Question: Our air conditioner’s pipework passes through a common wall. The air conditioner only services this unit. Water has entered the unit via the air conditioner’s pipework and damaged some of the internal linings. Who is responsible for the repairs? Is it the unit owner or the owners corporation?
Answer: Firstly, this will depend on the insurance cover chosen by the owners corporation.
Who owns the pipe?
Under the Strata Schemes Development Act 2015 No 51 [NSW] the following definitions apply:
- common property, in relation to a strata scheme or a proposed strata scheme, means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot).
- lot, in relation to a strata scheme, means one or more cubic spaces shown as a lot on a floor plan relating to the scheme but does not include any common infrastructure unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot.
- common infrastructure means
- the cubic space occupied by a vertical structural member of a building, other than a wall, or
- the pipes, wires, cables or ducts that are not for the exclusive benefit of one lot and are—
- in a building in relation to which a plan for registration as a strata plan was lodged with the Registrar-General before 1 March 1986, or
- otherwise—in a building or in a part of a parcel that is not a building, or
- the cubic space enclosed by a structure enclosing pipes, wires, cables or ducts referred to in paragraph (b).
As the pipes are for the air conditioner and the air conditioner is ‘exclusive use’, providing the building does not pre-date 1986, the pipes belong to the lot owner.
Who is responsible for the internal repairs?
Firstly, I assume the lot is not one of two in a two lot scheme and the rights under the Strata Schemes Management Act section 160 (4) have not been implemented.
In this case, the first part of the who is responsible for the repairs will depend on the insurance cover chosen by the owners corporation.
There are insurance policies that, while they will not respond to the cause of the leak, may respond to the resultant damage (in this case, the internal damages). There are also policies that will not respond unless there has been an ‘event’ that caused the leaking.
Therefore, your first port of call might be the insurance policy chosen by the owners corporation. If the cover is granted, the leak ‘via the pipework’ will be subject to point 1, and the resultant damage will be the insurer’s responsibility.
Secondly, if we assume the insurance chosen is one that will not respond, the answer as to who is responsible reverts back to the first point as to who owns and is responsible for the pipe.
Thirdly, if the lot is one of two in a two lot scheme and the rights under the Strata Schemes Management Act section 160 (4) have been implemented, the pipe, and therefore, the responsibility, will always remain with the lot owner.
This post appears in the August 2024 edition of The NSW Strata Magazine.
Scott Driscoll
Driscoll Strata Consulting
E: scott@driscollstrataconsulting.com.au
P: 0409 632 003
Hi Leanne,
My air conditioning outside unit in common property in strata apartment have been damaged
(someone damaged a part of air conditioner fins) but can I ask the body corporate to fix this?
Hi Leanne,
Does this apply to a/c installed (and paid for) by an individual owner?
Several of our townhouse owners have installed split-system air conditioners with their outside units on common property.
Some were fitted in the past 3 months but most predate the recent strata legislation changes.
For each case, would you be able to outline Owners Corporation responsibilities, if any.
Hi peter2
We have received the following reply back from leanne Habib, Premium Strata:
Generally speaking, in the absence of any by-law/resolution/registered memorandum to the contrary, anything on common property is common property and therefore the responsibility of the Owners Corporation. So, in all likelihood the external units installed on the common property will be the responsibility of the Owners Corporation and the internal components exclusively servicing the lot will be an individual’s responsibility.
Presumably, the Owners Corporation wishes to relieve itself of any responsibility for such installations. If so, the Owners Corporation may pass a special resolution under Section 106(3) of the SSMA 2015 that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
Alternatively, the Owners Corporation could make application to NCAT for orders for removal of all the air conditioning installations (because they were installed on the common property without being granted exclusive use rights or any licence).
Please confirm when you state “on the common property” you mean that they have installed the external unit outside the boundaries of their lot (ie not within the courtyard in which case the unit sits within the cubic air-space of the lot).