is wholly within a lot (for example, the head unit is inside, and the condenser is on a balcony which is part of the lot) then it will be up to the owner to replace the system when required. It is not a body corporate issue.
If the system is partly on the lot and partly on common property, and it services only one lot, then the first thing to do is to check whether the terms of the approval to install the system on common property make the owner responsible for replacement. If not, then the system is likely to form part of the common property. Whilst the body corporate can replace it, it is not obliged to do so. The body corporate should consider what is reasonable in the circumstances. If the owner installed the system originally, then it may be reasonable for the body corporate to refuse to replace it, leaving it to the owner to do so. If the system was part of the original construction of the building, then there is a stronger argument that the body corporate should replace it.
If the system is partly on common property and services more than one lot, then the argument in favour of the body corporate replacing the system becomes much stronger.
Dealing with air conditioners is often not as easy as one might think. Much will depend on the type of system, location and some history. Committees should carefully consider each request and seek appropriate professional advice.
Article Contributed by Nigel Hales, Partner at Miller Harris Lawyers.