DO STATUTORY EASEMENTS ALLOW OWNERS TO DISREGARD THE BY-LAWS?
A 29-month dispute about the location of an owner’s air conditioning unit has been decided by the Queensland Civil and Administrative Tribunal, with the body corporate coming out on top.
The case went like this:
- The owner lived in an apartment with a balcony on level 8 in a high-rise building.
- The owner wanted to install a split system air conditioning unit with the compressor above a planter box on a common property wall.
- The scheme had the usual by-law that requires owners to obtain the consent of the Committee before installing an improvement on common property or a lot.
- The owner sent an email to the Committee and, about a week later, arranged for the installation of the split system unit on the common property wall (without having received consent from the Committee).
- The owner assumed it would have the benefit of a statutory easement to install the air conditioning unit on a common property wall.
- After the owner had installed the air conditioning unit, the Committee resolved to consent to the unit being installed on the owner’s balcony only, not the common property wall.
Fast forward 14 months and an adjudicator ordered the owner to remove the air conditioning unit.
Fast forward another 15 months and the Queensland Civil and Administrative Tribunal agreed with the adjudicator.
So where did the owner go wrong?
There were two places:
- installing the air conditioning unit on a common property wall without the prior consent of the committee; and
- misunderstanding the operation of statutory easements (the focus of this article).
A statutory easement is a right of way created by the law that allows a person or thing to use another person’s property.
The Land Title Act recognises the existence of an easement in favour of an owner against common property for air conditioning units supplying air conditioning to a lot (amongst other things).
This easement however only exists to the extent an easement is “reasonably necessary”.
An air conditioning unit installed in a particular location will only be “reasonably necessary” if the supply of air conditioning cannot be performed or achieved any other way, or if there is another way, that other way is not feasible or reasonably available.
Even if an easement does exist, that easement is still subject to the community management statement, which usually contains a by-law requiring an owner to obtain the prior approval of the body corporate.
So, in this owner’s case:
- it was decided that installing the air conditioning unit on the owner’s balcony could achieve the same result and was feasible and reasonably available, such that an easement did not exist; and
- if, however, an easement did exist, the owner was still required to obtain the committee’s consent, which it did not obtain.
What does all this mean?
The key takeaways for owners are:
- read your by-laws, and if there are by-laws that require you to obtain prior consent, wait until the committee has made their decision;
- do not assume that you will have the benefit of a statutory easement;
- if you cannot resolve any issues with your committee, as a last resort, the matter can be resolved through the adjudication process.
The key takeaways for committees are:
- a statutory easement does not override the scheme by-laws;
- whether a statutory easement exists should inform how a committee makes their decision whether to approve an improvement to a lot or common property.
There are many other examples and ways that easements operate in a body corporate, so it is always important to ensure that you obtain advice specific to your circumstances.
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Disclaimer – This article is provided for information purposes only and should not be regarded as legal advice.