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.
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I get excessive heat from a new replacement air conditioner which services a unit 2 levels below where I am. The unit is in a presumably common are where the garbage shute is. The new conditioner is quieter but larger and the heat from it during summer makes my balcony unusable and also the adjoining bedroom.
Hi Mary,
It sounds like you would have a case to argue that the owner of the other unit is using common property in a way which unreasonably interferes with the use and enjoyment of your lot, in breach of section 167 of the act. I recommend that you write to both the other owner and the body corporate about the issue, and attempt to find a resolution. If that does not work, then the next step is to make a dispute resolution application to the Commissioner’s office.
The committee said as it was in place when I bought they were not interested! Actually it WAS NOT there wnen I bought 11 years ago.
12 months ago we purchased a unit which is located in a resort. It is a stand alone unit as are all of the others within in the complex. We have 2 airconditioners for our unit which have suffered severe rust on the externals of the ac due to wind rain and we assume salt from the ocean. As our unit is still classified as a resort unit would replacement of the aircon unit be our responsibility?
Hi Trevor,
The classification of the unit as resort or otherwise is not relevant to the obligation to repair or replace the air conditioner. It is not possible to give a definitive answer without reviewing the survey plans and obtaining some other details, however based on the information which you have provided, it seems more than likely that replacement of the air conditioner will be your responsibility.
Our air conditioning condenser is on the roof above my unit as this was the only place to put it. Now the roof anchor points have not been maintained and not been certified for over three years. My air conditioning contractor will not go up on the roof to service the air conditioner or do any maintenance work around the tape of the pipe and dektite. How am I to address this?
Hi Cass,
This is something that you need to write to the body corporate about and try to get the committee to have the anchor points certified. If they do not respond appropriately, then a dispute resolution application to the Commissioner’s Office may be appropriate.