Our QLD readers are wondering about the installation of air conditioner units on balconies or external walls in body corporate buildings. What approvals are required and can the body corporate control the maintenance of your air conditioning unit?
Table of Contents:
- QUESTION: A lot owner installed a ducted air conditioning system in their unit without approval. We have not been able to resolve the matter. What happens now?
- QUESTION: We purchased a unit in 2015 with an installed air conditioning unit. The body corporate has informed us that the installation of the air conditioner is not compliant and they have instructed us to replace the system. Is this a reasonable request?
- QUESTION: A lot owner had approval from the committee to install two air conditioners. On installation, the units were placed in different locations to the submitted application. What can the committee do?
- QUESTION: Can the body corporate request that lot owners have their air conditioning unit serviced each year and require proof that this has happened? We just had an a/c unit catch fire on a balcony and it caused quite a bit of damage and of course is a safety concern for other owners.
- QUESTION: Some lot owners are seeking approval to install split system air conditioning on their external walls. What should the Committee be considering when making the decision?
- QUESTION: Is there legislation which requires owners to cage their air conditioning units on balconies? Our Strata Manager has instructed us to have this done at our cost.
- QUESTION: The body corporate has introduced a by-law which makes it almost impossible to install air conditioning units on balconies. How can we get around the unreasonable by-law?
Question: A lot owner installed a ducted air conditioning system in their unit without approval. We have not been able to resolve the matter. What happens now?
A lot owner installed a ducted air conditioning system in a top floor unit of a 3 storey without approval and without anyone’s knowledge. The condenser is in the garden, the wires run up the wall to the roof and the ducting is in the roof cavity. These 3 areas are all common property. The system is approximately $7000 without installation. The building was built in the 80s, there are no firewalls in the roof cavity.
An owner recently stayed at his ground floor unit and discovered the condenser hidden behind a bush on the wall under his window.
The lot owner who installed the air conditioning is the Chairman and is difficult to deal with. Other lots have air conditioning, but all condensers are on the balconies within the lot.
We have spoken with the strata manager and the chairman, but to no avail. They do not respond to enquiries on this topic. The air conditioning has not been disclosed to our strata insurer. What can we do?
Answer: The Office of the Commissioner for Body Corporate and Community Management provides a dispute resolution service.
Assuming the Body Corporate is classified as a Building Format Plan, there are a number of items that need to be considered with this matter:
- Although the air conditioner services one lot, the associated condenser and wiring have been installed on common property, therefore this would be considered an improvement to common property.
- An improvement to common property must be approved by the committee, however, if the cost exceeds $3,000 it must be approved by ordinary resolution at a general meeting.
- An improvement must not detract from the appearance of a lot.
- If an improvement increases the body corporate’s insurance premium, the benefitted lot owner may be required to contribute additional funds to the premium.
Unfortunately, it appears that due process was not followed and the appropriate approvals were not granted prior to the installation going ahead.
The Office of the Commissioner for Body Corporate and Community Management provides a dispute resolution service. It is always recommended that parties to a dispute make an effort to try and resolve this prior to taking further action. If self resolution has occurred and you are not receiving a response (as you have indicated), the next step would be to apply for conciliation through the Office of the Commissioner for Body Corporate and Community Management.
As part of this application, you will be required to provide evidence of self resolution, e.g., the emails you have sent the Strata Manager and Chairperson. The conciliation will involve an independent conciliator appointed by the Office of the Commissioner for Body Corporate and Community Management facilitating a meeting between the parties to the dispute in an effort to come to a positive outcome.
Application forms can be found on their website to start this process, but it may be worthwhile advising your Strata Manager that you are taking this step in one last attempt to receive a response.
Jessica Beckett
SSKB
E: [email protected]
P: 07 5504 2000
This post appears in Strata News #605.
Question: We purchased a unit in 2015 with an installed air conditioning unit. The body corporate has informed us that the installation of the air conditioner is not compliant and they have instructed us to replace the system. Is this a reasonable request?
Answer: When you purchase the unit, you become responsible for all aspects of it.
It will probably depend on why the air-conditioner has been deemed non-compliant and what evidence has been provided for this. If the air conditioner is hazardous in some way – perhaps because it is a fire risk or if it is placed on the balcony in such a way as to allow people to climb on it and then over the edge – it may need to be removed or moved. However, if it is non-compliant because an application for its installation has never been completed, the body corporate would still be within its rights to request removal, but there may be more leeway for negotiation.
It’s important to note that when you purchase the unit, you become responsible for all aspects of it. So while the air-conditioner may have been installed by a previous owner, as the current owner, you are responsible for it.
As a next step, you might contact your body corporate manager or committee to ask for an explanation of why they believe the unit is non-compliant. You can also look through the historical records of the site to see if an application to approve the unit was ever completed.
If you disagree with the body corporate’s position then that is OK. You should write to them stating this and giving specific reasons – particularly reasons that address issues they have raised – and support these reasons with any evidence you may have.
William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924
This post appears in Strata News #558.
Question: A lot owner had approval from the committee to install two air conditioners. On installation, the units were placed in different locations to the submitted application. What can the committee do?
An owner had 2 air conditioners approved at an AGM but contractors didn’t install them based on information and pictures submitted. The inside unit was installed on a shared wall which wasn’t approved. Only one inside unit and one condenser was installed as per committee approval. What does the committee do in regard to this?
Answer: Check the minutes to verify just what approval was given.
Firstly, check the minutes to verify just what approval was given. Was the motion worded ambiguously, for example, and might lead the owner to think they could install the way they have?
Assuming no to the above, then the committee should be notifying the owner the installation is not what is approved and requiring rectification to what was approved, as the committee is obliged to carry out the decisions made at an AGM. The owner may have to seek retrospective approval for what they’ve installed.
Ultimately if the installation is not rectified to what was approved at the AGM (e.g., the owner refuses to rectify), then the body corporate can commence dispute resolution proceedings against the owner in my former Office. The committee might want to also seek legal advice about its options in this matter.
You might also want to have a look at the very recent webinar we did about air-conditioner installation
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #502.
Question: Can the body corporate request that lot owners have their air conditioning unit serviced each year and require proof that this has happened? We just had an a/c unit catch fire on a balcony and it caused quite a bit of damage and of course is a safety concern for other owners.
Answer: A body corporate would not usually be able to enforce that an owner be regularly servicing an A/C unit to prevent a fire within the building.
If in this instance we are talking about an air-conditioning unit that is for the sole use of one lot (e.g. a split system) then the maintenance, upkeep and any other facet of running is the sole responsibility of the owner of the lot. In QLD a building format plan will have various utility infrastructure traversing lots and common properties, often through the walls, roof and floors. A utility such as air-conditioning even if the system is on common property, is up to the owner of the lot to maintain if it is for their sole use only.
A body corporate would not usually be able to enforce that an owner be regularly servicing an A/C unit to prevent a fire within the building. Similarly they do not enforce that the lint filter in a dryer be regularly cleaned and changed at the risk of a fire starting within a unit.
The building should have appropriate fire safety installations and an evacuation plan (reviewed annually) in place to ensure that in the event of a fire starting from any source, occupants can evacuate and the building can be preserved with fire fighting equipment.
Whilst we are not lawyers, should a fire result from an individual lot owner’s lack of maintenance the usual course of action would be that the Body Corporate Insurer would chase the lot owner’s insurer for any damages to common property.
Dakota Panetta
Solutions in Engineering
E: [email protected]
P: 1300 136 036
This post appears in the May 2021 edition of The QLD Strata Magazine.
Question: Some lot owners are seeking approval to install split system air conditioning on their external walls. What should the Committee be considering when making the decision?
Part of our complex comprises two apartment blocks each of three stories with basement car parks. Each apartment has split system air conditioning installed as part of the initial construction. Some owners have sought approval to install additional split system air conditioning to better serve rooms not adequately served by the existing, original system.
The new air con units proposed will need to be attached to the external walls of the building as there are no alternative locations. This raises a number of questions.
First, holes will need to be cut through the external walls for plumbing and electrical services for the new air conditioning units. Even assuming diligent attempts to properly reseal the walls our Committee is concerned about the possibility of water penetration into the building. Can we ask for an applicant wanting to do this work to indemnify the Body Corporate? How enforceable would such an indemnity be? Could we jeopardise our insurance cover?
Second, the Committee is concerned about the effect of potentially numerous air conditioning units being installed on the facade where previously there were none. We have considered requiring the systems to be covered but concerns over the change to the external appearance of the building remain. Is that element of our dilemma, involving essentially a change to Common Property, one that can only be resolved by resolution at an AGM?
Third, if the maximum existing capacity of the electricity supply to the building was reached but further applications were received to install additional air conditioners, who would have to pay for the upgrade to meet the additional demand for electricity, the applicants or the Body Corporate? Or could the Body Corporate simply say, “too bad, you’ve missed the boat. No more extra air con!”
Our Committee discussions seem to be going in circles over this. Can you give us a circuit breaker?
Answer: Section 164 of the Standard Module deals with improvements to common property by an owner and this section sets out the approval requirements.
Perhaps the reason the committee is going around in circles on this is because you’ve posed a very detailed set of queries traversing several legislative issues. If you want an equally detailed answer and one which addresses these specific concerns you will need to seek legal advice. For now, you should be aware that section 164: Improvements to common property by an owner of a lot—Act of the Standard Module deals with improvements to common property by an owner and this section sets out the approval requirements – committee can approve depending on circumstances – as well as the obligations on the owner.
In relation to insurance, you might want to also take a look at section 183: Improvements affecting premium of the Standard Module, dealing with improvements and their impact on premiums. Queries about your overall insurance cover should be directed to your broker.
Finally and probably most importantly, bodies corporate have a legislated obligation to act reasonably. ‘Acting reasonably’ is always dependent on the particular circumstances at play. ‘Too bad, you’ve missed the boat. No more extra air con!’ is, to be frank, not acting reasonably. Each instance must be deal with on a case-by-case basis.
I can sense your frustration on this issue, although I can’t tell if it is from the perspective of an owner wanting to install, another owner watching on with irritation or a committee member being unsure of what to do. If it is the latter, then the committee cannot indefinitely discuss, workshop, muse or defer this matter. At some point they need to make an informed decision through the proper body corporate decision-making processes. If you happen to be a frustrated owner then you may have already reached the point where the lack of a decision on this matter warrants seeking out dispute resolution options. Moreover, it’s going to be summer in a few short months and a Queensland summer without air-conditioning doesn’t bear thinking about, so now is the time to do something.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #353.
Question: Is there legislation which requires owners to cage their air conditioning units on balconies? Our Strata Manager has instructed us to have this done at our cost.
Is there legislation which requires owners to cage their air conditioning units on balconies?
We are being told from the Strata manager that we are going to have to pay roughly $2000 to have covers put around our air conditioners on balconies because they are climb hazards for children. But we have chairs that would be easily moved around to access the same height anyway.
The strata manager sent us an industry alert (from the Victorian Building Authority – which we thought was strange) and now says that we must all cage our air conditioners as a part of upcoming balustrade repairs.
Answer: If it is considered a hazard, section 167 of the Act (and probably the by-laws) would require it to be dealt with.
There might be some building standards that require covers around air conditioning units on balconies (which I am not familiar with) but from a purely body corporate perspective, if the committee included that as a condition of their approval of the air conditioner or it was required to avoid a hazard under section 167 then the extra work would be required.
I would suggest putting it back on the committee and requesting details of where the obligation arises. If it is considered a hazard, section 167 of the Act (and probably the by-laws) would require it to be dealt with.
Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #243.
Question: The body corporate has introduced a by-law which makes it almost impossible to install air conditioning units on balconies. How can we get around the unreasonable by-law?
I am a resident manager in Qld. The Body corporate committee has bylaws which make it difficult to replace old air conditioning units on balconies.
Please see the relevant Bylaw:
The air conditioning equipment is to be installed in accordance with the specifications and conditions set down by the Committee from time to time, which may include (without limitation):
that any external air conditioning plant be placed on the balcony or courtyard of the lot as close as reasonably practicable to the wall separating the interior of the lot from the balcony or courtyard and in any event at least 900mm from any balustrade of the balcony or courtyard of the lot;
Our balconies are small and the only place 900mm from the balcony rail is a position that restricts the view and is partially blocking a sliding door. Also, this relocation means extra cost in installing a pump for drainage.
I have owners upset with this. How can we get around this bylaw?
Answer: The clause is only a suggested condition and does not have to always be imposed.
That clause is only a suggested condition for the committee and does not have to be imposed each and every time.
What I would suggest is that an owner who wants to seek approval under the by-law does so with additional detail around why the committee should depart from the suggested condition.
The committee can then consider the request and make a decision. If the decision is unreasonable (i.e. it imposes the condition without a good reason) that decision can then be challenged.
This post appears in Strata News #185.
Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500
Have a question about installing air conditioning units on balconies or external walls or something to add to the article? Leave a comment below.
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A new Owner has just purchased the top 2nd floor unit in our building and is requesting to make changes to common property:
(a) move the 2 air conditioning units currently on his balcony onto common property to make more useable space and tidy-up his balcony. He wants to locate both condensor/motors on brackets in the space under his main bedroom which sits directly above the Lot Owner’s main bedroom windows below. These would hang above the driveway and garage doors.
(b) requesting to install a brand-new air conditioner to 2nd bedroom on the other side of the building – placing the condenser/motor on brackets under that bedroom window and again sits directly above the Lot Owner’s bedroom window below. This new a/c motor would hang above the main common walkway to stairwells, front-doors and laundry doors.
Currently the Committee has approved all air conditioning to be located on Lot balconies. Previously a different Lot requested to install a window box air conditioner on 2nd floor over the common walkway was rejected.
I am the Lot Owner directly below where the new Owner wants to locate the 3 air conditioning motors on common property above both of my bedrooms. I am also on the Committee, hence I was aware of this request. After much research and discussion with other Committee member with regards to the location on common property, noise factors to other lot owners, safety issues, looking at this request holistically in the interests of the whole building, etc. It was decided to reject his request, with a thorough response detailing our reasons, and suggesting that all a/c motors remain on his balcony.
He has responded saying he does not necessarily agree with our reasons about location and noise concerns (new a/c’s aren’t noisy?) and that the 2nd bedroom a/c is an absolute requirement due to his brother having a medical condition and that to reconsider our decision. He said the motor for this bedroom cannot be located on the balcony and suggested installing this motor on the rear of the building? This would just impact 2 other Lot Owners/also sitting near their bedroom windows.
Taking all of this into consideration, we are thinking that the best way forward is to approve he can install the a/c motor for 2nd bedroom on the roof. (We do not want to approve the 2 motors off the balcony onto the roof).
What things do we need to ensure we cover in our response of installation and responsibilities? Plus how does this decision impact future decisions for other Lot Owners who then say they also want to put motors on the roof? We will probably need to get a new roof in the next several years (built in 1981) so who is responsible for removal and reinstallation of any a/c units on the roof when we do get a new roof installed?
Why should the Body Corporate pay for the extra work/trades that this will entail when that time comes?
Hi Linda
We are unable to assist with specific queries. We suggest you seek legal advice.
Thanks
Re Ducted AC installed by unit owner with condensor, piping and ducting on common property…#605 on 21st Sep 2022.
This is just one of the many areas of our strata law where I see one set of laws (eg improvements to common property by an owner for an owner) saying one thing, and another set (eg statutory easements) saying something else.
For example…Air con is a utility service, and the equipment is utility infrastructure (Act Schedule 6 -Dictionary). The BCCM Act (ss-67-68),and ss.115O-115P of the Land Titles Act 1994, seem to create something called a statutory easement in favour of an owner – against either another owner or the body corporate – which allows an owner to install ac wherever they like, as long as it does unreasonably prevent or interfere with the others use and enjoyment, and they do not need consent from either the other owner or the body corporate.
Is there any strata lawyer out there who can explain how to reconcile what seems to be irreconcilable contradictions like this.
When the air conditioner unit has been installed on the external wall of the common property after approval by the committee, does the owner need any other approval by the body corporate at a general meeting because it in on the common property.
The VBA document is a good summary of the risk of children climbing and then going over the top of the barrier (balustrade). This hazard is similar to that currently enforced for swimming pool fences. I understand there are many existing installations of aircon condensers or planter boxes that would not be compliant, hence the resistance. As to furniture its best practice currently carried out to tether outdoor furniture or otherwise fix so they cant be moved close to the balustrade. I would think the simplest solution is to mount the condensor above the height of the balustrade (off a side wall of the balcony). This is more expensive to do and involves additional safety practices for the installers, which is why it hasnt been generally adopted in the past.
An owner has installed his air conditioning compressor and piping on common property without authority. Is there any circumstances where a Qld Body Corporate can be held to be responsible for those unauthorised installations eg repair, maintenance
REGISTER OF AUTHORISATIONS: Regarding the installation of an aircon by an owner on common property for the benefit of the owner. Once approval is given, bodies corporate are required under s.197 of the Accommodation Module (or s.199 of the Standard Module). to record these authorisations, along with details of the conditions, in an Authorisations Register. Few do. Establishing and maintaining ‘corporate memory’ systems is not a strong suit for most bodies corporate, who tend to live for the moment.
We are a 2 storey Apartment block. The Gold Coast City Council have specific day and night noise level requirements. The Body Corp requires that all Owners apply to the B/Corp Committee for approval of their individual A/c. There are 1,2,and 3bedroom Apartments. How does the Body Corp carry out these individual approvals?
Hi Anthony
The following response has been provided by Chris Irons, Hynes Legal:
We need to be clear what you are referring to here. The usual way of things is that the committee would have power to approve installation of the air-conditioner. The committee must act reasonably and acting reasonably varies from case to case. The committee needs to consider things such as what work might be needed to install and what impact it has on common property. Does the installation also mean needing access to another lot? Will it cause noise for a period of time?
The committee can’t unreasonably withhold approval. Again, that varies from case to case but might mean, for example, that the committee refuses on the grounds that it ‘doesn’t look nice’.
If you’re an owner seeking to install you’d make the request in writing and with some information such as plans or a description of the work – in other words, enough information to enable a reasonable decision to be made.
Question. Replacement of underground car park gate? Common area. Should we seek Body Corporate approval if the design/look change considerably? Open mesh style has been requested? I am concerned if open restricts privacy – airflow – birds flying in and nesting? Other is colour of gate. Should all this need BC or just committee?
Thanks
Hi Ron
This response from Frank Higginson:
If you are ‘improving’ something you need general meeting approval. To me, those changes are of a nature to constitute an improvement.
What if it is below the ordinary resolution improvement range?
Don’t replace, repair the external unit is only a part get a new one and shortly after attend to the interior part.
Air conditioning can cause many problems and some of these problems are cause by a/c contractors trying to take the easy way out for the installation. In the complex of town houses in which I reside we have a by-law that stipulates that a/c units must be mounted at the back of the town house so it is not viewable from the street and only at floor level. On many occasions the A/c contractor tried to avoid this requirement but fortunately the caretaker/manager was technically minded and showed how the installation could be done. The body corporate did go to the conmissioner on one occasion and did win the case although because the A/c had already been installed the owner was advised to build a trellis around the a/c unit to cover I in such a way that the view from the street was acceptable-all installations requested now are monitored to such an extent that installers have been advised on Occassion to change their Neto’s of installation to meet by-law requirements including painting any conduit to match the colour of the building. We also check to ensure any damage to sarking is repaired