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Hi everyone
We live in a block of 70 units built in the 80s. We have the outlets for ducted aircon in our apartment but it does not work. Owners are encouraged by the SC to install split systems . We have been told untruths re the aircon. We suspect it was allowed to deteriorate and was an expensive item to run and repair so was just turned off. This leaves our foyer unbearable in the heat. We also have rooms that we cannot cool as there is no option for split systems. We feel frustrated that the infrastructure is there in the building for ducted aircon and we cannot use it. Can anyone give me advice as to our rights in regards to this issue. I doubt greatly that there was a vote or by law or motion in regards to the aircon our committee have been in for decades and do what ever they want without notification.
many thanks
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Here is an ACT example of a Tribunal decision on a similar subject:
https://acat.act.gov.au/decisions/bennett-v-owners-unit-plan
The OC was ordered to repair the ducted system.
Assuming similarity with the ACT strata legislation, I would expect that a decision to not maintain an aspect of common property would require a higher grade resolution of a general meeting, eg. a ‘special resolution’. In the ACT that means a majority in favour and fewer than a third opposed of those taking part in the meeting. In NSW, I believe it is fewer than a quarter opposed.
So, your OC would have the means to properly decide that it is not worthwhile to maintain the building’s ducted air-conditioning system and it might also decide on some more practical alternative(s) (eg. better insulation, shading of the foyer windows, ventilation, a newer, cheaper-to-run stand-alone air-con system for the foyer and/or efficient lighting to add less heat load). It is not a decision the strata committee can make on its own. However, the committee should develop a proposal/recommendation and present that to a general meeting.
In the absence of any official decision, by special resolution, not to maintain and repair the ducted air-con, the owners corp has a legal obligation to do so. If they refuse or fail to respond to a request within two months, you can take them to the tribunal Under Section 232 (2) of the Act (below) and request orders compelling them to do so.
Lack of funds is not an excuse, neither is the fact that other people have installed split systems.
So here is what you need to do.
1. Write a letter asking the owners corporation to fix the air-con under its legal responsibility to maintain and repair common property. Explain that failure to do so will lead to action at NCAT seeking orders under Section 232.
2. If they say there’s no money in the sinking fund to do this, explain that’s irrelevant and anyway it’s a consequence of poor budgetting and “saving money” in the past.
3. When they try to scare you off with a special levy, point them in the direction of our sponsors Lannock Finance (see top of this page) will arrange a loan that can be paid off over several years.
4. If they haven’t started the process of getting this done with any serious intent withing two months, start your action at NCAT.
Here’s an extract from section 232.
232 Orders to settle disputes or rectify complaints
(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:
….
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme …(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.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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